The Home Office recently extended the jurisdiction of the Border Security Force (‘BSF) to the states of West Bengal, Assam and Punjab – a move that has drawn criticism from the states of Punjab and of the West Bengal government for violating the federal structure and infringing the rights of the state police. The states argued that since public order is a state matter, the enhanced jurisdiction of BSF encroaches on the powers of the state government. Where does the Home Office get its power to strengthen the powers of BSF and on what grounds do states claim that the increased powers of BSF undermine its police powers?
Border Security Force
BSF is one of the central armed police forces of India formed to defend the national interest of India primarily against internal threats. Central armed police forces under the authority of the Ministry of the Interior. The other armed forces that are part of the CAPF are the Border Security Force, the Central Police Reserve Force, the Central Industrial Security Force, the Indo-Tibetan Border Police and Sashastra Seema Bal. The main role of BSF is to guard the Indian border along its border with Pakistan and Bangladesh. ITBP’s mandate is to guard India’s border alongside China and Sashastra Seem Bal guard India’s border with Nepal and Bhutan. The security of sensitive establishments falls under the mandate of the Central Industrial Security Force and the CRPF’s counterterrorism operations. The power, duties and jurisdictional limitations of the Border Security Force are provided for in the Border Security Force Act, 1968. Section 139 (1) of the BSF Act gives the central government and, therefore, the Department of Interior the power to define the jurisdictional limitation of the BSF. As provided for in the annex to the BSF law, the jurisdiction of BSF extends to the 10 States and the 2 Union territories which share a border with Pakistan or Bangladesh, i.e. Manipur, Mizoram , Tripura, Nagaland and Meghalaya, Gujarat, Rajasthan, Punjab, West Bengal and Assam and TUs of Jammu and Kashmir and Ladakh. Within these states, the jurisdictional powers of BSF vary from state to state.
Limitation of jurisdiction under the Border Security Force Act, 1968.
A notification published in 2014 had defined BSF’s jurisdiction as “the entire area comprised in the states of Manipur, Mizoram, Tripura, Nagaland and Meghalaya and a large part of the area within an 80-kilometer belt in the State of Gujarat, 50 kilometers in the State of Rajasthan and 15 kilometers in the States of Punjab, West Bengal and Assam, along the borders of India. The Notice 2021 amends the 2014 notification and extends the jurisdiction of the BSF up to 50 km within the international borders of Punjab, West Bengal and Assam. Previously, the powers of the BSF were limited to 15 km in these states. The jurisdictional limit in relation to the state of Gujarat has been reduced from 80 km to 50 km.
The power of central government to improve jurisdiction
The central government in the exercise of the powers conferred by Article 139 (1) of the Frontier Security Forces Act 1968 may from time to time notify the area and extent of the operational mandate of the border force. Article 139 (1) provides that the central government may, by notification to the Official Gazette, order that within the local limits of this area adjoining the borders of India any member of the Force may exercise the powers and duties in under the laws specified in the said orders. The specified laws are Passport Law (Entry into India), Aliens Registration Law, Excise and Central Sale Law, Aliens Law, FEMA, Customs Law or any offense punishable under any other central law. In addition, article 139 provides that if the central government wishes to confer or impose on the members of the BSF powers or duties which may be exercised by virtue of a state law, the consent of the state government is required. Section 139 (3) further requires that ordinances passed under that section be tabled in Parliament and passed by both Houses..
Thus, it emerges from the text of article 139 of the BSF law that the central government has the power to unilaterally increase or decrease the jurisdictional limits of the Border Security Force in these areas. There is no statutory mandate to consult or agree to state governments where the enhanced powers are under central laws. The BSF law only requires the consent of the State in question when the powers or duties conferred are subject to State law.
Increased powers and federal structure of BSF
Under Article 246 of the Constitution, legislative powers are distributed between the Center and the states on the Union list, the list of states and the concurrent list. The list of states (List II) grants states exclusive jurisdiction over public order and police. While entry 2 of the List of States specifies that policing is a function of the State, it is imperative to note that the entry is followed by the words “subject to the provisions of entry 2A of List 1 “. Entry 2A of List 1 (Union List) provides: “deployment of any armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof in any State to the aid of the civil power. A quick reading of the text of the Constitution itself specifies that the power of the State over public order and the maintenance of order is not absolute. The law is circumscribed by the deployment of any armed force of the Union. It is also important to note that under the guise of the deployment of armed force, state police authority cannot be completely supplanted. It can only do so to the extent permitted by article 246 and the law on border security forces.
It is interesting to note that in 2011 Draft law on border security forces (amendment) was introduced with the intention of giving BSF powers of search, seizure and arrest in any part of the country where it is deployed. He sought to omit the words “joining the borders of India”, thereby effectively extending the jurisdictional scope of BSF to all states in the country. The bill did not see the light of day and has been pending for all these years, but in this regard the observations made by the Supreme Court in Naga People’s Human Rights Movement v Union of India are crucial:
“The expression” to the aid of the civil power “at entry 1 of the State list and at entry 2A of the Union list implies that the purpose of the deployment of the Union’s armed forces is to allow the civil power of the State to deal with the situation affecting the maintenance of public order which necessitated the deployment of the armed forces in the State.The word help, postulates the existence of an authority to help. This would mean that even after the deployment of the armed forces, the civil power will continue The power to make a law providing for the deployment of the armed forces of the Union to the aid of the civil power of the State does not include the power to enact a law which would allow the Union’s armed forces to supplant or act as a replacement for civil power in the State.
Thus, the power of the central government to strengthen the adjudicative powers of central forces such as the Border Security Force is limited by the following conditions: a, that it must be in relation to states bordering India’s borders; second, state assent is required if the enhanced powers relate to state laws; third, the notice / order passed through Parliament and adopted by both houses and fourth, the Supreme Court of India’s observation that Union forces must not have the effect of supplanting or substituting civil power in the state. The legal challenge, if any, of the 2021 notification must be based on the fact that it results in the substitution of civil power in the state or exceeds the limit prescribed by article 139 (1) of the law of 1968 on border security forces.