LIMITS AND BORDERS: ON THE TERRITORIAL JURISDICTION OF THE BORDER SECURITY FORCE

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THE CONTEXT: 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 Border Security Force (BSF). The Supreme Court is set to hear the dispute over the expansion of the BSF jurisdiction in Punjab.

MORE ON THE NEWS:

• In October 2021, the Ministry of Home Affairs had issued a notification under the provisions of the BSF Act, standardising the area over which the BSF would have jurisdiction to operate. In Punjab, West Bengal and Assam, the distance was raised from within 15 km from the border to 50 km, while it was reduced from 80 km to 50 km in Gujarat. For Rajasthan, it was kept unchanged at 50 km.
• The Union government said in a reply in the Rajya Sabha in December 2021 that the extension of the BSF’s jurisdiction will help it discharge its border patrol duty more effectively.
• The notification states that, within this larger 50-kilometre jurisdiction, the BSF can only exercise powers under the Criminal Procedure Code, the Passport (Entry into India) Act and the Passports Act. For other central legislations, the 15-km limit remains.
• It was claimed that the notification makes the BSF jurisdiction uniform across states, as the 50-kilometre limit was already in place in Rajasthan. The same notification reduced the jurisdiction in Gujarat from 80 km to 50 km.

What are the issues that the Supreme Court will consider?

• The state of Punjab 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 “to the exclusion of any other court”.
• The court will decide if the notification expanding the jurisdiction of the BSF was arbitrary or backed by legitimate reasons.
• Further, the court will determine if this notification interferes with the powers of the local police and encroaches upon states powers under the Constitution.
• The SC will also decide what factors have to be considered when deciding which areas are “within the local limits of such area adjoining the borders of India” and whether all states must be treated alike when determining these local limits.
• Finally, the court will decide if the notification can be challenged through an original suit under Article 131 of the Constitution.

BORDER SECURITY FORCES AND THEIR MANDATE

• The BSF was created after the enactment of the Border Security Force Act in September 1968. The BSF mainly focuses on preventing trans-border crimes, especially unauthorised entry into or exit from Indian territory.
• The BSF is empowered to arrest, search and seize under a number of laws, such as the Criminal Procedure Code, the Passports Act, the Passport (Entry into India) Act, and the NDPS Act etc.
• 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 offenses under any Acts that the central government may specify.
• It 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.

ISSUES

• Breach of federal principles: This attempt of centre is being seen as a breach of federal principles and an encroachment into the law and order powers of the state police. Therefore, states have got resolutions passed in their Assemblies against the expansion and here, Supreme Court’s decision to examine the questions that arise from the expansion of the BSF’s area of operations acquires significance.
• Not proper consultation: Litigation concerning the territorial jurisdiction of the Border Security Force (BSF) in the states seems to be the result of the lack of effective consultation between the central and State governments.
• Issue of public order: The state government claimed that expanding the jurisdiction of the BSF would compromise the state’s exclusive powers to legislate on matters involving the police and public order. These powers are provided in Entries 1 and 2 of the State List under Article 246 of the Constitution.
• Issue specific to Punjab: The notification has specific concerns related to Punjab. It is claimed that in Punjab, a large number of cities and towns would fall within this 50-kilometre jurisdiction, whereas in Gujarat and Rajasthan, most areas along the international border are sparsely populated.
• Affecting Functioning of BSF:Policing in the hinterland is not the role of a border guarding force, rather it would weaken the capacity of the BSF in discharging its primary duty of guarding the international border.

THE WAY FORWARD:

• Consultation with state: Centre must consult states before making decisions that affects their powers, given the security condition in India’s neighbourhood. Before the Union Government deploys its armed forces, it is desirable that the State Government should be consulted, wherever feasible.
• Ensuring federal principles: Whether or not the Union government have valid reasons for its move, it should not encroach into the domain of the State governments.
• Adequate reasons for expansion: It is being argued that the expanded jurisdiction merely authorises the BSF to conduct more searches and seizures, especially in cases in which the offenders manage to enter deep into the country’s territory. However, there needs to be adequate and strong reasons for the expansion of the jurisdiction of any central force.
• Regional Arrangement: A regional arrangement can be ensured for the use of Armed forces in neighbouring states in case of need. The Zonal Council would be the best forum for achieving consensus of the States within a zone for devising such an arrangement.
• Complementing local police: This move can help in complementing the efforts of the local police as an enabling provision. As, the state police have better knowledge of the ground, hence, BSF and local Police can act in cooperation.

THE CONCLUSION:

Though enhanced presence and powers of Border Security Forces aims to strengthen India’s security in border areas, cautious attempts need to be taken to ensure that nation’s security and territorial integrity is upheld by both Centre and the States while upholding the federal principles at the same time.

UPSC PREVIOUS YEAR QUESTIONS

Q. Border management is a complex task due to difficult terrain and hostile relations with some countries. Elucidate the challenges and strategies for effective border management. (2016)

Q. Analyse internal security threats and transborder crimes along Myanmar, Bangladesh and Pakistan borders including Line of Control (LoC). Also, discuss the role played by various security forces in this regard. (2020)

MAINS PRACTICE QUESTION

Q. Keeping in view the recent decision to increase the operational jurisdiction of the Border Security Forces (BSF), analyse its implications with regard to federal principles and internal security of the country.

SOURCE: https://www.thehindu.com/opinion/editorial/limits-and-borders-on-the-territorial-jurisdiction-of-the-border-security-force/article67769125.ece