When CM Walks Into ED Inquiry, It's Not Centre v State Dispute: Supreme Court On ED Plea Against Mamata Banerjee

The Supreme Court on Wednesday orally commented that when a Chief Minister interferes with an ongoing investigation by a central agency, it cannot be described as a dispute between the Central Government and the State Government.

A bench comprising Justice Prashant Kumar Mishra and Justice NV Anjaria was hearing the writ petitions filed by the Enforcement Directorate seeking registration of a CBI FIR against West Bengal Chief Minister Mamata Banerjee and the State Police Officials for allegedly obstructing the ED raid of I-PAC, the political consultant of the Trinamool Congress. There was a connected writ petition filed by ED officers challenging the FIR registered by the West Bengal Police against them.

The State has questioned the maintainability of the writ petition filed by the ED under Article 32 of the Constitution. Senior Advocate Menaka Guruswamy, for the State officials, argued that the matter was essentially a dispute between the State and the Union, and hence a suit under Article 131 of the Constitution of India should be filed instead of a writ petition under Article 32.

Disagreeing with this argument, Justice Kumar said : "What right of the state does this involve? This is not a dispute between the state and the central government. You cannot walk in. Any Chief Minister of any state walks in the midst of an inquiry of an investigation and you say that it is a dispute essentially between the state and the central government?"

"Any Minister just walks in midst of an enquiry and you see make the democracy in peril and argues that it's a dispute essentially between the state and centre?" Justice Kumar asked.

Solicitor General of India Tushar Mehta interjected to say that incriminating material was also taken away by the Chief Minister.

Justice Kumar observed: "This is not per se a dispute between the state and the union. This is per se an act committed by an individual who happens to be the Chief Minister of a state, keeping the whole system and whole democracy in...you are saying if it all this can be maintainable this cannot be maintained under Article 32 but only under Article 132...you have taken us through Keshavanand Bharati and Seervai. But none of them would have ever conceived of this situation than that in this country a day will come when a sitting Chief Minister will walk into the office of some other agency...."

Guruswamy said that she disagreed with the bench's view, and said that she was advancing an argument that ED cannot claim violation of fundamental rights so as to maintain a petition under Article 32.

She stated that Article 32 is available only to an individual and not to a Government Department. She emphasised that it was an unprecedented writ petition, and since the matter raised a substantial question of law, it required to be referred to a 5-judge bench as per Article 145 of the Constitution.

Justice Kumar said that every petition will have some question of law, and so if the argument is accepted, then every petition will have to be referred to larger bench. Guruswamy maintained that the present matter raised a "unique proposition of law" which has not been tested before.

Guruswamy further stated that the petition filed by the ED on the same cause is pending before the Calcutta High Court.

ED Cannot Claim Fundamental Rights: West Bengal

Earlier in the day, Senior Advocate Dr Abhishek Manu Singhvi, appearing for the then West Bengal DGP, argued that the Enforcement Directorate, being a statutory authority, cannot invoke fundamental rights to seek directions from the Court. He submitted that there exists no fundamental right to investigate, either for the agency or for its officers acting in their official capacity.

He contended that an officer of the Enforcement Directorate, while acting in discharge of statutory duties, cannot assert an independent fundamental right distinct from that of the department. According to him, the officer's identity in such proceedings is inseparable from the statutory authority under which he functions.

To support his contention, Singhvi relied on a line of Constitution Bench decisions holding that corporations and statutory bodies are not "citizens" entitled to claim rights under Article 19 of the Constitution. He cited precedents including State Trading Corporation v. Commercial Tax Officer, Tata Engineering and Locomotive Company (Telco), the British India Steam Navigation case, and Barium Chemicals.

He submitted that these decisions establish the principle that entities other than natural persons cannot claim fundamental rights reserved for citizens, and that the Enforcement Directorate, as a governmental authority, stands on an even weaker footing in this regard.

Singhvi further invoked equitable principles, submitting that a party cannot achieve indirectly what it cannot do directly. He argued that the Enforcement Directorate was attempting to bypass established legal limitations by framing its plea in a manner that indirectly sought constitutional protection unavailable to it.

He also contended that constitutional protections under Articles 14, 21 and 22 were not attracted in the present case, as the actions complained of pertained to the discharge of statutory functions rather than violations of personal liberty.

The arguments are progressing. Live updates can be followed here.

In the last hearing, the Court orally asked if the Enforcement Directorate can seek a remedy from the State Government against the alleged obstruction of its raid of the I-PAC office by Chief Minister, Mamata Banerjee.

The Court posed this question, addressing the preliminary objections raised by the State of West Bengal to the maintainability of the petitions filed by the ED and its officers under Article 32 of the Constitution of India, seeking an investigation by the Central Bureau of Investigation into the alleged obstruction of the ED's raid of the I-PAC, the political consultant of Trinamool Congress.

The State of West Bengal has opposed the maintainability of the writ petition, contending that the agency lacks the legal personality required to invoke fundamental rights jurisdiction against a State, and allowing a Central Government Department to file a writ petition against a State Government would be "dangerous to the federal structure."