Is Increase In BSF's Jurisdiction Unconstitutional Interference In State's Domain? Supreme Court To Consider In Punjab's Suit Against Union

The Supreme Court today (January 22) framed 7 key issues which are to be decided in the original suit filed by the State of Punjab challenging the Union's notification extending the jurisdiction of Border Security Force (BSF) from 15 to 50 Km in the state.

The bench comprising Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra amongst other things, will decide upon the interpretation of the phrase 'local limits of areas adjoining the borders of India' under S. 139(1) of the BSF Act 1968 and constitutionality of the impugned notification dated 11.10.21.

The State of Punjab was represented by Advocate General Gurminder Singh and Additional Advocate General  Shadan Farasat and the Solicitor General Tushar Mehta appeared on behalf of the Union of India.

The following Issues were framed by the Court as a culmination of the joint suggestions given by the counsels for The State of Punjab and the Union of India (UOI):

1. Whether the impugned notification dated 11.10.21 resulting in the increase in the jurisdiction of the border security force(BSF)from 15 to 50 kms in the State of Punjab constitutes an arbitrary exercise of power by the defendant under S. 139(1) of the BSF Act 1968?

2. Whether the increase of the jurisdiction of the BSF from 15 to 50 Kms is beyond the 'local limits of areas adjoining the borders of India' under S. 139(1) of the BSF Act 1968?

3. Whether all states have to be treated alike for the purpose of determining 'local limits of areas adjoining the borders of India' under S. 139(1) of the BSF Act 1968?

4. What factors have to be taken into account in determining the meaning of the phrase 'local limits of areas adjoining the borders of India' under S. 139(1) of the BSF Act 1968?

5. Whether the impugned notification dated 11.10.21 amounts to an unconstitutional interference in the legislative domain of the state under Entry I and II of List II of the 7th Schedule of the Constitution (as contended by the plaintiff) or is relatable to entries I, II, IIA and other entries of List II (as contended by the defendant)?

6. Whether the constitutionality of the impugned notification dated 11.10.21 can be challenged in an original suit under Article 131 of the Constitution in light of the decision in State of Madhya Pradesh v. UOI 2011 12 SCC 268?

7. What reliefs and Costs would apply to the present case?

It was additionally directed that no oral evidence would be adduced and the Court appointed Mr. Harshit Anand (for the state of Punjab) and Mr Kanu Aggarwal (for the UOI) as nodal counsels who will prepare a joint compilation regarding all the documentary evidence and precedents etc which is to be submitted on or before March 31, 2024.

During the previous hearing, the Court had orally remarked that the expansion of BSF's jurisdiction has not impacted the powers of the State police. The Union stated that it was a legitimate exercise of power in a border state.

Background

The Punjab government moved the Supreme Court challenging the Centre's decision that expanded the BSF's jurisdiction to undertake search, seizure, and arrest within a larger 50-km stretch from the international border in Assam, West Bengal and Punjab, as compared to the earlier 15 km.

The state government, in its plea, had stated that the extension of the territorial jurisdiction of the Border Security Force (BSF) encroached upon the constitutional jurisdiction of the states. "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-ll 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 the maintenance of public order and internal peace, the Punjab government said.

The Union home ministry had issued a notification in this context on October 11, 2021, amending a July 2014 enabling provision for the BSF personnel and officers while they operate in the border areas.

While in Punjab, West Bengal and Assam, the BSF jurisdiction was enhanced from 15 km to 50 km, in Gujarat, which shares its border with Pakistan, the limit has been reduced from 80 km to 50 km, while in Rajasthan, it has been kept unchanged at 50 km.

The BSF has a strength of about 2.65 lakh personnel and it was raised on December 1, 1965. It has 192 operational battalions and is the country's largest border-guarding force, with the Indo-Tibetan Border Police (ITBP), the Sashastra Seema Bal (SSB) and the Assam Rifles being the other three.

Case Title: State Of Punjab v Union Of India Orgnl Suit No. 6/2021

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