Train More for Better Transparency in the Railways

A PIO recently revealed the cost of installing selfie booths at select railway stations with a cut-out of PM Modi.

All is not well with the Indian Railways, it seems. Recently, Loco Pilots belonging to the All India Loco Running Staff Association, submitted a detailed memorandum to the General Manager, South Zone demanding restriction of duty hours from the present 11/12 hours per person to the 10 hours stipulated in the rule book. Further, quoting from the International Labour Organisation (ILO) Convention R161 of 1979, they have demanded a weekly rest day available to all other workers of the national passenger-and-goods-transportation behemoth. More poignantly, they have also sought a reduction in the duration of their outstation stay from 72 hours to 48 hours to enable them to spend enough time with their families as other workers do.

How the Railways Ministry, which is increasingly catering to the better-off segments of society with Vande Bharat Expresses and their like at the expense of the aam janta which travels in the choc-a-bloc General Class and Sleeper Coaches- will respond to these demands, remains to be seen. Lest we forget, these ‘engine drivers’ keep India i.e., Bharat — from Kashmir to Kanyakumari — well connected and sufficiently provisioned but whose names we never get to know as there are no cabin crew announcements like those made on commercial flights. Their legitimate demands deserve attention and appropriate action.

But this piece is not about the labour woes of the Indian Railways. The top-level managers of this Lifeline to the Nation have suddenly become very concerned about its diminishing track record of transparency. A cautionary directive issued by the Secretary of the Railway Board towards the fag-end of 2023, requires all replies of public information officers (PIOs) to citizens under The Right to Information Act, 2005 (RTI Act) to be cleared by General Managers at the Zonal level and by Divisional Railway Managers (DRMs) at the Divisional level. Likewise, all decisions on first appeals issued by the designated first appellate authorities (FAAs) will have to be vetted by these very officers before they are despatched.

Explaining the basis for this missive, the directive pointed to the deteriorating quality of RTI replies given by Zonal offices and field units and their frequent failure to adhere to statutory timelines while so doing. These factors are apparently leading to an increase in the number of appeals filed before the FAAs and the Central Information Commission (CIC)- the second and final appellate authority under the RTI Act. Consequently, the Railways as an ‘Organisation’ was earning ‘disrepute’, the Secretary lamented.

The mass media labelled this internal directive, a knee-jerk response to the disclosure of certain information under the RTI Act which seems to have caused quite a bit of discomfort in multiple quarters in New Delhi. A PIO of the Central Railways (CR) revealed the cost of installing selfie points and selfie booths at select railway stations where passengers and visitors may click pictures of themselves alongside a cut-out of Prime Minister Narendra Modi, amongst other symbols of national pride displayed prominently on the platform. Interestingly, the RTI application was filed by a former employee of the Indian Railways. Opposition leaders criticised the expenditure on selfie points as a brazen waste of taxpayers’ money which could have been better deployed to improve the services provided to customers.

Shortly after this controversy hit the headlines, the media reported the transfer of a Chief Public Relations Officer (CPRO) of CR. They suspected a witch hunt within the ‘Organisation’ for revealing information that the Opposition was using to score brownie points. However, truth be told, the RTI reply, which is accessible on social media, is signed by the designated PIO who continues to remain in that position at the time of writing this piece. Was the CPRO shunted out for failing to contain the adverse publicity generated, one does not know. Perhaps one might never get to know what led to that transfer. This is because the reason for the transfer of an officer is rarely recorded and even if it were, the citizenry would have difficulty accessing it, thanks to a bunch of conservative orders and judgments issued by the Supreme Court of India which guarantee such information the cover of confidentiality.

But has the Indian Railways’ track record of transparency deteriorated? Those of us who are outside the ‘Organisation’ would be able to comment on it, if we had access to the RTI applications it receives and the replies its PIOs issue from time to time. Despite being one of the first public authorities under the Union Government to publish its RTI applications and replies on a dedicated website, the Indian Railways stopped this practice a few years ago. So now we can make an assessment only by examining the RTI statistics published in the CIC’s annual reports (ARs).

What Does the Trend With Regard to Receipt of RTI Applications Demonstrate?

The Railways Ministry has always been among the top five Ministries under the Union Government that receive the highest number of RTI applications year after year. From a meagre 75,860 RTI applications reported in the year 2012-13 to more than 1.89 lakh information requests clocked in 2022-23- there has been a decadal growth of almost 150 per cent. In other words, the Railways Ministry received a little more than 1 of every 10 RTIs (11.57 per cent) filed with the Union Government in 2022-23. Figure #1 below displays the year-wise number of RTI applications received by this Ministry according to the data published in the CIC’s ARs:

The percentage of rejection of RTI applications at the PIO stage has ranged between 1-2 per cent during the period between 2012-13 and 2022-23 with the exception of an unexplained blip of 4.30 per cent rejection in 2014-15. See Figure #2 below:

However, the 2014-15 figure is not reliable because the total number of RTIs reported that year was uncharacteristically low which might be due to the failure of all PIOs to report their RTI statistics to the CIC faithfully. Even though there was a 30 per cent increase in the number of RTIs received in 2022-23 over the 2021-22 figure, the percentage of rejection actually fell from 1.33 per cent (1,815) in 2021-22 to 0.96 per cent in 2022-23 (1,631).

So, the first justification contained in the December 2023 directive that rejections have increased is not supported by the RTI application statistics that Indian Railways has furnished to the CIC.

What Does the Trend With Regard to the Receipt of First Appeals Demonstrate?

The RTI statistics published in the CIC’s ARs do not capture data with regard to the timeliness or otherwise of the disposal of RTI applications or first appeals. So, it is not possible to comment on the phenomenon of late disposal of RTIs noted in the December 2023 directive. However, the number of first appeals filed with the FAAs indicates to some extent the dissatisfaction levels among RTI applicants. Almost every year, the number of first appeals filed by a large number of public authorities is higher than the percentage of rejections reported by them. So too with the Railways Ministry. From a low of 9,042 first appeals reported in 2012-13, the figure reached 16,218 in 2022-23. Yet, this figure is less than the all-time high number of first appeals (16,443) reported in 2019-20. See Figure #3 below for the trend with regard to the filing of first appeals with the Indian Railways since 2012-13:

So, the second justification contained in the December 2023 directive that the number of first appeals has increased is also not supported by the RTI appeals statistics that Indian Railways has furnished to the CIC.

What Does the Trend With Regard to the Disposal of First Appeals Demonstrate?

A first appeal may be filed under Section 19(1) of the RTI Act with the FAA if an RTI applicant is unhappy with the quality or the quantity of information furnished by the PIO or if the PIO simply fails to send any reply within the stipulated period of 30 days. From a low of 96 FAAs designated in 2012-13, the Railways Ministry increased their number to 506, in 2022-23, to deal with the first appeals. In 2012-13, the FAAs disposed of 9,014 of the 9,042 first appeals received. So, on average, each FAA disposed of 93.90 first appeals that year. However, it must be pointed out that the workload of all FAAs would not be uniform- some would have to deal with more first appeals than the others depending upon how many of them were actually filed with each FAA. In 2022-23, the FAAs disposed of 12,382 of the 16,218 first appeals received- a very perceptible increase in disposal volumes, no doubt. But the average number of disposals per FAA fell drastically to 24.47. See Figure#4 below for the decadal trend with regard to the average number of first appeals disposed per FAA:

In fact, the average number of disposals of first appeals per FAA was at an all-time low in 2022- 23. So, the third justification contained in the December 2023 directive that the workload of FAAs has increased due to the shoddy manner in which PIOs are dealing with RTI applications is also not supported by the RTI appeals statistics that Indian Railways has furnished to the CIC.

What Does the Trend With Regard to the Filing of Second Appeals Demonstrate?

A citizen who is not satisfied with the outcome of the first appeals process may submit a second appeal with the CIC against any public authority under the Union Government. The Railways Ministry has always figured in the top five list of Ministries against which the maximum number of second appeals are submitted year after year. The CIC started publishing ministry-wise data of second appeals received only in 2015-16. In that year the CIC received 2,061 second appeals against the decisions taken by the PIOs/FAAs of the Railways Ministry. Interestingly, in 2022-23 the CIC had received only 1,402 second appeals from this Ministry - a decline of 32 per cent. See Figure# 5 below for the trends with regard to the submission of second appeals to the CIC:

Obviously, the second appeals data for 2022-23 does indicate a 2.94 per cent increase (40 cases more) in the number of second appeals filed with the CIC as compared with the 2021-22 figure. However, the figure is way below the pre-COVID pandemic period (1,780 cases in 2019-20). So, the fourth justification contained in the December 2023 directive that the workload of the CIC has increased due to the shoddy manner in which PIOs and FAAs are dealing with RTI applications and first appeals respectively is also not supported by the RTI appeals statistics that Indian Railways has furnished to the CIC.

Can Senior Officers Interfere With the Work of the PIOs and FAAs?

The December 2023 directive seeks to empower the General Managers at the Zonal level and the DRMs at the Divisional level to second-guess the PIOs and the FAAs and permit them to issue replies to RTI applications or orders on first appeals, only with prior approval. This is a typical colonial bureaucratic approach where the devolution of authority does not always accompany the devolution of administrative responsibilities. It also indicates a trust deficit between the senior and subordinate levels of the bureaucracy. While such supervision might be the long-established norm with regard to the manner of arriving at decisions in the Railways Ministry (as it is in most other ministries and even the district-level and sub-district level bureaucracy in the States) the RTI Act lays down a different approach to decision-making on RTI applications and appeals.

Although the PIOs and the FAAs act in an administrative capacity as the point-person of their respective public authorities for the disposal of RTI applications and appeals, they are essentially clothed with statutory powers provided by the RTI Act for this purpose. When they act as PIOs or FAAs under the RTI Act, they perform quasi-judicial functions. In so doing they are not bound by the administrative instructions or advice of their superiors. This is because they are personally liable for their decisions. The PIO can be penalised on several grounds for contravening the RTI Act. So the disposal of RTIs is their statutory responsibility with which no senior officer is permitted to interfere as their administrative superior. There is authority to support this interpretation of the manner in which Pios and FAAs are required to perform their statutory obligations under the RTI Act.

For example, in the matter of R K Jain vs Chairman, Income Tax Settlement Commission & Ors., W.P. (C) No. 2939/2014, judgment dated 05/12/2014, the Hon. High Court of Delhi set aside the administrative orders issued by a senior officer seeking to nullify the PIO’s orders, in the following words:

“6. It is not disputed that the orders dated 26.09.2013 and 21.10.2013 were orders passed under the RTI Act and in that sense were in exercise of statutory powers. I am unable to accept that such orders passed in exercise of statutory powers could be declared as a nullity or void by an administrative order without recourse to the hierarchy of authorities as specified in the statute – the RTI Act. In the event, the respondent no.1 was of the view that the orders passed by respondent nos.2 & 4 were without authority of law, the proper and the only course would be to file an appeal before the Central Information Commission (hereafter the ‘CIC’) or any other competent judicial forum. However, the said orders could not be nullified by an administrative order.”

So even though the December 2023 directive is not an administrative order issued to set aside a particular decision of any PIO of the Railways Ministry, the principle on which it can be objected is the same which the Hon. High Court had expressed above. No administrative authority may interfere with the exercise of statutory powers by a designated authority except by way of an appeal under Section 19(1) of the RTI Act. Here too, such an interfering authority must be the designated FAA. Further, he/she can interfere with the PIO’s order only when a first appeal is submitted by the aggrieved RTI applicant or a third party about whom the information disclosure is sought to be made according to the procedure provided in Section 11 of the RTI Act. No other course of action to nullify the PIO’s order is valid under the RTI Act.

Further, Section 23 bars even Courts from interfering with any order issued by the PIO. High Courts have also refused to interfere in RTI-related matters until all appeal procedures provided under the Act are exhausted by the aggrieved person. On this count as well, the December 2023 directive amounts to administrative overreach.

Conclusion

All said, without doubt, the Railways Ministry being a public authority under the RTI Act has all the statutory powers to ensure its effective implementation within its jurisdiction. However, those powers do not extend to interfering with the scheme of the Act and the procedures laid down by it. If the senior management is so concerned about the manner of disposal of RTI applications and first appeals, it must designate such senior officers of the Railways in whom it has complete confidence to perform the functions of the PIO and the FAA. This is the best way to ensure that the RTI Act’s provisions are implemented with due application of mind in letter and spirit and that ‘embarrassing situations’ are avoided.

It would be apt to cite Justice P N Bhagwati’s (as he then was) views on whether ‘embarrassment’ to the government or anybody in government is a necessary factor for consideration while making a decision about the disclosure of information contained in official records. In the Constitution Bench matter of S. P. Gupta vs President of India, [AIR 1982 SC149] Justice Bhagwati, in a separate opinion on the issue of transfers of Additional Judges of High Courts, opined as follows:

“It is axiomatic that every action of the government must be actuated by public interest but even so we find cases, though not many, where governmental action is taken not for public good but for personal gain or other extraneous considerations. Sometimes governmental action is influenced by political and other motivations and pressures... At times, there are also instances of misuse or abuse of authority on the part of the executive. Now, if secrecy were to be observed in the functioning of government and the processes of government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability. But if there is an open government with means, of information available to the public there would be greater exposure of the functioning of government and it would help to assure the people a better and more efficient administration. There can be little doubt that' exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open government is clean government and a powerful safeguard against political and administrative aberration and inefficiency...

Where the State is a party to an action in which disclosure of a document is sought by the opposite party, it is possible that the decision to withhold the document may be influenced by the apprehension that such disclosure may adversely affect the head of the department or the department itself or the minister or even the Government or that it may provoke public criticism or censure in the legislature or in the press, but it is essential that such considerations should be totally kept out in reaching the decision whether or not to disclose the document. So also the effect of the document on the ultimate course of the litigation whether its disclosure would hurt the State in its defence should have no relevance in making a claim for immunity against disclosure. The sole and only consideration must be whether the disclosure of the document would be detrimental to public interest in the particular case before the Court...” [emphasis supplied].

Perhaps a refresher course regarding the manner of interpretation and implementation of the RTI Act as progressively interpreted by our Constitutional Courts is in order for the senior management of the Railways Ministry. Any expenditure incurred on such training courses is not likely to be criticised as a waste of the taxpayers’ money.

(Venkatesh Nayak is Director, Commonwealth Human Rights Initiative, New Delhi. Views are personal.)