Editorials/Opinions Analyses For UPSC 30 August 2021

Contents

1. 105th Amendment: How was the backward classes policy restored?
2. Towards a more humane police force

105th Amendment: How was the backward classes policy restored?

Context:

With the passing of the 127th Constitution Amendment Bill, 2021 in Lok Sabha and its receiving assent from the President – the 105th Constitution Amendment will now be restoring to the States their power to identify socially and educationally backward classes is fully operational.

Relevance:

GS-II: Social Justice and Governance (Issues related to Minorities, Government Policies and Interventions, Social Empowerment)

Dimensions of the Article:

1. Constitutional provisions relating to reservation
2. About the Constitutional 127th Amendment Bill, 2021 (105th Amendment)
3. Significance of the 105th Amendment 

Constitutional provisions relating to reservation

• As per the Indian Constitution, Articles 15 (4), 15 (5), and 16 (4) confer power on the governments to declare and identify the list of socially and educationally backward classes.
• As a practice, separate OBC lists are drawn up by the Central Government and each State concerned.

102nd Constitutional Amendment:

• The Amendment established a National Commission for Backward Classes by adding Article 338B to the Constitution.
• The Amendment also added Article 342A, under which the President shall notify a list of Socially and Economically Backward Classes (SEBC) in relation to each State and Union Territory, in consultation with Governors of the respective States. Once this ‘Central List’ is notified, only Parliament could make inclusions or exclusions in the list by law.

Supreme Court Verdict in the Maratha reservation issue

• While holding the Maratha reservation unconstitutional, the Constitution Bench of the Supreme Court also dealt with the issue of the 102nd Constitution Amendment.
• The SC upheld the 102nd Constitutional Amendment Act that inserted Articles 338B and 342 A.
• The constitutional bench had ruled that after the passage of the 102nd Constitution Amendment Act in 2018, the States do not have any power to identify ‘socially and educationally backward’ (SEBC) classes and this power lay in the hands of only the Union government.

About the Constitutional 127th Amendment Bill, 2021 (105th Amendment)

• The Constitutional 105th Amendment will amend clauses 1 and 2 of Article 342A and also introduce a new clause 3. The bill will also amend the Articles 366 (26c) and 338B (9).
• It is designed to clarify that the states can maintain the “state list” of OBCs as was the system before the Supreme Court judgement.
• The “state list” will be completely taken out of the ambit of the President and will be notified by the state assembly.
• As per the Indian Constitution, Articles 15 (4), 15 (5), and 16 (4) confer power on the State Government to declare and identify the list of socially and educationally backward classes. As a practice, separate OBC lists are drawn up by the Central Government and each State concerned.

Significance of the 105th Amendment 

• The Bill seeks to restore the power of State governments to identify OBCs that are socially and educationally backward.
• The Union government’s argument has been that the intent of the 102nd amendment was only to create a Central List that would be applied only in the Central government and its institutions. It had nothing to do with the State Lists of backward classes or the State governments’ powers to declare a community backward.
• The bill will benefit around 671 OBC communities because if the state list had been abolished, nearly 671 OBC communities would have lost access to reservations in educational institutions and in appointments.

Calls for removal of 50% cap on reservations:

• During the discussions on the proposed amendment, there were calls from lawmakers across parties to remove the 50% ceiling in reservations.
• In the 1992 Indra Sawhney & Others v. Union of India judgment, the Supreme Court had imposed a ceiling of 50 per cent for reservation quota.
• Notably, at least three Indian States – Haryana, Tamil Nadu, and Chhattisgarh – have introduced quotas that breach the total 50% ceiling. On the other hand, states like Gujarat, Rajasthan, Jharkhand, and Karnataka have asked the Supreme Court to hike the quota ceiling.
• The SC in the Maratha reservation issue had held that extending the 50% limit would be tantamount to establishing a society based on caste rule rather than one founded on equality. It reiterated that reservation under Article 16(4) should not exceed 50% except in extraordinary circumstances.

Why did the opposition support the amendment bill?

• The opposition in Parliament stated that it will extend its support to the 127th Constitution Amendment Bill which gives power to the States to identify the OBCs.
• The amendment bill has political ramifications as restoring powers of State Governments to identify the backward classes has been demanded by many regional parties.
• The ruling BJP and the opposition parties, including Congress plans to get support among OBC communities in poll-bound states, particularly in politically crucial Uttar Pradesh.
• The political angle of the bill has forced the opposition parties to be on the same page as the Ruling party.

-Source: The Hindu

Towards a more humane police force

Context:

Recently, Chief Justice of India N.V. Ramana expressed concern at the degree of human rights violations in police stations in the country. 

Relevance:

GS-II: Polity and Governance (Constitutional Provisions and Historical Underpinnings, Government Policies and Interventions)

Dimensions of the Article:

1. About Custodial Deaths
2. Various Commissions and their recommendations on Police Reforms 
3. Steps to counter custodial violence

About Custodial Deaths

• Custodial death is the demise of an individual when he is detained or when he is under the custody of the Police Authorities.
• Studies show that deaths in police custody occur primarily as a result of torture.
• Three in every four died due to alleged torture or foul play, and many died in suspicious circumstances with the police claiming they either committed suicide or died of illness or accident.
• Reports also say that the practice of torturing suspects in police custody to punish them, gather information, extract confessions, or demand bribes, was rampant.

Key Data on Custodial Deaths: 

• According to the Crime in India report by the National Crime Records Bureau (NCRB), 70 people died in police custody in 2018 – (Highest recorded in Gujrat Followed by Tamil Nadu).
• The numbers increased as in 2019, at least 117 deaths in police custody were reported to National Human Rights Commission (NHRC).
• As per the National Crime Records Bureau (NCRB) data, though the number of custodial deaths varies year to year, on average, about 100 custodial deaths have taken place every year between 2010 and 2019.
• Of the 100 average cases, about 3.5 persons allegedly died due to injuries caused by policemen and can be attributed to custodial violence.

Punishment and training

• NCRB data for 2018 shows that even as 89 cases were registered against police personnel for human rights violations such as custodial killings and illegal detentions, not a single one was convicted of the crime.
• Findings from the Status of Policing in India report showed that the police in India suffers from inadequacies and biases which might lead to such behaviour.
• The report showed that more than 10% police personnel never receive human rights training.
• Even among the personnel who received training in human rights, a majority said it was only at the time of joining the police force.

Various Commissions and their recommendations on Police Reforms 

1. Gore committee on police training (1971-73) – recommended to enlarge the content of police training from law and order and crime prevention to a greater sensitivity and understanding of human behaviour.
2. National police commission 1977 – recommended insulating the police from illegitimate political and bureaucratic interference.
3. Padmanabhaiah Committee 2000 – recommended that constables, and the police force in general, should receive greater training in soft skills (such as communication, counselling and leadership) given they need to deal with the public regularly.
4. The ARC recommended separation of crime investigation from other police functions i-e maintenance of law and order, establishment of state police boards, welfare and grievances redressal mechanisms for police personnel.
5. Prakash Singh vs Union of India case directed the government to constitute –
   • State Security Commission (SSC) to ensure that state government does not exercise unwarranted influence or pressure on the police.
   • Police Establishment Board (PEB) – made up of the DGP and four senior officers – to decide transfers, postings, promotions and other service related matters of police, for the rank below DSP.
   • Police Complaints Authority (PCA) at state level to inquire into public complaints against police officers of above the rank of Deputy Superintendent of Police.
   • National Security Commission (NSC) at the union level to prepare a panel for selection and placement of Chiefs of the Central Police Organizations (CPO) with a minimum tenure of two years.

CLICK HERE TO READ ABOUT : Torture as a part of Indian Police culture, Legislations, Reports and Méndez Principles

Steps to counter custodial violence

1. Reducing arrests: The most important measure to reduce instances of custodial violence would be to reduce the number of arrests. This would help reduce the chances of violence in custody. Despite clearly defined laws and judicial precedents (Arnesh Kumar v. State of Bihar, 2014) which mandate arrest only in certain circumstances, the police have resorted to unnecessary arrests at times. The Supreme Court in a recent judgment held that each arrest must be necessary and justified and that having the authority to arrest is alone not sufficient.
2. The investigative functions and the maintenance of law and order functions of the police should be clearly demarcated and preferably separate forces should be allocated. The separate investigative wing will do more professional investigation and will not use unwarranted methods like torture to extract a confession from the accused. This has been recommended by various commissions and committees as well like the National Police Commission (1977-81), the Law Commission in its 154th report (1996) and the Malimath Committee Report (2003) and even the Supreme Court in Prakash Singh v. Union of India (2006).
3. The Supreme Court, in its judgement of the D.K. Basu v. State of West Bengal (1996) case had laid down guidelines to check custodial torture and increase transparency and responsibility of the police officer effecting an arrest, such as: 
4. Mandatory providing of information to a friend or relative about the arrest
5. Compulsory medical examination
6. Permission to meet a lawyer
7. The lack of effective legal representation at police stations leads to a lack of accountability on the part of the police officers and this becomes a huge detriment to arrested or detained persons. Installation of CCTV cameras in police stations will help in checking the violation of human rights in police stations. Mandatory storage facility of audio-video recording for 18 months must be ensured.
8. The police officers guilty of custodial violence must be punished severely after a thorough and time-bound judicial inquiry. A swift and severe punishment will act as a deterrent to police officers.
9. The police officers must be sensitised regularly on the issue of custodial violence and be encouraged to employ scientific tools of interrogation like the lie detection test, narco test and brain fingerprinting test.

-Source: The Hindu