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

THE CONTEXT: The Supreme Court of India granted a six-month extension to Delhi’s Chief Secretary Naresh Kumar in November 2023. The Court’s approval of an extension for Delhi’s Chief Secretary is seen as an instance of judicial self-abnegation.

ISSUES:

• Judicial self-abnegation: It has been observed that government has been hard headed in this case. Court abstained from self-restraint and justified the government stance. Apex court is criticised for being inconsistent with its past rulings.
• Ignoring the accusations: Supreme court has justified the extension with Government of National Capital Territory of Delhi (GNTCD) amendment act 2023 despite having allegations of corruption and favouritism The Solicitor General has mentioned that the central government is the ultimate decision-making body over the appointment of a chief secretary for the Government of the national capital territory of Delhi.
• Executive circumventing the judiciary: GNTCD amendment Act 2023 was passed to negate the service judgement by supreme court which held that under Article 239AA of the Constitution, the elected government of Delhi exercises control over services in Delhi. Delhi government’s recommendation was necessary for extending the tenure of the Chief Secretary under Rule 16 of the All-India Services Rules, 1958.
• Creating exception as an excuse: Supreme Court has carved an exception for the Chief Secretary of Delhi by holding that he is differently placed than other services and not bound by the Services judgment. However, the Court’s current order of November 29, 2023, permitting the Union Government to unilaterally extend the tenure of the incumbent Delhi Chief Secretary despite the Delhi Government’s opposition, undone the Court’s own reasoning and constitutional logic.
• Unresolved conflicts: Serious allegations of corruption are imposed on the chief secretary which are currently under investigation. Chief secretary has completely lost the trust and confidence of elected government. Therefore, chief secretary tenure can’t be extended in the name of public interest and any justification. Otherwise, it perpetuates the distrust between the elected government and the bureaucracy in all matters of governance.
• Ignoring the landmark judgements: Supreme court has not taken Royappa case into account in which it has explained the significance of chief secretary. Royappa held that Chief secretary is lynchpin in administration necessitating rapport between him and chief minister.
• Deciding matter on convenience: The court failed to note that the 2023 amendment did not overrule the application of Royappa case, and it is the “position of law as it exists today”. This flaw is clear from the fact that the Court order does not even rely on the 2023 amendment, for there is no provision under it relating to the appointment, or the extension of tenure, of the Delhi Chief Secretary.
• Impacting the federal relations: Supreme Court erroneously held that Lt. Governor can act in his sole discretion in appointment of Chief Secretary of Delhi. However, it should be grounded on the aid and advice of the elected Government of Delhi. The Court reasoned that the Chief Secretary is concerned with the three subjects reserved for the Union Government but overlooked the hundred state subjects over which Delhi government has competence.

THE WAY FORWARD

• Adherence to the constitution: Judges should maintain a firm commitment to uphold the Constitution. This involves actively ensuring that all laws and acts of the executive are in line with constitutional mandates.
• Maintaining right judicial position: The Supreme court should revisit and recollect the past judgements related to services to give reasonable and consistent judgements. Developing and adhering to robust legal principles and frameworks can help guide when self-restraint is appropriate and when it veers into self-abnegation.
• Addressing the corruption: There should not be even an iota of complacency in addressing the complaints of corruption. Investigations should be held in time bound manner.
• Impact on governance and accountability: The Supreme court should uphold the constitutional principles consistently. The judiciary should assert its independence by refraining from undue deference to the political branches of government.

THE CONCLUSION:

The key is for the judiciary to find the right balance in fulfilling its constitutional duties effectively while respecting the functions and competencies of the legislative and executive branches. The Supreme Court may enhance the clarity in orders and appropriateness with reasonability of its decisions on matters related to the services in NCT of Delhi.

UPSC PREVIOUS YEAR QUESTION

Q.1 Whether the Supreme Court Judgment (July 2018) can settle the political tussle between the Lt. Governor and elected government of Delhi? Examine. (2018)

MAINS PRACTICE QUESTION

Q.1 Examine the concept of judicial abnegation within the context of the Supreme Court’s handling of service matters pertaining to the Chief Secretary of Delhi. Discuss the implications of the Supreme Court’s decision in the context of administrative control within the National Capital Territory.

Source: https://www.thehindu.com/opinion/lead/judicial-contradiction-in-delhi-chief-secretarys-extension/article67745632.ece

THE CONTEXT: The Supreme Court has struck down the remission granted to convicts in the Bilkis Bano gangrape case of 2002. The court has ruled that the Gujarat government’s decision to remit their sentences and set them free was illegal.

MORE ON THE NEWS:

• The convicts had been sentenced to life imprisonment by a Sessions Court in Mumbai after the investigation in the ‘Bilkis Bano case’ was shifted from the Gujarat police to the CBI and the trial transferred to Mumbai.
• In August 2022 convicts were released from Godhra sub-jail on remission by Gujarat government. In September, Bilkis Bano approached SC challenging the premature release of the convicts.
• The recent SC verdict is based on the ground that Gujarat did not have any jurisdiction to decide on granting remission to convicts sentenced in Maharashtra.

WHAT IS THE LAW ON REMISSION OF SENTENCES?

• Under Articles 72 and 161 of the Constitution, the President and Governors of states can pardon a convict, and can also suspend, remit, or commute a sentence passed by the courts.
• State governments too have the power to remit sentences under Section 432 of the Code of Criminal Procedure (CrPC) as prisons is a State Subject.
• However, Section 433A of the CrPC puts certain restrictions on these powers of remission. It says: “Where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.”

WHAT ARE THE GROUNDS FOR REMISSION?

• States set up a Sentence Review Board to exercise the powers under Section 432 of the CrPC.
• The Supreme Court has held that states cannot exercise the power of remission arbitrarily and must follow due process.
• While the policy varies from state to state, broadly the grounds for remission considered by the Board are the same.
• These factors to be considered while making a decision on granting remission are:

1. seriousness of the crime
2. status of the co-accused
3. conduct in jail

• In ‘Laxman Naskar v. Union of India’ (2000) the SC laid down five grounds on which remission is considered:
  1. Whether the offence is an individual act of crime that does not affect the society?
  2. Whether there is a chance of the crime being repeated in future?
  3. Whether the convict has lost the potentiality to commit crime?
  4. Whether any purpose is being served in keeping the convict in prison?
  5. Socio-economic conditions of the convict’s family
• Jail manuals contain rules that allow certain days of remission in every month for good behaviour of convicts.
• For those serving fixed sentences, the remission days are accounted for while releasing the convict. However, convicts serving life sentences are entitled to seek remission only after serving a minimum of 14 years.

SIGNIFICANCE OF THE VERDICT:

• Restoration of faith in judiciary: The ruling represents a blow for the rule of law and the restoration of faith in the judiciary at a time when there are doubts about the institution’s capacity to hold power to account.
• Timely implementation of remission laws: The judgement is a timely invocation of the core principles that encourages exercise of the power to grant remission as fair and reasonable. It should be based on a set of relevant parameters such as whether the crime involved affected society at large, whether the convict retained the potential for committing similar offences or is capable of reform.

CAN THE CONVICTS APPLY FOR REMISSION AGAIN?

• The criminal justice system has provisions like remission or reduction of sentence, taking into account the fact that a person can reform, and can be set free as a better citizen.
• In its judgment, the Supreme Court said that there are competing interests that of the rights of the victim or her family to justice, and that of a convict’s claim to a second chance.
• The Bench said that in prior judgments, it has expressed scepticism over the latter, particularly if the offence committed is a heinous one.
• The convicts can approach the Maharashtra government for remission in the future. Whether remission is granted will, however, depend on various aspects, including the remission policy of the state.
• The convicts had argued before the Supreme Court that the policy applicable to them would be the one in vogue at the time of their conviction, which was in 2008.

THE CONCLUSION:

In a highly anticipated judgment, the Supreme Court set aside the remission of convicts sentenced to life imprisonment accused of heinous crimes during the 2002 communal riots in Gujarat. Any rational remission policy should encompass humanitarian considerations and the convicts’ scope for reform without violating the rule of law or societal interests.

PREVIOUS YEAR QUESTIONS

Q. Instances of the President’s delay in commuting death sentences has come under public debate as denial of justice. Should there be a time specified for the President to accept/reject such petitions? Analyse. (2014)

MAINS PRACTICE QUESTIONS

Q. The Supreme Court verdict quashing the remission granted to convicts in the Bilkis Bano case of 2002 is an example of restoration of rule of law and faith in judiciary. Comment.

SOURCE: https://www.thehindu.com/opinion/editorial/unlawful-remission-the-hindu-editorial-on-the-bilkis-bano-case/article67719957.ece

THE CONTEXT: On 4 April 2022 South Delhi Municipal Corporation (SDMC) Mayor wrote a letter to the SDMC commissioner to ensure all meat shops in the SDMC limits remain closed till 11 April 2022 “keeping in view the sentiments and feelings of the general public” during the festival of Navratri. Though a legally enforceable order to that effect is yet to be issued, the Mayor’s appeal has created enough confusion and controversy. This article analyzes the constitutional validity of imposing such meat bans citing the religious sentiments of a section of a population. Let us first understand the history, data, and lived experience of Indian society and its meat-eating habits.

HISTORY:

• Indian traditions present a far more complex picture than just being a vegetarian society. India has very old meat-eating as well as very deep vegetarian societies which often inappropriately compel or necessitate people to take a position or to defend one over the other.
• History suggests that meat was consumed widely in ancient India as far back as the Indus valley civilisation. Animal sacrifices were common in the Vedic era, between 1500 and 500BC – the meat was offered to the gods and then consumed at feasts. Over centuries meat disappeared from the diet of some communities for varied reasons but religion was not the only driver of such changes.
• Colonialism ( late 19^th century), which altered land use, agricultural patterns and trade, and even famines played a big role in making the modern Indian diet – a predominance of rice, wheat, and dals.

DATA:

• Meat consumption among Indians is growing, propelled by factory-farmed chicken. The most-ordered dish on the Indian food delivery platform Swiggy last year (2021) was chicken biryani. Indians ordered two plates every second.
• It’s hard to pin down exactly how much meat Indians consume. When asked if they are vegetarian, 39% said yes to a Pew survey and 81% said they eat meat, but with restrictions – either they don’t eat certain meats or avoid meat on certain days of the week.
• The term non-vegetarian for meat-eating is reflective of the popular perception that vegetarian food is the norm and meat-eating is the aberration. Let us see the constitutional reasonableness of such calls for a blanket ban on meat citing religious reasons.

ARTICLE 19(1)(g): The Constitution grants the fundamental right to carry out trade under Article 19(1)(g). The only permissible limitation of this fundamental right is through imposing reasonable restrictions under Article 19(2)-(6). However, any reasonable restriction under Article 19(2)-(6) must only be through a statutory ‘law’ as held in Bijoe Emmanuel & Ors. v. State of Kerala (1986). The orders by Mayors are executive orders and are not sufficient to restrict the freedom of trade. The existence of law is a necessary requirement.

GOLDEN TRIANGLE: Even if these bans were backed by statutory authorities, it has to pass the tests of the golden triangle (Article 14, 19, and 21). To pass the test of Article 14, the law has to be tested through the parameters of reasonableness since the guarantee of equality is a guarantee against arbitrariness. Any law which is disproportionate or excessive would be manifestly arbitrary as held in Sharaya Bano v. UOI (2017).

ARTICLE 21: It violates the right to freedom of choice of individuals under Article 21. The right to food as reiterated recently in Re: Problems and Miseries of Migrant Labourers (2021) and the right to choose as observed in Soni Gerry v. Gerry Douglas (2018), is an intrinsic part of Article 21. Thus, it is understandable that the freedom to choose a particular food of choice would also be a matter of personal liberty and individual autonomy.

ARTICLE 51(A)(e): Article 51(A)(e) of the Fundamental Duties promotes harmony and a spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities.

ARTICLE 25: According to the Census of India, apart from the majority religions, more than 6 million people profess other religions and faith. Every religion and faith has its own custom and practice. An attempt to give these orders any legislative colour would infringe upon the secular feature of the Constitution because then it would lead to floodgates of different claims from different religious communities, shaking the very essence of Article 25.

In a series of rulings, courts have held that the right to choose one’s food is an intrinsic part of the right to privacy and personal liberty. In the landmark Puttaswamy ruling in 2017, upholding the right to privacy as a fundamental right, the Supreme Court held that “the choice of food habits” is an aspect of privacy that must be protected. The nine-judge bench of the Supreme Court in the Puttaswamy case, unanimously declared privacy to be a fundamental right and held that “it is a fundamental and inalienable right and attaches to the person covering all information about that person and the choices that he/she makes. It protects an individual from the scrutiny of the State in their home, of their movements, and over their reproductive choices, choice of partners, food habits, etc.

The bans must pass the test of proportionality and reasonableness evolved by the supreme court in the Puttaswamy judgement. The right to food has now been recognized as part of one’s fundamental right to privacy under Article 21.

WHAT DO THE COURTS SAY?

SUPREME COURT:

• In 2008, while deciding the constitutional validity of closing a slaughterhouse for 9-days during a Jain festival in Ahmedabad, the 2-judge bench of the Court held that “a large number of people are non-vegetarian and they cannot be compelled to become vegetarian for a long period. What one eats is one’s personal affair and it is a part of his right to privacy which is included in Article 21 of our Constitution”. However, the Court upheld the 9-day ban. Interestingly, after retirement, Justice Markandeya Katju, who authored the judgment, said that he had doubts about the correctness of that verdict.
• In 2015, the Supreme Court while refusing to interfere with the Bombay High Court decision staying the order prohibiting the sale of meat during a Jain festival remarked that the meat ban cannot be forced down people’s throats and that such matters must be handled with tolerance and compassion.
• In 2018, the Supreme Court in a PIL seeking a ban on the export of meat, orally remarked “Do you want everybody in this country to be vegetarian? We can’t issue an order that everyone should be vegetarian.“
• Similarly, in 2020, the Supreme Court commented while hearing a plea to ban Halal meat “Tomorrow you will say nobody should eat meat? We cannot determine who should be a vegetarian and who should be a non-vegetarian“.

VARIOUS HIGH COURTS: 

• In 2016, the Bombay High Court struck down certain amendments to the Maharashtra Animal Preservation Act 1976 relating to the beef ban
• In 2017, the Allahabad High Court held that the right to choice of food falls within the fundamental right to food, and eating food of choice, be it meat, is an aspect of the Right to Food.
• In 2011, the Uttarakhand High Court orally observed that the matter of banning meat concerns the fundamental rights of the citizen and that India is a country where 70% of the population eats non-vegetarian food hence meat ban is not a majority vs. Minority issue.

OTHER ASPECTS OF THE MEAT BAN

FOOD CULTURE AND NUTRITION: The lives and diets of poor people who cannot afford the amount of milk, dry fruits, and different pulses that the rich eat at every meal on a daily basis. The poor can only get their protein from meat, which is cheaper when compared with other meats, as well as vegetarian components.

IMPACT ON RURAL ECONOMY: Cattle that have outlived their utility for a farmer are usually sold in local cattle fairs and eventually find their way to slaughterhouses. The modest proceeds from such sales help the farmer in times of distress.

IMPACT ON LIVELIHOODS: The livelihoods of the butcher community in the urban centers solely revolve around the meat trade and imposing a blanket ban can have adverse effects.

IMPACT ON ECONOMY: India’s thriving leather Industry is valued at the US $ 17.8 billion, generating 95% of India’s footwear needs, and its offals are used widely in the pharmaceutical and manufacturing industries. The economic value of an animal, despite it not being purchased by another farmer, exists because of all post-farm downstream economic values of the cattle economy after slaughter (including exports) which will be negatively impacted.

THE ANALYSIS OF THE ISSUE

• There cannot be 99 percent of people at any point in time, not consuming onion and garlic when we have meat-eaters on any given day. The state intervention in people’s eating habits is a dangerous step. The law prohibiting animal slaughter was a first, but now the flames are inching toward other non-vegetarian products. This must ring bells for a protein-deficient country where half the kids are suffering from anemia and malnutrition. In fact, you don’t even need to look that far. According to a 2017 study by research firm IMRB, close to 60 percent of Delhi’s population suffered from protein deficiency.
• It is evident that the clamour for a meat ban is aimed at making political gains by triggering religious sentiments. A ban on meat shops does not serve any larger public purpose other than catering to the sentiments of a section, which will amount to forcing all sections of society to follow the beliefs and observances of a particular group. Such a ban, imposed solely on the ground of religious sentiments and which infringes the fundamental rights under Articles 19 and 21, falls foul of the post-Puttaswamy test of proportionality and reasonableness evolved by the Supreme Court.

THE WAY FORWARD

• Sans legitimacy, these bans only create societal unease leading to communal disharmony. While many communities do observe restraints on eating meat on certain occasions or eating certain types of meat, there is no logical corollary on putting a blanket ban on meat consumption for others when more than 70% of the people in India consume the same.
• Thus, any political overreach, regulating from the choice of clothes to wear to the type of food to consume, is surely unwarranted and constitutionally unsound and the government of the day must refrain from doing so.
• Though the Article 48 of the Indian Constitution guides the states to make efforts for banning the slaughtering of cows and calves, along with other milch and draught cattle; and directs them to organise agriculture and animal husbandry on modern and scientific lines, it should not be the basis for the state to regulate the choices of food that people of India consume.
• As the custodian of citizens’ rights and liberties in a diverse democracy, the court has played a seminal role in expanding the space for freedoms. People in positions themselves should draw the constitutional red line on such freedoms and must refrain from giving unwarranted public opinions.

THE CONCLUSION: Some people do not eat meat during these nine days of Navrati, but at the same time, they do not wish to see others being deprived of their food just because they themselves are participating in customs. That’s how you grow respect for a community, festival, or religion. In the neighbourhood of Ghaziabad, Mayor has rolled back a similar meat ban proposal and presents a good example for others to follow.

MAINS PRACTICE QUESTIONS:

1. “India’s religiously diverse population is composed of religious communities who are not too familiar with each other’s beliefs and practices, yet many Indians take a pluralistic, rather than exclusivist, attitude toward religious beliefs.” Elaborate on how India has sustained over centuries as a peace-loving society.
2. “Regulating from the choice of clothes to wear to the type of food to consume, is surely unwarranted and constitutionally unsound.” Elaborate