ED says its officers can approach Supreme Court under Article 32 when there is breach of rule of law

The Enforcement Directorate (ED) on Thursday argued before the Supreme Court that the 'rule of law' is a part of fundamental right of equality and when it is violated, the agency in a representative capacity and its officers in personal as well as their official capacity can approach the top court under Article 32 of the Constitution.

The submission was made by the agency before a Bench of Justices PK Mishra and NV Anjaria while justifying the maintainability of Article 32 petitions filed by it and its officers against West Bengal Chief Minister Mamata Banerjee.

The ED has accused Banerjee of interfering in the agency's search operations conducted earlier this year against political consultancy firm I-PAC in Kolkata and sought a Central Bureau of Investigation (CBI) probe against her and others.

Solicitor General Tushar Mehta, representing the ED, argued that there was a complete failure of law and order in West Bengal. He cited instances of Chief Minister Banerjee's alleged interference in different investigations of central agencies.

"This is my legal submission. I will demonstrate how rule of law is violated. This is a case where there is illegal smuggling of coal and the total amount runs to ₹2700 crore. The ED and their individual officers who are also citizens of India discharging their statutory functions are seeking protection of their fundamental rights," Mehta said.

Mehta added that as rule of law is part of Article 14, the petitions filed by ED and its officers under Article 32 are maintainable.

"Rule of law means wherever and whenever the State fails to perform its duty, the Court can step in. The facts and circumstances which I have already pointed out results in violation of Article 14 of the officers who went there to discharge their duties," he said.

Mehta further said that the ED officers' official capacity and individual capacity cannot be divorced from each other.

He added that ED was representing its officers in pointing out that their Article 14 rights are violated. At this, the Court remarked that therefore the agency was acting in an official capacity.

"But fundamental rights are person-centric," it added.

Mehta asked whether someone who discharges their official duty ceases to be a “person”.

"When a police officer in uniform is placed under suspension and he is approaching this court or the high court. If his capacity as an individual is different and his capacity as an officer is different, then he can never approach for his fundamental rights. He may be facing an illegal act in his official capacity, but the consequences will be on his person," he submitted.

Mehta further said that State governments including the State of West Bengal have also approached the Court under Article 32 on different occasions. He argued that the West Bengal government cannot now take a contrary stand.

However, the Court highlighted the problem with entertaining such petitions on behalf of State governments.

"There is inherent danger if we keep on entertaining. This court will be flooded with Article 32 [petitions]. Not by individuals. By different state governments. As a court shall we discourage or shall we encourage this?,"the Bench asked.

Mehta responded that it should be discouraged. Hearing the submission, the Court said,

"So we should dismiss this."

Mehta, however, argued that the present case involves individuals and these matters should be decided on fact-to-fact basis.

Background

Chief Minister Banerjee entered the I-PAC office and the residence of its co-founder on January 8 this year, 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. The 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.

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 argued 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.

On March 24, the Court questioned the objections and asked whether the agency's officers cease to become citizens of India merely because they are officers of ED. On April 22, the Court remarked that a Chief Minister can harm democracy by interfering with investigations.

Arguments today

SG Mehta today argued that there was a pattern of failure of law and order in West Bengal.

"This is not an isolated first of a kind incident. There is a pattern. The CBI was conducting an investigation based on orders of this court. This is another investigation by the CBI. This is not a standalone case. The Chief Minister has made a pattern to take law into her own hands and misuse the state police whenever a crime is investigated which is not to her liking," the Solicitor General said.

He referred to an earlier incident in which officers of the Central Bureau of Investigation (CBI) were allegedly detained and taken to a police station when they wanted to visit the then police commissioner.

"In yet another shocking incident the CM barged into the regional office of the CBI, simultaneously a large crowd was sent at the residence of the joint director of CBI. He was gheraoed," he added.

Mehta said the then Director General of Police (DGP) had behaved like a personal security officer of the Chief Minister in the present case.

"When the Chief Minister barged in in the present case, we asked what the DGP etc were doing. On affidavit they have said that since she is a Z category protectee, they were there for her protection. As if the DGP is the personal PSO of the chief minister."

He added that after the CM came out, he remained there. Mehta contended that the rule of law ceases to operate when political executive uses State machinery to obstruct investigation.

"The sitting CM in the present case has actively caused obstruction of investigation," he said.

On maintainability of the plea, Mehta further submitted that the ED acts on behalf of victims of money laundering and returns the money to them. He added that maintainability cannot be divorced from the facts emerging from a particular case.

"It is not my case that ED is a juristic person etc. The proceeds of crime is in form of money. That money when we recover, we confiscate it to the central government, and then the special court can direct the central government to restore such confiscated property…"

The Court remarked that Coal India Limited, the victim in the money laundering case, is not a natural person.

"Every government organisation is established to protect the rule of law and everybody then can maintain [Article] 32 petition?," the Court asked.

Mehta, however, said that the petitioners are the ED officers being harassed by West Bengal police in the name of criminal investigation.

"I have given sufficient evidence to show that we were not allowed to discharge our official duties. Natural persons discharging their offices duties under the statute are now facing FIRs. Therefore, the prayer is to direct the CBI to register FIRs and investigate the entire incident… I cannot go and file this FIR before West Bengal police that investigate your Chief Minister," he added.

When the Court pointed out that the other side's argument was that ED is a department of the Union of India and it did not have permission to file the plea, Mehta said,

"Petitioner no 2 [ED officer] is an individual who is personally aggrieved. Your lordships know it’s a pattern of incidents. Your lordships have inherent jurisdiction. Your lordships can exercise powers even on a postcard. No locus standi, no filing of petition etc is needed."

Mehta also argued that the matter did not involve a dispute between the Central government and State government.

"First of all, on the face of it there is nothing that Central government has to do with this issue. State also has nothing to do. The president of a political party who happens to be the CM is the accused and officers of ED who draw salary from Union are on one side. It is preposterous to argue that this case would be under Article 131," he said.

Additional Solicitor General (ASG) SV Raju, appearing for three ED officers in a separate petition, said the offences like theft, robbery and wrongful confinement took place during the ED search when Banerjee and West Bengal police visited the premises.

"Personal offences have been committed against them (ED officers). They are victims," Raju said.

However, the Court observed that most of these offences were not made out. Raju said only an investigation can find that.

"But the premises were not yours. It was Pratik Jain’s. So how can it be theft? You may say offences were made out after investigation. We cannot record a finding that it is made out," the Court asked.

Continuing with his submissions, Raju argued the remedy to approach the magistrate would not be effective as the investigation would ultimately be done only by the local police.

"If I go to an officer in charge of a police station who is under all these heavy and mighty accused, then it’s not going to be a fair investigation," he added.

Despite knowing that search was conducted by ED officers, the police registered an FIR saying unknown persons claiming to be ED officers conducted the search, Raju submitted further.

"Kindly look at respondent no. 5 (Priyabrata Roy, DCP’s) affidavit. 11:50 am he says they are officials of ED. Identity was disclosed. At 12:00 pm he says unknown persons. The same is written by the commissioner of police. Attempt was made to file a false FIR on the face of it. This is as per their pleading. It’s their own case," the ASG told the Court.

The Court also expressed surprise that the email about the search operation was seen by police officials at 10 am but they later decided to declare the ED officers unknown.

"This is DGP’s affidavit? He’s saying at 10am he has seen and yet at 12pm registers an FIR on the behest of the CM? I want to say so many things but everything is reported…," Justice Mishra said.

Raju said therefore it was a fit case for transfer to the CBI.

"Therefore it is a fit case for giving the investigation to the CBI. I’ve shown how the investigation is tainted and biased. There are cross FIRs. The law is where there are cross FIRs, it has to be investigated by the same agency," he stated.

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