Constitutional Alchemy
The anti-defection law was meant to end the era of the “Aaya Ram, Gaya Ram” politician. Four decades later, it has produced constitutional alchemists seeking ever newer ways to turn defection into legality.
The Supreme Court on Wednesday asked the West Bengal government whether the Enforcement Directorate (ED) was left remediless and expected to “look and watch” while Chief Minister Mamata Banerjee allegedly obstructed raids at I-PAC, a political consultancy firm based in Kolkata.
The State argued that the ED’s petition invoking Article 32 of the Constitution, seeking directions for a CBI probe against Chief Minister Mamata Banerjee and certain police officers, was not maintainable.
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The State government raised a preliminary objection, arguing that the ED, being an arm of the Union government, cannot invoke fundamental rights to approach the Court under Article 32 of the Constitution, as a central agency is neither a “legal or natural person” nor a “body corporate.”
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Appearing for West Bengal, senior advocate Shyam Divan told a bench of Justice Prashant Kumar Mishra and Justice NV Anjaria that the ED is neither a legal person nor a body corporate capable of claiming a violation of fundamental rights.
He argued that if the Union government had any grievance against a State government, it could invoke the Supreme Court’s original jurisdiction under Article 131 instead of using the ED as a vehicle to file a writ petition. He cautioned that permitting such petitions would disturb the federal balance by enabling central agencies to initiate constitutional litigation against States.
Senior advocate Kapil Sibal, representing Chief Minister Mamata Banerjee, supported the objection, contending that investigative powers exercised by agencies like the ED flow from statute and do not amount to enforceable fundamental rights.
He argued that allowing government agencies to invoke Article 32 could open the floodgates for litigation between State and Central entities, thereby undermining the constitutional scheme.
However, Justice Prashant Kumar Mishra questioned whether the ED should be left without any legal remedy if its investigation was allegedly obstructed by the Chief Minister.
The Court noted that the situation described by the agency was unusual and raised broader concerns about the ability of investigating bodies to function without interference. It observed that the law must evolve to address new situations and cannot permit a vacuum where no remedy exists.
The ED has alleged that its officials were obstructed during searches conducted at the Kolkata office of I-PAC as part of a money laundering probe linked to an alleged coal smuggling case. The agency has sought a CBI investigation into the incident.
Earlier, the Supreme Court had stayed an investigation initiated by the Kolkata Police against ED officers. The case, the Court noted, involves significant questions regarding the extent of powers of central agencies and the limits of State interference in such investigations.
At the outset of the hearing on Wednesday, the Court declined a request by the West Bengal government for an adjournment, as it sought time to file a response to a rejoinder affidavit filed by the ED.
Solicitor General Tushar Mehta, representing the ED, opposed the request, calling it a tactic to delay the hearing and pointing out that the rejoinder had been filed four weeks earlier, leaving sufficient time to respond.
The hearing on February 18, 2026, witnessed a sharp exchange between the West Bengal government and the Directorate of Enforcement (ED), with the State alleging that the anti-money laundering agency was being “weaponized” against political opponents, and the ED countering that it was, in fact, being “terrorised.”
Earlier, on January 15, 2026, the Court had directed State authorities to preserve CCTV footage and storage devices from the searched premises and surrounding areas. It had also stayed FIRs registered by the West Bengal Police against ED officers involved in the searches.
During the January 15 hearing, the Court observed that the ED’s petition raises larger questions “which, if allowed to remain undecided, would further worsen the situation and could lead to a state of lawlessness in one or another State, considering that different parties govern different regions.”
The ED has also alleged that documents and electronic devices were removed when Chief Minister Banerjee entered the premises during the search. Banerjee has maintained that the materials were related to her political party.
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