SC frames legal issues, will examine validity of notification expanding BSF's mandate to 50 km from intl border

New Delhi: The Supreme Court said on Monday it will examine the validity of the Centre's 2021 notification expanding the BSF's jurisdiction to undertake search, seizure and arrest within a larger 50 km stretch from the international border as compared to the earlier 15 km limit.

The bench comprising Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra framed legal issues raised in the original lawsuit filed by the Punjab government, challenging the October 11, 2021 notification of the central government, for adjudication.

At the outset, Solicitor General Tushar Mehta, appearing for the Centre, said local police and state governments will continue to have jurisdiction over law and order issues and the Border Security Force (BSF) will deal with national security matters concerning the international border.

Earlier, the top court had asked the Centre and the Punjab government to 'exchange issues (legal questions)' with each other so that they can finally be settled by it on the next date of hearing.

'Whether the impugned notification dated October 11, 2021 of increasing the jurisdiction of the Border Security Force, from 15 kilometres to 50 kilometres in the state of Punjab constitute an arbitrary exercise of power by the defendant (Centre) under section 139 (1) of the Border Security Force Act, 1968,' the first legal question reads.

The top court also framed the question whether the increase in BSF's jurisdiction to 50 km is beyond the local limit of areas adjoining the borders under the BSF Act.

'Whether all states have to be treated alike for the purpose of determining the local limits of areas adjoining the borders of India under Section 139 (1) of the BSF Act,' the third question reads.

The bench will also examine the factors which have to be taken into account in determining the meaning of local limits of areas adjoining the borders of India under Section 139 (1) of the BSF Act.

Whether the notification dated October 11, 2021 amounts to unconstitutional interference in the legislative domain of the state under the constitutional scheme, another legal question framed by the court reads.

"Whether the constitutionality of the impugned notification of October 11, 2021 can be challenged in an original suit under Article 131 of the Constitution," is the last legal issue that the Supreme Court will scrutinise.

An original lawsuit pertaining to a dispute between the Centre and a state is filed in the apex court and the issues to be adjudicated upon by the court are framed at the initial stage of the hearing.

The court granted two more weeks to the Centre to file additional written submissions in the lawsuit filed by the Punjab government.

It also gave the state government two weeks thereafter to file its rejoinder submissions, and kept the plea for final hearing after four weeks.

During an earlier hearing, the top court had orally observed that the power of the Punjab Police has not been taken away by the Centre's decision to expand the BSF's jurisdiction to undertake search, seizure and arrest within a larger 50 km stretch from the international border.

After perusing the records, the CJI had observed prima facie there were concurrent powers to be exercised by the BSF and the state police.

"The power of investigation is not taken away from the Punjab Police," the CJI orally observed.

The solicitor general had said the BSF has jurisdiction in all border states. He said in states like Gujarat, the jurisdiction of the border guarding force earlier was up to 80 km but now it stands at a uniform 50 km in all border states.

In January 2021, the Punjab government had moved the Supreme Court challenging the Centre's decision extending the BSF's jurisdiction in border states like Assam, West Bengal and Punjab.

The state government, in its original suit, said the extension of the territorial jurisdiction of the BSF encroaches upon the constitutional jurisdiction of the state.

The Union home ministry had issued a notification amending a July, 2014 enabling provision for the BSF personnel and officers while they operate in the border areas.

While in Punjab, West Bengal and Assam, the BSF's jurisdiction was enhanced from 15 km to 50 km, in Gujarat, which shares its borders with Pakistan, the limit was reduced from 80 km to 50 km, while in Rajasthan, it was kept unchanged at 50 km.

The notification triggered a controversy, with opposition-ruled Punjab and West Bengal denouncing the move and the state assemblies adopting resolutions against it.

In its suit, the Punjab government has said the 'unilateral declaration' under the October 11 notification without consulting the state or without conducting any consultative process is violative of the provisions of the Constitution.

The plea says the effect and consequence of the October 11 notification is that it 'amounts to encroachment' upon the powers of the state by the Centre inasmuch as more than 80 per cent area of the border districts, all the major towns and cities, including all the district headquarters of these border districts, fall within a 50 km area from the Indo-Pakistan border.

It says Punjab's concerns are totally different and distinguishable from those of the Union territories of Jammu and Kashmir and Ladakh and the states of Gujarat and Rajasthan.

'It is submitted that the notification dated October 11, 2021 is ultra-vires the Constitution as it defeats the purpose of Entry 1 and 2 of List-II of Schedule 7 of the Constitution of India and encroaches upon plaintiff's plenary authority to legislate on issues which relate to or are necessary for the maintenance of public order and internal peace,' the plea says.

The BSF has a strength of about 2.65 lakh personnel and it guards over 6,300 km of international border with Pakistan on the west and Bangladesh on the eastern flank of the country.

Raised on December 1, 1965, It has 192 operational battalions and is the country's largest border-guarding force, with the Indo-Tibetan Border Police (ITBP), the Sashastra Seema Bal (SSB) and the Assam Rifles being the other three.