The Supreme Court on Tuesday questioned the objections over maintainability of the plea moved under Article 32 by Enforcement Directorate (ED) against West Bengal Chief Minister Mamata Banerjee's alleged interference in the search operations conducted against political consultancy firm I-PAC.

A bench of Justices PK Mishra and NV Anjaria said that some officers of the ED have also petitioned it in their individual capacity.

The Court asked the counsel opposing the ED plea to answer whether the agency's officers cease to become citizens of India merely because they are officers of ED.

"Please concentrate on the fundamental right of the officers of the ED qua whom the offence has been committed. Otherwise you will miss the point. You can’t forget the second petition which is preferred by individual officers who are the victims of the offence. You will be in difficulty, I am telling you. Don’t just say ED, ED, ED," Justice Mishra remarked.

The Court made the observation after Senior Advocate Kapil Sibal, representing authorities of State of West Bengal, argued that the ED cannot file a petition under Article 32 when a remedy to approach the police is available to it.

"Any obstruction in performance of a statutory duty is not in violation of a fundamental right. If someone obstructs a police officer, he can’t file a 32 petition. There is a statutory remedy. Otherwise every police officer will file a 32. We can’t interpret a law in the context of a particular situation and then open a Pandora’s box inconsistent with the basic features of criminal law," Sibal argued.

Sibal also said that a person doesn’t have a “fundamental right” to investigate a case.

"He (ED officer) only has a right under a statute to investigate. And violation of that right is not a violation of fundamental right," the senior counsel said.

Sibal added that ED's own case is that they were exercising their statutory powers which were frustrated.

"There’s no question of fundamental rights," he said.

Meanwhile, the Court strongly rebuffed a suggestion to postpone the hearing of the case due to the upcoming West Bengal Assembly elections.

"We don't want to be party to election, we don't want to be party to any crime also. We know the timing of the court. We know the timing of the decision," Justice Mishra said.

This was after Senior Advocate Kalyan Bandopadhyay, representing Banerjee, referred to an earlier instance when a judge had decided not to hear a case citing elections. However, the Court asked him not to make such a suggestion before it.

Background

Chief Minister Mamata Banerjee entered the I-PAC office and the residence of its co-founder on January 8 while the ED was conducting searches in connection with a money laundering probe. Banerjee allegedly removed several documents and electronic devices from the premises.

She claimed that the material contained information pertaining to her political party. I-PAC has been associated with the Trinamool Congress since the 2019 Lok Sabha elections.

On the other hand, the ED said that the searches were part of its investigation into a 2020 money laundering case registered against businessman Anup Majee, who is accused of involvement in coal smuggling.

According to the ED, a coal smuggling syndicate led by Majee used to steal and illegally excavate coal from ECL leasehold areas of West Bengal and then sell it at various factories/plants in West Bengal. ED has alleged that a large part of this coal was sold to Shakambhari Group of companies.

The agency then approached the Supreme Court under Article 32 accusing Banerjee and State officials of interfering with its investigation and search operations. As per the petition, the intervention resulted in the removal of crucial physical and electronic material connected to the investigation. It has prayed for a Central Bureau of Investigation (CBI) probe.

On January 15, the Court said that there would be lawlessness in the country if it does not examine the issues raised by the ED. It then issued notice to CM Banerjee, then Director General of Police (DGP) Rajeev Kumar and others.

In response, the State government authorities contended that the searches conducted by the ED on the premises of I-PAC were not obstructed and that the Central agency's panchnama itself revealed this fact.

Further, the State contended that the Article 32 petition filed by the ED against the State government was not maintainable since Article 32 can be invoked only by citizens for violation of fundamental rights.

Arguments today

Senior Advocate Kapil Sibal today argued that ED cannot claim violation of fundamental rights. He added that the Deputy Director Robin Bansal, who is the petitioner before the Court, was not present on the date of incident.

"This is the enforcement of a fundamental right. Not a PIL. A person who was not on the scene can’t espouse the cause of violation of others fundamental rights," Sibal added.

However, Justice Anjaria remarked that fundamental rights can also arise "in abstract" in context of a particular situation.

"Fundamental rights need not be person centric always. They can arise in abstract situation. Is it not a fundamental right to have a rule of law," the judge asked.

"The basic features carved out in Kesavananda Bharti ... are they not for fundamental rights? In that context the right can arise," the judge added.

Sibal responded that the question would still remain as to who can enforce it.

"If I say violation of rule of law, then I have to say which violation. Rule of law is reflected in Articles 14, 16, 19 etc. question is who can enforce it," the senior counsel said.

Sibal added that the ED comes under the Revenue Department, adding that it’s a directorate and not a department.

"They have made the Directorate of Enforcement petitioner because the Central government can’t move under [Article] 32. They can only move under 131. If a deputy director appointed by the Central government is aggrieved, then either the Central government is aggrieved or the individual is aggrieved," he said.

Sibal also contended that the ED can approach the State authorities for action on its complaints. He submitted that Section 66 of the Prevention of Money Laundering Act (PMLA) empowers the ED to inform other investigating agencies about other offences.

"They say that the investigation in West Bengal should not be investigated by the State. There is a remedy available in law. Why do they file a 32 petition?," he said.

Justice Mishra asked whether the ED was required to approach the same State government which is headed by a Chief Minister accused of barging in and committing an offence.

"So if CM barges in and commits an offence, according to you ED will inform the State government which is headed by the Chief Minister? This is your argument? We have understood it," the Court said.

Sibal responded that the Court should not assume that the CM had committed an offence.

"It’s an allegation," he said, adding that the Court should not call it a fact.

Justice Mishra said,

"It’s an allegation. But allegation is based on facts. I have not said against CM."

The Court did not agree with the argument for applicability of Section 66 of the PMLA, observing the offence was committed against ED investigators and not connected to the PMLA investigation as such.

"We have understood that there are two distinct allegations. PMLA which ED is enquiring is one set of and this particular allegation which the petitioners are alleging, that has not been committed while PMLA offence was undergoing. While PMLA was going on, the officers have not come up with anything. This is another offence which is committed by other persons against PMLA," it said.

However, Sibal contended that Article 32 cannot be invoked for it.

"There is a statutory remedy. I am on the fundamental proposition that this [petition] is not maintainable," he said.

Justice Anjaria questioned the argument.

"So you are saying for statutory violation, [Article] 32 won’t arise unless there is a fundamental right [violation]," he asked.

Sibal reiterated his submissions.

"I don’t think I can make it [any] clearer. If there is a criminal offence, even if there is a violation of fundamental right, it has to be dealt with by that State. Article 226 will lie only when it is not being investigated," he said,

Sibal further said that PMLA itself states that powers flow from the statute.

"Thus, violation of statutory exercise of power is not violation of a fundamental right. The individual is claiming it as an officer of ED. So where’s the question of a fundamental right here?," he asked.

Sibal also contended that violation of a law does not automatically lead to violation of fundamental rights.

"Your lordships must not assume that an allegation is a fact and on that basis entertain a petition under 32 without the investigation of both the facts and the law," he said.

Senior Advocate Kalyan Bandopadhyay, representing Banerjee, said a constitutional question was involved in the case. He referred to a similar case arising from Tamil Nadu.

"In Tamil Nadu, ED conducted investigation. There all ministers were involved. State govt constituted an enquiry committee. ED came to the High Court to quash the enquiry committee. State went to Division Bench. Division Bench said that whether or not it is juristic person, Article 226 will lie. State appealed that in Supreme Court and notice has been issued," Bandopadhyay said.

At this, the Court asked the senior counsel to consider a reverse situation.

"Different political parties govern Centre and States. If some Chief Minister of the other side does this in 2030 and 2031 and you come to power in Central government and their Chief Minister does this, what will be your reaction?"

The Court asked Bandopadhyay also to address it on maintainability of petitions moved by ED officers.

"Will officer of ED cease to become citizen of India? Merely because they are officers of ED, they can be punched and done away with any wrong, can they not come under Article 32? Just consider seriously the second petition also. Because that may trouble you. We are telling you," Justice Mishra remarked.

Bandopadhyay responded that the officers were discharging their official duties but do not enjoy any greater rights.

"In the eyes of law, no one is privileged," the senior counsel said, adding that the Court cannot depart from settled principles of law only because the facts of a case may be shocking.

"Can we underestimate magistrate, judicial officer, High Court," he asked.

The Bench said that it should not be concluded that the Court has assumed something or titled towards other side. In response, Bandopadhyay said,

"We are lucky to understand the judge’s mind. A lawyer is truly a lawyer who assesses the eyes of the judge."

Justice Mishra responded that even those logged in through video conferencing are looking at the judges

"These days our eyes are seen by persons who are logged in and not in the court. Our job is more difficult," the judge said.

Bandhopadhyay then continued with his submissions. At one point, he referred to a judgement dealing with the Bofors scam. On hearing the name, the Court responded on a lighter note.

"Yes, you need Bofors to bulldoze them [the ED case]," Justice Mishra remarked.

In his arguments, Bandopadhyay also asked whether the Supreme Court should order an FIR in a plea filed under Article 32 when there are disputed facts before it.

"There is no complaint made by them. And the FIR initiated against them, has anything wrong been done by the police till now? Only if complaint has been made, and then it is seen that Calcutta police has not investigated properly, only then they can come and file Article 32," he said.

Senior Advocate Abhishek Manu Singhvi, representing the State DGP, submitted that the question of maintainability should be referred to a larger bench as an important question of law was involved.

"The petitioner (ED) is neither a person nor a citizen. Articles 14 and 21 apply to persons. We are out. But because the event is allegedly so serious you create jurisdiction where it doesn’t exist. In the hypothetical assumed scenario that a department as powerful as ED ... even then your lordships would not create a law under Part III of the Constitution. Even if ED was remediless," he added.

Singhvi questioned how the ED was remediless.

"Law is not a plaything just because ED comes here. If the other side was a private person, they accept that 226 is pending as we speak, and they say that we have filed a 32 in identical facts, would your lordships give a reckoning like this to any private party?," he asked.

Singhvi will continue his arguments on April 14 , the next date of hearing. Senior Advocates Meneka Guruswamy and Siddharth Luhtra are expected to argue next.

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