ED can't claim 'fundamental right' to probe: West Bengal to SC

NEW DELHI: Questioning maintainability of the plea filed by ED and its officers against West Bengal govt and CM Mamata Banerjee for allegedly obstructing a search of political consultancy firm I-PAC, the state and its CM told Supreme Court on Wednesday the agency cannot claim it has a "fundamental right" to probe a case and that allowing the writ petition, seeking status of a juristic entity, would demolish the federal structure of governance as such pleas would be filed by different govt authorities against each other.Mamata and the state govt told a bench of Justices Prashant Kumar Mishra and N V Anjaria that ED and other agencies - such as CBI, state CID and Serious Fraud Investigation Office (SFIO) - are not natural and legal persons who can invoke a writ jurisdiction for violation of fundamental rights under Article 32 of the Constitution and also that they cannot sue a state.

Senior advocates Shyam Divan and Kapil Sibal, appearing for Bengal and the chief minister, respectively, said ED is just a govt department and it would set a wrong precedent if one department or govt is allowed to file a plea against another department or govt for violation of fundamental rights.





They urged SC that the issue be referred to a larger five-judge bench for authoritative adjudication as it would have wider implications for the federal structure which is one of the basic features of the Constitution. India cannot be turned into a unitary non-federal country, the advocates said.

"No agency or officer can claim to have fundamental right to probe. I do not know how the issue of fundamental right comes into the picture. The officers have statutory rights and not fundamental rights. Their remedy is not in a writ petition but in the Bharatiya Nyaya Sanhita (BNS)," Sibal submitted

Divan said, "ED is not a juristic entity...it is nothing beyond a govt department. It does not have by itself any personality and the Article 32 petition is not maintainable. If it is allowed then a situation can arise where Article 32 is used by one department against another department, or between the Centre and states. This would completely bypass the checks and balances embedded in the constitutional framework."

SC was hearing petitions filed by ED and its officers against the state govt, the CM, then Kolkata Police commissioner and other state officials seeking CBI probe against them for not allowing them to discharge their duty while carrying out raids on Jan 8 at various places in Kolkata, including at I-PAC office, in connection with a money laundering probe linked to the coal 'scam' case.

The outcome of this litigation would assume significance as clashes between the Centre and opposition-governed states have become frequent with non-NDA states blaming the Centre for using its agencies, particularly CBI and ED, for political purposes and the Centre accusing the states for protecting their corrupt ministers and officials by not allowing its agencies to function.

According to the ED, CM Mamata reached the I-PAC premises being searched along with senior TMC leaders and state police officers, confronted its officials and allegedly took away certain files and digital devices, which impeded its investigation. Following the incident, the Bengal police registered three FIRs against ED officials.
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