ED v West Bengal & Mamata Banerjee Over IPAC Raid : Live Updates From Supreme Court
Divan: the Union of India may in certain situation be entitled to invoke the parents patriae jurisdiction. I don't believe it can be done under Article 32 but there may be a suit. Because in Bhopal (Gas Tragedy) for example they did that.
Divan: so there may be situations but I don't believe Union of India can at all file a parents patria in terms directly under Article 32. In any case it has to be by the Union of India and not Enforcement Directorate. Otherwise every division and department will say that I am looking after this interest parens patria and here I am in court ready and willing assist the court. I don't believe that is permissible
Divan: according to us this petition fails on both counts. First it is not a person who has any fundamental rights. Second is that there is no question of you being the state complaining about some other organ of the state violating your fundamental rights. State is not within part 3 of the Constitution at all.
Divan cites judgement in Ramdas Athawale v. Union of India (2010) 4 SCC 1.
Divan: regarding the scope and ambit of part 3 of the constitution, for ED to even seek to invoke some article or some breach is completely alien to the fabric and the elementary notion.
Divan: It may not be enough to say that look we have a evolving concepts and therefore please evolve the constitution. There has to be some textual and purposeful reason for this. There doesn't seem to be. And there is a very good and compelling reason for not allowing this that otherwise we will have all sorts of any division filling without going through the rigor and discipline of Article 131 suit
Divan cites a detailed judgment of the Bombay High Court which declined to entertain a writ petition by ED
Divan: the issue of necessity of breach of fundamental rights in order to invoke Article 32 is the subject of several judgements.
Divan: State v. State is completely alien to the most fundamental notion of Part 3 of the Constitution
Divan: the point I am now making extends beyond Article 14. When you see the scheme of partly of constitution it is not invisage one lamb of the state contestant against another limb of the state. it is not even within the thought process or the frameworks or the language or the structure or the intent or the purpose.
Divan takes the court through Article 14: it says "the state shall not deny to any person equality..." So the person has to be either a natural person or juristic person. Article 14 is not available to a directorate which is not a juristic entity.
Divan: this is nothing but thinly veiled petition on behalf of the enforcement directorate. The memo of parties shows that say that they are various officers of the Enforcement Directorate. But even this thin veil is removed by them. The first paragraph reads that the present petition is being filed by the directorate of enforcement
Court inaudible.
Divan takes the Court through ED's petition: let's have a look directly as to what they say about coming under Article 32.