The Supreme Court on Tuesday raised significant questions over the maintainability of a petition filed by the Enforcement Directorate (ED) under Article 32 against West Bengal Chief Minister Mamata Banerjee, in connection with the alleged interference in search operations at the office of political consultancy firm I-PAC.
A bench of Justices P.K. Mishra and N.V. Anjaria observed that apart from the ED as an agency, some officers had also approached the court in their individual capacity, and asked whether ED officers cease to be citizens merely because they serve in the agency. The court said the focus should be on the fundamental rights of the officers who were allegedly affected.
Maintainability under Article 32 questioned
During the hearing, Senior Advocate Kapil Sibal, appearing for the West Bengal government, argued that the ED cannot invoke Article 32 as obstruction in the performance of statutory duty does not amount to a violation of fundamental rights. He submitted that ED officers only have statutory powers to investigate and any obstruction of those powers does not automatically translate into a violation of fundamental rights.
Sibal argued that there were statutory remedies available and the ED could approach the police. He warned that allowing such petitions would open the floodgates, enabling every police officer to approach the Supreme Court under Article 32 if their investigation was obstructed.
The bench, however, questioned whether the ED should be expected to approach the same state machinery when the allegation itself was against the Chief Minister and state officials. The court also observed that fundamental rights may arise in an abstract sense in the context of rule of law.
Court refuses to defer hearing due to elections
The bench also refused a request to postpone the hearing in view of the upcoming West Bengal Assembly elections, stating that the court does not want to be a party to either elections or any alleged crime and that it was aware of the timing of its decisions.
The case relates to an incident on January 8 when Banerjee allegedly entered the I-PAC office and the residence of its co-founder during ED search operations linked to a money laundering probe and removed documents and electronic devices. Banerjee had claimed that the material contained information related to her political party.
The ED has said the searches were part of its probe into a coal smuggling case involving businessman Anup Majee, alleging that a coal smuggling syndicate was involved in illegal excavation and sale of coal in West Bengal.
Following the incident, the ED moved the Supreme Court under Article 32 alleging interference in its investigation and sought a Central Bureau of Investigation (CBI) probe into the incident. The court had earlier observed that there would be lawlessness if the issues raised by the ED were not examined and had issued notice to Banerjee, former Director General of Police Rajeev Kumar and others.
Constitutional question raised
Senior Advocate Abhishek Manu Singhvi, appearing for the State DGP, argued that the issue involved an important constitutional question and should be referred to a larger bench. He argued that the ED is neither a person nor a citizen and therefore cannot directly invoke fundamental rights under Articles 14 and 21.
The matter is scheduled to be heard next on April 14, when further arguments will continue in the case.