'ED has powers, not "fundamental right" to investigate,' State tells SC in I-Pac case

A significant constitutional debate unfolded in the Supreme Court on Wednesday during the hearing of the I-PAC case, with sharp arguments over whether the Enforcement Directorate (ED) can invoke Article 32. The case originates from a January 8 raid conducted by the ED at the residence and office of I-PAC head Prateek Jain in connection with a coal smuggling investigation, during which Chief Minister Mamata Banerjee was present. Alleging obstruction in its investigation and seizure of documents, the ED approached the Supreme Court under Article 32 against the state government, while the state filed a counter case claiming that the raid violated Article 21. In an earlier hearing on January 15, the court had directed petitioners to file affidavits.

As the hearing began, senior advocate Abhishek Manu Singhvi, appearing for the state, argued that ED officers merely act as functionaries of the department and have no independent identity. He stated that the agency does not possess constitutional standing to claim fundamental rights and emphasized that “what you cannot do directly, you cannot do indirectly.” Singhvi further clarified that there is no violation of Articles 14, 21, or 22, and highlighted that certain rights, such as those under Article 19, apply only to individuals and not to companies or institutions. He asserted that the ED has powers granted by law but no fundamental right to investigate, adding that courts have never recognised such a right. Calling the agency a powerful arm of the State, he argued that it cannot seek protection from the State itself and termed any demand for a CBI probe on such grounds as “unrealistic.”

Senior advocate Menaka Guruswamy reinforced the state’s position by arguing that the ED’s petition under Article 32 is not maintainable. Beginning with references to Constituent Assembly debates of 1948, she said Article 32 was designed to protect citizens against the State, not for the State to use for itself. She warned that if ED officers invoke Article 32 in their official capacity, it would mean the government is acting against itself, thereby defeating the purpose of the Constitution and weakening citizens’ rights. She further argued that in Centre-State disputes, Article 131 should be invoked instead of Article 32 and suggested that the case be referred to a Constitution Bench due to its significant constitutional implications.

Guruswamy also placed the debate in a broader global context, stating that after World War II, a principle emerged worldwide that fundamental rights exist to protect citizens from the State. She said the Centre’s attempt to use Article 32 goes against nearly 75 years of constitutional understanding in India and contradicts global principles, particularly in countries with a history of colonial rule. Emphasising that citizens must always be protected from the State, she reiterated that allowing such use of Article 32 would undermine its foundational purpose.

Opposing these arguments, Additional Solicitor General Tushar Mehta contended that the state was attempting to divert attention from the actual incident. He said the opposing side was relying on historical and pre-independence arguments instead of addressing the facts of the case, asserting that the incident itself was not being adequately answered. Following the intense exchanges, the Supreme Court adjourned the hearing, which is set to resume at 2 PM, leaving open a critical constitutional question on the scope of Article 32 and the powers of investigative agencies.