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

Divan: you may have certain planning authorities or you may have authority for the purpose of promotion of a particular industrial development in a state. That body or the board for example is not a regulatory authority. It is a promotional body. So you have different types.

Divan: SEBI would be able to institute a proceeding which is significantly absent in the case of the character of the ED.

J Mishra: But SEBI is a regulatory authority. ED is not a regulatory body.

Divan: there may be certain regulatory authorities but the NHAI for example is not a regulatory body.

Divan: I will give you some examples of a few statutes for when Parliament seeks to confer the right to sue.

Divan takes the court through section 3 of the SEBI Act.

Divan: itself that the SEBI shall be a body corporate and shall sue or be sued.

Divan refers to Supreme Court Rules: there is a structure, a form, a manner in which proceedings are required to be instituted if you are under article 32. When a state decides to go against the union there will be so many considerations which are thought through. It cannot be just some department, some officer goes across and says "alright take this vakalatnama over there sign it and file...." These types of petitions if permitted can jeopardize the constitutional structure.

Divan: this article has been interpreted to mean that in matters regarding water dispute original jurisdiction would lie with the Tribunal constituted under the inter state water disputes act. But as far as article 136 and judicial review are concerned those being inherent part of the basic structure your lordships have retained to yourselves.

Divan highlights Article 262 under the sub heading adjudication of disputes relating to water.

Divan: If some department is allowed to just file proceedings over here it goes without any of the checks and balances which would visit Article 131. You will have just some department which says let us file article 32 petition or article 226 petition and this completely undermines the federal structure which is part of the basic structure of constitution.

Divan: when there is a suit to be initiated by the government there are a number of checks and balances. There are systems under which the matter progresses internally within the government.

Divan: Article 131 read with Article 300 prescribes the exact manner in which the entity will sue. And this is Central to the whole concept of a federal government or federal form of governance

Divan: Government of India cannot sue or be sued in the name of enforcement directorate.

Divan now reads Article 131 -