Allowing ED To File Writ Petition Against State Govt Dangerous To Federalism : West Bengal Govt To Supreme Court

The State of West Bengal, on Wednesday, opposed the maintainability of the writ petition filed in the Supreme Court by the Enforcement Directorate (ED) under Article 32 of the Constitution, contending that the agency lacks the legal personality required to invoke fundamental rights jurisdiction against a State.Senior Advocate Shyam Divan, for the State, contended that ED lacked a juristic personality, as it was only a government department, and allowing a Central Government Department to file a writ petition against a State Government would be "dangerous to the federal structure."A bench comprising Justice Prashant Kumar Mishra and Justice NV Anjaria was hearing the Enforcement Directorate's writ petition alleging obstruction by West Bengal authorities during its January 8 search of the office of political consultancy firm I-PAC in Kolkata in connection with a money laundering probe linked to the coal scam. The ED sought registration of CBI FIR against Chief Minister Mamata Banerjee and the State Police Officials who allegedly obstructed the ED raid. There was a connected writ petition filed by ED officers challenging the FIR registered by the West Bengal Police against them.ED Not A Juristic Entity, Cannot Invoke Article 32 Against State: Shyam Divan Opening his submissions, Divan argued that the ED is merely a department of the Central Government and not a juristic or natural person capable of maintaining a writ petition under Article 32. He submitted that the very foundation of Article 32 rests on the enforcement of fundamental rights, which can be claimed only by persons, whether natural or juristic. Since the ED has neither status, it cannot allege violation of fundamental rights.“ED is not a juristic entity… it is nothing beyond just a department of the Government. It does not have by itself any personality,” Divan told the Bench, adding that if there is no enforceable fundamental right, “the Article 32 petition is not maintainable.”He further contended that the petition raises a significant constitutional issue concerning the federal structure, which forms part of the basic structure of the Constitution. According to him, disputes between the Union and States are governed by a distinct constitutional mechanism, particularly under Article 131, read with Article 300, and cannot be bypassed through Article 32 proceedings initiated by a government department.Divan cautioned that permitting such petitions would undermine the constitutional scheme. “If we allow this, a situation can arise where Article 32 is being used by one department against another department, or between the Centre and States. This would completely bypass the checks and balances embedded in the constitutional framework,” he submitted.Tracing the statutory framework, Divan argued that neither the Prevention of Money Laundering Act (PMLA) nor other governing statutes confer any “right to sue” upon the ED. He contrasted this with statutory bodies such as SEBI, which has been conferred with the right to sue.Justice Mishra then pointed out that SEBI is a regulatory body and not an investigating body. Divan said that other bodies like NHAI, UIDAI, TRAI, and IRDAI, are expressly created as body corporate with the power to sue and be sued. “The right to sue has to be specifically conferred by Parliament. That is absent in the case of the ED,” he said.Referring to the history of the ED, Divan pointed out that it originated as an enforcement unit within the Department of Economic Affairs and continues to function as an organisational limb of the Central Government. “It was a department within a department, and it remains so,” he submitted.He also emphasised that 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. Extending the argument, he noted that even State-level agencies like CID, Vigilance Commissions, and Anti-Corruption Bureaus do not possess such rights.Justice Mishra then said that there might arise "unusual" situations such as a Chief Minister obstructing a Central Agency."Because in this case, according to them, the Chief Minister barged into some government office controlled by the Central Government.. if 226 is also not maintainable 32 is also not maintainable, then who will decide? Someday some other Chief Minister may enter into some other office..." Justice Mishra said.Addressing concerns raised by the Bench about the absence of a remedy in situations where a State allegedly obstructs a central agency, Divan maintained that the Constitution does provide a remedy, but it must be invoked in the proper manner. He suggested that the Union Government itself could initiate appropriate proceedings in accordance with the constitutional scheme, rather than a department acting independently.“The Central Government may certainly come forward. But that must be...

Allowing ED To File Writ Petition Against State Govt Dangerous To Federalism : West Bengal Govt To Supreme Court

Amisha Shrivastava

ED has no juristic personality, and cannot file a writ petition under Article 32, argued the State Government.

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