Can Enforcement Directorate Maintain Writ Petition Against State Govt? Kerala High Court Reserves Order

The Kerala High Court on Tuesday reserved order on the preliminary objections raised by State of Kerala against the maintainability of a writ petition filed by Enforcement Directorate.

The Enforcement Directorate had approached the High Court under Article 226 of the Constitution of India challenging the State Government's notification which constituted a judicial commission to inquire into the allegations of falsification of statements to implicate the Chief Minister in the gold smuggling case.

A single bench of Justice PB Suresh Kumar reserved order on the maintainability after hearing Solicitor General Tushar Mehta (for the ED) and Advocate General of Kerala Gopalakrishna Kurup.

Solicitor General's arguments

The Solicitor General drew the attention of the bench to the judgment delivered by the High Court in April this year which held that Kerala Police had no right to register FIR against ED officials to investigate the allegations of false implication. He said that the judicial commission has been constituted to circumvent that judgment.

It is only the Central Government which can constitute a judicial commission in this matter. There is an inherent lack of jurisdiction on the part of the State Govt. As per Section 2(a) of the Commission of Inquiries Act, the "appropriate government" to constitute a commission to deal with matters under List I of the Constitution is the Central Government.

"Even if the commission gives any findings, the State Govt cannot do anything as it is a central investigation under the supervision of the court", the top law officer of the Union argued.

It is for the competent court under the Prevention of Money Laundering Act to deal with the question of false implication and there cannot be a parallel inquiry by a judicial commission.

The SG further said that the inquiry by the Commission will impede the ongoing investigation in the gold smuggling case, which is being probed by the ED and the NIA.

Raising these arguments, the Solicitor sought for a stay of the notification which constituted the Commission.

Advocate General's submissions

The Advocate General submitted that he was raising certain preliminary objections to the maintainability of the writ petition before getting into the merits.

Pointing out that the writ petition has been filed by the Enforcement Directorate, the Advocate General said that a department of a Union Government cannot file a writ petition against a state. A department is not a body corporate which can sue or be sued. So it is not a legal person which can maintain a writ petition.

The AG referred to the decision in Chief Conservator of Forests vs Govt of AP AIR 2003 SC 1805 which held "no individual officer of the Government under the scheme of the Constitution or the Code of Civil Procedure can file a suit or initiate any proceeding in the name of the post he is holding, which is not a juristic person".

According to the AG, the present matter cannot be agitated before the High Court under Article 226 of the Constitution. It is a matter which should go before the Supreme Court under Article 131 being a dispute between the Union and a State. The AG also emphasized that the writ petition does not reveal a plea to enforce any fundamental or statutory right.

The Advocate General also said that single bench judgment, while quashing the FIRs against ED,  has given liberty to the police to file application before the Special Court in respect of allegations of false implication, and accordingly application has been filed for Sec 340 CrPC enquiry.

He also referred to the Kerala HC judgment in 'Sajan Varghese vs Union of India'(rendered by J PB Suresh Kumar), which had upheld power of state government to constitute a  judicial commission to enquire the genuineness of an audio clip against a Minister involving sexual allegations, as it was a matter relating to 'law and order' under List 1.

The Solicitor General began his rejoinder argument by saying he "expected something more concrete from the government". The SG said that it was individual officers, who are statutorily designated authorities under the PMLA, who will get prejudiced. The officers cannot go under a suit under Article 131.  He also said that the Union of India can be transposed as a petitioner if there is a technical objection.

Referring to the Supreme Court decision reported in (2016) 7 SCC 1, the Solicitor said that if serious issues of public importance are arising, it is not appropriate to reject a matter on "narrow technical grounds". He stressed that the petition raised questions of public importance.