Rule of law vs political resistance

While the corridors of the Supreme Court are bustling with discourse on what constitutes essential religious practice, the Court is faced with another nuanced issue pivotal to the cooperative federal structure of Indian democracy. The ongoing matter related to alleged obstruction by West Bengal Chief Minister Mamata Banerjee to investigations conducted by the Enforcement Directorate (ED) raises questions that go far beyond routine Centre-State friction.

At its core, lies a constitutional confrontation: whether a State executive can impede the lawful functioning of a central investigative agency and whether such obstruction justifies direct recourse to the Supreme Court under Article 32 of the Constitution of India.

The nerve centre of the matter is the State's objection to the maintainability of a writ petition filed by the ED, rooted in the traditional understanding of who qualifies to approach the Court under Article 32. While traditionally invoked by individuals, the Supreme Court has consistently expanded the ambit of Article 32 to instances where constitutional governance is itself imperilled. The ED’s invocation of Article 32 is not merely institutional self-preservation. Rather, it is rooted in frustration of statutory duties under central legislation such as the Prevention of Money Laundering Act, 2002 (PMLA), interference with rule of law and violation of constitutional structure.

The Supreme Court has time and again protected the sanctity of free, fair and unobstructed investigation. The same can be observed in Vineet Narain v. Union of India, where the Court emphasised that investigative agencies must function free from external interference. Similarly, in State of West Bengal v. Committee for Protection of Democratic Rights, the Court held that constitutional courts can ensure that investigations are not thwarted by State machinery. Consequently, an impediment or obstruction caused to a free and fair investigation transgresses the administrative realm and enters the domain of constitutional rights enforcement. Another constitutionally pivotal aspect of this matter is the breach of cooperative federalism. The Supreme Court in SR Bommai v. Union of India has recognised federalism as a tenet of basic structure doctrine. India’s democratic set up embodies “coming together” of States and the Union.

While describing cooperative federalism in India, the Supreme Court in Government of NCT of Delhi v. Union of India underscored that cooperation requires mutual respect and functional coordination between the Union and the States. State obstructions to a national agency performing its statutory functions entails much larger structural and public trust ramifications. Firstly, it signals institutional breakdown, whereunder governance has shifted from cooperation to confrontation, paralysing enforcement mechanisms. Secondly, it reflects selective compliance, whereunder State’s refusal to assist or active resistance reflects a breakdown of constitutional trust, particularly where central statutes like PMLA operate uniformly across India. Lastly, it undermines national interests whereunder economic offences affecting the public at large and having cross-border ramifications are left uninvestigated.

Another crucial facet is the colourable exercise of power by a State public office holder such as the CM in the present instance. In case at hand, the deployment of State police officials to impede ED officials, denial of logistical and administrative support and the retaliatory proceedings instituted against ED officials would amount to colourable exercise of power. It is noteworthy that such misuse of power has consistently been frowned upon by the Supreme Court. In Kunga Nima Lepcha v. State of Sikkim, the apex court propounded that in instances where there is obstruction to the investigation process such as material threats to witnesses, the destruction of evidence or undue pressure from powerful interests, the writ court can play a corrective role to ensure that the integrity of the investigation is not compromised. In Som Mittal v. Government of Karnataka, it reiterated that State powers cannot be used to stifle lawful proceedings.

The duties of a CM include upholding the Constitution and adherence to central laws enacted under the Union List. Article 256 further mandates that State powers must be exercised to achieve complete compliance with parliament’s enacted laws. Selective compliance of central laws by the State executive is impermissible and antithetical to the constitutional principles. Moreover, the Supreme Court in Union of India v. Prakash P Hinduja, underscored that investigation into economic offences must proceed unhindered, as they affect the integrity of governance itself.

In the past, the West Bengal government has caused impediments to ongoing investigations against its own personnel. Instances include the Central Bureau of Investigation (CBI) probe into Saradha chit fund scam and the Narada sting operation. This pattern demonstrates a systemic issue rather than a singular administrative disagreement. It strengthens the ED’s case that constitutional intervention is necessary. In instances where State itself becomes an impediment in the normal functioning of central agencies, ordinary remedies prove to be inadequate.

If such violations are left unchallenged, the Supreme Court would run the risk of emboldening such behaviour by the State executive, wherever any of its own interests are at stake in an investigation by a national agency. This could not only paralyse investigation by these agencies, but would resultantly harm the public at large across the country.

Agencies like the ED have proven that they do not shy away from going after financially and politically influential persons involved in economic offences. If left untreated, this matter would open a backdoor exit for any influential person wielding power to escape the clutches of law. States' disobedience to central laws and directives, if left unchallenged, would open another can of worms. This would embolden any State not in consonance with the Union government on matters pertaining to the Union, Concurrent or Residuary lists to disregard such laws and directions. This will break the administrative constitutional machinery along with the spirit of federalism enshrined in the Preamble and as a tenet of basic structure.

It is also pertinent to acknowledge the significant role played by the ED in combating complex economic offences. From unearthing large-scale money laundering networks to securing convictions under the PMLA framework, the ED has emerged as a crucial pillar in safeguarding India’s financial integrity. Its success in high-profile investigations underscores the importance of allowing such agencies to function without fear or obstruction. Consequently, steps must be undertaken to strengthen, embolden the fair and necessary functioning of such investigative agencies. In the present case, the Supreme Court’s intervention is essential to restore constitutional balance. Ultimately, the Constitution demands cooperation, not confrontation. Where this mandate is breached, judicial correction is not merely justified; it is imperative.

Rudraditya Khare is a Deputy Advocate General, Madhya Pradesh and Special Public Prosecutor, Enforcement Directorate.