I-PAC raid row: Bengal challenges ED’s ‘fundamental right violation’ plea

Kolkata: The State of West Bengal on Wednesday challenged the maintainability of the Enforcement Directorate’s (ED) petition under Article 32 of the Constitution in connection with the raid at I-PAC office in Kolkata, arguing that the Central agency cannot claim violation of fundamental rights.

Seeking a reference to a five-judge Constitution Bench, the state submitted that the ED is neither a juristic nor a natural person and therefore lacks the locus to invoke Article 32.

Before a bench headed by Justice Prashant Kumar Mishra, senior advocate Shyam Divan argued that permitting a Central Agency like the ED to move the Supreme Court under Article 32 against a state would bypass established constitutional mechanisms governing disputes between the Union and states. At best, he said, such disputes could be pursued by the Union Government and not by a department like the ED.

Divan further submitted that the appropriate remedy lay under Article 131 of the Constitution, which deals with disputes between the Government of India and one or more states under original jurisdiction of the apex court.

Referring to Part III of the Constitution, he argued that fundamental rights are guaranteed to persons against the state and its instruments, and the ED, being merely a government department, is neither a “body corporate” nor a “legal or natural person” entitled to seek relief under Article 32.

The ED, in its petition, had sought a Central Bureau of Investigation (CBI) probe against West Bengal Chief Minister Mamata Banerjee and senior police officers who accompanied her during the raid.Senior advocate Kapil Sibal, appearing for Banerjee, echoed similar arguments, contending that the ED cannot maintain a plea alleging violation of fundamental rights. He submitted that, at most, the case may fall under Section 221 of the Bharatiya Nyaya Sanhita, which deals with voluntary obstruction of a public servant in discharge of duty.

Sibal also argued that the ED cannot seek a CBI probe by lodging FIRs and said the agency cannot act in the absence of a scheduled offence.

The matter will be heard again next week.