The story so far: In 2021, the Government of India increased the jurisdiction of the Border Security Force (BSF) — which chiefly focus on preventing trans-border crimes — from 15 kilometres up to 50 kilometres inside the international borders in the States of Punjab, West Bengal and Assam. In Punjab, the move triggered sharp criticism from key political parties, with the State government ultimately moving the Supreme Court, which has fixed the third week of April for hearing the lawsuit.
What is the allegation?
A three-judge Bench headed by the Chief Justice of India D.Y. Chandrachud will hear a complaint filed by Punjab accusing the Centre of stripping the State and its police of its powers. Police and law and order is a State subject under Schedule 7, List-II Entries 1 and 2 of the Constitution. Punjab challenged the constitutional validity of the notification issued by the Centre in October 2021 extending the reach of the BSF to 50 km by invoking Section 139 of the Border Security Force Act, 1968. The provision authorises the Centre to confer powers and duties on the BSF with respect to any Central Act like the Passport (Entry into India) Act, 1920, the Registration of Foreigners’ Act, 1939, the Central Excises and Salt Act, 1944, the Foreigners Act, 1946, the Foreign Exchange Regulation Act, 1947, the Customs Act, 1962 or the Passports Act, 1967 or of any cognizable offence punishable under any other Central Act.
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The court agreed to look into whether the notification amounted to an “arbitrary exercise of power” by the Centre under Section 139 and an “unconstitutional interference” into Punjab’s authority.
When did the Punjab government go to the Supreme Court?
In December 2021, the Punjab government approached the Supreme Court, challenging the Centre’s decision, accusing it of virtually stripping the State and its police of its powers. Earlier this week, while hearing the matter, the Supreme Court decided to examine if all border States have to be treated alike while demarcating the area of jurisdiction of the BSF. In 2021, when the Congress party was in power, it termed the decision of the Centre as a gross violation of the spirit of federalism enshrined in the Constitution. Opposing the Centre’s notification on the BSF jurisdiction, which was issued on October 11, 2021, the Shiromani Akali Dal (SAD) held a rally in Punjab’s Amritsar as a mark of protest against the decision and asserted that it would not tolerate any dilution of the federal structure.
The Punjab State Assembly convened a special session in which the Centre’s decision on enhancing the jurisdiction of BSF in Punjab was termed as “an expression of distrust and insult” towards the State police and the people of Punjab. A resolution was passed against the Centre’s notification by the House rejecting the notification and demanding its withdrawal. The resolution read: “..The Union government should have consulted the State government before taking such a major decision. The law and order situation in Punjab is totally under control and there is no need to extend the jurisdiction of [the] BSF. This is a gross violation of the spirit of federalism enshrined in the Constitution of India. Extending the jurisdiction of BSF is also symbolic of petty politics...”
How has Punjab challenged the notification?
Through the lawsuit filed under Article 131 of the Constitution of India, Punjab has challenged the notification issued by the Union of India, through the Ministry of Home Affairs under sub-section (1) of Section 139 of the BSF. Punjab has submitted that the effect and the consequence of the notification amount to encroachment upon the powers of the State of Punjab by the Centre in as much as more than 80% area of the border districts. All major towns and cities including all the district headquarters of these border districts of Punjab fall within the 50 km demarcation area from the India-Pakistan International Border.
The government contends that considering that more than 80% area of the major border area towns of Punjab are covered in the extended belt of 50 kms, the notification is ultra vires of the Constitution and encroaches upon Punjab’s plenary authority to legislate on the issue which relates to or are necessary for the maintenance of public order and internal peace. Also, it holds that the notification encroaches upon the power of the State as the police and law and order is a State subject. Punjab has also pointed out that power under Section 139 of the BSF Act, 1968 cannot be read in isolation to give unilateral power to the Central government to grant extra jurisdiction of 50 kms to the BSF.
What are Punjab’s concerns?
The concerns of Punjab are distinguishable from the concerns of other States and Union Territories, as per the lawsuit. The geography of Punjab is such that the area which has been included in the extended jurisdiction of the BSF is densely populated. The State argues that this is not the case in Gujarat, where most of the area falls in the wastelands of Kutch and saline marshes; similarly, the extended jurisdiction in Rajasthan is desert land, permitting only sparse vegetation, and the density of population is low too. In the case of Punjab, the 50-km area is highly fertile, heavily populated and covers most of the physical areas forming part of the border districts of Pathankot, Gurdaspur, Amritsar, Tarn Taran, Ferozepur, Fazilka etc. Moreover, geographically, it points out that while Punjab is a small State, it has a very potent history and therefore, its case and concerns are different, and that no reason can justify the extension of jurisdiction to a range of 50 kms. It will inconvenience people, including farmers who have to cross barbed wire fencing to cultivate their land along the border, the State has pointed out.
What issues has the Supreme Court raised?
The Supreme Court, which has fixed the third week of April for hearing the lawsuit, has raised several issues, including whether the impugned notification constitutes an arbitrary exercise of power by the Central government and whether the increase of the jurisdiction is beyond the “local limits of areas adjoining the borders of India” under Section 139(1) of the BSF Act, 1968. Also, the court would look into whether all States have to be treated alike to determine the “local limits of areas adjoining the borders of India”, and what are the factors which have to be taken into account in determining the meaning of the phrase “local limits of such area adjoining the borders of India” under Section 139(1) of the BSF Act, 1968. Besides, it would explore whether the impugned notification amounts to an unconstitutional interference in the legislative domain of the State.
