Why is it in the News?

The Supreme Court is set to hear the dispute over the expansion of the Border Security Force (BSF) jurisdiction in Punjab.

Context:

• The Supreme Court will hear petitions filed by the Punjab government against the Centre’s notification expanding the jurisdiction of Border Security Forces (BSF) to 50 km from the international border in Punjab.
• This comes after the Centre in 2021 decided 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.

What is the Border Security Force (BSF)?

• The BSF was established on 1 December 1965 after the India-Pakistan war.
• With a strength of about 2.65 lakh personnel, it has 192 operational battalions and deployed along the Pakistan and Bangladesh borders.
• It is the country’s largest border force and one of the Central Armed Police Forces of the Union of India under the administrative control of the Ministry of Home Affairs (MHA).
  • The other forces include the Indo-Tibetan Border Police (ITBP), the Sashastra Seema Bal (SSB) and the Assam Rifles, Central Industrial Security Force (CISF), Central Reserve Police Force (CRPF) and National Security Guards (NSG).
• It also contributes dedicated services to the UN peacekeeping Mission by sending a large contingent of its trained manpower every year
• The BSF is meant to secure India’s borders with its neighbouring nations and is empowered to arrest, search and seize under a number of laws, such as the Criminal Procedure Code, the Passports Act, the Passport (Entry into India) Act, and the NDPS Act, to name a few.

Why was the BSF Jurisdiction Extended?

• Section 139(1) of the BSF Act allows the central government, through an order, to designate an area “within the local limits of such area adjoining the borders of India” where members of the BSF can exercise powers to prevent offences under any Acts that the central government may specify.
  • Prior to the notification issued in October 2021, the BSF could exercise its powers within 15 kilometres of the border in Punjab, West Bengal and Assam.
  • The Centre expanded this to within 50 kilometres of the border.
• The notification states that, within this larger 50-kilometre jurisdiction, the BSF can only exercise powers under the Criminal Procedure Code, the Passport (Entry into India) Act and the Passports Act.
  • For other central legislations, the 15-km limit remains.
• This expansion was in response to the increased use of drones and Unmanned Aerial Vehicles, which have long-range capabilities and enable surveillance and the smuggling of arms and fake currency.
  • The ‘menace of cattle smuggling’ and smugglers often seek refuge outside BSF jurisdiction.
• The centre also claimed that the notification makes the BSF jurisdiction uniform across states, as the 50-kilometre limit was already in place in Rajasthan.
  • The same notification reduced the jurisdiction in Gujarat from 80 km to 50 km.

Why Punjab Challenged This Act?

• The state of Punjab filed an ‘original suit’ against the central government in the Supreme Court in December 2021 and alleged that the extension of the territorial jurisdiction of BSF encroaches upon its own constitutional jurisdiction.
  • The Supreme Court has ‘original jurisdiction’ in disputes between the central government and states under Article 131 of the Constitution, which means cases of this kind can only be heard for the first time at the SC “to the exclusion of any other court”.
• The Punjab government claimed that expanding the jurisdiction of the BSF would compromise the state’s exclusive powers to legislate on matters involving the police and public order.
  • These powers are provided in Entries 1 and 2 of the State List under Article 246 of the Constitution.
  • They also claimed that the notification was issued without consulting with any of the states concerned.

How did Other 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.

What are the Challenges Associated with Expanding Jurisdiction?

• Public Order vs. Security of State: Maintaining public order and policing, signifying peace, safety, and tranquillity, falls within the purview of State Governments (Entry 1 and Entry 2 of the State list, respectively).
  • However, if a severe public disorder poses a threat to the security or defence of the State or the nation itself (Entry 1 of the Union list), it becomes a matter of concern for the Union Government as well.
• Federalism Strain: Issuing notifications without state government concurrence may be seen as an infringement on state powers.
  • The Punjab Government argues that such notifications amount to the Centre encroaching under the pretext of security or development.
• Impact on BSF Operations: The extension of jurisdiction to policing in the hinterland contradicts the role of a border guarding force.
  • This shift could potentially undermine the BSF's ability to fulfil its primary duty of guarding the international border.

Issues Specific to Punjab:

• Overlapping Powers: The extended 50 km jurisdiction grants concurrent power with state police over every cognizable offence under the Indian Penal Code (IPC).
  • In a relatively small state like Punjab, this extension encompasses all major cities.
• In other states like Gujarat and Rajasthan, where the extension might be considered, Gujarat has substantial marshland, and extending jurisdiction there might be reasonable as it doesn't encompass major urban centres.
  • Similarly, in Rajasthan, the presence of a desert reduces the impact of jurisdiction extension.

Way Ahead

• Emphasis on State Consent: Considering the security dynamics in India's vicinity, the existing collaboration between Central armed forces and State civil authorities remains suitable.
  • Nonetheless, consulting with the State Government before deploying armed forces by the Union Government is recommended, whenever possible.
• State Empowerment: Each State Government, in coordination with the Union Government, should devise both short-term and long-term strategies to fortify its Armed Police.
  • The aim is to achieve substantial self-reliance in managing Armed Police matters, necessitating the Central armed forces' intervention only during exceptionally severe disturbances.
• Regional Collaboration: Neighboring States can collaboratively establish a framework for utilizing each other's Armed Police in times of necessity through consensus.
  • The Zonal Council stands out as the most apt platform for States within a zone to reach a consensus and formulate such arrangements.