The Supreme Court on Wednesday questioned the Bengal government’s objection to the maintainability of the Enforcement Directorate’s (ED) plea over alleged obstruction by chief minister Mamata Banerjee during a raid, saying no entity can be left remediless under the Constitution.
A bench of Justices Prashant Kumar Mishra and N. V. Anjaria called the alleged interference by the chief minister with the ED’s raids at the I-PAC office “not a happy situation.”
The Mamata government challenged the ED’s plea, which alleges obstruction by Mamata and other state authorities during the January 8 search of political consultancy firm I-PAC in Kolkata.
The search was part of a money-laundering probe connected to a coal scam.
“If the ED, according to you, cannot file a writ petition under Article 32 of the Constitution, then surely it cannot file its petition before the high court under Article 226? Then where will they seek remedy? There cannot be a vacuum. Our Constitution does not envisage an entity to be remediless,” Justice Mishra told senior advocate Shyam Divan, representing the state government.
Divan argued that the ED is a department of the central government and “is nothing beyond just a department of the government. It does not have by itself any personality.”
He added that if there is no enforceable fundamental right, “the Article 32 petition is not maintainable.”
According to Divan, allowing the ED or other central agencies to file petitions under Article 32 could create a “dangerous precedent for the federal structure” and “completely bypass the checks and balances in the constitutional framework as it would result in the article being used by one department against the order.”
Senior advocate Kapil Sibal, appearing for Mamata Banerjee, said the ED cannot seek a writ directing the CBI to register an FIR.
“ED cannot ask the CBI to investigate. Unless there is a predicate offence ED cannot come into the picture, cannot file a writ petition for the fundamental right to have the CBI lodge an FIR,” he said.
Justice Mishra asked what remedy would be available in such situations.
“The ED's allegation is that the chief minister of the state obstructed their work. This is a serious situation. Tomorrow, another chief minister or state authority can obstruct their work,” he said.
Divan maintained that the ED cannot file writ petitions under Articles 32, 226, or 227, nor can it file a suit against a state. “It is not as if there is no remedy in this situation. The Union of India can sue. That comes from Article 300,” he said.
He added that disputes between the Union and states are governed under a distinct constitutional mechanism and cannot be bypassed by allowing a government department to invoke Article 32.
Divan noted that it was created as an enforcement unit within the department of economic affairs and continues to function as an organisational limb of the Centre.
“It was a department within a department and it remains so,” he said. He also said other investigative agencies, such as the CBI, narcotics control bureau, directorate of revenue intelligence, and serious fraud investigation office, similarly lack statutory recognition as bodies corporate with an independent right to sue.
The ED has sought registration of an FIR against Mamata and police officials who allegedly obstructed its raid. ED officials have also filed a separate petition challenging an FIR lodged by the West Bengal police against them.
On January 15, the Supreme Court called the alleged obstruction by the chief minister “very serious” and agreed to examine if state law-enforcing agencies can interfere with any central agency’s investigation.
According to the ED, Mamata entered key raid locations and took away “key evidence,” including documents and electronic devices, interrupting the investigation.
Mamata has denied the allegations, saying the central agency is acting on the Centre’s “political vendetta.”
The Bengal government maintains that the chief minister took material from the premises without objection from ED officials and that police intervention was triggered by reports that armed persons had entered the office impersonating central agency officers.
The Supreme Court will hear the case again on March 24.