ED vs Mamata Banerjee: Supreme Court says Chief Minister cannot put democracy in peril by interfering with probe

The Supreme Court on Wednesday criticised West Bengal Chief Minister Mamata Banerjee for alleged interference in search operations conducted earlier this year by the Enforcement Directorate (ED) against political consultancy firm I-PAC in Kolkata.

A Bench of Justices PK Mishra and NV Anjaria said that a Chief Minister cannot harm democracy by such actions.

"This is not a dispute between the State and the Union. A Chief Minister of any State cannot walk in the midst of an investigation, put the democracy in peril, and then say…don’t convert this into a dispute between the State and the Union. This is per se an act committed by an individual who happens to be the Chief Minister keeping the whole democracy in jeopardy," the Bench said.

The Court added that even the country's legal stalwarts would not have envisaged such a situation.

"You have taken us through Seervai, Ambedkar, but none of them would have conceived this situation in this country that one day a sitting Chief Minister will walk into the office..."

The Court was hearing petitions moved by the ED and its officers under Article 32 for a Central Bureau of Investigation (CBI) probe against Banerjee and others.

It made the observations while responding to Senior Advocate Meneka Guruswamy, who was representing a police officer from West Bengal. She argued against maintainability of the plea.

"I am on maintainability. When and if we come to the facts, then certainly we will convince your lordships. When we come to the facts ,your lordships will see there is no situation as described by the other side. There was no criminal conduct, there was no intimidation, there was no infraction," Guruswamy said.

The Court was unconvinced with the submission that the questions related to Article 32 arising in the present case were required to decided by a larger bench.

"In every question, there will be some question of law. That doesn’t mean every 32 petition is referred to a 5-judge bench," the Court said.

However, Guruswamy argued that in 75 years, the Court had never seen a proposition like the one raised in the present plea. The Court responded that now every State was filing petitions under Article 32. At this, Guruswamy said,

"Your lordships have always reined them in."

The Court questioned whether any substantial question was involved at all.

"What is that substantial question of law that it needs to be referred to a 5-judge bench? This is not an appeal. These are Article 32 petitions," it said.

During the hearing, the Court also said that it cannot shut its eyes to the realities on ground in West Bengal. This is an extraordinary litigation, the Bench remarked.

"Before the other bench where the FIR is under question, we have seen the situation that several judicial officers had been kept hostage. And you want the petitioner should have gone to a magistrate under Section 200? We cannot shut our eyes to the reality of what’s happening. We cannot lose sight of the practical situation which is present in the State. Don’t compel us to make observations. This is not a litigation between Ram vs Shyam. This is an extraordinary situation where the contours are totally different. Court has to take decision keeping in view socio-political realities. It is an ever evolving process," the Bench said.

The Court said this in response to Senior Advocate Sidharth Luthra's argument that the ED could have approached a judicial magistrate with its complaint.

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.

Arguments today

Senior Advocate Abhishek Manu Singhvi, representing former DGP Rajeev Kumar, submitted that the ED cannot maintain the petition.

"You cannot do indirectly what you can’t do directly. The ED officer’s petition is nothing. He has no existence, no identity, except as a person discharging his duties under the statute. He is only acting as a person discharging his statutory duties," he said.

However, the Court asked,

"Does the directly indirectly principle applies to administrative law or does it apply to a petition for breach of fundamental rights?"

Singhvi responded that it applies to both, adding that ED had raised the argument of equality also.

"Arbitrariness and inequality arise neither for the department nor for the officer," the senior counsel said.

In conclusion, Singhvi said that the ED and its officers have no fundamental right to investigate.

"ED officer can have a Article 21 right as a human being but while acting as an officer cannot claim a separate right," he added.

Singvhi further said that invocation of doctrine of parens patriae is completely erroneous in the present matter.

"It will apply only if the affected party comes. ED itself is a parens patriae. Parens patriae is the last refuge for the ED. They themselves are the big boss," he said.

Guruswamy, who represented another police officer, referred to Constituent Assembly debates on Article 32, as well as the Government of India Act, 1935.

"You have Article 32 so that citizens can enforce fundamental rights. That is the intended prescription of the drafters of the Indian Constitution. If your lordships find that ED officers can move Article 32 petitions, then your lordships are actually entertaining a situation which was not intended by the framers of the Constitution," the senior counsel said.

She added that the invocation of Article 32 for "inter-departmental issues" would weaken the fundamental rights for all citizens. The State cannot occupy position of a wrongdoer and victim at the same time, she emphasised.

"There is nothing in Part III which is intended to enable inter-departmental warfare or for the State to invoke it as a victim. The schematic arrangement of the text of the constitution is that these are rights against the State. The text is very clear," Guruswamy said.

She went on to argue that questions related to Article 32 should be decided by a larger bench.

"Questions relating to Article 32 qualify as substantial questions of law and hence trigger article 145(3) mandating reference to a larger bench," Guruswamy submitted.

Luthra, also representing a police officer, argued that the ED as an agency of the Union government does not have a separate identity.

"No separate identity. Powers are circumscribed by PMLA and FEMA. It is a department of the government. Only natural citizens can invoke Article 32. I must tell your lordship, there is an Article 131 suit which is pending. The CBI’s very existence is in challenge and it’s operating in terms of a stay granted by your lordships 12-13 years ago," Luthra said.

The arguments in the case will continue on Thursday.

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