The Juridical Persona of Power, The Supreme Court Scrutinizes the Enforcement Directorate’s Right to Sue

The Juridical Persona of Power, The Supreme Court Scrutinizes the Enforcement Directorate’s Right to Sue

In the intricate tapestry of Indian constitutional law, the question of who can approach the highest courts for extraordinary relief is as fundamental as the relief itself. This foundational principle has now collided with one of the most potent and politically charged institutions of the contemporary Indian state: the Enforcement Directorate (ED). On January 20, the Supreme Court of India agreed to adjudicate a profound legal question with sweeping implications for federalism, executive authority, and the separation of powers: Is the ED, an agency of the Union government, entitled to invoke the writ jurisdiction of constitutional courts? By admitting the separate petitions of the Kerala and Tamil Nadu governments, the apex court has placed itself at the epicenter of a simmering conflict that pits Opposition-ruled states against a central agency whose expanding footprint has become a subject of intense national debate. This is not merely a technical dispute about legal procedure; it is a high-stakes battle over the balance of power, the nature of the state, and the very personality of law enforcement in a federal democracy.

The Genesis of the Conflict: Gold, Governance, and the Writ Petition

The legal conflagration finds its specific spark in the embers of the 2020 diplomatic gold smuggling case in Kerala. Following the sensational seizure of 30 kg of gold from diplomatic baggage at Thiruvananthapuram airport, the case became a labyrinth of allegations involving smuggling networks, political figures, and bureaucratic complicity. In a move that escalated a criminal investigation into a constitutional confrontation, the Kerala government, led by the Left Democratic Front (LDF), constituted a Commission of Inquiry (CoI) under the Commissions of Inquiry Act, 1952, to probe the matter.

The ED, which was already investigating the money laundering aspects of the case, perceived this state-appointed commission as an encroachment—a parallel proceeding that could potentially interfere with its own probe, complicate evidence, and create conflicting narratives. In response, the ED did not merely file an objection with the state government or seek administrative redress. Instead, it approached the Kerala High Court by filing a writ petition under Article 226 of the Constitution, seeking to quash the state’s notification constituting the CoI.

The Kerala government’s first line of defense was a pointed procedural challenge: it questioned the very maintainability of the ED’s petition. It argued that the ED, as a department of the Union government lacking independent juristic personality, had no locus standi (legal standing) to file a writ petition. A single judge of the High Court rejected this in August 2021, and on September 26, 2025, a Division Bench firmly upheld the ED’s right. The Bench ruled the ED was a statutory body and its officers statutory authorities, dismissing the state’s objection as a “trivial defect” of form over substance.

Unwilling to concede, Kerala appealed to the Supreme Court. Its cause found immediate resonance with Tamil Nadu, another opposition-ruled state facing similar legal maneuvers from the ED in a case concerning alleged illegal mining. Together, they have forced the Supreme Court to interpret a clause that lies at the heart of constitutional remedies.

The Anatomy of a Writ: Understanding Article 226 and the Question of “Person”

To appreciate the gravity of this dispute, one must understand the extraordinary nature of a writ. The writ jurisdiction of High Courts under Article 226 is a cornerstone of India’s justice system, a powerful tool for judicial review inherited from English common law. Unlike Article 32, which empowers the Supreme Court to enforce fundamental rights, Article 226 grants High Courts a wider remit: they can issue writs “for the enforcement of any of the rights conferred by Part III [Fundamental Rights] and for any other purpose.”

The writs themselves are specific commands:

• Habeas Corpus: “Produce the body,” used against unlawful detention.

• Mandamus: “We command,” to compel a public duty.

• Prohibition & Certiorari: To restrain or quash orders of lower courts/tribunals acting without jurisdiction.

• Quo Warranto: “By what authority?” to scrutinize claims to public office.

Crucially, this remedy is not available against everyone. It primarily lies against “any person or authority, including in appropriate cases any Government,” within a High Court’s territorial jurisdiction. The term “person” here is pivotal. It encompasses natural persons and, through judicial interpretation, “juristic persons” or legal entities like corporations, statutory bodies, and government departments that have a distinct legal personality.

This is the crux of Kerala’s argument: Does the ED qualify as such a “person” or “authority” capable of suing in its own name?

The Core Arguments: Statutory Body vs. Government Department

The legal battle lines are sharply drawn around the ED’s institutional character.

The Kerala-Tamil Nadu Thesis: An Arm Without a Legal Persona
The states contend that the ED is merely an investigative and prosecuting department of the Union government, not an independent statutory corporation. It was established by a government notification under the Foreign Exchange Management Act (FEMA), 1999, and its officers derive powers from FEMA and the Prevention of Money Laundering Act (PMLA), 2002. However, unlike bodies such as the Securities and Exchange Board of India (SEBI) or the Reserve Bank of India (RBI), the ED’s founding statutes do not confer upon it the classic hallmarks of a juristic person: perpetual succession, a common seal, or the explicit capacity “to sue and be sued.”

Therefore, the states argue:

1. Lack of Juristic Personality: The ED has no independent legal existence separate from the Union of India. It is an “instrumentality,” a limb of the executive.

2. Improper Petitioner: A writ petition filed in the name of “The Deputy Director, Enforcement Directorate” is invalid, as an officer is not a juristic person. The proper petitioner should be the Union of India through its competent ministry.

3. Trivializing a Fundamental Issue: The High Court erred in dismissing this as a “trivial defect.” The capacity to sue is a fundamental prerequisite for litigation, as established in precedents like Chief Conservator of Forests. A proceeding initiated by an entity lacking this capacity is non est (void from the outset).

4. Abuse of Process: Allowing the ED to sue directly enables it to bypass the Union government, creating a perception of autonomous, unchecked legal aggression against state governments. Tamil Nadu’s plea underscores this, alleging the Kerala precedent “emboldened” the ED to replicate the tactic.

The ED’s Position (Inferred from High Court Ruling): A Statutory Authority with Implied Rights
While the ED’s formal arguments before the Supreme Court are awaited, the Kerala High Court’s reasoning provides its likely defense:

1. Statutory Creation & Powers: The ED and its officers are creatures of statute (FEMA, PMLA) with wide, independent statutory powers—to summon, arrest, attach property, and prosecute. They are not mere clerical extensions of the Finance Ministry.

2. Substance Over Form: The agency’s functional reality as a powerful statutory authority cannot be defeated by a technicality regarding its nomenclature. Denying it writ access would cripple its ability to defend its lawful jurisdiction from obstruction.

3. Right to Recourse: As a body tasked with enforcing parliamentary law, it must have the right to seek judicial intervention when its lawful functioning is impeded by a state’s actions, which it alleges the CoI was designed to do.

The Federal Fault Line: Beyond Procedure, A Struggle for Balance

Beneath the legal technicalities lies a raw nerve of Indian federalism. Legal scholars like Alok Prasanna Kumar of the Vidhi Centre for Legal Policy highlight the profound federal implications. He argues that the ED, as an arm of the Union, has no independent legal rights vis-à-vis a state government. A state owes no “public duty” to the ED that could be enforced via a writ of mandamus.

If the Union believes a state has encroached upon the powers of its agency, the constitutionally prescribed remedy, Kumar notes, is not a writ petition by the agency. It is a suit under Article 131, which grants the Supreme Court exclusive original jurisdiction to hear disputes between the Union and States. This is a deliberate design of the Constitution, treating such inter-governmental conflicts as grand, formal disputes requiring the highest adjudicatory forum, not as routine litigation initiated by one executive agency against another’s government.

By allowing the ED to directly sue a state government via writ, the High Court’s ruling effectively creates a parallel, asymmetric channel. It empowers a central agency to drag a state government to court swiftly, potentially for interim orders that could stall state actions, all without the Union government having to formally own the litigation. For opposition states, this is seen as a tool for harassment and a dilution of the state’s sovereign authority within its sphere, as defined in the Seventh Schedule of the Constitution.

Potential Implications: A Ripple Effect Across Governance

The Supreme Court’s eventual verdict will resonate far beyond the corridors of the Kerala Secretariat and the ED’s headquarters.

1. A Blueprint for All Central Agencies: A ruling affirming the ED’s right would set a precedent for other central investigative and regulatory agencies—the CBI, NIA, Income Tax Department, etc.—to directly file writs against states. This could exponentially increase legal friction in the federal system.

2. The Politicization of Agencies: It would reinforce the perception of central agencies as politically weaponized entities capable of independent legal warfare, further eroding the trust between the center and opposition-ruled states.

3. Judicialization of Federal Disputes: It would shift the resolution of center-state conflicts from the political and diplomatic arena (and the solemn original jurisdiction of the Supreme Court under Article 131) to the more frequented and tactical battleground of writ jurisdiction in High Courts.

4. Operational Impact on ED: Conversely, a ruling against the ED would mean it must route all such challenges through the Union Ministry of Finance or Home Affairs. This would introduce a layer of political and bureaucratic oversight, potentially slowing down its responses but also adding a check on its autonomy.

Conclusion: Defining the Soul of an Institution

The question before the Supreme Court—Can the ED file writ petitions?—is deceptively simple. Its answer will define the legal soul of one of India’s most powerful institutions. Is the ED a distinct “person” in the eyes of the law, a sovereign litigant with its own voice in constitutional courts? Or is it an “instrumentality,” a powerful but impersonal tool of the Union executive, which must speak only through the voice of its principal, the Government of India?

In resolving this, the Court will do more than interpret a clause of Article 226. It will calibrate the balance of federal powers, clarify the boundaries of prosecutorial independence, and determine the procedural pathways through which the increasingly tense dialogue between the Centre and the States will be legally conducted. The outcome will either reinforce the agency’s formidable, autonomous stature or re-anchor it firmly within the traditional chain of command of the Union government. In a democracy where institutions are constantly tested, this verdict will write a crucial footnote on the nature of power itself—whether it resides in offices, or in the legal persons who inhabit them.

Q&A: The ED’s Writ Jurisdiction Dispute – A Federal & Legal Deep Dive

Q1: What is the specific legal question the Supreme Court has agreed to examine?
A1: The Supreme Court will examine whether the Enforcement Directorate (ED) has the locus standi (legal standing) to directly file writ petitions under Article 226 of the Constitution before High Courts. The core issue is whether the ED, as an agency of the Union Government, is a “juristic person” or “statutory authority” capable of suing in its own name, or if it is merely a government department that must sue through the Union of India as the proper party.

Q2: Why did the Kerala government object to the ED filing a writ petition against its Commission of Inquiry?
A2: Kerala’s objection is based on a fundamental legal principle of capacity to sue. The state argues that:

1. The ED is a department of the Union Government, not an independent statutory corporation like SEBI or RBI.

2. Its founding laws (FEMA, PMLA) do not confer on it a “juristic personality”—key attributes like perpetual succession or the explicit power “to sue and be sued.”

3. Therefore, it lacks the legal capacity to be a petitioner in a writ petition. The proper petitioner should be the “Union of India through the Ministry of Finance.” The state contends the High Court erred in treating this foundational flaw as a mere “trivial defect.”

Q3: What are the broader federalism concerns raised by this case, as highlighted by legal experts?
A3: Experts point to a significant federal imbalance if the ED can directly sue states. The concern is that:

• It creates an asymmetric power dynamic. A central agency can unilaterally haul a state government to court, bypassing the formal channel of the Union government.

• It potentially usurps the proper constitutional remedy. Disputes where a state action allegedly impedes a central agency’s function are, in essence, Union-vs-State disputes. The Constitution designates Article 131 for this, giving the Supreme Court exclusive original jurisdiction. Allowing writ petitions converts a grand federal dispute into routine litigation, undermining this designed mechanism.

• It could politicize and weaponize central agencies, enabling them to engage in legal brinkmanship against opposition-ruled states without the central government’s formal imprimatur.

Q4: How did the Kerala High Court justify its ruling in favor of the ED’s right to file a writ?
A4: The Kerala High Court’s Division Bench ruled that:

1. The ED is a statutory body created under FEMA, and its officers are statutory authorities under the PMLA, wielding independent investigative and prosecutorial powers.

2. The objection regarding its lack of juristic personality was a matter of “form and not substance.” The court emphasized the ED’s functional reality as a powerful authority.

3. Denying it the right to seek writ relief would impair its statutory functioning and its ability to defend its jurisdiction from perceived obstruction (like the state’s Commission of Inquiry).

Q5: What are the potential nationwide implications of the Supreme Court’s eventual verdict?
A5: The verdict will set a critical precedent with wide-ranging effects:

• For Central Agencies: If the ED wins, other agencies like the CBI, NIA, and Income Tax Department could follow suit, gaining autonomous power to litigate directly against states, increasing legal friction.

• For Federal Relations: It could normalize direct legal confrontations between central agencies and state governments, altering the cooperative federalism model and deepening political mistrust.

• For the ED’s Operations: If the ED loses, it would need to route all such legal challenges through relevant Union Ministries, introducing a layer of bureaucratic and political oversight that could act as a check but might also slow its operational agility.

• For Constitutional Law: The ruling will provide a definitive interpretation of who qualifies as a “person” or “authority” under Article 226, shaping the litigation landscape for all government entities.