New Delhi, December 1
The Centre on Friday sought to defend its decision to extend the jurisdiction of the Border Security Force (BSF) in Punjab from 15 to 50 km along the Indo-Pak border, even as the state government alleged that it amounted to creating a parallel jurisdiction, taking away police powers of the state.
"This only means that in some offences like passport, etc., the BSF has jurisdiction along with the local police… There is concurrent jurisdiction,” Solicitor General Tushar Mehta told a Bench led by CJI DY Chandrachud. Pointing out that the Punjab Government filed the petition in 2021, Mehta said the situation has changed since then.
As the CJI said Punjab is a border state and sought to know how the state government was aggrieved now, advocate Shadan Farasat, representing the state government, termed the exercise of powers by the Centre as “unreasonable”.
“Punjab is a small state. There is a parallel jurisdiction and this takes away powers of the state. Gujarat has marsh lands... Rajasthan has desert… The exercise of power is unreasonable,” Farasat submitted.
Clarifying that the notification under challenge did not include all cognisable offences, Mehta said the amendment only increased the distance and the local police were not deprived of the jurisdiction as there was concurrent jurisdiction.
Farasat said these were core law and order provisions which impacted the state.
The CJI pointed out that the power of investigation was not taken away from the Punjab Police and the entire Chapter 12 of Criminal Procedure Code had not been made applicable.
Asking the parties to sit together and draft the issues involved, the Bench listed the matter for further hearing in January 2024.
In a lighter vein Mehta told Punjab Advocate-General Gurminder Singh, who attended the proceedings virtually, to meet him in his chamber whenever he was here. “I will be grateful for the hospitality,” Singh responded.
The Punjab Government had in December 2021 moved the Supreme Court against the Centre’s decision to extend the BSF’s jurisdiction in the state from 15 to 50 km along the Indo-Pak border, saying it went against federalism and will lead to chaos.
In its original suit filed under Article 131 of the Constitution, the Punjab Government said, “…geographically, the State of Punjab is a small state, but has a very potent history and, therefore, its case and concerns are distinguishable and no reason can justify the extension of jurisdiction (of BSF) to the belt of 50 kilometers.”
Noting that more than 80% areas of the border districts and all major towns and cities, including all the district headquarters of Punjab would be covered under BSF’s jurisdiction, the Punjab Government submitted that the MHA’s decision “is likely to give rise to unrest among the populace, including peasantry which has to cross the bribed wire to cultivate their land along the border.”
Contending that it can lead to chaos and conflict in trial of offences between law enforcement agencies, the Punjab Government has urged the top court to stay the October 11, 2021 notification of the Ministry of Home Affairs (MHA).
While the MHA notification extended the BSF’s jurisdiction from 15 to 50 km in Punjab, West Bengal and Assam, it reduced the same from 80 to 50 km in Gujarat. In Rajasthan the limit remained unchanged at 50 km.
The Punjab Government has termed the MHA’s decision a “unilateral declaration” without consulting the state and without conducting any consultative process.
It has assailed the notification on the ground that it “defeats the purpose of Entry 1 and 2 of List-II of Schedule-7 of the Constitution of India and encroaches upon the plaintiff’s plenary authority to legislate on issues which relate to or are necessary for maintenance of public order and internal peace.”
Under Entry 1 and 2 of List-II (State List) of Schedule-7 of the Constitution, ‘public order’ and ‘police’ are enumerated as subjects on which states are empowered to make laws and exercise executive powers.
“To this extent the defendant (MHA) has departed from the principle of federalism inasmuch as the defendant has no power to make any laws in respect of the matters enumerated in List-II of schedule-7 of the Constitution of India.
Maintaining that the concerns of Punjab are “totally different and distinguishable” from the geography and concerns of other border states and union territories, the Punjab Government complained that densely populated areas of the state have now been included in the jurisdiction of BSF.
“In the case of Gujarat, most of the area falls in Kutch and saline marshes, whereas the areas in the State of Rajasthan is a desert land, permitting only sparse vegetation to sustain low populace in the relevant area to which jurisdiction of BSF has been extended,” it submitted.
“In the case of Punjab, the 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.” it contended.
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