Why BSF jurisdiction has become a flashpoint between Centre and states

The Centre and states are at loggerheads about the Border Security Force (BSF) yet again. This comes after the Centre in 2021 deciding to expand the BSF’s jurisdiction to undertake search, seizure and arrest within a larger 50-kilometre stretch from the International Border compared to the earlier limit of 15 kilometres. The Centre had also decided to decrease the BSF’s area of operation in Gujarat from 80 kilometres from the border to just 50 kilometres. A Supreme Court bench of Chief Justice DY Chandrachud and Justices JB Pardiwala and Manoj Misrais is currently hearing a suit filed by the Punjab government accusing the Centre of usurping its constitutional authority. It has said it will examine the validity of the Centre’s 2021 notification expanding the BSF’s jurisdiction. But why has this become a source of dispute? And what did the apex court say? Let’s take a closer look: What happened? First, let’s take a brief look at the BSF. The BSF was established on 1 December, 1965. With a strength of about 2.65 lakh personnel, it has 192 operational battalions. It is the country’s largest border force. The other forces include the Indo-Tibetan Border Police (ITBP), the Sashastra Seema Bal (SSB) and the Assam Rifles. The Centre in October 2021 issued a gazette notification defining the new jurisdiction as “whole of the area comprised in the States of Manipur, Mizoram, Tripura, Nagaland and Meghalaya and Union Territories of Jammu and Kashmir and Ladakh and so much of the area comprised within a belt of fifty kilometres in the States of Gujarat, Rajasthan, Punjab, West Bengal and Assam, running along the borders of India.”

In short, the BSF jurisdiction was increased from 15 kilometres to 50 kilometres in Punjab, West Bengal and Assam.

In Gujarat, which shares its borders with Pakistan, the limit was reduced from 80 kilometres to 50 kilometres. In Rajasthan, the jurisdiction was left unchanged at 50 km. This amended a July 2014 provision defining how BSF personnel and officers could operate in the border areas. The 2014 notification had defined the BSF’s jurisdiction as “whole of the area comprised in the States of Manipur, Mizoram, Tripura, Nagaland and Meghalaya and so much of the area comprised within a belt of eighty kilometres in the State of Gujarat, fifty kilometres in the State of Rajasthan and fifteen kilometres in the States of Punjab, West Bengal and Assam, running along the borders of India”. As per Hindustan Times, the Center issued the notification under Section 139(1) of the BSF Act. This allows the force to prevent any offence involving the Passport Act, Registration of Foreigners Act, Foreigners Act, foreign exchange regulation law, customs, excise laws, or any cognisable offence punishable under any Central act within the “local limits of such area adjoining the borders of India”. It also allowed the BSF to nab any individual who violated the aforementioned laws. As per The Hindu, the Centre did so to allow itself more power to thwart crimes across borders and to work better with the police forces of states. How did states respond? The states at the time had decried the move as an “irrational decision”, a “direct attack on federalism” and an attempt to “interfere through Central agencies”. Punjab and West Bengal denounced the move with the respective state Assemblies even passing resolutions against the Centre’s decision.

The Punjab government in 2021 filed a lawsuit against the Centre.

As per Hindustan Times, the Punjab government claimed the notification was against the concept of federalism as it impacted the state’s legislative powers over the police and law and order. The state government, in its original suit, alleged that the extension of the territorial jurisdiction of BSF encroaches upon its own constitutional jurisdiction. The Punjab government has said the “unilateral declaration” under the 11 October notification “without consulting” the state or without conducting any “consultative process” is violative of the provisions of the Constitution of India”. [caption id=“attachment_13132242” align=“alignnone” width=“640”] The Supreme Court has framed several questions of law that need to be examined concerning the Punjab government’s lawsuit.[/caption] “The defendant, all of a sudden, on October 11, 2021 without consulting the plaintiff — State of Punjab — or conducting any consultative process, issued the notification, whereby it amended the schedules of notifications dated July 3, 2014, September 22, 1969 and June 11, 2012 and increased the limit from 15 km to 50 km,” it has said. The plea says the effect and consequence of the 11 October notification is that it “amounts to encroachment” upon the powers of the state by the Centre in as much as more than 80 per cent area of the border districts, all the major towns and cities, including all the district headquarters of these border districts, fall within a 50-km area from the Indo-Pakistan border. It says Punjab’s concerns are totally different and distinguishable from those of the Union territories of Jammu and Kashmir and Ladakh and the states of Gujarat and Rajasthan. “It is submitted that the notification dated October 11, 2021 is ultra-vires the Constitution as it defeats the purpose of Entry 1 and 2 of List-II of Schedule 7 of the Constitution of India and encroaches upon plaintiff’s plenary authority to legislate on issues which relate to or are necessary for the maintenance of public order and internal peace,” the plea states. What happened in the Supreme Court? As per The Times of India, Solicitor-General Tushar Mehta, appearing for the Centre on Monday, said the Union government in 2021 brought in uniformity in the BSF’s area of jurisdiction under which it was allowed to exercise powers under the Criminal Procedure Code for areas within 50 kilometres of the border. Mehta pointed out that none of the states including Punjab had challenged the BSF’s jurisdiction since 1969. Mehta told the court the October 2021 notification stated that the BSF would deal with cognisable offences relating to border issues.

It would thus not hamper the investigative powers of the police.

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“The local police are not deprived of their powers. A concurrent jurisdiction is conferred on BSF, with primacy to the latter,” Mehta told the apex court. The AAP government, meanwhile, claimed the move ‘seriously impaired the functions of the state police.’ As per The Hindu, Punjab advocate general Gurminder Singh said the agency’s jurisdiction depends, among other things, on the state’s topography and population concentration. Additional advocate general Shadan Farasat claimed that 50 kilometres for Punjab, unlike Rajasthan and Gujarat, would leave several cities and towns within its ambit. The Supreme Court on Monday framed several questions of law that need to be examined concerning the Punjab government’s lawsuit. The first question it will take up is if the Centre exercised its power arbitrarily. “Whether the impugned notification dated October 11, 2021 of increasing the jurisdiction of the Border Security Force, from 15 kilometres to 50 kilometres in the state of Punjab constitute an arbitrary exercise of power by the defendant (Centre) under section 139 (1) of the Border Security Force Act, 1968,” the first question reads. The top court also said it would consider whether increasing the BSF’s jurisdiction to 50 kilometres is beyond the local limit of areas adjoining the borders under the BSF Act. “Whether all states have to be treated alike for the purpose of determining the local limits of areas adjoining the borders of India under Section 139 (1) of the BSF Act,” the third question reads. The bench will further examine the factors which have to be taken into account in determining the meaning of local limits of areas adjoining the borders of India under Section 139 (1) of the BSF Act. It will also examine whether the October 2021 notification amounts to unconstitutional interference in the legislative domain of the state under the constitutional scheme. It will also scrutinise “whether the constitutionality of the impugned notification of 11 October, 2021, can be challenged in an original suit under Article 131 of the Constitution."

As per Live Law, the apex court will also examine what reliefs and costs, if any, apply to the case.

The court granted two more weeks to the Centre to file additional written submissions in the lawsuit filed by the Punjab government. It also gave the state government two weeks thereafter to file its rejoinder submissions. The apex court said it will next hear the matter in April. The Supreme Court in December observed that the powers of the Punjab Police have not been taken away by the Centre’s decision. After perusing the records, the CJI prima facie observed that there were concurrent powers to be exercised by the BSF and the state police. “The power of investigation is not taken away from the Punjab Police,” the CJI orally observed. The solicitor general had said the BSF has jurisdiction in all border states. He said in states like Gujarat, the jurisdiction of the border guarding force earlier was up to 80 km but now it stands at a uniform 50 km in all border states. With inputs from agencies