The Congress government in Punjab has approached the Supreme Court challenging the central notification extending the jurisdiction of Border Security Force (BSF) from 15 to 50 km saying it is ultra vires the Constitution and against the principles of federalism.
Punjab Advocate General D S Patwalia told The Indian Express that the suit, filed under Article 131 of the Constitution, was Friday listed before the Registrar who issued notice to the Union through the Attorney General. “The Centre has been asked to respond in 28 days after which it will be listed before the bench,” he said.
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 the one side and another state on the other side, and between two or more states.
The plea said that the effect of the notification dated October 11, 2021, is that “it 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 fell within 50 km area from the Indo-Pakistan international border”.
The petition said the notification is ultra vires the Constitution as it defeats the purpose of Entry 2 of List II of the Seventh Schedule of the Constitution which says police and law and order are state subjects and it encroaches 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”, it said, the Union “has departed from the principle of Federalism inasmuch 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”, it said such “unilateral declaration… is violative of the provisions of the Constitution…”.
The state government contended that the powers under Section 139 of the Border Security Force (BSF) Act, 1968 – 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 km especially “when the said areas… would not fall in the ambit of “local limits”.
It 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 borders with Pakistan and that the concerns of Punjab are totally different and distinguishable from the concerns and geography of the others.
While Punjab has dense population in the area “which has now been included in the jurisdiction of the BSF”, in Gujarat most of the areas fall in the Kutch and saline marshes, while in Rajasthan it is desert land “permitting only sparse vegetation to sustain low populace in the relevant area to which jurisdiction of BSF has been extended”.
“In the case of Punjab, the area is highly fertile, heavily populated and has 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 kilometres 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,” said the plea.
The state said the notification will “lead to conflict in the trial of offences” and “chaos” as offences committed under the BSF Act and Rules are triable by the mechanism provided under the BSF Act, whereas offences under the Indian Penal Code and other related Acts are tried under the procedure prescribed by the Code of Criminal Procedure, 1973 by local courts.