NEW DELHI: The Supreme Court on Wednesday came down heavily on West Bengal chief minister Mamata Banerjee over her intervention during an Enforcement Directorate probe at the I-PAC director’s residence in Kolkata.The top court described the socio-political climate in the poll-bound state as an “extraordinary situation,” while referring to the CM’s entry into the premises mid-raid and the alleged removal of files linked to I-PAC, which is said to be overseeing the TMC’s election campaign.The court called the situation concerning, observing that such an act by a sitting chief minister has put democracy in jeopardy.“This is not a dispute between the state and the union. We never thought that in this country, a day would come when a sitting CM would walk into the office where some investigating agency is…the chief minister of any state cannot walk in in the midst of an investigation, put the democracy in peril, and then say that ‘don’t convert this into a dispute between the state and the union’. This is an act committed by an individual who happens to be the chief minister, keeping the whole democracy in jeopardy,” the Court remarked. The observations came during the hearing of arguments by the West Bengal government on the maintainability of the petitions filed by the Directorate of Enforcement under Article 32 of the Constitution. The State opposed the pleas on two main grounds. It argued that the Directorate of Enforcement, being a state agency, is not a natural person entitled to invoke fundamental rights, and its officers, while acting in official capacity, cannot claim protection under Article 32. It also pointed out that the Directorate has already approached the Calcutta High Court and parallel proceedings before two constitutional courts are not maintainable. Responding to these objections, the Court said the legal issue cannot be examined in isolation from the situation on the ground, while criticising the alleged “gherao” and the reported confinement of judicial officers involved in the West Bengal Special Intensive Revision exercise. “This is an extraordinary situation. Before the other Bench (in the SIR matter), we have seen judicial officers being kept hostage. We cannot shut our eyes to realities. You may argue abstract legal principles, but we cannot lose sight of the practical situation occurring in the State,” the Court observed. During the hearing, detailed submissions were made by Senior Advocates Abhishek Manu Singhvi, Maneka Guruswamy and Siddharth Luthra, appearing for senior police officials of West Bengal. Singhvi argued that the Directorate of Enforcement and its officers cannot invoke fundamental rights while discharging official duties, and that Article 32 is not meant for such use.“ED has no Fundamental Right to investigate. Its officers have no fundamental rights. No representative capacity since it’s governed by the Prevention of Money Laundering Act (PMLA). The ED officer as an individual may have Fundamental Right, only when he is not discharging official duty, but while acting as ED officer no separate Fundamental Right”, he submitted. He also argued that the doctrine of parens patriae cannot be used by the State to protect itself, as it is meant for the protection of the marginalised. Guruswamy argued that fundamental rights are meant to protect individuals against the State and cannot be invoked by the State or its agencies.“Individual/citizen enforces FR against the State. As Babasaheb BR Ambedkar called the Government of India Act 1935 ‘a slaved Constitution’ as it was in contrast with Part III (Fundamental Rights) of our Constitution, which Ambedkar called ‘the soul’ of the Constitution) Article 32, even against the majority legislatures, it is a trigger for people – if ED officers move the Court, it will give rise to a situation not intended by the framers. This was unenvisaged by the Framers and it would, if allowed, weaken citizen protection”, she said. She further argued that there is nothing in Part III of the Constitution that allows interdepartmental disputes to be framed as violations of fundamental rights.“State shall not deny, not discriminate, ensure opportunity etc.. all ‘by the State’ – nothing in Part III enables interdepartmental warfare. The state cannot trigger Part III as a victim. FR are rights against the State, not for the State”, she contended. Guruswamy added that Article 32 is meant for individuals whose rights are violated and not for the State itself, and warned against expanding its scope. “If at all maintainable, not under Article 32, a proper route for the Union government (ED) would be under Article 131 (apex court’s jurisdiction to resolve disputes between Centre and State government). Proper parties here would be Union vs State, not ED officers. Allowing this lets constitutional functionaries claim personal Fundamental Rights, it would set a dangerous precedent”, she argued. She also said that if the pleas are allowed, the issue should be referred to a larger bench due to its constitutional significance. Luthra also opposed the maintainability of the pleas, arguing that the Directorate of Enforcement lacks the legal identity to invoke Article 32.“ED cannot file WP under Article 32. It is not a ‘person’. Has no separate identity. It is an internal department of the Ministry of Finance. Its powers are under PMLA/FEMA. Even Vijay Madanlal Choudhary v Union of India (judgement) reflects the position that only natural persons can invoke Article 32 – ED cannot”, he submitted. He added that constitutional rights are meant for individuals and cannot be extended to government bodies. After hearing the submissions, the Court listed the matter for further hearing on Thursday, when the ED will present its arguments.
