Amidst the recent decision to increase the jurisdiction of the Border Security Force in West Bengal, Punjab and Assam, RAVI NAIR examines the encroachment of Constitutional federalism by a union government gradually inching the country towards an authoritarian state.
THE Union government’s decision to extend the jurisdiction of the Border Security Force (BSF) to over 50 km in three states – namely, West Bengal, Punjab and Assam, from the barbed wire fence with Bangladesh and Pakistan, along with the grant of policing powers, is one more building block in the creation of a unitary authoritarian state.
Irrespective of the political party in power at the Centre and in the respective states, all of them have been increasingly ceding democratic space to the denizens of the “deep State” in India. The United Progressive Alliance (UPA) Government brought about an even more draconian bill in 2011. At that point, then-Chief Minister Narendra Modi opposed the said Bill, stating it was an attempt to “create a state within a state”.
It was later withdrawn in 2015 by the National Democratic Alliance government. However, the deep State was not to be thwarted.
In India, a series of notifications allocating policing duties to the Central Paramilitary Forces (CPMFs) — including the BSF and the Sashastra Seema Bal (SSB), both with similar border control mandates — have nudged the boundary separating army and police into effective oblivion.
These notifications expand the already diffuse powers of the BSF and the SSB, and exemplify the union government’s unwarranted interference with the states’ constitutional jurisdiction over policing matters.
The allocation of policing powers to CPMFs undermines Indian federalism, threatens the human rights of citizens living in areas under the SSB and BSF’s control, and exacerbates jurisdictional overlap between the SSB, the BSF, and the State’s police forces. An analysis of the history of the SSB and the BSF, and a review of their policing powers, viewed in light of international use of paramilitary forces, will expose the grave issues associated with these additional powers.
In 2001, a Group of Ministers’ Report on “Reforming the National Security System” recommended that border management in India be “re-fashioned on a one-border-one-force principle so as to obviate problems of conflict in command and control and [lack] of accountability arising from a multiplicity of forces on the same border. They are to be used exclusively for border guarding activities and not, as a rule, withdrawn for internal security disturbances.”
Origins and evolution of the Border Security Force
The BSF — under the administrative control of the Union Ministry of Home Affairs — emerged in response to external aggression against India. Developed in 1965 in the aftermath of Pakistan’s invasion of the Indian Kutch region, the BSF was to replace the ineffective State Armed Police Battalion that had, until then, policed India’s border with Pakistan.
In contrast to the Special Service Bureau (now known as the Sashastra Seema Bal or the SSB), the BSF’s creation was followed shortly thereafter by its authorising legislation, the Border Security Force Act of 1968 (the BSF Act). The BSF Act established the BSF as an armed force, tasked with “ensuring the security of the borders of India” and with “[every] member of the force … [being] liable to serve in any part of India as well as outside India.”
Elaborating on Section 4(1) of the BSF Act, the Border Security Force Rules, 1969 (the BSF Rules) establish that “the Force shall: (i) promote a sense of security among the people living in the border areas; (ii) prevent trans-border crimes, unauthorised entry into or exit from the territory of India; and (iii) prevent smuggling and any other illegal activity.”
The similarities between the mandates of the BSF and the SSB are noteworthy, and speak to the overlap in jurisdiction between the two forces. Both authorising statutes, for instance, define members’ duties as including operations against an “enemy”.
In both the Sashastra Seema Bal Act, 2007 (the SSB Act) and the BSF Act, “enemy” is virtually identically defined as “[including] all mutineers, armed rebels, armed rioters, pirates, terrorists and any person in arms against whom it is the duty of any person subject to this Act to take action.”
The BSF was traditionally more heavily authorized than the SSB, having been designated as an armed force from its inception. This fact has given rise to a notorious record of BSF-committed human rights violations in border communities, suggesting the dangers associated with the SSB’s similarly increased militarisation.
Evidence suggests that the BSF’s record of human rights violations over the past few years far exceeds that of the SSB, which may indicate the important tempering force of the SSB’s dwindling unarmed wing. A 2010 Report by Human Rights Watch titled “Trigger Happy”, for instance, documents several incidents of torture and killings perpetrated by the BSF against Bangladeshi and Indian nationals alike. Most of the victims of BSF aggression are innocent of any wrongdoing.
These problems are only exacerbated by the inclusion of the BSF under the scope of the Armed Forces (Special Powers) Act, 1958 (the AFSPA). Under the provisions of the AFSPA, members of Indian armed forces who fire upon civilians are only subject to prosecution for such acts if the union government consents to the prosecution.
The BSF successfully argued for policing powers on the basis that powers to arrest were necessary in order to address potential problems without having to resort to use of force.
Allocation of policing powers to the Central Paramilitary Forces
In the BSF Act and the SSB Act, the stage was set for the union government to accord certain policing powers to these forces in the future. Section 139(2) of the BSF Act, for instance, provides that,
“(2) The Central Government may, by general or special order published in the Official Gazette, confer or impose, with the concurrence of the State Government concerned, any of the powers or duties which may be exercised or discharged under a State Act by a police officer upon a member of the Force who, in the opinion of the Central Government, holds a corresponding or higher rank.”
Ever-increasing government expenditure on paramilitary forces also foreshadowed the allocation of more powers to these bodies.
Statistics show that from 1998 to 2001, the number of personnel enrolled in the CPMFs of the National Security Guards, the Indo-Tibetan Border Police, the BSF, the Assam Rifles, the Central Industrial Police Force, and the SSB increased by 5.2% percent, from 567,855 to 597,492. However, over the same period, the actual expenditure on these forces rose by over 33%, from USD 1.11 billion (INR 5052 crores) in 1998 to USD 1.48 billion (INR 6719 crores).
The Central Armed Police Forces (CAPFs) received a total allocation of INR 71,714 crores in 2019-20. This accounts for 73% of all police expenditure. The second highest expenditure is towards the BSF which has been allocated 27% of this budget, i.e., INR 19,651 crores.
This growth coincided with increasing demands from the paramilitary border forces for more power. These demands were successful.
In February 2010, the SSB was allocated policing powers under the Code of Criminal Procedure, 1972 (CrPC) by a Parliamentary notification. These new powers include – the ability to arrest without a warrant, under Section 41 of the CrPC; the power to pursue suspected offenders into other jurisdictions in India, for the purposes of arrest, under Section 48 of the CrPC; the power to have a medical practitioner examine an accused person in search of evidence, under Section 53 of the CrPC; and the power to search “a closed place”, with a warrant, under Section 100 of the CrPC.
The SSB was given permission to exercise these powers within 15 km of the Indo-Nepal and Indo-Bhutan border regions, in which it operates.
Later that year, amendments to the Arms Act, 1959, effected by two Parliamentary notifications, also accorded CPMFs the power to search vehicles suspected of carrying arms, and to seize any arms found.
One can only speculate about the union government’s motivations for increasing the powers of the CPMFs. It seems likely, though, that the union government accorded policing powers to these forces for two reasons:
First, policing powers lend an air of legitimacy to CPMFs’ interactions with Indian citizens; although these forces are mandated to engage with the “enemy”. Enjoying powers under the CrPC renders them more easily employed to deal with suspects who are Indian citizens. The move towards employing CPMFs for internal security duties appears to counterbalance the frequent deployment of the Indian Army for similar work.
Second, providing CPMFs — which are subject to weaker accountability mechanisms under the AFSPA — with policing powers creates, in effect, a more powerful policing option, one that is subject to fewer procedural restraints on excessive use of force. This exceptional force seems to be directed, in particular, at quelling Naxalite insurgency. It is well known, for instance, that the BSF is frequently deployed for “internal security” operations.
Ultimately, these increased powers give the union government more influence in matters of crime control within India’s borders, but it also creates an overlap in jurisdiction with the respective state’s police forces.
This challenge to Indian federalism initiated by the union government’s interference in states’ constitutional power to legislate over policing matters is discussed further below.
Issues arising from allocation of policing powers to Central Paramilitary Forces
CPMFs — whose troops are drawn from a national pool — lack accountability and sensitivity to the concerns of local citizens in border regions. National accountability mechanisms, at the level of the Union Ministry of Home Affairs, are inherently less accessible than the regional accountability mechanisms offered by a state police force (the ability to walk into a local police station, for example).
The lack of local representation within CPMF ranks is exacerbated by the absence of women officers, a fact that may cause insensitivity to the particular concerns of women border residents, and risk encouraging the commission of acts of sexual violence against local women.
It is unclear why the union government opted to maintain the status quo of multiple border forces, rather than heeding the advice of the Group of Ministers and implementing consolidation reforms designed to bolster accountability, streamline resources, and preclude overlapping jurisdiction. However, one can speculate that political factors motivated the union government’s decision, given the frequent deployment of CPMFs for internal security duties, and their value as an alternative to invoking the Indian Army.
Further, the union government likely aimed to appease concerns regarding job losses or diminished prestige, both of which might accompany consolidation. The same political pressures may also have motivated the government’s allocation of yet more powers to India’s diffuse array of paramilitary forces.
Military training that directs troops to use force against an external “enemy” does not translate well to civilian law enforcement. This may be a particular problem for the BSF, whose officers are often “retired” Indian Army personnel. A lack of law enforcement-specific training renders paramilitary forces “inflexible in their behaviour” and makes them “prone to overreacting in confrontations with the public”.
This undermines one of the underlying rationales for awarding policing powers to border forces in India. CPMFs successfully argued that, without the power to arrest, they must resort to use of force to deal with internal unrest. Yet this rationale is problematic for two reasons.
First, it ignores viable alternatives to use of force that do not entail allocation of policing powers — for instance, the use of alternative crowd control methods. Instead, this “solution” awards yet more power to forces already notorious for abuses of power.
Second, the prediction that powers of arrest would diminish the need for CPMFs to resort to use of force has not come to fruition. In the months since CPMFs were given the power to arrest, numerous incidents have demonstrated their continued reliance on violent tactics. In December 2010, for instance, nine months after receiving policing powers, the SSB troops shot and killed four people in Bihar in an attempt to disperse a large gathering. In February 2011, the BSF killed a Bangladeshi cattle trader by stabbing him with a bayonet, before dumping his body into a river.
These examples point to the increased potential for human rights violations associated with the assignment of policing duties to paramilitary forces whose very existence is directed at combatting an “enemy” rather than at enforcing local laws at the civilian level. The liminal legal operating space within which border forces work contributes to the likelihood of human rights violations, as explained by American legal academic Otwin Marenin in his book Democratic Oversight and Border Management: Principles, Complexity and Agency Interests, thus:
“[B]order guards are more protected against allegations of malfeasance, since their work is directly linked to national security concerns and the people they deal with are often not citizens or are suspects engaged in some illegal activity, hence are seen to lack the rights accorded citizens; there is less transparency to their work and greater secrecy surrounds what they do, partially because they deal with national security issues but also because their work locations can be out of sight and widely dispersed.”
The characterization of border security efforts as being targeted against an “enemy” ingrains a sense that the people with whom these forces interact are, by default, foreigners. It is easy, then, for CPMFs to perceive local populations within their mandate as non-citizens who are not protected by civil rights guaranteed under the Constitution of India.
This kind of mentality clearly underlies the BSF’s “shoot to kill” policy on India’s border with Bangladesh. This policy that has led CPMFs to kill over one thousand people in the past ten years, a number that includes many unarmed civilians, Bangladeshis and Indians alike.
The Indian State’s arbitrary execution of its own citizens, through the arm of the CPMFs, is indicative of an authoritarian regime with no concern for the rights of its citizens, rather than a democratic government with human rights enshrined in its Constitution.
The union government’s interference with states’ constitutional power to legislate with regard to policing matters also challenges Indian federalism. While the union government has the constitutional authority to deploy armed forces of the Union in the states “in aid of the civil power”, the authorising provision does not provide the union government with the power to accord policing powers to Union forces through legislation.
The union government’s effective usurpation of the states’ legislative power erodes Indian democracy. It transfers decision making powers that affect the very lives of local people —namely, decisions regarding law enforcement — away from locally elected state politicians to the more detached and less sensitive levels of the union government.
Most importantly, the allocation of increasing powers to armed, politically powerful CPMFs also engenders the risk of an armed force of the Union arm-twisting the democratic state. This is no idle fear. The strength of the regular Army is about 960,000. The CAPF strength is also about the same.
(Ravi Nair is with the South Asia Human Rights Documentation Centre. The views expressed are personal.)