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Moving Constitutional Borders

The Border Security Force (Amendment) Bill which seeks to expand its powers along with those of all the other armed forces and the Intelligence Bureau is unconstitutional and violates the spirit of India's federalist system. This is akin to creating a centralised police force that can use excessive force with no repercussion and can all too easily resort to heavy-handed tactics to control rather than protect a population.

COMMENTARY

centre’s armed forces, as a matter of policy

Moving Constitutional Borders

such powers threaten India’s federalist structure, risk massive civil liberties

The Border Security Force

violations and could well end in an authoritarian set-up.

(Amendment) Bill, 2011

Border Security Force

The BSF was created after the 1965 Indo-SAHRDC Pak war to guard India’s international

The Border Security Force (Amendment) Bill which seeks to expand its powers along with those of all the other armed forces and the Intelligence Bureau is unconstitutional and violates the spirit of India’s federalist system. This is akin to creating a centralised police force that can use excessive force with no repercussion and can all too easily resort to heavy-handed tactics to control rather than protect a population.

SAHRDC is the South Asia Human Rights Documentation Centre, New Delhi.

U
ntil recently, the centre’s encroachment on state powers went largely unnoticed. By surreptitiously grant ing its armed forces policing powers of search, seizure and arrest that would allow them to initiate criminal complaints, the centre is infringing upon constitutional federalism (Indian Express 2010). It appears to be conducting a concerted campaign to establish centralised police forces, having already passed legislation granting policing powers to the Indo-Tibetan Border Police (ITBP), the Sashastra Seema Bal and the Border Security Force (BSF).1 It was only after an executive order sought to create the National Counter-Terrorism Centre (NCTC) as a division of the Intelligence Bureau (IB) with policing powers that the states took notice of this covert campaign (SAHRDC 2012). The debates are now focused on the effort to extend the jurisdiction of the BSF, which already has police powers along India’s international borders, to permit it to work throughout India, as well as on the extension of policing powers to the Railway Protection Force.

The campaign by the centre to establish centralised police forces violates the federal scheme of the Constitution. Even in the unlikely event that a constitutional basis can be located to justify the expansion of policing powers to the

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borders (see website of Border Security Force). In 1968, Parliament passed the Border Security Force Act to create a sense of security along the borders, and to prevent transborder crime, smuggling and illegal entry or exit from India (BSF Act, Statement of Objects). The BSF’s territorial jurisdiction is limited to within 80 kms in Gujarat, 50 kms in Rajasthan and 15 kms in West Bengal, Assam and Punjab, and has jurisdiction throughout Jammu and Kashmir and the north-east (154th Standing Committee Report 2011, para 1.1.02). Despite this restricted mandate, 13 of the BSF’s 168 battalions are engaged in internal security or anti-Naxalite operations in the heartland (ibid, para 3.4.3; Jain 2012).

The Act does not automatically grant policing powers to the BSF, although Section 139 reserved the right of the centre to do so for the prevention or apprehension of any cognisable offence by notification in the Offi cial Gazette. The centre granted search, seizure and arrest powers to the BSF by notifi cation under the Customs Act, Passport Act, the Code of Criminal Procedure,2 the Narcotics, Drugs, Psychotropic Substances Act and the Arms Act (154th Standing Committee Report 2011, para 1.1.2).

The amendment to the BSF Act seeks to expand the territorial jurisdiction of the BSF to function in “any part of the territory” of India to give the BSF a legal

COMMENTARY

basis for its current extraterritorial deployment. The minister of home affairs explained that the BSF along with other union armed forces have been moved into internal areas at the request of states to help them respond to communal violence, civil unrest, and Naxalite violence and that he anticipates that these forces can be used to manage riots and election-related unrest (para 1.1.3). An intended consequence of the amendment is to expand the BSF’s policing functions to these areas as well (para 3.4.2). The minister of home affairs explained that the centre, the BSF, and the states requesting the BSF’s aid felt that such police powers were necessary for the BSF to accomplish its goals (para 1.5).

While the centre is correct about the urgent need to give a legal basis for the extraterritorial operation of the BSF, the consequent expansion of police powers is both unconstitutional and undesirable as a matter of policy.

Shifting the Constitutional Goalposts

The centre’s effort to expand the powers of the BSF (along with all of the other armed forces and the IB) is unconstitutional. Under Article 246 of India’s Constitution, legislative powers are divided between the centre and states across the Union List (List I), State List (List II) and the Concurrent List (List III). List II grants states exclusive jurisdiction over public order and the police (Entries 1-2). The Constitution provides for only three exceptions to this exclusive jurisdiction. The first is under Article 249, under which two-thirds of the members of the Council of States (the Rajya Sabha) can adopt a resolution granting the centre such jurisdiction because “it is necessary or expedient in national interest that Parliament should make laws with respect to any matter enumerated in the State List”. Such legislation is valid up to one year, subject to renewal. The second exception is Article 250 read together with Articles 352 and 353, relating to emergency provisions. Under these provisions, the centre can legislate on behalf of a state government only after a formal proclamation of an emergency. Any such legislation applies only until the emergency terminates. The third exception falls under Article 356; this provision permits Parliament to assume the functions of the State legislature in case of failure of the constitutional machinery. The grant of police powers to the BSF (and all other armed forces and the IB) does not fall within any of these exceptions.

The centre appears to be supporting its claim to police powers for its armed forces by relying on List II Entry 2, which states that police is a state function “subject to” the “deployment of armed forces by the union in aid of civil power” under Entry 2A of List I.3 By itself, the “subject to” language does not create an independent power of the centre to supplant the state’s policing authority and jurisdiction. It can only do so if permitted under Article 246 or the exceptions under Articles 249, 250 read with 352 and 353, or 356. In Naga Peoples’ Movement of Human Rights vs Union of India, (1998) 2 SCC 109, the Supreme Court stated:

the word aid, postulates the existence of authority to be aided. This would mean that even after deployment of armed forces, civil power will continue to function. The power to make a law providing for deployment of the armed forces of the Union in aid of the civil power in the State does not comprehend the power to enact a law which would enable the armed forces of the Union to supplant or act as a substitute for the civil power in the State.

Hence, the impact of 2A is that armed forces are deployed “in aid of civil power” only to quell grave public order problems or internal disturbances (Sarkaria Commission 1988, para 7.5.01).

The union government also seems to rely on Article 355, which places a duty on the centre to protect states from internal disturbances, to justify central policing powers.4 This provision, unlike Articles 353 and 356, however, does not grant the centre the power to take over state functions. Both the Sarkaria Commission, which was established to examine centre-state relations, and the Administrative Reforms Commission (ARC), which examined the jurisdiction of the centre to respond to public order problems, agree that the Constitution does not permit the centre to employ Article 355 to supersede or exclude the state police or other authorities responsible for maintenance of public order but can merely deploy

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armed forces to aid them (Sarkaria Commission 1988, para 7.3.07; Second ARC 2007, para 8.2.11 and 8.2.13). Absent a situation falling within one of the three exceptions, there is no constitutional basis for the BSF encroaching upon the powers of the state government in the fields of “police” or “public order” (Sarkaria Commission 1988, 7.7.19).

Policy Considerations

Even if by some dubious process of legal alchemy the Constitution can be read to permit the centre to assign itself policing powers, as a matter of democratic policy, such appropriation should be avoided. Granting the BSF policing powers violates the spirit of India’s federalist system, is likely to lead to excessive use of force and could institutionalise the authoritarian predilections of India’s security establishment.

Federalism: India’s Constitution Article 1 expressly states that India is a union of states and, although the word “federal” is nowhere mentioned, federalism is embodied in the Constitution’s design (Commission of Centre-State Relations 2010, para 8.1.02). Consistent with the structures of other federalist democracies, law and order and policing functions should belong to the states, not the centre (Second ARC 2007, para 8.1.4.1). One of the primary reasons is that it is easier for the local governments to tailor their police forces to suit local requirements. A local police force is likely to be more responsive to the local community and to have its power checked when it is abusive (Stuntz 2012: 671). It is far easier to hold local politicians accountable during elections for abuses than national politicians (ibid). The National Police Commission reached a similar conclusion when it noted how unpopular the Central Reserve Police Force (CRPF) had grown in the north-east. It found that without local disciplinary control over the CRPF, it lacked the will and commitment to achieve its objectives (NPC 1981, para 59.25).

The ARC along with the Padmanabhaiah Committee rejected granting the centre concurrent police and public order powers not only because of federalism concerns but for fear that the central

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police forces will grab jurisdiction over the most important, most serious, or the most publicised crimes, which would undermine the authority, credibility and morale of the state police (Second ARC 2007, paras 8.3.5 and 8.3.12). The ARC also concluded that concurrent powers “would lead to duality of responsibility, which may be detrimental to the effi cient handling of public order situations” (Second ARC 2007, 8.1.4.2).

There are two primary justifi cations for allowing the centre policing powers. The first is that it is better resourced, which could make it more effective (8.3.1). This justification, however, cuts both ways as under-resourced police forces do not have the time, manpower or money to pursue weak cases or use its powers to harass people (Stuntz 2012: 674). Further, the Padmanabhaiah Committee ultimately concluded that allowing the centre a policing role would only increase the resource problem as the centre and the states would be competing for them (ARC 2007, para 8.3.7). The second justification for granting the centre policing functions is that state police find it difficult to investigate crimes that cross state or international borders. The states already have a track record of effective cooperation (8.3.1) and it is always open to state governments to transfer the case to the Central Bureau of Investigation. Ultimately, the ARC and the Padmanabhaiah Committee rejected these justifi cations.

Armed Forces, Policing and Civil Liberties: As history has shown, granting the armed forces policing powers is likely to result in the excessive use of force and cause severe civil liberties violations.5 Military and policing missions and values are different:

An army’s mission is to rapidly destroy enemies of a different nationality, while law enforcement is supposed to serve and protect fellow [citizens]…Military training is antithetical to the values of due process…on which civilian law enforcement must be founded (CATO 1997).

The BSF is trained to protect the borders, not to police Indian citizens (Marwah 1998: 75). These differences are likely to lead to the excessive use of force, particularly when the armed force lacks the local knowledge that the police would use to diffuse a tense situation (ibid). In recognition of these differences, the National Police Commission recommended that “[T]he army as far as possible should not be used in day-to-day policing” (NPC 1981, para 59.17).

Centralised Police and Authoritarianism: An equally strong policy argument for rejecting the grant of police powers to the BSF, along with all other armed forces and the Intelligence Bureau, is that it effectively creates a centralised police force that together with impunity and politicisation, risks authoritarianism (Bayley 1999: 9; Paun 2007: 7). A centralised police force able to use excessive force with no repercussion can all too easily resort to heavy-handed tactics to control, rather than protect, a population. The impact on civil liberties and democracies is multiplied in situations where such police forces are used to silence political opposition and popular dissent (ibid). Unfortunately the seeds of such authoritarianism in the centre’s security apparatus, including the BSF, already exist.

Under Section 197 of the Criminal Procedure Code 1973, police can be prosecuted only with the permission of the state or central government. The government rarely grants permission (Amnesty 2009) and even when it does, few are convicted or receive appropriate punishment (Varadarajan and Joshi 2002). For example, after the Bijbehara massacre6 in 1993, the National Human Rights Commission (NHRC) sought to prosecute the BSF officials involved. The government refused permission, relying instead on a trial by a court set up under the BSF Act that ended in acquittals (ibid). The government rejected the NHRC’s request to examine trial transcripts7 and the NHRC stopped pressing for the transcripts in the Supreme Court, which ended in impunity (Correspondence on fi le with SAHRDC). As of 2010, despite numerous claims that the BSF used excessive violence along the Bangladesh border, there has been no publicly known prosecution of a BSF offi cial (HRW 2010). The expansion of the BSF’s territorial jurisdiction risks the expansion of civil liberties violations and the impunity that comes with them.

As to the politicisation component, both India’s history and the current use of other security apparatus to defl ect opposition suggests that the BSF and other armed forces, if permitted police powers, could be used by the centre to gain authoritarian control. During the Emergency, the decisions made on arrest and release of persons was based entirely on political factors (CHRI 1999). As the chairman of the National Police Commission pointed out, “If there had been no Emergency, there would have been no Police Commission” (ibid.)

Currently, the government stands accused of using its considerable resources to monitor political opposition leadership (Federation of American Scientists 2011) to the point that there is a popular perception that intelligence gathering focuses more on politicians than on national security and at the expense of the latter.8 The intelligence community also targets its civil society opposition to stifle their criticism. For example, the IB recently accused numerous civil society organisations, including respected organisations, of complicity with Maoist insurgents and possibly of being front organisations for them (One World South Asia 2010). Such labelling serves as an implicit threat to the groups to be quiet or risk prosecution or punishment for supporting the insurgency. The combination of centralised police forces, impunity, and politicisation of the centre’s security apparatus indicates a very real risk of promoting authoritarian practices if the centre’s campaign to gain police powers continues.

Conclusions

The centre’s campaign to expand its police powers through the BSF and its other armed forces is not only unconstitutional but threatens India’s federalist structure and could lead to severe civil liberties violations and authoritarian rule.

Notes

1 These powers were also granted to the National Security Guard (NSG), Central Reserve Police Force (CRPF), Central Industrial Security Force (CISF), and Assam Rifl es, Indian Express, 2010.

2 The relevant sections of the CRPC are: Sections 41 (1), 46, 47, 48, 49, 51 (1), 52, 53, 74, 100, 102, 129, 149, 150, 151 and 152.

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3 Entry 2A was inserted by the 42nd Amendment. It was meant to supplement Article 257-A, which enabled the Centre to deploy armed forces of the Union or any other force of the Union for dealing with a grave situation of law and order in a state, presumably including policing functions. Article 257-A was repealed by the 44th Amendment, but entry 2A was left behind by what was evidently a bureaucratic sleight of hand. From a plain reading of the entry it follows that, the deployment shall only happen “in aid of civil power”, implying that the state has to seek the aid. As Chidambaram insisted on a discussion on the bill in Rajya Sabha, arguing that “the Constitution expressly states that Central forces can be deployed in a state only upon requisition by the state government concerned” (Jain 2012). It is dubious that the government refuses to put in an explicit assurance, making the state government’s consent mandatory.

4 There is an oblique reference to Article 355 through reference to the need for central law and order powers to respond to internal disturbances in the 154th Standing Committee Report, para.2.

5 For example, in 1970 the United States National Home Guard fired on protestors at Kent State University killing several protestors. CATO. In Mexico, there has been a notable increase in reports of arbitrary arrests and other human rights abuses since the military has been deployed in the “war on drugs” As José Miguel Vivanco, Americas Director at Human Rights Watch said, “Instead of reducing violence, Mexico’s ‘war on drugs’ has resulted in a dramatic increase in killings, torture, and other appalling abuses by security forces, which only make the climate of lawlessness and fear worse in many parts of the country.” Human Rights Watch, Mexico: Widespread Rights Abuses in ‘War on Drugs’ (2011).

6 On 22 October 1993, the BSF was accused of firing at a crowd without provocation and killing 37 people during protests at the Hazratbal mosque.

7 HRF/19/00, 24 April 2000, Justice and accountability in Kashmir – Chasing the Mirage. Available at http://www.hrdc.net/sahrdc/hrfeatures/HRF19.htm

8 As one journalist editorialised in a local paper: Central bodies such as the IB had been nudged into assuming that providing political tittle-tattle was as important as ensuring the country is better protected against the real enemy. Indian intelligence agencies failed to anticipate most of the bomb blasts that devastated Indian cities in the past four years. Yet they demonstrated their professional prowess by undertaking a very successful profiling operation of members of parliament in the run-up to the trust vote in the Lok Sabha on July 22 (2008). Swapan Dasgupta, “The Indolent Giant – India Must Modernise Its Intelligence Gathering Machinery”, The Telegraph, 9 January 2009. See also, Bibhuti Bhushan Nandy, former additional secretary, cabinent secretariat, R&AW and direct general (redt), Indo-Tibetan Border Police, “R&AW and the Cooked”, The Hindustan Times, 21 June 2002.

References

Amnesty International (2009): “Amnesty International Report 2009: State of the World’s Human Rights-India”, viewed on 23 April 2012, http://report 2009.amnesty.org/en/regions/ asia-pacifi c/india.

Bayley, David H (1999): “Policing: The World Stage” in R I Mawby (ed.), Policing across the World: Issues for the Twenty-First Century (Oxon: Routledge).

Border Security Force: “History”, viewed on 23 April 2012, http://bsf.gov.in/Pages/History.aspx.

CATO Handbook for Congress 105th Congress (1997): “The Expanding Federal Police Power”, viewed on 23 April 2012, http://www.cato.org/ pubs/handbook/hb105-17.html.

Commonwealth Human Rights Initiative, Seminar-483 (1999): “A Requiem for the NPC?”, November, viewed on 22 April 2012, http:// www.humanrightsinitiative.org/programs/aj/ police/papers/gpj/requiem_npc.pdf.

Commission of Centre-State Relations (2010): “Commission of Centre State Relations Report”, Volume I-Evolution of Centre-State Relations in India, March, viewed on 20 April 2012, http:// interstatecouncil.nic.in/volume1.pdf.

Federation of American Scientists (2011): “Intelligence Bureaus”, viewed on 23 April 2012, http://www. globalsecurity.org/intell/world/india/ib.htm.

Human Rights Watch, Mexico (2011): “Widespread Rights Abuses in ‘War on Drugs’”.

Human Rights Watch (2010): “Trigger Happy: Excessive Use of Force by Indian Troops at the Bangladesh Border”.

Indian Express (2010): “Paramilitary Forces Get Powers of Search, Seizure and Arrest under Arms Act”, The Indian Express, 31 December.

Jain, Bharati (2012): “Chief Ministers to Discuss Federalism on April 16”, 14 April, viewed on 21 April 2012, http://articles.economictimes. indiatimes.com/2012-04-14/news/31342056_1_ internal-security-bsf-personnel-chief-ministers.

Marwah, Ved (1998): “Police and Paramilitary Structure” in Bharat Verma (ed.), Indian Defence Review, 13, 73-77.

Naga Peoples’ Movement of Human Rights vs Union of India, (1998) 2 SCC 109.

National Police Commission (1981): “Seventh Report” “One Hundred and Fifty Fourth Report on the Border Security Force (Amendment) Bill, 2011”, (154th) Department-Related Parliamentary

V.V.GIRI NATIONAL LABOUR INSTITUTE
(An Autonomous Body under the Ministry of Labour & Employment,Govt.of iNDIA) Advertisement for Applications/ Nominations for V.V.Giri Memorial Award-2011 in Labour and Employment
V.V.Giri National Labour Institute (VVGNLI) is an autonomous body under the Ministry of Labour and Employment,Government of India.This is a premier national level Institute mandated to further the cause of labour welfare through training,research and education.Since its inception in 1974,the Institute has been engaged in research,training,education and publication activities to reach all those who are concerned with various aspects of labour,both in the organized and unorganized sectors. In furtherance to the mandated objectives of this Institute, it has been decided to confer a special award -V. V.Giri Memorial Award-2011 in Labour and Employment.This award was instituted in the year 2008.The award for 2011 would be presented to the author of outstanding research in the area of labour.The award will carry a cash prize of 1lakh and a citation.The theme of the Award for the year 2011 is “Research on Agrarian Relations and Rural Labour”. Scholars and labour practitioners are all invited to apply for consideration for this Award.Interested applicants should provide complete details of their research work in the identified area,which is to be considered for this Award,along with copies of the published work and an abstract of not more than 500 words elaborating upon the conclusions in the particular research work and its wider applicability in agrarian relations and rural labour.The Institute also welcomes nominations from persons other than the authors of the research work being considered for the Award.In such cases,the proposal should furnish details as specified above.Signed applications / nominations along with full contact details may be forwarded so as to reach the Director General,V.V.Giri National Labour Institute,Sector-24,NOIDA,Distt.Gautam Budh Nagar (U.P.) and also by e-mail to directorgeneralvvgnli@gmail.com by June 12,2012. The Institute,the General Council and the Jury reserve the right to accept applications / nominations or reject the same,if found incomplete in any respect.They also hold the right to consider any nomination other than those received through this advertisement.Further,the Institute also holds the right to consider the life-time contribution of experts,if it is found appropriate. 1

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Standing Committee on Home Affairs (3 November 2011), Parliament of India, Rajya Sabha, viewed on 21 April 2012, http://www.prsindia. org/uploads/media/BSF/SCR%20Border%20 Security.pdf. One World South Asia, “India: Rights Organisations Face Government Backlash”, 10 June 2010, viewed on 21 April 2012, http://southasia.oneworld.net/todaysheadlines/india-rights-organisations-face-government-backlash.

Paun, Christopher (2007): “Democratisation and Police Reform”, MA Thesis, University of Berlin.

Sarkaria Commission (1988): “Report of the Commission on Centre-State Relations”, viewed on 20 April 2012, http://interstatecouncil.nic.in.

Second Administrative Reforms Commission (2007): “5th Report on Public Order”, June, viewed on 20 April 2012, http://arc.gov.in/5th%20REPORT. pdf.

South Asia Human Rights Documentation Centre (2012): “The National Counter Terrorism Centre: The Creation of the Indian Stasi”, Economic & Political Weekly, Vo 47, 17 March.

Stuntz, William J (2012): “Terrorism, Federalism and Police Misconduct”, Harvard Journal of Law and Policy, 25: 665-79.

Varadarajan, Siddharth and Manoj Joshi (2002): “BSF Record: Guilty Are Seldom Punished”, The Times of India, 21 April, viewed on 25 April 2012, http://articles.timesofi ndia.indiatimes. com/2002-04-21/india/27112716_1_bsf-menjawan-security-force

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