Extending BSF’s jurisdiction in Punjab: Supreme Court to decide if Centre stepped into state’s ‘legislative domain’

Satya Prakash

New Delhi, January 22

The Supreme Court on Monday decided to examine the validity of the Centre’s decision to extend the jurisdiction of the Border Security Force (BSF) in the state from 15 to 50 km along Indo-Pak border.

A three-judge Bench led by CJI DY Chandrachud framed legal issues involved in the original suit filed by the Punjab Government under Article 131 of the Constitution challenging the October 11, 2021, notification issued by the Ministry of Home Affairs (MHA) and posted the matter for final hearing after four weeks.

Article 131 provides a mechanism for adjudication of disputes between the Centre and one or more states; or between the Centre and any state or states on one side and one or more other states on the other; or between two or more states.

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.

Now, the top court would examine “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.”

It would also consider “whether the increase in BSF’s jurisdiction to 50 km is beyond the local limit of areas adjoining the borders under the BSF Act” and “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 top court would examine if the October 11, 2021, notification amounted to unconstitutional interference in the legislative domain of the state under the constitutional scheme and if the validity of the notification could be challenged in an original suit under Article 131 of the Constitution.”

It would also consider the factors 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.

Solicitor General Tushar Mehta defended the MHA notification saying the local police and state governments will continue to have jurisdiction over law and order issues and the BSF will deal with only national security matters concerning the international border.

Punjab Advocate General Gurminder Singh, however, said the BSF’s jurisdiction would depend on topography, population concentration and other factors.

The Punjab Government had moved the top court in December 2021 against the Centre’s decision to extend the BSF’s jurisdiction in the state from 15 to 50 km along Indo-Pak border, saying it went against federalism and will lead to chaos.

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 contended 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.”

“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,” advocate Shadan Farasat had earlier submitted on behalf of the Punjab Government.

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, it submitted.