New Delhi, Mar 18 The Supreme Court on Wednesday questioned the West Bengal government's objection to the maintainability of the Enforcement Directorate's (ED) plea over alleged obstruction by Chief Minister Mamata Banerjee during a raid, saying no entity can be left remediless under the Constitution.
The West Bengal government has questioned in the top court the maintainability of the ED's plea alleging obstruction by Banerjee and other state authorities during its January 8 search of the office of political consultancy firm I-PAC in Kolkata in connection with a money-laundering probe.
A bench of Justices Prashant Kumar Mishra and N V Anjaria was told by the West Bengal government that the ED is not a juristic person, enabling it to file an Article-32 petition in the apex court for violation of fundamental rights against a state.
"If the ED, according to you, cannot file a writ petition under Article 32 of the Constitution, then surely it cannot file its petition before the high court under Article 226? Then where will they seek remedy? There cannot be a vacuum. Our Constitution does not envisage an entity to be remediless," Justice Mishra told senior advocate Shyam Divan, who appeared in the court on behalf of the state government.
Justice Mishra further wondered what remedy does the ED have in a situation like this and what would happen in a similar scenario in the future.
"The ED's allegation is that the chief minister of the state obstructed their work. This is a serious situation. Tomorrow, another chief minister or state authority can obstruct their work. Where will they go," the judge said.
Divan contended that the ED is not a juristic personality but only a department of the central government and that only the Union of India can file a writ petition.
"The ED cannot file an Article-32 petition, it cannot maintain an Article-226 petition, cannot file Article 227 and even cannot file a suit against a state. It is not that they are remediless in this situation. The Union of India can sue. The Centre can come forward and file a suit under Article 131. Allowing an individual department to invoke the writ jurisdiction of the court could pose a danger to the federal structure," the senior lawyer said.
He added that the perceived "vacuum" is precisely why the issue requires authoritative determination by a larger bench or else, it can lead to unchecked inter-governmental litigation.
In the plea before the apex court, the ED has sought the registration of an FIR against Banerjee and police officials who allegedly obstructed the agency's raid.
ED officials have also filed a separate petition challenging an FIR lodged by the West Bengal Police against them.
Divan argued 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, and since the ED is neither, it cannot allege violation of fundamental rights.
He contended that neither the Prevention of Money Laundering Act (PMLA) nor other governing statutes confer any right to sue upon the ED unlike bodies like the NHAI, UIDAI, TRAI and IRDAI, which are expressly created as bodies 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," Divan said.
He further said the ED was initially created as an enforcement unit within the Department of Economic Affairs and continues to function as an organisational limb of the Centre.
"It was a department within a department and it remains so till date," he said, while emphasising 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.
Senior advocate Kapil Sibal made brief submissions on behalf of Banerjee and argued that the ED cannot file a writ petition seeking to direct the Central Bureau of Investigation (CBI) to register an FIR with respect to the alleged obstruction.
The hearing remained inconclusive and would continue on March 24.
On January 15, the top court said the West Bengal chief minister's alleged obstruction in the ED's probe is "very serious" and agreed to examine if a state's law-enforcing agencies can interfere with any central agency's investigation into any serious offence as it stayed FIRs against the ED officials who raided I-PAC.
The ED has alleged interference and obstruction by the state government, including by Banerjee, in its probe and search operation at the Indian Political Action Committee's (I-PAC) office and the premises of its director, Pratik Jain, in connection with an alleged coal-pilferage scam.
The top court, while staying the FIRs filed in West Bengal against the ED officials, had also directed the state police to protect the CCTV footage of the raids.
It had issued notices to Banerjee, the West Bengal government, former state DGP Rajeev Kumar and top cops on the ED's petitions seeking a CBI probe against them for allegedly obstructing its raids.
