The Calcutta High Court Bench Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj while dealing with the question of Jurisdiction of Border Security Force (BSF) issued notice to the Central Government to respond to the PIL.
Background of the Case
The Union Ministry of Home Affairs on October 11, 2021, issued a notification extending the operational jurisdiction of the BSF in the States of Punjab, West Bengal and Assam. Through the order, it was stipulated that under BSF Act, 1968- the BSF which is entrusted with guarding India's international borders, will now exercise jurisdiction up to 50 kilometres in these three States. The powers of BSF include arrest, search and seizure were limited to up to 15 kilometres in these States.
Opposition in Punjab and West Bengal governments termed it as an attack on the federal structure and an attempt to curtail the rights of the state police force. Following this, on November 16 a resolution was passed by West Bengal Legislative Assembly demanding the withdrawal of the notification issued by the Union Ministry of Home Affairs extending the territorial jurisdiction of the BSF
Contentions of the Plea
The PIL challenged Section 139(1) of the Border Security Force Act, 1968 (BSF Act) for being ultra vires to the Constitution to the extent that it provides 'unbridled, unrestricted and arbitrary powers to the Central government for fixing the territorial jurisdiction of the BSF. Section 139 of the Act deals with powers and duties conferrable and imposable on members of the force.
It was contended in the PIL that the power of the Central Government under Section 139, Clause I of the BSF Act to decide the jurisdiction of the force impinges upon the federal structure of the country
Petitioners referred to the case of S.R. Bommai v. Union of India wherein federalism was held to be a part of the basic structure of the Constitution. Thus, the principle of federalism is neither to be altered nor to be touched by any action of the State including by-laws as defined under Article 13 of the Constitution.
It was contended in the Petition that Border Security Force Act, 1968 is security legislation touching upon aspects of law and order which is a subject matter under the 'State List' of the Constitution of India.
Referring to Section 139 of the BSF Act it was noted that this section itself provided for unrestricted, unbridled arbitrary power in the hands of the Centre, capable of encroaching the jurisdiction of the state by altering, touching upon the State subject. Such a power can be exercised even without fulfilling the test of reasonableness and classification.
It was submitted that the object of the impugned Act was neither to extend or reduce the border arbitrarily but was to enact a comprehensive statute for the regulation of the conduct of security officials deployed in border areas for the purpose of border security. Opining that the impugned statutory provision violated Article 14 of the Constitution. It was prayed by the Petitioners that Section 139(1) of the Border Security Force Act is violative of Article 14 of the Constitution of India and therefore requires it to be exercised only in a particular situation upon material satisfaction.
Order of the Court
Division Bench in this PIL issued notice on the plea and directed the petitioner to implead the BSF through the Director-General in the instant petition. The matter was listed to be heard on December 14.
Case Details
Case Title: Sayan Banerjee v. Union of India
Bench: Chief Justice Prakash Shrivastava and Justice Rajarshi Bharadwaj
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(With input from news agency language)
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