Updated: December 12, 2021 8:07:22 am
The Congress government in Punjab has approached the Supreme Court challenging the central notification on extending the jurisdiction of the Border Security Force (BSF) from 15 kms to 50 kms, saying it is ultra vires and against the principles of federalism.
Punjab Advocate General D S Patwalia told The Sunday Express that the suit, filed under Article 131 of the Constitution, was on Friday listed before the Registrar, who issued notice to the Centre through the Attorney General. The Centre has been asked to respond in 28 days, after which it will be listed before a bench.
Under Article 131, the Supreme Court has original jurisdiction to deal with any dispute between the Centre and a state; the Centre and a state on one side and another state on the other side; and two or more states.
The notification, dated October 11, 2021, “amounts to encroachment upon the powers and the role of the plaintiff-state of Punjab by the Centre, inasmuch as more than 80% of the border districts, all the major towns and cities including all the district headquarters of Punjab fall within 50 kms area from the Indo-Pakistan international border,” says the plea.
According to the petition, the notification is ultra vires, as it defeats the purpose of Entry 1 and 2 of List II of Schedule 7 of the Constitution, which says police and law and order are state subjects, and encroaches on the state’s plenary authority to legislate on issues which relate to or are necessary for the maintenance of peace and public order.
“To this extent,” says the petition, the Centre “has departed from the principle of federalism” as the state “has no power to make any laws in respect of the matters enumerated in List II of the Constitution… and amounts to excessive delegation of power by the central government”.
Stating that the notification was made “without consulting” the state or “without conducting any consultative process”, the petition says such “unilateral declaration… is violative of the provisions of the Constitution.”
The Punjab government has said that the powers under Section 39 of the BSF Act, under which the changes were introduced, cannot be read in isolation to give unilateral power to the central government to create extra jurisdiction of 50 kms, “specially when the said areas do not touch the area at all and thus would not fall in the ambit of ‘local limits’.”
It has said that of the states mentioned in the schedule to the amendment, the Union Territories of Jammu and Kashmir and Ladakh and states of Gujarat, Rajasthan and Punjab share their borders with Pakistan, and the concerns of Punjab are different from the concerns and geography of the others.
According to the petition, while Punjab has dense population in the areas which have “now been included in the jurisdiction of the BSF”, most of the areas in Gujarat fall in the Kutch and saline marshes, while in Rajasthan, it is desert land.
“In the case of Punjab, the area is highly fertile, heavily populated and most of the physical areas forming part of the border districts of Pathankot, Gurdaspur, Amritsar, Tarn Taran, Ferozepur, Fazilka, etc. Moreover, geographically, the state of Punjab is a small state, but has a very potent history, and therefore its case and concerns are distinguishable, and no reason can justify the extension of jurisdiction to the belt of 50 kms which is likely to give rise to unrest among the populace, including the peasantry, which has to cross the barbed wire to cultivate their land along the border,” says the plea.
The state government has said the notification will “lead to conflict in the trial of offences” and “chaos”. There is a separate mechanism for offences under the BSF Act, whereas offences under the Indian Penal Code and other related Acts are tried by local courts, it has said.
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