Context: 

This article is based on the news “Limits and borders: On the territorial jurisdiction of the Border Security Force” which was published in the Hindu. The Supreme Court decided to examine the questions that arise from the expansion of the  Border Security Force’s (BSF) jurisdiction by the Central Government.

Punjab Govt in SC Against Expansion of BSF Jurisdiction

• Background of Jurisdiction Expansion:  The Central government passed a notification in October 2021 amending BSF Act, 1968 extending the jurisdiction of the BSF (Border Security Force) from 15 to 50 km from the International Border.
• Legal Challenge by Punjab Government: Punjab has filed a suit against the Union government under Article 131 of the Constitution, challenging the decision to increase the operational jurisdiction of the BSF.

• Examination of Issues: A three-judge bench will hear the matter in the third week of April. The court will examine the following issues:
  • Arbitrary Exercise of Power: Whether the notification issued by the union government resulting in the increase in the jurisdiction of the BSF in the State of Punjab constitutes an arbitrary exercise of power of the BSF Act 1968.
  • Beyond the Local Limit: Whether the increase of the jurisdiction of the BSF is beyond the ‘local limits of areas adjoining the borders of India.
  • Factors to be Considered: What factors ought to be taken into account while determining the “local limits of areas adjoining the borders of India”.
  • Similar Treatment of States: 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, 1968.
  • Challenge under Original Suit: Whether the constitutionality of the notification of October 11, 2021 can be challenged in an original suit under Article 131 of the Constitution.

Centre’s Notification of 2011

• Amendment to BSF Act (October 2021)

• • The Union government amended the BSF Act, 1968 extending its search, seizure, and arrest authority from 15 km to 50 km along the international border in Punjab, West Bengal, and Assam.
  • In Gujrat, it was reduced from 80 km to 50 km and it was kept unchanged at 50 km for Rajasthan.
  • Section 139(1) (i) of the BSF Act, 1968 empowers the central government to confer powers and duties on members of the force in respect of any central acts for the purposes specified therein.

• Impact on Powers Exercised by BSF: 

  • Its jurisdiction has been extended only in respect of the powers it enjoys under Criminal Procedure Code (CrPC), Passport (Entry into India) Act, 1920 and the Passport Act, 1967. 
  • Powers related to NDPS Act, Arms Act, Customs Act and certain other laws, remain unchanged.
  • Powers under these acts will continue to be only up to 15 km inside the border in Punjab, Assam and West Bengal, and will remain as far as 80 km in Gujarat.

Rationale Behind Modification of Jurisdiction

• Operational Efficiency: The extension of the BSF’s jurisdiction will help in  curbing trans-border crimes and help to discharge its border patrol duty more effectively.
  • The limited jurisdiction of the BSF restricted its capacity to operate effectively in the “points of origin” in the deeper areas within these states, where the smuggling of goods and involved networks strive beyond its reach. 
• Uniformity in Border Operations: It will bring “uniformity” for its operations in the borders states of Punjab, West Bengal, Gujarat, Rajasthan and Assam where it can now operate within a 50 km area from the border.
  • Earlier, BSF has had different jurisdictions in different states and this will bring uniformity to the jurisdiction.
• Concurrent Powers with Local Police: The BSF does not have the power to investigate or prosecute offenders, but has to hand over those arrested and the contraband seized from them to the local police.
  • Thus, local police will continue to have jurisdiction. In practice, BSF personnel usually work in close coordination with the police and there ought to be no clash of jurisdiction. 
• Curbing Narcotics and Cattle Trade: There are growing incidents of drones delivering weapons and narcotics in Jammu and Kashmir and Punjab. 
  • However, the drones observed thus far have a limited range, typically not exceeding 20 km.
  • It would also help in curbing the menace of cattle smuggling as smugglers take refuge in the interior areas outside the jurisdiction of BSF. 
  • The BSF has been able to check cross-border crimes like narcotics trafficking and cattle smuggling in various cases where it has undertaken operations under the new jurisdiction.

Issues Involved in Extension of Jurisdiction:

• Threat to Federalism: The states along the border view the action taken by the Centre as a violation of federal principles and an infringement upon their law and order jurisdiction
  • They argue that law and order is a state subject and enhancing BSF’s jurisdiction infringes upon powers of the state government.
  • These powers are provided in Entries 1 and 2 of the State List under Article 246 of the Constitution.
  • Punjab and West Bengal have passed resolutions in their respective Assemblies opposing the expansion.
• Interference with law and Order of states: It can lead to the Centre’s interference into the law and order of the states. 
  • It will place “nearly one-third of the state, and most parts of the geopolitically sensitive northern Bengal, under the jurisdiction of the BSF” in West Bengal, which borders Bangladesh, Bhutan, and Nepal internationally. 
  • “At least nine districts” of the state of Punjab, which borders Pakistan internationally, will be fully or partially under the BSF’s expanded jurisdiction.

• Impact on Role of Border Guarding: The states have argued that policing is not the role of a border-guarding force and it will weaken the capacity of the BSF in discharging its primary duty of guarding the international border.
• No Unilateral Powers to Central government:  Punjab has stated that Section 139 of BSF Act does not give unilateral power to the Centre to extend into areas which do not touch the border.
  • It would not fall in the ambit of “local limit” to which the BSF jurisdiction can extend.
• Limited Impact on Smuggling Offences: BSF’s jurisdiction has not been increased under the Arms Act, Customs Act and NDPS Act, which cover most of the smuggling offences on the border and deal with far greater offences.
• Misuse of Powers by the BSF: Apprehensions have been made that the increased jurisdiction of BSF, without adequate safeguards, might lead to arbitrary use of their powers and result in increased human rights violations. 
  • Concerns have also been raised that the powers can be misused to frame rival leaders in false drugs and arms smuggling cases in these states.

Way Forward 

• Collaborative Federalism: Enhancing police capacity and facilitating grounds for greater cooperation between BSF and state police should be initiated jointly by the Centre and states. 
  • Cooperation is needed between the central and state agencies with enhanced information sharing for taking prompt action to resist illegal activities.
• Smart Border Management: Technology like Smart Fencing and Comprehensive Integrated Border Management System should be utilised to enable effective communication and coordination among all security agencies and controlling illegal trafficking of arms and goods.
• Police Reforms: The police forces guarding the international forces need to be trained to tackle the contemporary security challenges and must be equipped  with adequate modern infrastructure.
  • Police forces across India lack weapons and fundamental communications and transport infrastructure.
  • CAG audits have found shortages in weaponry with state police forces. For example, Rajasthan and West Bengal had shortages of 75% and 71% respectively in required weaponry with the state police.
• Institutional Support: Inter-State Council and Zonal Councils should be used to facilitate essential dialogues and consultations between the Center and the States.