Punjab vs Centre: Can Union override State powers in border security?

Supreme Court to decide if Centre’s move to expand BSF’s jurisdiction amounts to “arbitrary exercise of power”.

BSF personnel patrolling near the Zero Line at the India-Pakistan Border, BOP Rajamohatam area, Ferozepur, in Punjab on September 03, 2015. | Photo Credit: Photo: R.V. Moorthy

In what is seen as a dispute over the Centre’s “arbitrary exercise of powers” and unconstitutional interference with the authority of States, the Supreme Court will hear, in April, a 2021 petition of the Punjab government invoking Article 131 of the Constitution (original jurisdiction of the court in any dispute between the Government of India and one or more States). The petition challenges the Centre’s notification extending the jurisdiction of the Border Security Force (BSF). The court will specifically look into Section 139(1) of the Border Security Force Act, 1968, which allows the Central government to designate an area “within the local limits of such area adjoining the borders of India” for the paramilitary force to prevent offences specified by the Centre.

The Union Home Ministry’s notification on October 11, 2021, extended the BSF’s jurisdiction to 50 km from the international border, from 15 km, in Punjab, West Bengal, and Assam. While the limit was reduced from 80 km to 50 km in Gujarat, it was kept unchanged at 50 km in Rajasthan. The BSF’s jurisdiction also includes the whole area of Manipur, Meghalaya, Mizoram, Nagaland, Tripura, Jammu & Kashmir, and Ladakh.

According to the powers conferred upon it by the Central government under specific Sections of the Criminal Procedure Code, 1973; the Passports Act, 1967; the Passport (Entry into India) Act, 1920; and the Narcotic Drugs and Psychotropic Substances Act, 1985, the paramilitary force can make arrests and searches within its new jurisdiction.

Objecting to the move, West Bengal and Punjab passed resolutions in their Assemblies. The Punjab resolution termed the notification “an expression of distrust and insult” towards the State police and the people of Punjab and demanded that it be withdrawn without delay.

It read: “The law and order situation in Punjab is totally under control and there is no need to extend the jurisdiction of BSF. This is a gross violation of the spirit of federalism enshrined in the Constitution of India. Extending the jurisdiction of BSF is also symbolic of petty politics....” Policing powers and law and order are a State subject under Schedule 7, List-II Entries 1 and 2 of the Constitution.

The then Chief Minister Charanjit Singh Channi termed the Centre’s move an “attack on federalism”. Subsequently, his government challenged the notification in the Supreme Court.

Claiming that the Centre’s notification is ultra vires the Constitution, the petition maintains that it encroaches upon Punjab’s authority to legislate on the issue concerning the maintenance of public order and internal peace. It also maintains that powers under Section 139 of the BSF Act, 1968, cannot be read in isolation to give unilateral power to the Central government to grant additional jurisdiction to the BSF.

Unlike Gujarat or Rajasthan, Punjab has cities and towns that are significantly populated within 50 km of the border. Its plea is that more than 80 per cent of the major border area towns of Punjab fall within the 50 km jurisdiction.

The State contends that the 50 km area along the Pakistan border in districts such as Pathankot, Gurdaspur, Amritsar, Tarn Taran, Ferozepur, and Fazilka is highly fertile and densely populated. Following the Kargil war, the Central government had set up a huge fence several kilometres behind the zero line in these areas. As a result, many local residents have their cultivable land across the fence. The Centre’s notification will aggravate the problems faced by local residents, including farmers, the petition claims.

The Supreme Court has framed six questions to look into different aspects of Punjab’s plea. Apart from scrutinising whether the Union Home Ministry’s notification amounts to an “arbitrary exercise of power” and an “unconstitutional interference” into the State’s authority, the court will decide if all States have to be treated alike to determine the “local limits of areas adjoining the borders of India”.

BSF and the Punjab State police recovered one broken drone during a joint search operation, on the outskirts of the village Dal in Tarn Taran district on Jan. 25, 2024. The discovery took place in a farming field adjacent to Dal. | Photo Credit: ANI

The Centre’s assertion is that this decision is necessary to combat cross-border drug trafficking. The extension of the BSF’s jurisdiction comes in the face of the growing use of drones and Unmanned Aerial Vehicles (UAV) for cross-border narco-terrorist activities. Of late, due to their long-range capabilities, these gadgets have been used for spying and smuggling of arms and fake currency.

Addressing the issue in the Lok Sabha in December 2022, Union Home Minister Amit Shah said: “Powers have been given to security forces, but some States have said that their powers have been taken away…. If we do not give powers to our agencies, how will they be able to work? We must have faith in our security forces, those politicising the issue are supporting drug trafficking.”

He further said that a drugs network chart had been created and sent to the States after mapping the route and network of drugs in 472 districts. “The campaign against drugs cannot be that of any one government. All the agencies of the Centre and States have to come on the same platform and run this campaign with equal intensity and seriousness, only then will we be able to save the future generations,” he said.

In recent years, the BSF has intercepted and shot down several drones carrying huge quantities of drugs near villages along the international border. Last year, Punjab’s Health and Family Planning Minister Dr Balbir Singh informed the Assembly that there were almost one million drug addicts in de-addiction centres in Punjab, admitting that the figures were under-reported. According to official figures, 266 people have died in the State from April 2020 to March 2023 due to overdose of narcotic drugs and psychotropic substances.

In January, the BSF apprehended two Punjab police officers for allegedly smuggling heroin into the Jallo ke Mod area of Ferozepur, but hours later it was revealed to be a “misunderstanding”.

The drug menace in the State has been of great concern for the Punjab government for a long time. A resolution passed by the Assembly as early as November 1, 2013, reads thus: “That this House feels that the drugs/intoxicants smuggled through the border are gripping most of the youth of the country, especially the Punjabi youth, in its clutches. The BSF and other Central Agencies deputed on the International Border are not discharging their duties responsibly.... The Government of India, especially the Department of Home Affairs, is not taking appropriate steps in this regard.”

Speaking to Frontline, senior journalist and former MLA Kanwar Sandhu said that “even if there is a security exigency that requires the Centre to extend the jurisdiction of the BSF, it would have been in the best interest of Centre-State relations for the State to have been taken into confidence before BSF Act was amended”. Sandhu had raised the issue in the Assembly in November 2021. “The Centre should have consulted all States that share international borders before it took a decision,” he said.

According to Sandhu, the Centre, irrespective of the ruling party, has been encroaching upon the rights of States in the name of maintaining peace and law and order. “After the Mumbai terrorist attacks of 2008, the then UPA government brought in the National Investigative Agency [NIA] Act. Under this law, the Centre gave the Central counter-terrorism law enforcement agency the right to investigate in all the States. Not even a single State opposed the move,” he said.

“In 2019, the Modi government amended the NIA Act to widen its scope. The Bill, introduced by Amit Shah, Minister of Home Affairs, was passed with just six dissenting votes as the opposition parties remained silent. In 2020, Chhattisgarh challenged the NIA Act in the Supreme Court, but Punjab looked the other way just like other States,” he said.

Significantly, as Gujarat Chief Minister, Narendra Modi himself saw a move to amend the BSF Act 1968—to give wide powers to the Central paramilitary force—by the Congress-led UPA government in 2012 as a systematic plan to create a “state within a state”. He wrote to then Prime Minister Manmohan Singh about the government’s “unwarranted move” to expand the BSF’s jurisdiction. “The Centre is attempting to axe the powers of the State police, creating distrust, and is trying to demoralise them, which could not be accepted under any circumstances,” the letter said.

According to Article 355 of the Constitution, the Centre can deploy its forces to safeguard a State from external aggression and internal disturbance even if the State has not requested so or is hesitant to accept aid from Central forces. But security experts and Punjab observers emphasise joint management of border security by the Central and State law enforcement agencies, citing the case of the Indian Coast Guard and Indian Navy at sea.