ED v West Bengal & Mamata Banerjee Over IPAC Raid : Live Updates From Supreme Court
Divan: This judgement is authority for two or three propositions which we are canvassing.
Divan reads out Article 300 of the Constitution.
Divan takes the Court through Chapter 8 of PMLA.
Divan: Under PMLA as well there is no juridical personality that has been conferred. There may be responsibilities and designation of powers, but there is no right to sue conferred.
Divan: even under PMLA which confers additional responsibilities there is no notion of juristic personality or a right to sue.
Divan cites judgement in Chief Conservator of Forest v. Collector (2003).
Divan: then for a brief period between 1973 and 1977 there was a renaming and it came under the administrative jurisdiction of the department of personnel and administrative Reforms.
Divan then takes the Court through provisions of Foreign Exchange Management Act regarding establishment of ED and its functions.
Divan: ED is an organisational limb or a department of the Central Government and nothing else.
Divan: if you are creating a body corporate it would have to be done by the Parliament. Under Chapter 6 power is given to the central government to establish. But it doesn't confer a right to sue. The right to sue has to be specially conferred.
Divan: second thing Chapter 6 does not do is create a body corporate. Thus it cannot maintain an Article 32 petition because it does not have a right.
Fundamental rights which is essential for article 32 to be invoked has to be by a person. It may be by a natural person or by a legal corporate entity. If you are neither a juridical person nor a natural person then you do not have a right to sue.
Divan: Central government is asking for relief in respect of part 3 of the Constitution of India. It is very interesting and the court will have to look into whether the central government can complain that the state government is violating its fundamental rights
Divan: persons maybe citizens but may not have to be is citizens. For example even a foreigner has certain fundamental rights. But there has to be some form of personality which ED as a govt dept does not have
Divan: if we allow this then a situation can arise where Article 32 is being used by one department against another department or between two States or between Centre or and the states. This is really to be appropriately decided by a panel of 5 judges.
Divan gives history of formation and evolution of the Enforcement Directorate.
Divan: It was and enforcement unit of the department of economic affairs. In 1960 the administrative control was moved from the department of economic affairs to the department of revenue. So it was really a department within a department.
Divan highlights Article 145 of the Constitution.
Divan: there are a large number of departments in the central and state governments. ED is nothing beyond just department of the government. It doesn't have by itself any personality.
Divan: 3rd submission would be that this issue relates to a very important aspect of maintenance of interpretation of the Constitution of India as to whether enforcement directorate can at all maintain a petition. Because it has to do with part of our basic structure we will place before you the Articles of the Constitution which have been designed for the purpose of resolving disputes between a central government and state government. That is a special part of the architecture of the Constitution. Those will have to be followed and other forms of petitions are excluded.
The PMLA confers no juristic personality on the ED and does not grant it any right to sue : Divan.
ED is neither a juridical person nor a natural person; it does not have any right to sue, it cannot claim any violation of fundamental rights to maintain Article 32 petition : Divan.
ED is not a "Body Corporate"; The ED has not been given any "right to sue" by the notifications creating it. So it cannot file a petition under Article 32 : Divan.