Extension of Border Security Forces Jurisdiction in Punjab | Day 1: Court frames issues
Extension of Border Security Forces Jurisdiction in PunjabJudges: D.Y. Chandrachud CJI, J.B. Pardiwala J, Manoj Misra J
On 22 January 2023, a Bench led by Chief Justice D.Y. Chandrachud framed issues in the case filed by the state of Punjab against the Union’s extension of the Border Security Force’s (BSF) jurisdiction in 2021.
Previously, on 1 December 2023, the Court had directed Solicitor General Tushar Mehta and the Additional Advocate General of Punjab Shadan Farasat, to exchange issues they considered relevant to the case.
Background
On 11 October 2021, the Union issued a notification extending the BSF’s jurisdiction in Punjab from 15 to 50 km from the international border with Pakistan. The notification introduced uniformity in the BSF’s jurisdiction in border states.
Soon after, on 1 December 2021, the Punjab government moved the Supreme Court challenging the notification. The state government raised questions about executive competence and interference in the state’s legislative domain.
The Punjab government claimed the Union’s decision violated the federal structure of governance.
CJI Chandrachud: An argument cannot be an issue
“What is the extent of judicial review in a matter considering the jurisdiction of an armed force of the Union for ensuring the security of the border…” the CJI read out the first issue suggested in the SGI’s note.
“That’s an argument for when the matter comes up (for hearing),” the CJI told Mehta.
But Mehta insisted that ever since independence, the Union has defined the area within which the BSF will have jurisdiction. “This would not impinge upon the (jurisdiction of the) local police.”
Issues of law
The Punjab government contends that it has legislative power on public order and police under Entries 1 and 2 of the State List of the Seventh Schedule.
However, the lists contain certain caveats. The entry on public order excludes the state government’s power over the armed forces of the Union. The entry on police is subject to provisions of entry 2A of the Union List (deployment of armed forces of the Union)
The Union List, through Entry 1, gives the Union Government exclusive power over defence, including preparation for defence. Entry 2 gives the Union power over all armed forces.
The Court decided to examine whether the 2021 notification amounts to an “unconstitutional interference in the legislative domain of the state.”
Additionally, under Section 139 of the Border Security Force Act 1968, the Union is empowered to publish any Order regarding the jurisdiction of the BSF in areas adjoining the borders of India. As per the provision, the jurisdiction of BSF can only extend to “local limits of such area adjoining the borders of India”.
In this context, the top court also decided to examine whether the increase of BSF’s jurisdiction from 15 to 50 Kms is beyond the “local limits of areas adjoining the borders of India” under Section 139(1). The bench will also determine if the extension of the jurisdiction through a notification was an “arbitrary exercise of power” by the Union.
Another issue the court will deliberate upon is whether the Union is obligated to treat all states alike while determining “local limits” and the factor that should be taken into account while doing so.
Issue of maintainability
The Court will also hear arguments on the maintainability of the present suit challenging an executive notification under Article 131 (original jurisdiction of the Supreme Court).
The Supreme Court in State of Madhya Pradesh v Union of India (2011) had observed that for challenges to the validity of a central “or other law”, the appropriate forum is the extraordinary writ jurisdiction under Articles 32 and 226. The Court had discouraged recourse of an original suit under Article 131.
Arguments to commence in April 2024
The Court has appointed advocates Harshit Anand and Kanu Agarwal as nodal counsels to prepare a common compilation to be relied upon by the parties and the Bench during arguments. The compilations are to be filed by 31 March 2024. The Union was given two weeks to file its response.
The matter will be heard next in the third week of April 2024.