The Supreme Court on Wednesday grappled with a fundamental constitutional question, whether the directorate of enforcement (ED), as a department of the Union government rather than an independent legal entity, can file a writ petition under Article 32 of the Constitution against a state, after West Bengal argued that permitting such petitions would be 'dangerous to the federal structure' and create unchecked inter-governmental litigation, while the bench pointedly asked whether the agency was then left with 'only the right to look and watch'.
A bench of justice Prashant Kumar Mishra and justice NV Anjaria was hearing the ED's writ petition alleging obstruction by West Bengal authorities during its 8 January 2026 search of the office of political consultancy firm I-PAC in Kolkata, in connection with a money laundering probe linked to the coal scam.
ED has sought an investigation by the central bureau of investigation (CBI) into the incident, alleging that chief minister (CM) Mamata Banerjee entered the search premises, confronted officials and removed files and digital devices, impeding its investigation. Following the incident, the West Bengal police registered three first information reports (FIRs) against ED officials.
Senior counsel Shyam Divan, appearing for West Bengal, opened his submissions by arguing that the ED is merely a department of the Union government and not a juristic or natural person capable of maintaining a writ petition under Article 32. He submitted that the foundation of Article 32 rests on the enforcement of fundamental rights which can be claimed only by persons, whether natural or juristic. Since ED has neither status, it cannot allege a violation of fundamental rights.
"ED is not a juristic entity — it is nothing beyond just a department of the government. It does not have by itself any personality," Mr Divan told the bench, adding that if there is no enforceable fundamental right, "the Article 32 petition is not maintainable."
Tracing the ED's statutory history, Mr Divan explained that the agency originated as an enforcement unit within the department of economic affairs (DEA) and has always functioned as an organisational limb of the Union government. "It was a department within a department, and it remains so," he submitted.
He pointed out that Parliament creates body corporates with the right to sue through express statutory provisions, as it has done with the Securities and Exchange Board of India (SEBI), national highways authority of India (NHAI), unique identification authority of India (UIDAI), telecom regulatory authority of India (TRAI), and insurance regulatory and development authority of India (IRDAI) and no such conferral exists in the Prevention of Money Laundering Act or any other statute governing ED.
"The right to sue has to be specifically conferred by Parliament. That is absent in the case of the ED," Mr Divan says.
He extended the argument across the entire landscape of central investigative agencies: CBI, narcotics control bureau (NCB), directorate of revenue intelligence (DRI), serious fraud investigation office (SFIO) and the intelligence bureau (IB) —all similarly lack statutory recognition as bodies corporate with an independent right to sue. State-level agencies, like the crime investigation department (CID), vigilance commissions and anti-corruption bureaus (ACBs) are in the same position.
"If this is to be allowed, all these people will be suing one another," Mr Divan warned.
Mr Divan pressed a second, broader argument rooted in constitutional design. He contended that disputes between the Union and states are governed by Article 131 read with Article 300 — a distinct constitutional mechanism that cannot be bypassed through Article 32 proceedings initiated by a government department. Permitting individual departments to invoke writ jurisdiction, he argued, would fundamentally undermine the checks & balances embedded in the constitutional framework.
"If we allow this, a situation can arise where Article 32 is being used by one department against another department, or between the Centre and states. This would completely bypass the checks and balances embedded in the constitutional framework," Mr Divan submitted.
He argued that part III of the Constitution, which contains fundamental rights, is conceptually designed as a shield for citizens against the State, not a weapon for one limb of the state to use against another. "Part III of the Constitution is essentially for the citizenry of the country. State versus state is completely alien to the most fundamental notion of part III. All of the provisions in part III are to the advantage of the citizenry, human beings, qua the state," he says, adding that the ED seeking to invoke Article 32 was "alien to the fabric and elementary notion of the Constitution."
On the question of what remedy the Union government did have, Mr Divan was precise: the Union of India—not the enforcement directorate—could sue under Article 300, or initiate original proceedings under Article 131. "ED cannot maintain Article 32, cannot maintain Article 226, cannot maintain Article 227, cannot file a suit. It's not as if there is no remedy in this situation. The Union of India can sue. That comes from Article 300," he said.
The bench repeatedly and pointedly questioned what remedy would exist in extraordinary situations—such as a chief minister allegedly interfering with a central agency's search operations—if neither Article 32 nor Article 226 were available to the ED.
"If Article 226 and 32 petitions are not maintainable, then who will decide? If a Chief Minister barges into an office, it is not a happy situation, it's an unusual situation," justice Mishra observed.
When Mr Divan maintained that ED could not maintain proceedings under Article 226 either, the bench asked directly: "So there is no remedy? There should not be a vacuum."
"So ED only has the right to look and watch?" the bench asked at another point to which Mr Divan replied that the Union government, as distinct from the ED, retained the right to sue, and that the constitutional framework was not remedy-less. He argued, however, that the very existence of this apparent vacuum was a compelling reason to refer the matter to a Constitution bench of five judges which could resolve the question authoritatively.
Justice Mishra also noted that there might arise 'unusual' situations — such as a chief minister allegedly entering a government office controlled by the Union government, where the absence of any accessible remedy for a central agency would create a constitutional gap. "Someday some other chief minister may enter into some other office," he observed.
Senior counsel Kapil Sibal, appearing briefly for CM Banerjee, reinforced Mr Divan's submissions and argued that the remedy for any obstruction of the ED's investigation lay squarely within criminal law—specifically under the Bharatiya Nagarik Suraksha Sanhita—and not under Article 32, which is a remedy for the enforcement of fundamental rights.
"An investigating officer has a right under the statute to investigate. He has no fundamental right. None of these authorities, who have powers under the statutes, have fundamental rights. The remedy for obstruction of investigation is not a writ petition under Article 32. There are remedies available in the BNSS," Mr Sibal says.
He also questioned the specific relief sought: "How can ED ask the CBI to register an FIR? How is ED coming in without a predicate offence?" Mr Sibal challenged, arguing that without a predicate offence, the ED had no basis to demand a CBI investigation through a writ petition.
Mr Sibal also backed Mr Divan's argument for a Constitution bench reference, pointing out that another bench was already considering the same issue in petitions filed by the states of Kerala and Tamil Nadu.
Both Mr Divan and Mr Sibal urged that the matter be referred to a larger bench of five judges under Article 145(3) of the Constitution which requires a minimum bench of five judges when a substantial question about the interpretation of the Constitution is involved.
"If a bench of two judges is satisfied that a question of interpretation of the Constitution is involved, the Chief Justice may be requested to form a five-judge bench. Article 145(3) will be attracted. This is an appropriate case to be decided authoritatively by a bench of five judges," Mr Divan submitted. He also noted that a Presidential reference on a closely related question—whether the Constitution bars any jurisdiction other than Article 131 for resolving Union-state disputes—was returned unanswered by the Supreme Court, underscoring the need for authoritative resolution.
ED's petition arises from an 8 January 2026 search at the Kolkata offices of I-PAC—a political consultancy associated with the Trinamool Congress—in connection with a 2020 money laundering case against businessman Anup Majee, accused of involvement in a coal smuggling syndicate that allegedly stole and illegally excavated coal from ECL leasehold areas of West Bengal.
According to ED, Ms Banerjee arrived at the search premises along with senior party leaders and state police officers, confronted officials and allegedly removed files and digital devices that were material to the investigation. West Bengal police subsequently registered three FIRs against ED officials. ED then approached the Calcutta High Court, which could not hear the matter due to commotion in the courtroom, before moving the Supreme Court.
The state has maintained that the searches were not obstructed, pointing to the ED's own panchnama, and has claimed that police intervention was triggered by information that armed persons had entered the office impersonating central agency officers.
The Supreme Court had, in January, stayed further proceedings in the FIRs against ED officials and directed the state to preserve CCTV footage and electronic material from the 8th January search.
The matter is listed for further hearing without an immediate ruling on maintainability.
