'No Power Taken Away From State Police': Supreme Court Remarks On Punjab Govt's Plea Against Expansion Of BSF Jurisdiction

In Punjab Government's plea challenging Centre's decision of extending the jurisdiction of the Border Security Force to 50 kms in Punjab as compared to the earlier 15 km, the Supreme Court orally noted that the extension of BSF's jurisdiction, as per the 2021 notification, did not take away the powers of the Punjab police. The bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra asked the Solicitor General of India (SG) Mehta (appearing for the Union) and Advocate Shadan Farasat (Additional Advocate General, the State of Punjab) to sit together and frame issues in the matter so that the issues could be settled in the next hearing of the matter. 

The bench was considering an original suit filed by the State of Punjab under Article 131 of the Constitution against the Union of India challenging the 2021 notification.

At the outset, the SG asserted that BSF had jurisdiction to undertake search, seizure, and arrest in all border states. He stated–

"Since '69, Gujarat had 80 kms. Now it is uniform- 50 kms. Some offences passport etc, BSF will have jurisdiction. Local police will also have jurisdiction..."

However, Advocate Farasat submitted that the BSF would have power in all matters pertaining to cognisable offences and not just matters pertaining to the Passport Act and other such offences. He added–

"It takes our power over public order and police. It is a federal issue. Punjab is a smaller state. Gujarat and Rajasthan it is different. Gujarat has marshy lands and Rajasthan has desert near the border regions. It's different for Punjab, which has prominent urban centres falling within the BSF jurisdiction. The exercise of power is unreasonable."

At this juncture, the SG clarified that the Punjab Police would also continue having powers over cognisable offences in the State as BSF's power would run concurrently along with Punjab Police's power. He added–

"In Rajasthan some urban cities do fall in 50 kms, it is not all desert. Meghalaya, Nagaland, Mizoram- the entire state falls within the 50 kms because the state is small. Local police is not deprived of jurisdiction. It is concurrent jurisdiction with supremacy of BSF."

At this juncture, CJI referred to the 2021 notification and observed that it does not confer the powers of investigation under the Code of Criminal Procedure to the BSF. Chapter 12 of the CrPC is not made applicable to the BSF, CJI said.

Taking note of the submission, the CJI remarked–

"No power is taken away from the Punjab police. The power of investigation is not taken away..."

The matter will now be heard in January 2024.

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-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 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