1. In the hopes for a clear blue sky

How far back does Delhi’s air pollution problem go? What policy measures have been taken over the decades by the Union and State governments? What are the major pollutants contributing to the increased PM2.5 levels in the capital? Have the measures taken by the State been effective?

The National Ambient Air Quality Standards were revised in 2009 to include 12 categories of pollutants including PM2.5 (particulate matter with a diameter under 2.5 microns) — a noxious pollutant which can penetrate deep into the lungs and even enter the bloodstream, resulting in cardiovascular and respiratory impacts.

Multiple studies over the years, including the Delhi Pollution Control Committee’s (DPCC) 2019 report by IIT Delhi and Madras experts, found that the rapid growth in Delhi’s population, industrialisation and urbanisation, and increase in motorised private vehicle fleet led to the high concentration of air pollutants.

One major argument for the failure to tackle Delhi’s pollution problems is that a large proportion of these polluting sources are present all year round and high pollution levels are mainly witnessed in winter months due to unfavourable meteorological conditions, meaning stop-gap and seasonal measures often yield unsatisfactory outcomes.

Diksha Munjal

The story so far:

Last week, Delhi was once again covered in a haze of smog— witnessing very poor air quality, a phenomenon that has become a trend during the winter months. As the situation becomes an annually recurring one, here’s a look at how far back it goes and what policies have been adopted by the Centre and Delhi’s elected governments to curb air pollution over the years.

When did Delhi start acting against air pollution?

In March 1995, the Supreme Court, while hearing a plea by environmentalist and lawyer M.C. Mehta about Delhi’s polluting industries, noted that Delhi was the world’s fourth most polluted city in terms of concentration of suspended particulate matter (SPM) in the ambient atmosphere as per the World Health Organization’s 1989 report. The Court took note of two polluting factors — vehicles and industries, and in 1996 ordered the closure and relocation of over 1,300 highly-polluting industries from Delhi’s residential areas beyond the National Capital Region (NCR) in a phased manner. In 1996, Mr. Mehta filed another public interest litigation (PIL) alleging that vehicular emissions were leading to air pollution and that it posed a public health hazard. In the same year, a report about Delhi’s air pollution by the Centre for Science and Environment made the apex court issue a notice to the Delhi government to submit an action plan to curb pollution. Both matters were later merged.

Later that year, the Delhi government submitted an action plan. The Supreme Court, recognising the need for technical assistance and advice in decision-making and implementation of its orders, asked the Ministry of Environment and Forests (now the Ministry of Environment, Forests, and Climate Change — MoEFCC) to establish an authority for Delhi, leading to the creation of the Environmental Pollution Control Authority of Delhi NCR (EPCA) in 1998. The EPCA submitted its report containing a two-year action plan in June of that year and the Supreme Court subsequently ordered the Delhi Trasport Corporation (DTC) bus fleet, taxis, and autos to switch to Compressed Natural Gas (CNG), and the phasing out of all pre-1990 autos. Other measures between the late 1990s and early 2000s included the complete removal of leaded petrol, removal of 15 and 17-year-old commercial vehicles and a cap of 55,000 on the number of two-stroke engine auto rickshaws (which reports at the time said were contributing to 80% of pollution in the city). Coal-based power plants within Delhi were also converted to gas-based ones.

Around the same time, the Centre decided to establish a network of monitoring stations under the National Air Quality Programme (NAMP) to measure key pollutants. Under the National Ambient Air Quality Standards (NAAQS) specified by the Central Pollution Control Board (CPCB), pollutants like PM10 (particulate matter with a diameter exceeding 10 microns), sulphur dioxide and nitrogen oxides were measured.

How were air quality standards revised?

The NAAQS were revised in 2009 to include 12 categories of pollutants including PM2.5 (particulate matter with a diameter under 2.5 microns) — a noxious pollutant which can penetrate deep into the lungs and even enter the bloodstream, resulting in cardiovascular and respiratory impacts. Particulate Matter (PM) is primarily generated by fuel combustion from different sectors, including transport, energy, households, industry and agriculture.

According to the revised NAAQS, the acceptable annual limit for PM2.5 is 40 micrograms per cubic metre (ug/m3) and 60 ug/m3 for PM10. The renewed WHO standards meanwhile, prescribe an accepted annual average of 5 ug/m3 for PM2.5 and 15 ug/m3 for PM10.

While PM2.5 as a pollutant was only included in 2009, a computer modelling study by UrbanEmissions.Info re-analysed the pan-India PM2.5 concentration from 1998 to 2020 and found that Delhi was the most polluted of all States/UTs each year through all the 23 years. Delhi’s annual PM2.5 levels increased by 40% from 80 g/m3 to 111 g/m3. Another study by the U.S.-based Health Effects Institute released this year, studying data between 2010 and 2019, also found Delhi to be the most polluted city in the world in terms of PM2.5 levels.

In the winter of 2016, Delhi witnessed one of its worst incidents of pollution-induced smog, with PM2.5 and PM10 levels reaching a whopping 999 ug/m3 in parts of Delhi on November 1.

Subsequently, the Supreme Court in November 2016 told Delhi and NCR authorities to form a plan to deal with the air pollution, and the MoEFCC in early 2017 came out with the Graded Response Action Plan (GRAP), which involved coordination between multiple agencies in Delhi to activate pollution control measures corresponding to the increasing Air Quality Index (AQI) levels.

What led to high pollution in Delhi?

Multiple studies over the years, including the Delhi Pollution Control Committee’s (DPCC) 2019 report by IIT Delhi and Madras experts, found that the rapid growth in Delhi’s population, industrialisation and urbanisation, and increase in motorised private vehicle fleet led to the high concentration of air pollutants such as particulate matter, nitrogen oxides, sulphur dioxide, carbon monoxide, and ozone.

Between 2001 and 2011, Delhi saw a population spurt from 1.378 crore to 1.678 crore. As of 2011, the population of Delhi and NCR was 25.8 million or 7.6% of India’s urban population. While Delhi’s total area is 1,483 square kilometres (sq km), the population density grew from 9,340 persons per sq km in 2001 to 11,320 persons per sq km in 2011. From around 4.2 million motor vehicles registered in 2004 in Delhi alone, the registered vehicles increased to around 10.9 million in March 2018.

While multiple polluting industries were moved out of Delhi in the 1990s, it still has one of the biggest clusters of small-scale industries. The CPCB notes that several of Delhi’s polluting industrial clusters do not meet air, water, and soil standards. The Najafgarh drain basin, which houses multiple industrial areas, is the most polluted cluster in India with its air and water being in the ‘critical’ category.

What are the measures taken to tackle major polluters?

UrbanEmissions.Info combined officially available information and its modelling studies to infer that the share of vehicular exhaust contributing to Delhi’s PM2.5 pollution is up to 30% while soil and road dust is up to 20%, biomass burning is 20%, industries is up to 15%, diesel generators up to 10%, power plants up to 5% and notably, the share of pollution from outside Delhi’s urban airshed (like stubble burning in neighbouring States) is up to 30%.

Multiple researchers have alleged that the policy approach and measures taken by the Central and State authorities for specific polluting sectors over the years have been fragmented and often reactive. IIT-Bombay professor Vinish Kathuria noted in the Economic and Political Weekly that the 2002 public transport overhaul to CNG did not yield the desired results. While SPM and PM10 levels fell marginally, carbon monoxide levels increased.

Meanwhile, due to the Supreme Court’s 55,000 cap on two-stroke auto rickshaws, the sector could not grow, leading to black marketing of permits. Studies note that between 1997 and 2011, Delhi’s population grew by 45% and registered cars and two-wheelers grew by 250%, meaning the lower availability of autos could have likely contributed to increased private vehicle ownership. Besides, Delhi still does not have the required public bus fleet vis-a-vis demand.

Researchers have also noted challenges with newer policies like the odd-even vehicular rationing rule applying only to private vehicles. A study by IIT Delhi’s Rahul Goel noted that although vehicular emissions contribute 25% to Delhi’s PM2.5 levels, passenger vehicles contribute just 8%, of which cars constitute 5%. This means that if all passenger vehicles within Delhi stopped operating, PM2.5 levels would reduce by an average of 8%, but the remaining 17%, contributed by heavy freight vehicles, would remain as it is not covered under the odd-even rule.

Experts also point out that a coordinated response factoring in Delhi’s waste management has to be taken to reduce air pollution.

While the daily waste generation rate in Delhi is over 10,000 tons, the capacity of its already overflowing landfills to collect and manage garbage is under 6,000 tons. This leads to the practice of burning waste around residential areas. Reports show that garbage is also burnt illegally in landfills when curbs are in place.

As for the burning of farm residue or stubble in Delhi’s neighbouring States — Haryana, Punjab, Uttar Pradesh, and Rajasthan — researchers have emphasised the need for airshed management, along with improved machinery subsidies from the government and alternatives to crop burning. An airshed is a common geographic area where pollutants get trapped.

One major argument for the failure to tackle Delhi’s pollution problems is that a large proportion of these polluting sources are present all year round and high pollution levels are mainly witnessed in winter months due to unfavourable meteorological conditions, meaning stop-gap and seasonal measures often yield unsatisfactory outcomes.

2. Level of groundwater extraction lowest in 18 years, finds study

Total groundwater recharge was 437.6 billion cubic metres, as opposed to extraction of 239.16 bcm, reports Ministry of Water Resources

Groundwater extraction in India saw an 18-year decline, according to an assessment by the Central Ground Water Board (CGWB) made public on Wednesday.

The total annual groundwater recharge for the entire country is 437.6 billion cubic metres (bcm) and annual groundwater extraction for the entire country is 239.16 bcm, according to the 2022 assessment report. Further, out of the total 7,089 assessment units in the country, 1,006 units have been categorised as “over-exploited” in the report.

By comparison, an assessment in 2020 found that the annual groundwater recharge was 436 bcm and extraction 245 bcm. In 2017, recharge was 432 bcm and extraction 249 bcm. The 2022 assessment suggests that groundwater extraction is the lowest since 2004, when it was 231 bcm.

Such joint exercises between the CGWB and States/Union Territories were carried out earlier in 1980, 1995, 2004, 2009, 2011, 2013, 2017 and 2020.

“A detailed analysis of the information collected from the assessment indicates increase in ground water recharge which may mainly be attributed to increase in recharge from canal seepage, return flow of irrigation water and recharges from water bodies/tanks & water conservation structures. Further, analysis indicates improvement in ground water conditions in 909 assessment units in the country when compared with 2017 assessment data. In addition, overall decrease in number of over-exploited units and decrease in stage of groundwater extraction level have also been observed,” the Ministry of Water Resources said in a statement.

Groundwater Depletion in India

The theme of this year’s World Water Day was ‘Groundwater: Making the Invisible Visible’. The primary focus is to draw attention to the role of groundwater in water and sanitation systems, agriculture, industry, ecosystems, and climate change adaptation. Groundwater helps reduce the risk of temporary water shortage and caters to the needs of arid and semiarid regions, but its value has not been fully recognized in policymaking. Due to its high storage capacity, groundwater is more resilient to the effects of climate change than surface water. The international conference on ‘Groundwater, Key to the Sustainable Development Goals’ and the UN­Water Summit on Groundwater are part of global initiatives to highlight the significance of groundwater in sustainable development.

Important Facts

• Estimates: 85% of the rural and 50% of the urban population in India is dependent on groundwater for fulfilling their needs.
• With an annual groundwater extraction of 248.69 billion cubic meters (2017), India is among the largest users of groundwater in the world.
• Almost 89% of the groundwater extracted is used for irrigation and the rest for domestic and industrial use (9% and 2%).
• High water stress: India is one of 17 countries facing extremely high-water stress, according to a report by the World Resources Institute.
  • According to the Fifth Minor Irrigation Census, the groundwater level in India has declined by 61 percent between 2007 and 2017. It was further observed that more than 1,000 blocks in India have become water-stressed.
• Composite Water Management Index (CWMI), 2018 by NITI Aayog: The water demand will exceed the supply by 2050. Groundwater in India depleted at 10-25 mm per year between 2002 and 2016.
  • 54 percent of India’s groundwater wells are declining.
  • It added that about 40% of India’s population possibly would have no access to drinking water by 2030.
• Extraction value: According to the Central Ground Water Board, the annual groundwater withdrawal is considered to be safe when the extraction rate is limited to below 70% of the annual replenishable recharge.
  • Available data indicate that the level of extraction for the country in 2017 was 63%, from 58% in 2004.
• Variation across regions: However, the level varied across regions. Punjab, Rajasthan, Haryana, Delhi, Chandigarh, Himachal Pradesh, Tamil Nadu, and Puducherry have crossed the 70% mark.
  • Of 534 districts in 22 States/UTs, 202 districts had stage of extraction ranging from 71% to 385%. NITI Aayog has set the 70% extraction value as the target to be achieved by 2030.
  • Recent studies suggest that groundwater levels are declining in several parts of northern India, especially in regions of high population densities.
• Quality concern: A quantity­ wise safe district may be vulnerable due to deterioration of water quality. Fluoride, iron, salinity, nitrate, and arsenic contamination are major problems.
  • As many as 335 districts reported nitrate pollution compared to 109 in 2006. A high level of nitrate affects human health.
  • Sources of nitrates are mainly anthropogenic and depend on local actions.
  • Biological contamination has also been reported from different parts of the country.

Reasons for Depletion

• Increased demand for water for domestic, industrial and agricultural needs and limited surface water resources lead to the over-exploitation of groundwater resources.
• Limited storage facilities owing to the hard rock terrain, along with the added disadvantage of lack of rainfall, especially in central Indian states.
• Green Revolution enabled water-intensive crops to be grown in drought-prone/ water deficit regions, leading to over-extraction of groundwater.
• Frequent pumping of water from the ground without waiting for its replenishment leads to quick depletion.
• Subsidies on electricity and high MSP for water-intensive crops is also leading reasons for depletion.
• Water contamination as in the case of pollution by landfills, septic tanks, leaky underground gas tanks, and overuse of fertilizers and pesticides leads to damage and depletion of groundwater resources.
• Inadequate regulation of groundwater laws encourages the exhaustion of groundwater resources without any penalty.
• Deforestation, unscientific methods of agriculture, chemical effluents from industries, and lack of sanitation also lead to pollution of groundwater, making it unusable.
• Natural causes include uneven rainfall and climate change that are hindering the process of groundwater recharge.

Impact

• Lowering of the water table: Groundwater depletion may lower the water table leading to difficulty in extracting groundwater for usage.
• Reduction of water in streams and lakes: A substantial amount of the water flowing in rivers comes from seepage of groundwater into the streambed. Depletion of groundwater levels may reduce water flow in such streams.
• Subsidence of land: Groundwater often provides support to the soil. When this balance is altered by taking out the water, the soil collapses, compacts, and drops leading to subsidence of land.
• Increased cost for water extraction: As the depleting groundwater levels lower the water table, the user has to delve deep to extract water. This will increase the cost of water extraction.
• Contamination of groundwater: Groundwater that is deep within the ground often intermingles with saltwater that we shouldn’t drink.

• Constraints in food supply: If groundwater availability faces difficulties, then there will be hindrances in agricultural production leading to a shortage of food.
• Limitations to biodiversity and creation of sinkholes: Water table plays a major role in sustaining biodiversity. Often, sinkholes are created when the water table lowers. These sinkholes are dangerous for buildings and towers.

Policy challenges

• Estimation of groundwater resources: There is a lack of data available for estimation of groundwater sources and even if they are available, they are indicative and not representative.
• Crop pricing and water-intensive crops: Decisions such as cropping pattern and cropping intensity are taken independent of the groundwater availability in most areas.
  • Minimum Support Price (MSP) is also available for water-intensive crops leading to widespread cultivation of such crops.
• Energy subsidies: The challenge is to find a balance between the needs of farmers and the need to ensure the sustainable use of groundwater.
• Inadequate regulation: Lack of proper regulations and their further implementation has been one of the major challenges in managing groundwater levels in India.
• Lack of local management: There is a lack of local management of groundwater resources. Local communities have an important role to play in groundwater management and there is a need for devolution of power for local management of such resources.

Government initiatives

(1) National Water Policy (2012) by Department of Water Resources, River Development & Ganga Rejuvenation. The policy advocates –

• Rainwater harvesting and conservation of water.
• Highlights the need for augmenting the availability of water through direct use of rainfall.
• Conservation of river, river bodies and infrastructure in a scientifically planned manner through community participation.

(2) Creation of a new Ministry of Jal Shakti for dealing with all matters relating to water at one place in an integrated manner.

(3) Atal Bhujal Yojana (Atal Jal): It is a Central Sector Scheme, for sustainable management of groundwater resources with community participation in water-stressed blocks.

(4) Mass awareness programs (Training, Seminars, Workshops, Exhibitions, Trade Fares and Painting Competitions, etc.) are conducted from time to time each year under the Information, Education & Communication (IEC) Scheme.

 (5) Encouraging farmers to adopt micro-irrigation techniques such as drip irrigation and micro-sprinklers.

• The government has initiated schemes like the DRIP program, more drop per crop, Krishi Sinchai Yojana to ensure economical water use practices in agriculture.

(6) Use of tensiometer: The tensiometer gives visual information about the availability of soil moisture conditions. Irrigating the field based on this information will help conserve groundwater.

3. Editorial-1: The EWS judgment and the shadow of Pandora

The Supreme Court of India’s recent decision, upholding the constitutional validity of the law granting 10% reservation to Economically Weaker Sections (EWS) of the upper castes, has ignited much debate. Some pundits have affirmed the judgment marks the death knell of caste as a factor in reservation, while others argue that it underscores its perpetual relevance. In all the brouhaha, the media and the commentariat have overlooked another Supreme Court judgment just seven years ago which was potentially even more far-reaching for our democracy but which has been ignored entirely in the current debate.

In a 64-page decision in 2015, a bench of Justices Ranjan Gogoi and Rohinton F. Nariman struck down the United Progressive Alliance Government’s 2014 notification including Jats in the Central list of Other Backward Classes (OBCs). Most significant was the rationale the justices provided: they observed that the state should not go by the “perception of the self-proclaimed socially backward class” on whether they deserved to be categorised among the “less fortunates”; new formulae, they averred, must be found to determine backwardness. The issue, the justices concluded, was not whether reservations were a tool to address millennia of caste discrimination or an instrument of affirmative action; the issue was how to determine who deserved consideration for reservation benefits.

‘Open the gates for the most distressed’

Most significantly, the top court held that caste, while acknowledged to be a prominent cause of injustice in the country historically, could not be the sole determinant of backwardness. It argued in its judgment: “Owing to historical conditions, particularly in Hindu society, recognition of backwardness has been associated with caste. Social groups who would be most deserving must necessarily be a matter of continuous evolution. New practices, methods and yardsticks have to be continuously evolved moving away from caste-centric definition of backwardness.” It ruled that the State should uncover emerging forms of backwardness in an evolving society.

“The gates would be opened only to permit entry of the most distressed. Any other inclusions would be a serious abdication of the constitutional duty of the State,” the Court warned. It observed that “grave and important” decisions in reference to Article 14 and Article 16 of the Constitution must be made on the basis of “contemporaneous inputs”, which were not available. Most striking were the Court’s observations on what constitutes “social backwardness”. It said that neither educational nor economic backwardness, which the Government referred to, were enough, though both may contribute to social backwardness. “But social backwardness,” the Court observed, “is a distinct concept” that emerges from multiple circumstances ranging from the social and cultural, to economic, educational and even political.

Call for new methods and yardsticks

The Court conceded that caste may be a prominent factor for ‘easy determination of backwardness’, but its judgment discouraged “the identification of a group as backward solely on the basis of caste” and called for “new practices, methods and yardsticks” to be evolved. It added the observation that class may be a factor too, since a class is “an identifiable section of society”, but again it may not be enough to justify reservation. Citing its own decision to recognise transgenders as a distinct community with justiciable rights, the Court congratulated itself for identifying a form of social backwardness that had nothing to do with caste or class, in determining their eligibility for government benefits.

This was fascinating philosophically, but it opened up a proverbial can of worms for policy-makers. The most contentious element of the Court’s judgment was its proposition that caste, and the need to right historical wrongs, is no longer sufficient grounds for government benefits. Nor is the self-perception of a caste that it is backward; not even the perception by other castes that it is. New methods, the judgment insisted, have to be developed to identify the backwardness of a group of people.

The Court, drawing a somewhat fuzzy line between ‘past’ and ‘emerging’ forms of backwardness, advanced the presumption of the “progressive advancement of all citizens on all fronts, i.e., social, economic and educational” making history an insufficient guide. You cannot keep citing historical wrongs and propose reservations as a solution to redressing them, the Court decided. This set off a conceptual bomb under the complacent edifice of the reservation system.

We have long accepted the logic of reservations in our country as a means of making up for millennia of discrimination based on birth. This is why the Constitution inaugurated the world’s oldest and farthest-reaching affirmative action programme, guaranteeing Scheduled Castes and Scheduled Tribes not only equality of opportunity but guaranteed outcomes, with reserved places in educational institutions, government jobs and even seats in Parliament and the State Assemblies. These reservations were granted to groups listed in Schedules of the Constitution on the basis of their (presumably immutable) caste identities. The addition of the OBC category — after the acceptance by the V.P. Singh government of the recommendations of the Mandal Commission — added more people to the numbers benefiting from reservations, but it did not change the basis on which they benefited: despite the “C” in “OBC” referring to “classes”, the OBC lists contained castes and sub-castes.

What criteria is the question

So we witnessed the unedifying spectacle of castes fighting to be declared backward: the competitive zeal of the Meenas and the Gujjars in Rajasthan to be deemed more backward than each other, and similar agitations by Patels in Gujarat and Marathas in Maharashtra. Then the transgender judgment, and the judgment disqualifying Jats, opened the floodgates to far-reaching questions. If caste is not a good enough basis, and class is not either, and now lack of education or income does not suffice, but the misfortune of being born transgender does, then how do we determine who deserves reservations in our society? The Supreme Court says historical wrongs are passé; the Government needs to establish that a group of potential beneficiaries is suffering backwardness right now. But it does not tell us what criteria to apply.

Justices Gogoi and Nariman suggested that the Government come back with a “matrix” to justify reservations. One could imagine a list of differently-weighted categories, ranging from income, family situation, disability, education level, etc, in addition to birth in a particular caste, which together would constitute a basis to draw up such a matrix. But the Government, not wanting to touch a Pandora’s box, never came back with one, and the Court did not renew or repeat its demand either — not even when one of the judgment’s authors became Chief Justice of India.

With the EWS decision, the shadow of Pandora now hovers over the Supreme Court — but her notorious box may already have been opened by this dramatic, and surprisingly under-reported, judgment of 2015.

4. Editorial-2: Policing with talent, resource sharing, not squabbling

The Ministry of Home Affairs (MHA) convened a conference in late October in the capital, which saw the participation of the Union Home Minister, a few State Home Ministers and police chiefs. West Bengal did not send its highest officials citing its preoccupation with pooja-related issues. The Delhi conference was a very important occasion aimed at improving the quality of policing in the country through an exchange of ideas. The seriousness of the subject required attendance at the level of the Chief Minister and if some States gave it a miss, it was an unfortunate development and a reflection of the lack of seriousness in matters of governance affecting public order and crime.

The debate now over the way the Tamil Nadu police have handled the case of a blast in Coimbatore that happened recently, and a possible terror-related plot, also fits in this scene and is relevant to the state of law and order in the State and elsewhere. There is a section of influential public opinion which has accused the Tamil Nadu government of having been slothful and delayed handing over investigation of the incident to the National Investigation Agency (NIA). This has been rebutted by the State Director General of Police (DGP) who said that his force could not abruptly abandon the investigation and had to do the preliminary investigation to facilitate an NIA take-over. The exchange of barbs by the two sides has been an unfortunate and avoidable development and the truth lies in between. Rather than getting into a slanging match, what is more important is an examination of the standard operating procedures in place, the identification of lacunae and the initiation of corrective measures.

Patel’s vision

The first Home Minister of independent India, Sardar Vallabhbhai Patel, would have been dismayed by the politics in Centre-State relations in a matter as serious as policing. He placed great value on professional policing, one reason why he insisted on an elitist and well-trained corps such as the Indian Police Service (IPS) which worked alongside the Indian Administrative Service (IAS). He was under immense pressure from various quarters, which included his own Congress party, to disband both the Indian Civil Service and IP, but as a distinguished and astute visionary, he was steadfast in his belief. Subsequent events proved him right. Despite all their faults, the two all-India services have been a cementing force and have greatly contributed to establishing nationally accepted standards of governance, especially in the area of law and order.

The passage of 75 years in a free India has more than established that a country of our proportions and diversity will need objective policing by a highly trained police force. It is distressing that there is still conflict between the MHA and some States over utilising talent in the IPS and the sharing of resources available in the States. Both sides have to be partially blamed for this unfortunate state of affairs. Petulance in personnel management has occasionally affected administration in the Centre and States.

Camaraderie is essential

It is a no-brainer that in this, New Delhi is the senior partner in what is definitely a collaborative relationship. But there have been actions over the decades that have inflicted many deep wounds on public order. These have been situations that have demanded large numbers of well-trained policemen. The Centre has always chipped in with support from the Central Reserve Police Force (CRPF). There have also been other outfits such as the Border Security Force (BSF), the Indo Tibetan Border Police (ITBP) and the Central Industrial Security Force (CISF) which have also worked in tandem with the State Police. Therefore, it makes sense that the MHA and State Police stop squabbling but explore how best to forge a strong camaraderie.

We are also witness to frequent spats between States and the Centre over the use or alleged misuse of the Central Bureau of Investigation (CBI). Here again both parties have to share the blame. But the basic point that has been ignored is that crime and bureaucratic corruption have inter-State ramifications and only a national agency can bring in a much-needed and wide perspective. Insensitive action by a few States to withdraw consent to the CBI to function in a State smacks of politics and vindictiveness, which diminishes the fight against public servant graft.

What is lacking

‘Police’ is a State subject under the distribution of powers laid down in the Constitution of India. But that does not mean the Union government has no say in the matter. Training and technology are two areas where the Centre does greatly contribute to sharpening police ability to combat terrorism and other major public disturbances. The Sardar Vallabhbhai Patel National Police Academy in Hyderabad is a world-class institution that has resources and the professional excellence which are generously available to State police forces. Petty squabbling reduces the exchange of ideas and goes to attenuating the police response to difficult situations that require police assistance. This is why we need a political leadership that does not get bogged down in petty differences but promotes a free exchange of talent and resources between New Delhi and the States.

There is no point in blaming a DGP if he or she does not respond to a situation in a professional manner. The DGP looks up to the Chief Minister for directions. If the latter is driven by political considerations and gives unprofessional instructions, there is very little that the DGP can do. Despite all that the Supreme Court of India has done to insulate the chief of police from political caprice, the truth is that a DGP is perilously placed vis-à-vis the Chief Minister and his or her party men. It is lamentable that public opinion in the country has not asserted itself to impart a better sense of policing at all levels of government. I do not foresee any change in this unfortunate situation in the years ahead.

5. Editorial-3: Enforcing the ban on the two-finger test

On October 31, the Supreme Court declared that any person conducting the ‘two-finger test’ on rape or sexual assault survivors will be found guilty of misconduct. The court said that the test is “regressive and invasive” and has “no scientific basis as it neither proves nor disapproves allegations of rape”. It instead “re-victimises and re-traumatises women who may have been sexually assaulted.” In 2013, too, in Lillu v. State of Haryana, the Supreme Court had held that the two-finger test violates the right of rape survivors.

Section 53A of the Evidence Act states that previous sexual experience “shall not be relevant to the issue of consent or the quality of consent” in prosecutions of sexual offences. In 2014, the Union Ministry of Health issued ‘guidelines and protocols’ proscribing the application of the two-finger test. It directed health providers to conduct a medical examination as per the detailed ‘proforma for medico-legal examination of survivors/victims of sexual violence’, a copy of which was annexed to the guidelines. The guidelines state that a copy of the medical report must be given immediately, and free of cost, to the survivor/victim. These guidelines were circulated to hospitals, but it appears that the instructions were not taken seriously by the doctors handling medico-legal cases.

Weakening the case

It is important to note that the doctor’s medical opinion has a vital bearing on the outcome of a criminal case. In the case of sexual assault, the doctor is required to mention marks of resistance and sign(s) of recent intercourse. She is not supposed to give her opinion about rape, as rape is a legal term and not a medical diagnosis. It is for the investigating officer to conclude after their investigation whether or not rape was committed. An unsolicited opinion by a medical practitioner may create doubt and weaken the case. Therefore, it is undesirable to conduct the two-finger test (on a victim of sexual assault), which has no evidential value in the investigation.

The Supreme Court said that workshops must be conducted. This is relevant as there is no institutional platform to share such judgments with medical practitioners. Forensic science laboratories (FSLs) generally work under the Home Departments of States. Funds for the modernisation of the police are also planned and utilised by the police under the supervision of the Home Department. A part of these funds are used for the upgradation of FSLs. The police department’s interaction with the FSL is generally continuous, and both understand each other’s requirements.

However, despite the Health Department’s relevance in the investigation of offences relating to assault, rape, unnatural death, age determination (by the ossification method), etc., interaction between the Health Ministry and the Home Ministry (or the police department) is limited. Further, the Health Department is not one of the pillars of the Inter-Operable Criminal Justice System (ICJS), which is an extension of the Home Ministry’s mission mode project, the Crime and Criminal Tracking and Network Systems, and is operational at each police station of the country.

The police have an age-old system of ‘roll call’. Roll calls are supposed to be held every day in the morning and in the evening at police stations and reserve police lines. Besides allocating duty to every police personnel, every order of the Superintendent of Police (and of seniors through him) is read and explained to everyone present and signatures obtained. This ensures accountability. However, this practice seems to have either become irregular or remained only on paper. This is evident from the fact that despite the Supreme Court’s order scrapping Section 66A of the Information Technology Act, cases were registered at many police stations. The system of daily roll call must be revived at all police stations.

Improving training

Training still remains one of the most neglected branches in most departments. With limited in-house training capacity, officers are often not spared for refresher courses even once in five years. The communication channels between the heads of department and the officers are never direct and straight. It is, therefore, quite likely that the two-finger test will continue to be conducted in some remote areas. The erring doctors (if any) will have all the reasons to justify their act and evade disciplinary action for any ‘misconduct’ so contemplated.

Therefore, all departments which have a bearing on the investigation of offences or are stakeholders in the criminal justice system must come together periodically so that they can exchange best practices, latest developments in law, and court rulings. An institutional mechanism needs to be developed to ensure continuity of this process. The medico-legal section of the Health Department needs to be integrated with the ICJS as it is no less important than the FSL. Training capacity must also be reviewed, and communication channels improved to avoid the status quo.