Justice Biplab Kumar Sharma
(Former Judge, Gauhati High Court)
Borders are more than just lines on a map; they define our sovereignty, national security, and international relationships. India, with its vast and diverse geographical expanse, shares land boundaries with seven countries: Pakistan, China, Nepal, Bhutan, Bangladesh, Myanmar, and Afghanistan. Each of these borders presents unique challenges and concerns, necessitating strong legal frameworks and targeted legislation.
Securing the country’s borders against interests hostile to the country and putting in place systems that are able to interdict such elements while facilitating legitimate trade and commerce are among the principal objectives of border management. As part of the strategy to secure the borders and also to create infrastructure in border areas of India, several initiatives have been undertaken by the border management division. These include construction of fences, floodlighting, roads, Border Outposts (BOPs), Company Operating Bases (COBs), and deployment of technological solutions along the India-Pakistan, India-Bangladesh, India-China, India-Nepal, India-Bhutan, and India-Myanmar borders. It is found that India has 15,106.7 km of land border and a coastline of 7,516.6 km, including island territories.
With different states, India is facing different problems, because of which having a uniform codified border law is felt necessary. In the absence of specific border codified laws in India, the Government of India under the Ministry of Home Affairs (MHA) created a Border Management Committee in January 2004 on the recommendations of a group of ministers.
The Border Management Committee focused its attention on the issues relating to the management of international land and coastal borders, the strengthening of border policing & guarding, the creation of infrastructure like roads, fencing & flood lighting on the borders, and the implementation of the Border Area Development Programme and also the strengthening of border policing, surveillance, and patrolling in all land and coastal borders, the demarcation of international borders, and related matters.
The guarding of the Indian borders is primarily entrusted to Central Armed Police Forces (CAPFs) under the principle of “one border, one force.” They function under the Ministry of Home Affairs. Various agencies, such as Assam Rifles, Border Security Force, Indo-Tibetan Border Police, Seema Suraksha Bal, and Border Roads Organisation, etc., are responsible for guarding the borders in their own spheres.
The coastal security of India has a three-tiered structure under which the Indian Navy is responsible for the overall maritime security that includes coastal and offshore security, and the Indian Coast Guard is additionally responsible for the security of India’s territorial waters (up to 12 nautical miles), including areas to be patrolled by the coastal police.
Even though India has many agencies for border management, coordination among all these agencies is quite difficult because different agencies have their own different setbacks and rules relating to funding, approvals, and others. Therefore, it is felt extremely necessary to have an organisation with definite rules and regulations that can control all these agencies mentioned earlier.
India’s border management is governed by various laws, but there is no single comprehensive legislation dedicated solely to border security and management. Instead, several acts and legal provisions operate in tandem to regulate cross-border movement, prevent illegal activities, and secure national integrity. Cross-border and transnational crimes in India are significant challenges due to its strategic location, bordering several countries like Pakistan, Bangladesh, China, Myanmar, etc., which share porous borders with the territory of India. These crimes include illegal infiltration/immigration, often facilitated by international networks.
Terrorism, often funded by transnational organizations, has led to several attacks in India. To combat these crimes, India has strengthened border security and cooperation with neighbouring countries, but challenges remain due to the complex nature of cross-border criminal activities.
India has witnessed large-scale illegal immigration, particularly along the Bangladesh and Myanmar borders, leading to demographic and security concerns. The Assam Accord (1985) and the NRC (National Register of Citizens) process highlight the need for a clear legal stance on citizenship and illegal immigration.
Border laws and regulations play a critical role in shaping the sovereignty, security, and economic relations of a nation. However, they also intersect with broader principles of human rights, international relations, and international law. One of the most fundamental legal debates surrounding border laws is the tension between state sovereignty and the protection of human rights, particularly the rights of migrants and refugees. States have the legal right to control their borders under international law, primarily through the principles of territorial integrity and sovereignty (e.g., the United Nations Charter). However, this right must be balanced with human rights law, which often calls for the protection of refugees and asylum seekers under the 1951 Refugee Convention and its 1967 Protocol.
Border control measures such as deportations, arbitrary detentions, and the construction of physical barriers may violate international human rights principles. For example, the right to seek asylum, as enshrined in the Universal Declaration of Human Rights (Article 14), may conflict with stringent border security policies. Criticism is often directed at states that prioritise border control at the expense of these human rights obligations. In this regard, international law plays a critical role in the regulation of border laws, especially when it comes to cross-border disputes, trade, and the movement of persons.
The legal framework of border laws is also shaped by national security concerns. Many nations justify stringent border control policies by emphasizing the need to prevent terrorism, trafficking, and the illegal entry of people who may pose a security threat. For instance, the USA’s post-9/11 security policies significantly expanded surveillance, detention, and deportation procedures.
Dealing with the case of Assam in relation to the then prevalent Illegal Migrants (Determination by Tribunals) Act, 1983 (IMDT Act, 1983) and striking out the same, the Hon’ble Supreme Court in its judgement of 2005 in the Sarbananda Sonowal-I case significantly observed that the State of Assam is facing “external aggression and internal disturbance” on account of large-scale illegal migration of Bangladeshi nationals. On 14/07/2024, in response to an unstarred question relating to the deportation of illegal Bangladeshi migrants, the then Minister of State, Home Affairs, submitted a statement in parliament indicating the estimated number of illegal Bangladeshi immigrants in India as of 31/12/2001 was 1.20 crores, out of which 50 lakhs were in Assam.
Significantly, in the counter affidavit filed by the Government of India in the writ proceedings before the Supreme Court relating to the 1951 NRC updation on the basis of the Assam Accord, it was admitted that large-scale illegal migrants from Bangladesh have not only threatened the demographic structure of the areas but have also seriously impaired the security of the nation. As a result of population movement from Bangladesh, the spectre looms large of the indigenous people of Assam being reduced to a minority in their home state.
Again, in the Sarbananda Sonowal-II case of 2007, the Supreme Court observed that the obligation is cast on the Central Government to protect the nation in terms of Article 355 of the Constitution of India, as highlighted in Sonowal-I. The need of the hour is to effectively seal the border with Bangladesh.
Census records relating to Assam categorically suggest radical and alarming demographic transformation of the state. As against their population of 24.6% in 1971, in 2011 the same stood at 34.22%.
Many countries, such as the United States, the European Union, Australia, China, Israel, etc., have well-defined legal frameworks to address border security and immigration challenges. Examining their approaches can provide valuable insights for India.
Given the multifaceted challenges, India must enact a robust and specific legal framework to ensure efficient border management, incorporating key aspects such as the Unified Border Management Law, the Specialised Border Security Tribunal, technological and intelligence integration, refugee and asylum law, the Maritime and Coastal Security Act, etc.
Securing India’s borders is not merely a matter of defence but also of governance and law. A robust legal framework will provide clarity, prevent loopholes, and ensure that our nation remains secure while upholding international human rights obligations. The time has come for India to enact a dedicated Border Security and Management Act to address the pressing issues we face today. Only through structured legal reforms can we safeguard our sovereignty, protect our citizens, and ensure peace and stability along our frontiers. Let us strive towards that end and goal.