In October 2021, the Ministry of Home Affairs (MHA) issued a notification expanding the jurisdiction of the Border Security Force (BSF) in Punjab, West Bengal and Assam.
Punjab government challenged the order in December 2022, which will be heard by a three-judge bench headed by CJI D.Y. Chandrachud.
The Border Security Force Act was enacted in 1968, which gave birth to BSF. This act empowered BSF to arrest, search, and seize under different laws to secure India’s borders.
The central govt. can designate an area on the international border where the members of BSF can exercise their powers. Home ministry’s notification increased this area from 15 to 50 km of the border in Assam, West Bengal and Punjab.
Section 139(1) of the BSF Act allows the central government, through an order, to designate an area “within the local limits of such area adjoining the borders of India” where members of the BSF can exercise powers to prevent offences under any Acts that the central government may specify.
Prior to the notification issued in October 2021, the BSF could exercise its powers within 15 kilometres of the border in Punjab, West Bengal and Assam. The Centre expanded this to within 50 kilometres of the border.
The notification specifies that the BSF has jurisdiction over a larger area of 50 kilometres, but it can only exert its authority under the Criminal Procedure Code, the Passport (Entry into India) Act and the Passports Act. However, for other central legislations, the limit of 15 kilometres still applies.
Tushar Mehta, the Solicitor General of India, stated that the notification has made the jurisdiction of BSF uniform across all states. It was already in place in Rajasthan with a 50-kilometre limit. However, the same notification has reduced the jurisdiction from 80 km to 50 km in Gujarat. The Minister of State for Home Affairs, Nityanand Rai, stated in a written communication on December 7, 2021, that the expansion is in response to increased drone and unmanned aerial vehicle usage, which enables surveillance and smuggling. Cattle smuggling is also a concern, as smugglers often seek refuge outside the BSF’s jurisdiction.
The Punjab government filed an ‘original suit’ against the central government in the Supreme Court in December 2021. The Supreme Court has ‘original jurisdiction’ in disputes between the central government and states under Article 131 of the Constitution, which means cases of this kind can only be heard for the first time at the SC and not any other court.
The Punjab government claimed that expanding the jurisdiction of the BSF would encroach upon the state’s exclusive powers to legislate on matters involving the police and public order, which are provided in Entries 1 and 2 of the State List under Article 246 of the Constitution.
The notification was allegedly issued without consulting any of the concerned states, according to their claims. Following the release of the notification, the then Chief Minister of Punjab, Charanjit Singh Channi, criticised it as a “direct attack on federalism”.
Advocate General Shadan Farasat argued in Dec 2023 before the SC that Punjab has many cities and towns within the 50-km jurisdiction, unlike Gujarat and Rajasthan, which have sparsely populated areas along the international border, mostly comprising marshlands and deserts.
As of now, no other state has challenged the notification. However, it faced opposition from West Bengal when it was released. The West Bengal Assembly passed a resolution soon after the October 2021 notification, calling for its withdrawal.
The court will decide if the BSF jurisdiction notification was arbitrary or legitimate. It will also examine if it interferes with the local police or state powers under the Constitution. The Supreme Court will determine factors for deciding local limits and if the notification can be challenged under Article 131.
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