TOPIC: JURISDICTION OF BORDER SECURITY FORCE AND FEDERALISM

THE CONTEXT: Ministry of Home Affairs, in its unilateral decision, extended the power of Border Security Forces (BSF) by giving the authority to arrest, search, and seizure to the extent of 50km inside three new states of Assam, West Bengal and Punjab who are sharing international boundaries with Pakistan and Bangladesh. As per MHA, this will help curb illegal activities linked to national security in 10 states and 2 union territories. However, the Chief Ministers of these states have called it an attack on federalism. In this context, let us understand the debate.

RECENT STEPS OF MHA EXPLAINED

1. The Union home ministry has amended the BSF Act to authorize the Border Security Force to undertake search, seizure, and arrests within a 50 km width, instead of the existing 15 km, from the international border in Punjab, West Bengal, and Assam.
2. In Gujarat, the width of the BSF jurisdiction has been reduced from 80km to 50km.

CONSTITUTIONAL PERSPECTIVE

1. As per Article 355 of the Indian Constitution, the Centre can deploy its forces to protect a state against “external aggression and internal disturbance,” even against the state’s wishes.
2. If the state opposes the deployment of armed forces of the Union, the right course for the Centre is first to issue directives under Article 355 to the state concerned.
3. If the state doesn’t comply with the Central government’s directives, then the Centre can take action against the state under Article 356 and thus impose President’s rule.

OBJECTIVES OF BSF IN PEACETIME

• BSF Act, 1968 declares that the objective of BSF is ‘ensuring the security of the borders of India and for matters connected therewith.
• As per the BSF website, the force’s peacetime tasks include preventing trans-border crimes, unauthorized entry into or exit from India’s territory, and preventing smuggling and any other illegal activity.
• The new notification empowers an officer of the lowest rank of BSF to exercise and discharge the powers and duties without an order from a Magistrate and without a warrant.

EXAMPLES OF INSTANCES WHERE STATES SAW LAW AND ORDER SITUATION AS CENTRAL VENDETTA

1. Drug and Infiltration in Punjab: State government of Punjab showed it as a fight between BSF and State Police while ignoring the drug menace.
2. Aryan Khan Arrest case in Maharashtra: State government ignored the drug issue and started questioning NCB for attempting to unearth the drug syndicate.
3. Bihar vs. Maharashtra: During the Sushant Singh Rajput death probe, instead of focussing on the death of the actor, it was turned into an orchestra of Bihar police vs. Maharashtra police.
4. Chit Fund Scam, Bengal: Kolkata police ignored the scam and focussed its energy against CBI.

WHY THE CURRENT MOVE OVER BSF JURISDICTION IS CORRECT?

1. Uniformity: This will uniformize the BSF jurisdiction and thus provide operational clarity to the forces.
2. Operational Efficiency: The change can help BSF improve its operational efficiency and crack down on smuggling rackets, especially in the context of recent smuggling incidences through the use of Drones.
3. Not against Federalism: Since BSF can be involved only in cases of the NDPS Act or related to arms and ammunition, it is not an encroachment on the state’s rights. Also, it is the duty of the Centre to curb trans-border crime and thus shouldn’t be seen as against federalism.
4. Power of Investigation is still with the states: Although BSF can arrest someone for a crime, it has to hand over the person to the local Police for investigation, and thus, the power of state police is still effective. Thus, the move cannot be seen as an encroachment.
5. BSF has jurisdiction in other states too: While the current move extends the jurisdiction to a further 35km of these states, still it is not something new. Paramilitary forces already have jurisdiction of 50km in many other border states and in many states that are Naxal affected. So, the current uproar is more political than real.

WHY DO STATES CALL IT AN ATTACK ON FEDERALISM?

1. Section 139(2) of BSF Act, 1968: The Act categorically states that the Centre has to take the concurrence of the state government concerned. However, nowhere this has been done.
2. Unilateral Decision: The decision to change the jurisdiction was unilateral and no discussion took place between the Centre and the State on the issue. This clearly violates the principles of federalism.
3. Control of BSF: BSF is a central paramilitary force that reports to the Union Government. So, even though policing is a state subject under the seventh schedule of the Indian Constitution, now the policing of the state’s territory will be done by a central force.
4. BSF doesn’t require policing authority anymore: BSF was given policing authority in 1968 due to the thin presence of the police force and due to the lack of communication technology. However, at present Police has undergone a paradigm shift and are adequately equipped to handle law and order. Thus, BSF doesn’t need to do the police work anymore.
5. Lack of data to back the changes: The amendment fails to provide any data to explain the inadequacy of the earlier jurisdiction of BSF. So, the unexplained change shows an attack on federalism.
6. Gujarat case: Recently there was a record haul of 3000 kg of heroin from a port in Gujarat. Still, the jurisdiction of BSF is reduced in Gujarat while increasing in the three states. This has led to analysts calling it a political move.
7. Central Rule by Proxy: The amendment in a way leads to central rule in state’s territories and thus is being criticized as a central rule by proxy.

THE WAY FORWARD

1. Smart Border Management: Smart border management can ensure that infiltration and trafficking are reduced. This will stop the problem at its root rather than doing policing post infiltration of terrorists or goods.
2. Intelligence: Our intelligence forces are found unprepared time and again due to the excessive dependence on their sources without proper evaluation. Proper cultivation of sources and use of ICT can help develop proper intelligence which can help BSF cut down on the attempts at the border itself.
3. Police Reforms: Police forces need to be reformed and better equipped so as to handle law and order problems especially in the context of modern challenges to internal security. Mission Karmayogi and Crime and Criminal Tracking Network and Systems is a step in the right direction.
4. Consult with the State: A proper mechanism needs to be institutionalised under which the Centre should consult with the State before deploying central forces.
5. Interstate Council and Zonal Councils: These councils need to be revitalised so that any such unilateral action is avoided in future.

THE CONCLUSION: The current controversy over the increasing BSF jurisdiction is a mix of necessity and politics. While it was necessary to make the jurisdiction of BSF uniform and empower it in the context of the usage of drones for dropping of drugs and arms and ammunitions by the neighbouring countries into India, it was done in a manner where states were not consulted and thus Centre instead of having a collaborative federalism approach chose its heavy hand to show its authority. However, states too have failed to uphold collaborative federalism at various times and the current outburst is one of these moments. Thus, institutionalised solutions like the one’s mentioned above need to be established for ensuring that nation’s security and territorial integrity is upheld by both Centre and the States.

Question:

1. Do you think that the increase of the jurisdiction of BSF can be called a ‘central rule by proxy’? Justify your view.
2. India’s security problems are a result of intelligence failure. Critically analyse.