ED v Mamata Banerjee : Live Updates From Supreme Court Hearing

Sibal: there is no right either of the enforcement directorate or the individual to seek a prayer of investigation in the absence of violation of a fundamental right which is not possible in this case because all the offences have happened in the past and there is no existence existing fundamental rights violation

Sibal: State has a legitimate interest under parens patriae powers and providing care to its citizens who are unable to care take care of themselves. They take care of others they can't say they cannot take care of themselves.

Sibal: The idea behind parens patria is that someone who can act as a parent and make decision and take some other actions. sometimes the state is best qualified to take on this role. The concept is down to the downtrodden, marginalized...

J Mishra: and ED is not downtrodden according to you.

Sibal:

4. Parens patriae jurisdiction is available only when the aggrieved person has no capacity to move the court as settled in Aruna Ramchandra Shanbaug case.

Sibal:

3. Neither the ED which is not a department of the government or statutory authority can move under article 32 which is the relief claim by the ED, nor the individual named Robin Bansal. Fundamental rights have not been breached, nor has it been claimed in the petition that it has been breached. Therefore Robin Bansal in his capacity as an officer of the ED cannot move this petition.

Sibal:

2. Officials of the government acting under the statutory provision in the event of obstruction in the performance of the duties their fundamental rights cannot be invoked since such statutory authority in exercise of their obligations under the statute have no fundamental right under the law.

Sibal summarises his arguments -

1. In the absence of a continuing violation of a fundamental right a petition under article 32 will not lie for breach of that right.

Hearing resumes.

Sibal: you lordships must not assume that an allegation is a fact and then on that basis entertain a writ petition without the investigation of both the fact and the law.

Hearing to continue after lunch.

Sibal: if a man is kidnapped and his wife files a petition and he is still kidnapped kidnapped, the petition can be maintained. But once he is released no such petition can lie. In Sonam Wangchuk for example the petition was dismissed once he was released.