Today, On 24th March, The Supreme Court asked whether the Enforcement Directorate can seek relief from the West Bengal government after Chief Minister Mamata Banerjee allegedly obstructed its raid at I-PAC, raising broader concerns over accountability and legal recourse.
The Supreme Court raised questions about objections to the maintainability of the Enforcement Directorate’s (ED) Article 32 petition challenging West Bengal Chief Minister Mamata Banerjee’s alleged interference in searches at political consultancy firm I-PAC.
A bench comprising Justices P.K. Mishra and N.V. Anjaria noted that some ED officers have also filed petitions in their personal capacities.
The Court asked the counsel opposing the ED’s petition whether the agency’s officers “cease to become citizens of India merely because they are officers of ED.”
Justice Mishra observed,
“Please concentrate on the fundamental right of the officers of the ED qua whom the offence has been committed. Otherwise you will miss the point. You can’t forget the second petition which is preferred by individual officers who are the victims of the offence. You will be in difficulty, I am telling you. Don’t just say ED, ED, ED,”
Senior Advocate Kapil Sibal, appearing for the State of West Bengal, contended that the ED could not invoke Article 32 when remedies such as approaching the police are available.
Sibal argued,
“Any obstruction in performance of a statutory duty is not in violation of a fundamental right. If someone obstructs a police officer, he can’t file a 32 petition. There is a statutory remedy. Otherwise every police officer will file a 32. We can’t interpret a law in the context of a particular situation and then open a Pandora’s box inconsistent with the basic features of criminal law,”
Sibal argued that there is no “fundamental right” to conduct an investigation.
The senior counsel said,
“He (ED officer) only has a right under a statute to investigate. And violation of that right is not a violation of fundamental right,”
He further noted that the ED’s own case is that its statutory powers were being exercised and were obstructed.
He added,
“There’s no question of fundamental rights,”
Kapil Sibal told the Supreme Court,
“We can’t interpret a law in the context of a particular situation and then open a Pandora’s box inconsistent with the basic features of criminal law,”
The bench firmly rejected a proposal to postpone the hearing because of the upcoming West Bengal Assembly elections.
Justice Mishra said,
“We don’t want to be party to election, we don’t want to be party to any crime also. We know the timing of the court. We know the timing of the decision,”
This comment followed Senior Advocate Kalyan Bandopadhyay’s reference, for Mamata Banerjee, to an earlier occasion when a judge declined to hear a matter due to elections; the Court asked him not to repeat that suggestion.
The apex court remarked,
“We don’t want to be party to election, we don’t want to be party to any crime also.”
Senior Advocate Kapil Sibal argued today that the ED cannot invoke a fundamental-rights violation. He pointed out that the Deputy Director Robin Bansal, the named petitioner, was not present at the scene.
Sibal said,
“This is the enforcement of a fundamental right. Not a PIL. A person who was not on the scene can’t espouse the cause of violation of others fundamental rights,”
Justice Anjaria observed that fundamental rights can also arise “in abstract” depending on the circumstances.
Adding that the basic features identified in Kesavananda Bharati relate to fundamental rights and could give rise to such a claim, the judge asked,
“Fundamental rights need not be person centric always. They can arise in abstract situation. Is it not a fundamental right to have a rule of law,”
Sibal replied that the issue would then be who is entitled to enforce that right.
He said,
“If I say violation of rule of law, then I have to say which violation. Rule of law is reflected in Articles 14, 16, 19 etc. question is who can enforce it,”
He emphasized that the ED is a directorate under the Revenue Department, not a full department, and that the Central government itself cannot invoke Article 32 it may only proceed under Article 131. He argued that if a deputy director appointed by the Centre is aggrieved, the recourse lies with either the Central government or the individual officer.
Sibal also said the ED can seek action from State authorities and relied on Section 66 of the PMLA, which allows the ED to inform other investigating agencies of related offences. He questioned why the ED filed a Article 32 petition if statutory remedies existed.
Justice Mishra queried whether the ED should go to the very State government headed by the Chief Minister accused of allegedly barging in.
The Court said,
“So if CM barges in and commits an offence, according to you ED will inform the State government which is headed by the Chief Minister? This is your argument? We have understood it,”
Sibal cautioned the bench not to treat the allegation as established fact.
He said,
“It’s an allegation,”
Justice Mishra responded,
“It’s an allegation. But allegation is based on facts. I have not said against CM.”
The Court found Section 66 of the PMLA inapplicable to the alleged incident, observing that the offense complained of was directed at ED investigators and was distinct from the PMLA inquiry itself.
The bench said,
“We have understood that there are two distinct allegations. PMLA which ED is enquiring is one set of and this particular allegation which the petitioners are alleging, that has not been committed while PMLA offence was undergoing. While PMLA was going on, the officers have not come up with anything. This is another offence which is committed by other persons against PMLA,”
Sibal maintained that Article 32 remains unavailable where statutory remedies exist.
He said,
“There is a statutory remedy. I am on the fundamental proposition that this [petition] is not maintainable,”
Justice Anjaria asked whether statutory violations could never give rise to Article 32 unless a fundamental‑rights breach was shown.
He asked,
“So you are saying for statutory violation, [Article] 32 won’t arise unless there is a fundamental right [violation],”
Sibal reiterated his stance: criminal offences, even if they involve a breach of rights, should ordinarily be addressed by the State, and Article 226 would be appropriate only if the State failed to investigate.
He said,
“I don’t think I can make it [any] clearer. If there is a criminal offence, even if there is a violation of fundamental right, it has to be dealt with by that State. Article 226 will lie only when it is not being investigated,”
He argued that PMLA itself confers powers by statute, and a statutory exercise of power being frustrated does not equate to a violation of fundamental rights. He warned against treating mere allegations as facts when deciding whether to entertain an Article 32 petition.
He said,
“Your lordships must not assume that an allegation is a fact and on that basis entertain a petition under 32 without the investigation of both the facts and the law,”
Senior Advocate Kalyan Bandopadhyay, for Mamata Banerjee, submitted that a constitutional question arises and referred to a comparable dispute from Tamil Nadu where the ED challenged a State‑constituted inquiry committee. He said the matter had reached the Division Bench and been appealed to the Supreme Court, where notice has been issued.
The bench asked Bandopadhyay to consider a reverse scenario: if different parties control the Centre and a State, and a future State Chief Minister were to act similarly, how would he react once his party formed the Central government.
The Court also asked him to address the maintainability of petitions filed by individual ED officers.
Justice Mishra remarked,
“Will officer of ED cease to become citizen of India? Merely because they are officers of ED, they can be punched and done away with any wrong, can they not come under Article 32? Just consider seriously the second petition also. Because that may trouble you. We are telling you,”
Bandopadhyay answered that ED officers were performing their duties but do not possess any special legal privileges.
Stressing that settled legal principles cannot be set aside merely because the facts are shocking, he said,
“In the eyes of law, no one is privileged,”
When the bench cautioned it should not be thought to have assumed a position, Bandopadhyay replied lightly,
“We are lucky to understand the judge’s mind. A lawyer is truly a lawyer who assesses the eyes of the judge.”
Justice Mishra quipped that even those attending by video can see the judges.
He observed,
“These days our eyes are seen by persons who are logged in and not in the court. Our job is more difficult,”
At one point, Bandopadhyay referenced a judgment relating to the Bofors case, prompting the bench to respond with a wry remark, Justice Mishra said,
“Yes, you need Bofors to bulldoze them [the ED case],”
Bandopadhyay questioned whether the Supreme Court should order an FIR in an Article 32 petition where facts are disputed and no complaint has been lodged. He submitted that only if a complaint existed and the Calcutta police had failed to investigate properly would Article 32 be appropriate.
Senior Advocate Abhishek Manu Singhvi, for the State DGP, urged that the maintainability issue be referred to a larger bench, calling it a significant question of law. He argued that the ED is neither a person nor a citizen and that Articles 14 and 21 apply to persons, not to a government instrumentality. He warned against creating a Part III remedy where none exists, even if the ED were assumed to lack remedies.
He added,
“The petitioner (ED) is neither a person nor a citizen. Articles 14 and 21 apply to persons. We are out. But because the event is allegedly so serious you create jurisdiction where it doesn’t exist. In the hypothetical assumed scenario that a department as powerful as ED … even then your lordships would not create a law under Part III of the Constitution. Even if ED was remediless,”
Singhvi also questioned how the ED was allegedly without remedy, and whether a private party in similar circumstances would be permitted to seek Article 32 relief while parallel Article 226 proceedings were pending.
Singhvi will resume his arguments on April 14, the next listed hearing date. Senior Advocates Meneka Guruswamy and Siddharth Luhtra are expected to argue subsequently.
ALSO READ: I-PAC Raids Row: Supreme Court Adjourns ED Plea Against Mamata Banerjee To Feb 10
Chief Minister Mamata Banerjee is said to have entered the I-PAC office and the home of its co-founder on January 8 while the ED was carrying out searches in a money‑laundering inquiry. The ED alleges she removed several documents and electronic devices from those locations.
Banerjee has maintained the material contained information related to her political party. I-PAC has worked with the Trinamool Congress since the 2019 Lok Sabha polls.
According to the ED, the searches were part of a probe into a 2020 money‑laundering case against businessman Anup Majee, who is accused of being involved in coal smuggling. The agency alleges that a syndicate led by Majee stole coal from ECL leasehold areas in West Bengal and sold it to various factories and plants in the State, with a significant quantity purportedly supplied to the Shakambhari Group of companies.
The ED moved the Supreme Court under Article 32, accusing Banerjee and State officials of interfering with its investigation and search operations and claiming crucial physical and electronic evidence was removed. The agency has sought a CBI probe.
Earlier, On January 15, the Court observed that it would amount to lawlessness if the matters raised by the ED were not considered, and issued notice to CM Banerjee, then DGP Rajeev Kumar and others.
The State argued that the ED’s searches at I-PAC were not obstructed, pointing to the ED’s own panchnama as supporting that position. The State also maintained the ED’s Article 32 petition was not maintainable since Article 32 is a remedy available to citizens for violation of fundamental rights.
Chief Minister Mamata Banerjee is said to have entered the I-PAC office and the home of its co-founder on January 8 while the ED was carrying out searches in a money‑laundering inquiry. The ED alleges she removed several documents and electronic devices from those locations.
Banerjee has maintained the material contained information related to her political party. I-PAC has worked with the Trinamool Congress since the 2019 Lok Sabha polls.
According to the ED, the searches were part of a probe into a 2020 money‑laundering case against businessman Anup Majee, who is accused of being involved in coal smuggling. The agency alleges that a syndicate led by Majee stole coal from ECL leasehold areas in West Bengal and sold it to various factories and plants in the State, with a significant quantity purportedly supplied to the Shakambhari Group of companies.
The ED moved the Supreme Court under Article 32, accusing Banerjee and State officials of interfering with its investigation and search operations and claiming crucial physical and electronic evidence was removed. The agency has sought a CBI probe.
Additionally, On January 15, the Court observed that it would amount to lawlessness if the matters raised by the ED were not considered, and issued notice to CM Banerjee, then DGP Rajeev Kumar and others.
The State argued that the ED’s searches at I-PAC were not obstructed, pointing to the ED’s own panchnama as supporting that position. The State also maintained the ED’s Article 32 petition was not maintainable since Article 32 is a remedy available to citizens for violation of fundamental rights.
Case Title: Directorate of Enforcement v. The State of West Bengal