Explainer: Law On Border Security Force's Enhanced Powers In Border States

The Ministry of Home Affairs recently extended the jurisdiction of the Border Security Force ('BSF) in the states of West Bengal, Assam and Punjab- a move that has invited criticism from the states of Punjab and West Bengal Government for violating the federal structure and infringing the rights of the state police. States have argued that since law and order is a state subject, BSF's enhanced jurisdiction infringes upon the powers of the state government. Where does the Ministry of Home Affairs derive its power to enhance the powers of BSF and on what grounds are states claiming that BSF's enhanced powers infringe upon its policing powers?

Border Security Force

BSF is one of the Central Armed Police Forces of India constituted to defend India's national interest mainly against internal threats. Central Armed Police Forces under the authority of the Ministry of Home Affairs. The other armed forces which form a part of CAPF are the Border Security Force, Central Reserve Police Force, Central Industrial Security Force, Indo-Tibetan Border Police and Sashastra Seema Bal. BSF's primary role is to guard India's border along its border with Pakistan and Bangladesh. ITBP's mandate is to guard India's border along China and Sashastra Seem Bal guards India's border with Nepal and Bhutan. Security of sensitive establishments is within the mandate of Central Industrial Security Force and counter-terror operations by CRPF.  Border Security Force's power, duties and jurisdictional limitations are provided under Border Security Force Act, 1968. S.139(1) of the BSF Act gives the Central Government and consequently the Ministry of Home Affairs the power to define BSF's jurisdictional limitation. As provided under the Schedule to the BSF Act, BSF's jurisdiction extends to the 10 States and 2 Union Territories which share a boundary with either Pakistan or Bangladesh- i.e Manipur, Mizoram, Tripura, Nagaland and Meghalaya, Gujarat, Rajasthan, Punjab, West Bengal and Assam and UTs of Jammu and Kashmir and Ladakh. Within these states, BSF's jurisdictional powers vary according to different states.

Jurisdictional Limitation under the Border Security Force Act, 1968.

A notification issued in 2014 had outlined BSF's jurisdiction as "the whole of the area comprised in the States of Manipur, Mizoram, Tripura, Nagaland and Meghalaya and so much of the area comprised within a belt of 80 kilometres in the State of Gujarat, 50 kilometres in the State of Rajasthan and 15 kilometres in the States of Punjab, West Bengal and Assam, running along the borders of India." The 2021 notification amends the 2014 notification and extends the jurisdiction of the BSF up to 50 km inside the international borders in Punjab, West Bengal and Assam. Earlier, the BSF's powers were limited to up to 15 km in these states. The jurisdictional limit with respect to the state of Gujarat has been reduced from 80kms to 50 kms. 

Central Government's Power to Enhance Jurisdiction

The Central Government in exercise of the powers conferred by S.139 (1) of the Border Security Force Act, 1968 can notify the area and extent of border force's operational mandate from time to time. S.139 (1) provides that the Central Government may by notification in the Official Gazette direct that within the local limits of such area adjoining the borders of India, any member of the Force may discharge such powers and duties under that Acts specified in the said orders. The Acts specified being Passport (Entry to India) Act, Registration of Foreigners Act, Central Excises and Sale Act, Foreigners Act, FEMA, Customs Act, or any cognizable offence punishable under any other Central Act. Further, S.139 provides that in case the Central Government wants to confer or impose upon the members of BSF any powers or duties exercisable under a State Act, the concurrence of State Government is required. Subsection (3) of S.139 further requires that orders passed under this Section be laid before the Parliament and passed by both Houses.

Thus, it can be seen from the text of S.139 of the BSF Act that the Central Government has the power to unilaterally increase or decrease the jurisdictional limits of the Border Security Force in these areas. There is no statutory mandate of either consultation or concurrence of the state governments in case the powers enhanced are under Central Acts. The BSF Act mandates the concurrence of the state in question only when the powers or duties being conferred are under a State Act.

BSF's Enhanced Powers and Federal Structure

Under Art.246 of the Constitution, legislative powers are divided between Centre and States across Union List, State List and Concurrent List. State List (List II) grants states exclusive jurisdiction over public order and the police. While Entry 2 of the State List specifies that police is a state function, it is imperative to note that the Entry is followed by the words "subject to the provisions of Entry 2A of List 1." Entry 2A of List 1 (Union List) provides for: "deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in the aid of civil power." A cursory reading of the text of the Constitution itself specifies that the state's power over public order and policing is not absolute in nature. The right is circumscribed by the deployment of any armed force of the Union. It is equally important to note that in the guise of deployment of armed force, the state's policing authority cannot be completely supplanted. It can only do so to the extent permissible under Art.246 and the Border Security Force Act.

It is interesting to note that in 2011 Border Security Force (Amendment) Bill was introduced with the intention to arm BSF with powers to search, seize and arrest in any part of the country where it is deployed. It sought to omit the words "adjoining the borders of India", thus effectively extending the jurisdictional extent of BSF to all the states in the country. The Bill hasn't seen the light of the day and has been pending all these years, however in this regard, the observations made by the Supreme Court in Naga People's Movement of Human Rights vs Union of India are crucial:

"The expression "in aid of the civil power" in entry 1 of the State List and in Entry 2A of the Union List implies that deployment of the armed forces of the Union shall be for the purpose of enabling the civil power in the State to deal with the situation affecting maintenance of public order which has necessitated the deployment of the armed forces in the State. The word aid, postulates the existence of authority to be aided. This would mean that even after deployment of armed forces, civil power will continue to function. The power to make a law providing for deployment of the armed forces of the Union in aid of the civil power in the State does not comprehend the power to enact a law which would enable the armed forces of the Union to supplant or act as a substitute for the civil power in the State."

Thus, the Central Government's power to enhance the jurisdictional powers of central forces like Border Security Force are circumscribed by following conditions- one, that it must be with respect to states adjoining the borders of India; second, state's concurrence is required if powers enhanced are with respect to State Laws; three, the notification/order is placed before the Parliament and passed by both houses and fourth, the observation of the Supreme Court of India that Union forces must not result in supplanting or substituting the civil power in the State. The legal challenge, if any, to the 2021 Notification must lie on the grounds that it results in substituting the civil power in the state or that exceeds the limitation prescribed by S.139 (1) of the Border Security Force Act, 1968.