Calcutta High Court Seeks Centre's Response In Plea Challenging Expansion Of BSF Jurisdiction In West Bengal

The Calcutta High Court on Tuesday sought response from the Central government in a Public Interest Litigation (PIL) petition challenging the Central government's power to decide the jurisdiction of the Border Security Force (BSF). The petition challenges Section 139(1) of the Border Security Force Act, 1968 (BSF Act) for being ultra vires to the Constitution to the extent that it provides 'unbridled, unrestricted and arbitrary' powers to the Central government for fixing the territorial jurisdiction of the BSF.

The petition moved by advocate Sayan Banerjee contends that the power of the Central government under Section 139, Clause I of the BSF Act to decide the jurisdiction of the force impinges upon the federal structure of the country. Section 139 of the Act deals with powers and duties conferrable and imposable on members of the force.

Opining that the impugned statutory provision violates Article 14 of the Constitution the plea contends further, "the unbridled power under Section 139(1) of the Border Security Force Act is violative of Article 14 of the Constitution of India and therefore requires to be exercised only in a particular situation upon material satisfaction".

A Bench comprising Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj on Tuesday directed the Central government through Additional Solicitor General Y.J Dastoor to file an affidavit-in-opposition before the next date of hearing that is slated to take place on February 22, 2022. 

During the proceedings, the Bench was also apprised that the State of Punjab and Haryana had moved the Supreme Court invoking Article 131 of the Constitution raising a similar contention. Accordingly, Advocate General S.N Mookherjee sought time from the Bench to get apprised about the grounds raised in the plea before the Supreme Court. 

"It has been brought to the notice of this Court that one of the States namely Punjab and Haryana has already approached the Hon'ble Supreme Court invoking Article 131 of the Constitution raising the same issue. Learned Advocate General seeks time to find out the grounds raised in that matter", the order read. 

It may be noted that last week 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 stated that the extension of the territorial jurisdiction of the Border Security Force (BSF) encroaches 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-II of Schedule 7 of the Constitution of India and encroaches upon 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 has alleged. 

Advocates Sabyasachi Chatterjee and Debolina Sarkar appeared for the petitioner.

Background

On October 11, 2021 the Union Ministry of Home Affairs issued a notification extending the operational jurisdiction of the BSF in the States of Punjab, West Bengal and Assam. The order released by the Centre under the Border Security Force Act, 1968 stipulates that the BSF which is entrusted with guarding India's international borders, will now exercise jurisdiction up to 50 kilometers in these three States. The BSF's powers which include arrest, search and seizure were limited to up to 15 kilometers in these States.

The move has been criticized by the Opposition- ruled Punjab and West Bengal governments which have termed it as an attack on the federal structure and an attempt to curtail the rights of the state police force.

The West Bengal Legislative Assembly on November 16 passed a resolution demanding the withdrawal of the notification issued by the Union Ministry of Home Affairs extending the territorial jurisdiction of the BSF. The resolution was passed with 112 TMC MLAs voting for it and 63 BJP MLAs voting against it.

Case Title: Sayan Banerjee v. Union of India

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