New Delhi: When a chief minister interferes with an ongoing investigation by a central agency, it cannot be described as a dispute between the Central Government and the State Government, the Supreme Court observed orally on Wednesday.
The bench of Justice Prashant Kumar Mishra and Justice N V Anjaria was hearing the writ petitions filed by the Enforcement Directorate (ED), seeking registration of a CBI FIR against West Bengal chief minister Mamata Banerjee and the state’s police officials for allegedly obstructing its raid of I-PAC, the political consultant of the Trinamool Congress.
There was also a connected writ petition filed by ED officers challenging the FIR registered by the West Bengal Police against them.
The Government of West Bengal has questioned the maintainability of the writ petition filed by the ED under Article 32 of the Constitution. Senior advocate Menaka Guruswamy, appearing for state officials, argued that the matter was essentially a dispute between the state and the Union, and hence a suit under Article 131 of the Constitution of India should be filed instead of a writ petition under Article 32.
Justice Kumar disagreed with this argument and said: “What right of the state does this involve? This is not a dispute between the state and the central government. You cannot walk in. Any chief minister of any state walks in the midst of an inquiry of an investigation and you say that it is a dispute essentially between the state and the central government?”
“Any minister just walks in midst of an enquiry and puts the democracy in peril and argues that it’s a dispute essentially between the state and centre?” Justice Kumar asked, as reported by Live Law.
Solicitor General of India Tushar Mehta pointed out that incriminating material was also taken away by the chief minister.
Justice Kumar then observed: “This is not per se 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 of a state, keeping the whole system and whole democracy in…you are saying if it all this can be maintainable this cannot be maintained under Article 32 but only under Article 132…you have taken us through Keshavanand Bharati and Seervai. But none of them would have ever conceived of this situation than that in this country a day will come when a sitting chief minister will walk into the office of some other agency….”
Guruswamy disagreed with the bench’s view, and said that she was advancing an argument that ED cannot claim violation of fundamental rights so as to maintain a petition under Article 32.
Article 32 is available only to an individual and not to a government department, she stated.
It was an unprecedented writ petition, and since the matter raised a substantial question of law, it required to be referred to a five-judge bench as per Article 145 of the Constitution, she insisted.
In response to this, Justice Kumar said that every petition will have some question of law, and so if the argument is accepted, then every petition will have to be referred to a larger bench.
Guruswamy maintained that the present matter raised a “unique proposition of law” which has not been tested before. She further stated that the petition filed by the ED on the same cause is pending before the Calcutta High Court.
Earlier in the day, senior advocate Abhishek Manu Singhvi, appearing for the then West Bengal DGP, argued that the Enforcement Directorate, being a statutory authority, cannot invoke fundamental rights to seek directions from the Court. He submitted that there exists no fundamental right to investigate, either for the agency or for its officers acting in their official capacity.
An officer of the ED, while acting in discharge of statutory duties, cannot assert an independent fundamental right distinct from that of the department, he contended. According to him, the officer’s identity in such proceedings is inseparable from the statutory authority under which he functions.
It had been claimed by the ED that West Bengal chief minister Mamata Banerjee reached the premises with senior party leaders and state police officials when they were searching the house and office of an I-PAC director.
She allegedy confronted ED officials and took away certain files and digital devices, which impeded its investigation. Following the incident, the West Bengal police registered three FIRs against ED officials.
The ED has sought directions for registration of an FIR and an independent probe by the Central Bureau of Investigation, contending that interference by the state executive compromised its ability to discharge statutory functions.
The state government claimed before the court that the chief minister took material from the premises without objection from ED officials. Police intervention was triggered by information that armed persons had entered the office impersonating central agency officers, it was claimed.
In its rejoinder affidavit, the ED disputed the state’s version of events and maintained that material was removed from the premises during the search without its consent.
