Senior advocates Shyam Divan and Kapil Sibal, appearing for Bengal and the chief minister respectively, said the education ministry is just a government department and a wrong precedent will be set if one department or government is allowed to plead against another for violation of fundamental rights.
They urged the Supreme Court to refer the issue to a larger five-judge bench for authoritative ruling as it would have wider implications for the federal structure, which is one of the fundamental features of the Constitution. Supporters say India cannot become a unified non-federal state.
“No agency or officer can claim to have a fundamental right to conduct investigation. I don’t know how the fundamental rights issue arises. The officials have statutory rights but no fundamental rights. Their remedy is not in the writ petition but in the Bharatiya Nyaya Sanhita (BNS),” Sibal said.
Dewan said, “ED is not a legal entity… it is just a government department. It does not have any personality of its own and the Article 32 petition is untenable. If allowed, there could be a situation where Article 32 is used against another department or between the Center and the states. This would completely bypass the checks and balances embedded in the constitutional framework.”“
The SC was hearing a petition filed by the ED and its officials against the state government, CM, the then Kolkata Police Commissioner and other state officials seeking a CBI probe against them for not allowing them to discharge their duties during raids on January 8 at various locations in Kolkata, including the I-PAC office, in connection with the money laundering probe in connection with the coal “scam” case.
The outcome of the litigation will be significant as clashes between the Center and opposition-ruled states have become frequent, with non-NDA states accusing the Center of using its agencies, especially the CBI and ED, for political ends, while the Center accuses states of not allowing its agencies to function to protect their corrupt ministers and officials.
According to the ED, CM Mamata along with senior TMC leaders and state police arrived at the I-PAC premises to be searched, confronted the officials and allegedly took away certain documents and digital devices, which hampered the investigation. Following the incident, Bangladesh police registered three FIRs against ED officials.