The Supreme Court on Monday framed questions of law to be considered in a suit filed by the Punjab government challenging the Centre’s notification of October 2021 extending the jurisdiction of the Border Security Force (BSF) from 15 to 50 kilometres from the international border and agreed to take up the matter in April.

A three-judge bench headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud framed six legal issues arising in the suit after receiving draft suggestions from solicitor general Tushar Mehta appearing for Centre and advocate general for Punjab Gurminder Singh along with the state’s additional advocate general Shadan Farasat.

The state had filed a suit in the top court in 2021 challenging the October 11, 2021, notification issued by the Ministry of Home Affairs (MHA) extending BSF’s jurisdiction within local limits of the state from the existing 15 kilometres from the international border to 50 kilometres. The state claimed that this notification violated the principle of federalism by affecting the legislative power of the state over subjects such as public order and police.

Framing the issues, the bench, also comprising justices JB Pardiwala and Manoj Misra agreed to consider whether the MHA notification is an “arbitrary” exercise of power and whether the increase of jurisdiction to 50 kilometres amounts to an “unconstitutional interference” in the legislative domain of the state.

On the one hand, the state government claimed that its power to legislate over entries 1 and 2 (public order and police) get affected by the MHA order while the Centre claimed to have the legislative capacity to issue the direction under Entries 1 (defence of India), 2 (armed forces) and 2A (deployment of armed forces).

The notification was issued by Centre under Section 139(1) of the BSF Act which allows it to prevent any offence involving the Passport Act, Registration of Foreigners Act, Foreigners Act, foreign exchange regulation law, customs, excise laws, or any cognizable offence punishable under any central act within the “local limits of such area adjoining the borders of India”. This provision further permitted BSF to apprehend any person who has committed any offence under the above laws.

The Centre had submitted that increase of jurisdiction to 50 kms was not unique to Punjab as in some border states like Gujarat it extends to 80 km while in northeastern states of Manipur and Tripura, it extended to the entire area of the state. The court framed this as an issue to be considered, “whether all states have to be treated alike for purpose of determining the “local limits of such area adjoining the borders of India” under Section 139(1) of the Act.

The other issues include, “what are the factors to be taken into account in determining the phrase – local limits of such area adjoining the borders of India” and whether the increase of jurisdiction of BSF from 15 to 50 kms is beyond this definition. An additional issue to be considered is related to whether the constitutional validity of the notification could be challenged in a suit.

The court nominated lawyers Harshit Anand and Kanu Agarwal as nodal counsels who would prepare the case for hearing by filing a soft copy of compilations by March 31. The Centre was granted two weeks to file a response and listed the matter for hearing in the third week of April.

The state government had sought stay of the 2021 notification claiming that the decision was taken without consulting the state. It said, “The effect and consequence of the notification is that…more than 80% area of the border districts, all the major towns and cities, including all the district headquarters of these border districts of Punjab fall within the 50-km area from the Indo-Pakistan international border.”

It was further stated by Punjab that Section 139 of BSF Act does not give unilateral power to Centre to extend into areas which do not touch the border and would not fall in the ambit of “local limit” to which BSF jurisdiction can extend.