ED v West Bengal & Mamata Banerjee Over IPAC Raid : Live Updates From Supreme Court

Divan: no you are not ships ife that certain types of rights under Part 3 can be exercised against private entity. As far is Article 32 is concerned, there is no determinative finding. But it's all the question of essentially being against the state.

Divan: if a citizen sues the central government as the state, can the central government say that I am not responsible as the power is being exercised by one department of mine? No the central government can't say that. Because that department is nothing but a part of the central government.

Divan: Part 3 of the Constitution is to safeguard the rights of citizenry as well as persons. And corporate and juristic entities are also entitled to protection. But the question is, against whom? As far as part 3 is concerned it is against the state.

Divan reads Article 32: The right to constructional remedies.

Divan: remedies for enforcement of rights conferred by this Part

J Mishra (in lighter vein): it is probably they have picked up this enforcement in Article 32 as the Enforcement Directorate.

Divan: and the federal machinery will be tested extraordinary in a manner not emphasized by the constitution of India.

Divan: if the investigating officers are going to be given authority to draft and file a writ petition, there is a considerable possibility of danger not just of burdening of court but a danger to the federal structure.

Divan: if each of these departments are entitled to sue then apart from 32 it's a very small step to article 226 and one state against some jurisdictional officer of another state.

Divan: In West Bengal the CID, the Vigilance Commission, ACB, also do not have power to sue. Keep the central government aside for a moment. We have situations where people who cross over from one state to the other for shelter. Jurisdiction in States under federal structure is territorially limited.

Divan on the question of whether if any of the authorities like police who can investigate have been conferred right to sue: CBI does not have the power under the DSPE act. The Narcotics Control Bureau under MHA does not have a power to sue. The Director of Revenue Intelligence established under an executive order also does not have the power. The SFIO under the MCA also does not have any power to sue.

Divan: the second layer of the argument is that if you are neither are juristic entity or natural person. I have been using body corporate because the sections say body corporate but the concept is you have to have a separate juristic entity.

Divan: these are all Central authorities. Similar list can be made for various state governments.

Bench: the question is if being or not being a body corporate is not the test to consider the test of maintainability of Article 32 petition, should this argument detain us for long?