Calling Mamata’s barging into the raid premises “unusual”, a division bench comprising Justices Prashant Kumar Mishra and NV Anjaria, questioned the West Bengal government’s claim that ED has no right to file a plea against a state government.
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“You mean, ED only has a right to look and watch?” Justice Mishra cornered the West Bengal government counsel who argued that ED and other probe agencies like CBI, the Directorate of Revenue Intelligence and SFIO are not juristic entities. The counsel said ED and other probe agencies do not have a legal right to file a plea under Article 32 (in SC) and Article 226 (in HCs) claiming violation of their fundamental rights.
Referring to ED’s charge against Mamata Banerjee that she “barged into” the IPAC premises that were being raided, Justice Mishra verbally observed “this is not a happy situation. This is unusual”.
He questioned the West Bengal government counsel, “If you argue that ED cannot file a plea under Article 32 and Article 226, then there is no remedy (for ED)? In our constitutional setup, there should not be a vacuum which cannot be remedied. We have to think in that perspective”.
Justice Mishra added “we (SC) decide matters and questions of the law when a new situation arises. The development of law is organic”. The SC judge asked “what if tomorrow some other chief minister barges into such a raid? Can the ED be left without remedy.”Appearing on behalf of ED, Solicitor General Tushar Mehta argued that the fact remains that “ED has been prevented from doing its constitutional function by the chief minister (Mamata Banerjee) of the state”.
Representing the state government, senior Advocate Shyam Divan argued that allowing a department of the Central government to file a plea against a state government will pose a threat to the federal structure.
Divan contended that ED is “not a juristic entity” and that “ED is nothing but a department. It is the central government which can come forward and file a plea. The Centre should file a plea (in such cases) and not the department”.
The development took place during the resumed hearing of a plea filed by the probe agency against Bengal government and its chief minister accusing them of obstructing the agency’s recent searches at the premises of political consultancy firm I-PAC and the residence of its co-founder Pratik Jain.
At the outset of the hearing on Wednesday, the Bench turned down a plea raised on behalf of the West Bengal government for the adjournment of the hearing. Divan requested an adjournment, seeking time to file a response to a rejoinder affidavit filed by the ED. The request for adjournment was opposed by the Solicitor General.
The Bench made it clear that it will proceed with the hearing. The case will come up for resumed hearing next Tuesday.
