In a Gazette notification issued on 11.10.2021, the Union Government enhanced the operational jurisdiction of the Border Security Force (BSF) in states where it guards India’s international borders. The Ministry of Home Affairs extended the BSF’s jurisdiction from 15 km to 50 km inside the international border in Punjab, West Bengal and Assam whereas in Gujarat, it was reduced to 50 km from 80 km, thereby giving them the powers of search, seizure and arrest. The 2021 notification is an amendment of an earlier notification dated 03.07.2014
The decision has drawn in sharp criticism from the West Bengal and Punjab government who have termed it an irrational attack on federalism.
What could the problem with this be?
The Border Security Force (BSF) is one of India’s Central Armed Police Forces (CAPF) that was constituted in the year 1965 when the Union realised the inadequacy of State Armed Police Forces in guarding international borders at that time. The need for a specialised centrally controlled force which could perform this task was at the heart of BSF’s inception. However, a 2011 Amendment Bill sought to amend the parent Act to allow for deployment of the BSF in areas other than the borders of India or its adjoining areas. While the Bill was not passed, it is important for us to note that the Union has, even in the past, intended to give vast powers to the BSF. It is in this context that one must situate the current notification to understand why ceding jurisdiction to the BSF, however miniscule or significant, can prove ominous for Indian states. Besides stripping states of their sovereignty, that it attempts to increase militarisation within our territories is worrying for a democracy.
What does the Border Security Force Act, 1968 say?
Section 139 (1) of the Act allows for the Union Government to, by way of an order in the Official Gazette, direct any member of the BSF to exercise powers or duties with respect to legislations such as Passport Act, 1967 Foreigners Act, 1946, the Foreign Exchange Regulation Act, 1947, etc.
The provision also mandates that such order be laid before both Houses of the Parliament and be passed.
It is pertinent to note that the provisions under Section 139 do not make it a statutory requirement to consult states before extending the powers of the said forces. In turn, it may be argued that the Act impinges on the state’s power to legislate on issues concerning law and order, in not necessitating consultation with the concerned state before such orders are passed. This makes for a strong case for a thorough re-examination of the very scheme of the legislation.
Basic Structure: Federalism
Part IX of the Constitution (Articles 245-263) deals with centre-state relations and covers both legislative and administrative relations. Article 246 provides for the division of legislative powers between the centre and the states. Seventh Schedule enumerates the three lists namely :- Union List (List I), State List (List II) and Concurrent List (List III).
Entry 2A of List I (Union List), which was interestingly brought through the 42nd Amendment during the Emergency, reads: Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment. Entry 1 and 2 of List II (State List) concern public order and policing respectively.
In this background, it is important to note that the local police are ordinarily empowered to investigate and act upon the offences under the Passport Act, Foreigners’ Act and other Acts that find mention in the 2021 notification. However, the notification arbitrarily confers unbridled and unguided power to the BSF by conferring it with the sole jurisdiction to conduct searches, seizures and make arrests for these very offences. In essence, it compels states to surrender control over matters concerning law and order and policing to the Union even as investigations will happen in accordance with the whims of the Union.
While elucidating on the nature of federalism in India, Ambedkar said in the Constituent Assembly Debates:
‘..when we say that Constitution is a Federal Constitution, it means this, that the Provinces are as sovereign in their field which is left to them by the Constitution as the Centre is in the field which is assigned to it. […] Now, when once the Constitution makes the provinces sovereign and gives them plenary powers to make any law for the peace, order and good government of the province, really speaking, the intervention of the Centre or any other authority must be deemed to be barred, because that would be an invasion of the sovereign authority of the province.’ On the Union interfering with the domain of the states, he said, ’The invasion must not be an invasion which is wanton, arbitrary and unauthorized by law.’
The MHA’s decision pertaining to the BSF is only a part of the larger, concerning pattern of the Union undermining states’ sovereignty. From the farm laws to the labour codes to the National Education Policy (NEP), we have witnessed the Union’s incursions into what is clearly the jurisdiction of the states. While the Union Government is within its powers make laws in the interest of the sovereignty, security and integrity of India under the Constitution of India, this cannot arbitrarily be used as a tool to routinely challenge states’ autonomy. The ideas of national sovereignty, security and integrity must be situated in relation to other vital constitutional principles such as federalism and cannot be upheld while subverting other values.
Poorna Ravishankar is a lawyer and researcher with the Alternative Law Forum, Bangalore. Views are personal.