The Supreme Court has agreed to decide a complicated but crucial legal issue: whether the Enforcement Directorate (ED) can be allowed to file a writ petition before High Courts based on its claim of being a “juristic person” under Article 226 of the Constitution.
A juristic person is a non-human legal entity, like a corporation, government body, or even a deity, that the law recognizes as having rights and duties similar to a human being. A juristic person can sue or be sued.
Thus, at the heart of the matter lies a seemingly technical but deeply consequential issue: whether the ED possesses an independent legal existence that allows it to invoke writ jurisdiction of High Courts under Article 226 of the Constitution.
This complex matter came up for hearing before the apex court on Tuesday. It all started with the Kerala High Court’s order, passed last year, upholding the ED’s right to file writ petitions under Article 226 of the Constitution. Article 226 refers to the power of High Courts to issue certain writs.
The Kerala and Tamil Nadu governments challenged the Kerala High Court order in the apex court.
A bench of Justices, Dipankar Datta and Satish Chandra Sharma, agreed to take up the matter and issued notice to the agency on appeals filed by the Kerala and Tamil Nadu governments.
The Kerala High Court had, in its order on September 26 last year, upheld a single judge order staying the judicial inquiry into the ED probe of the 2020 gold smuggling case.
The case originated from a May 7, 2021, Kerala govt’s notification ordering a judicial inquiry against ED officials accused of coercing the accused to implicate political leaders, including the CM, in the gold smuggling case.
An inquiry commission had been formed under former HC judge Justice V K Mohanan to examine evidence, including an audio clip attributed to accused Swapna Suresh and a letter by accused Sandeep Nair, both alleging coercion by ED officers.
ED deputy director moved the HC, questioning the state govt’s authority to order an inquiry against a central investigating agency.
The single bench held that the ED had locus standi (the right to approach the court) and granted an interim stay on the govt’s notification on August 11, 2021.
It prompted the state government to file an appeal against the single bench’s stay order in the High Court, which was dismissed.
The High Court ruled that the appeal lacked merit, and the single bench had committed no error in entertaining the ED’s petition and staying the inquiry. It led to the present legal controversy revolving round the ED’s claim to file a writ petition by virtue of being a juristic person.
Because the fundamental question is whether the ED, which functions as an arm of the Ministry of Revenue under the Finance Ministry, should be treated as an independent legal personality.
This is for the Supreme Court to decide. But, whatever the apex court’s verdict in this crucial case, the outcome is going to have far-reaching implications for the functioning of the investigative agencies and the rights of individuals facing investigations.
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