CM Mamata Banerjee barging in during ED raids not a happy situation; can ED be left remediless? Supreme Court to WB

The Supreme Court on Wednesday told the State of West Bengal that its Chief Minister Mamata Banerjee interrupting raids conducted by Enforcement Directorate (ED) is not a "happy situation" and the central investigating agency cannot be left remediless when its functioning is interrupted..A Bench of Justices PK Mishra and NV Anjaria was responding to the State's argument that the a Central government agency cannot invoke the remedy under Article 32 of the Constitution which is a remedy available to citizens against government agency and not the other way round."But in a case like this, can Article 226 (petition before High Court) be maintainable? Can ED move under Article 226 if Article 32 petition is not maintainable?" the Bench asked.Senior Advocate Kapil Sibal, appearing for Chief Minister Mamata Banerjee, said that this issue is pending before the Court in another case."If Article 226 and 32 petitions are not maintainable, then who will decide? Because here is a situation that a Chief Minister usually barges in according to them in an office handled by the Central Government, it is not a happy situation, it’s an unusual situation," the Court remarked."ED cannot maintain 226 also," Senior Advocate Shyam Divan, representing the State of West Bengal, said."So there is no remedy? There should not be a vacuum," the Bench said."This is a compelling reason that this should be dealt with by 5 judge panel. ED cannot sue. Not through a suit, not through 226 or 32. It could be the Central government that comes forward," Divan contended."So ED only has the right to look and watch?" the Bench asked."I am not saying that the Central government does not have a right to sue. It cannot be that some department files a petition, even under Article 226," Divan replied.If Article 226 and 32 petitions are not maintainable, then who will decide? If a Chief Minister barges into an office, it is not a happy situation, it is an unusual situation.Supreme Court.The Court was hearing a petition filed by the ED seeking a probe by the Central Bureau of Investigation (CBI) into the incident from January 8 when West Bengal Chief Minister Mamata Banerjee had entered the premises of political consultancy firm Indian Pac Consulting Private Limited (I-PAC) when the ED was conducting searches in the firm's premises..BackgroundBanerjee 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 is alleged to have removed several documents and electronic devices from the premises. She claimed that the material contained information pertaining to her political party. According to reports, I-PAC has been associated with the Trinamool Congress since the 2019 Lok Sabha elections.The ED has maintained 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 ED initially moved the Calcutta High Court against Banerjee, but the High Court could not hear the matter due to unruly commotion inside the courtroom.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 and prevented officers from carrying out their duties in accordance with the law.It urged the Court to order a Central Bureau of Investigation (CBI) probe into the incident.When the matter was heard 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.Hence, it issued notice to CM Mamata Banerjee, Director General of Police (DGP) Rajeev Kumar and others asked them to file their responses.In response to the same, the State and other respondents filed their affidavits..They 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 is not maintainable since Article 32 can be invoked only by citizens against government agencies for violation of fundamental rights. An instrumentality of the State like ED cannot claim violation of fundamental rights, the State's affidavit said..Hearing today.When the matter was taken up on Wednesday, Senior Advocate Shyam Divan, appearing for the State of West Bengal, sought time to file response to ED's rejoinder.However, the Court declined to grant time for the same stating that the rejoinder was filed 10 days back."We will proceed with the hearing," the Court made it clear."The appropriate manner to proceed with the case would be after pleadings are complete. Let us place our submissions on non-maintainability," Divan insisted."You want to file rejoinder. If we decide this is maintainable, we will hear the matter in one go. Instead of filing a counter on merits…." the Bench replied."After my counter on merits there is a rejoinder. If it has to be looked into.." Divan said."Mr. Divan, you cannot dictate. We will consider whatever is on record," the Bench responded."But on record is a rejoinder affidavit which goes beyond merits," Divan retorted."This is not a battle for adjournment going on," the Bench reminded."This requires a detailed response. It’s a sensitive matter," Divan maintained."It may be sensitive for you," the Court replied."For us, it is completely unusual," said Solicitor General Tushar Mehta. Divan then proceeded to argue the matter. He said that an Article 32 petition by a government agency is not maintainable."The ED is not a corporate entity. It does not have a right to sue. It is not a juristic entity. In any case, having regard to part III of the constitution, there will have to be a breach of fundamental rights. ED’s fundamental rights cannot be breached. This issue is one which relates to a very important aspect of interpretation of constitution. As to whether ED can maintain a petition as it is part of basic structure, we will place before you statutes. When you have specific provisions and specific channels of redress, then other channels of redress stand excluded," it was submitted. "State of West Bengal has also filed writ petition under Article 32 as State of West Bengal. Kerala also did so," SG Tushar Mehta pointed out."ED is a government department. It does not have right to sue by itself. Similar department can be of the State government. It is basically the State. So essentially this is the Central government which is suing. It is asking for relief under part III of the constitution which is fundamental rights. Fundamental rights are guaranteed to persons. This particular entity as a department doesn’t have personhood," Divan argued.He also said that the matter has to be heard by a 5-judge Bench since it involves a substantial question concerning the interpretation of the Constitution. "The Constitution itself says that when issues of this kind of importance arises, there ought to be 5 judges on the bench. The issue needs to be referred. Can the Union government complain of a part III violation?" Divan asked..ED is a government department. It does not have right to sue by itself.Shyam Divan.He then proceeded to explain how the ED came to be established and the scope of its powers."The ED was first formed by an executive act. It was an enforcement unit of the department of economic affairs of the union government. This enforcement unit was renamed as an enforcement directorate. The admin control was moved from the department of economic affairs to the department of revenue. For a brief period between 1973-77 there was renaming of the ED and it came under the department of personnel and admin reforms," Divan explained.ED is nothing but a limb of the Central government and it does not have the right to sue in its name, Divan contended. "This directorate is an organisational limb of the Central government and nothing else. If a body corporate was created, it would be created by the parliament. The right to sue has to be expressly conferred on a directorate. It does not create a body corporate. If the right to sue is not there, article 32 is not maintainable. The right to invoke Article 32 is by a person. If you are not a juridical or natural person, you do not have the right to sue. ED has been given additional responsibilities under chapter 8 of PMLA 2002. But there as well there is no juristic personality that is conferred on the ED. There is no right to sue conferred," he argued.The government can sue or be sued in the name of the Union of India, not the Enforcement Directorate, Divan underscored..Divan said that none of the government entities/ investigating agencies have the right to sue and hence, cannot file Article 32 petitions alleging violation of fundamental rights."The Central Bureau of Investigation (CBI) has no right to sue. The Narcotics Control Bureau (NCB) has no right to sue. The Directorate of Revenue Intelligence (DRI) also has no power to sue. The Serious Fraud Investigation Office (SFIO) has no power to sue. The Intelligence Bureau (IB) has also no power to sue. The CID of West Bengal police also has no power to sue. If this is to be allowed, all these people will be suing one another," Divan stated..CBI, NCB, DRI, SFIO, IB, West Bengal Police none have right to sue. If this is to be allowed, all these agencies will be suing one another.Shyam Divan.Divan said that disputes between Central government and State have to be resolved through original suits filed under Article 131 of the Constitution."If each of these authorities can sue, then apart from 32, there is 226. How can one authority file a case against the jurisdictional officer of another state? This is danger to the federal structure and the federal machinery. The ED is nothing but the Central government. If Central government is moving under 131, there is a whole gamut of factors that are to be considered," he pointed out.Article 32 of the Constitution is for enforcement of Part III of the Constitution which sets out fundamental rights. It is a remedy available to citizens against the State, Divan said. "Part III of the constitution is essentially for the citizenry of the country. It is against the State. When a citizen sues the Central government, can it say I am not responsible for so and so and the power is being exercised by one department of mine? It cannot say that. Because the department is part of the Central government," Divan argued."But in a case like this, can Article 226 (petition before High Court) be maintainable? Can ED move under 226 if 32 is not maintainable?" the Bench asked. Senior Advocate Kapil Sibal, appearing for Chief Minister Mamata Banerjee, said that this issue is pending before the Court in another case."If Article 226 and 32 petitions are not maintainable, then who will decide? Because here is a situation that a Chief Minister usually barges in according to them in an office handled by the Central Government, it is not a happy situation, it’s an unusual situation," the Court remarked. ."ED cannot maintain 226 also," Divan maintained. "So there is no remedy? There should not be a vacuum," the Bench said. "This is a compelling reason that this should be dealt with by 5 judge panel. ED cannot sue. Not through a suit, not through 226 or 32. It could be the Central government that comes forward," Divan contended."So ED only have right to look and watch?" the Bench asked. "I am not saying that the Central government does not have a right to sue. It cannot be that some department files a petition, even under Article 226," Divan emphasised..State vs. State is not envisaged as far as fundamental rights go, Divan said."When you see the scheme of part III, it does not envisage one limb of the State contesting against another limb of the State. It is citizen, natural person, non-citizen, juristic person, corporation. State vs. State is completely alien to the most fundamental notion of part III of the constitution. Here you have a situation where you have the state on two sides on the array of parties which is a concept alien to our understanding of the law. All of the provisions in part III of the Constitution are to the advantage of the citizenry, human beings, qua the State. Having regard to the scope and ambit of part III of the Constitution, for the ED to even seek to invoke some Article is alien to the fabric and elementary notion of the Constitution. And we cannot evolve concepts, evolve the Constitution which will enable these agencies to file Article 32 petitions without the rigours of article 131," Divan emphasised. He also highlighted that the Supreme Court was in the past asked to settle this via a Presidential reference but the Court did not answer the reference."This is something that the president also sought assistance from the Supreme Court. 'Does the Constitution bar any other jurisdiction of the Supreme Court to resolve disputes between the Union Government and the State Governments except by way of a suit under Article 131 of the Constitution of India?' But this was returned unanswered," Divan said.Therefore, he suggested that the matter may be referred to the Chief Justice to be heard by a Constitution Bench."If a bench of two judges are satisfied that a question of interpretation of constitution is involved, the Chief Justice may be requested to form a 5- judge bench. Article 145(3) will be attracted. This is an appropriate case to be decided authoritatively by a bench of 5 judges," he said..All of the provisions in part III of the Constitution are to the advantage of the citizenry, human beings. Part III does not envisage one limb of the state contesting against another limb of the state.Shyam Divan.Senior Advocate Kapil Sibal, appearing for Banerjee, said that the remedy by ED lies under criminal law in Bharatiya Nagarik Suraksha Sanhita and not under Article 32 which is a remedy for enforcement of fundamental rights.A government agency does not have fundamental rights, he said."An investigating officer has a right under the statute to investigate. He has no fundamental right. They (ED) have said they wanted some documents those documents were taken away. But that has nothing to do with fundamental rights. None of these authorities, who have powers under the statutes, have fundamental rights. The remedy for obstruction of investigation is not a writ petition under 32. There are remedies available in the BNSS," Sibal underscored.The remedy for obstruction of investigation is not a writ petition under 32. There are remedies available in the BNSS.Kapil Sibal ."They (ED) have not come here for any offence under PMLA. What we have understood is that the ED officers are claiming fundamental rights qua their safety in investigating an offence. Their plea is that they have been threatened while investigating," the Court replied. "Assuming they have been threatened, what’s their fundamental right?"Sibal asked"That they will answer," the Court replied."How can ED ask CBI to register an FIR? How is ED coming in without a predicate offence?" Sibal demanded..[Read Live Coverage].Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.