‘You cannot walk in’: Supreme Court raps Mamata Banerjee in I-PAC raid case

Senior Advocate Menaka Guruswamy, representing some officials of the state government, argued that the matter involved a dispute between the Centre and the state, for which a suit under Article 131 of the Constitution was the correct legal route.

“What is that dispute in this case between the state and the Union?…We are sorry, this is not a dispute between the state and the Central government… You cannot just walk in, the chief minister of any state, just walk in in the midst of an enquiry or investigation, and you see, make the democracy in peril, and then argue that it is a dispute essentially between the state and the Centre,” said Justice Mishra.

“Do not convert this into a dispute between the state and the Union, this is not per se… This is per se, an act committed by an individual who happens to be the chief minister, keeping the whole system and whole democracy in jeopardy,” he said.

The bench observed that several judgments, including the Kesavananda Bharati verdict of 1973 that laid down the ‘basic structure doctrine’ of the Constitution, were cited before it during the hearing. “But none of them would have ever conceived of this situation then that in this country, a day will come when a sitting chief minister will walk into the office of some other agency,” Justice Mishra said.

Solicitor General Tushar Mehta, appearing for the ED, said incriminating evidence was taken away from the agency’s officials on that day.

Guruswamy argued that there was no criminal conduct, intimidation or infraction of any official’s rights. She said the matter raised a substantial question of law and therefore should be referred to a five-judge bench.

Justice Mishra said every Article 32 petition will have some question of law, and if her argument was to be accepted, every such petition would have to be referred to a five-judge bench.

“They are advancing a unique proposition unknown to Indian constitutional law. In 75 years, we have never seen such a proposition as this,” Guruswamy said.

Senior Advocate Sidharth Luthra, appearing for some state police officers, too, contended that the ED could not take the Article 32 route and approach the Supreme Court after it had already moved the Calcutta High Court for similar relief.

The court, however, said it cannot ignore the ground reality in the state where even judicial officers were gheraoed. “This is an extraordinary situation. Before the other bench, the SIR is under debate. We have seen the situation that several judicial officers have been kept hostage. And now you want that the proceedings should go before magistrate,” Justice Mishra said.

“As a counsel, you may argue abstract legal principles before us. But we cannot lose sight of the practical situation which is occurring, and which is present in the state. Tomorrow, it will be reported, and then you will say the court has made observations,” he said.

“This is not only a case of Ram versus Shyam. This is an extraordinary litigation. We always say that the Constitution is an organic document. Every new situation will throw up and pose new questions to the court, and the court has to answer the questions keeping in view the present socio-political realities,” Justice Mishra said.

The hearing will continue on Thursday.

Meanwhile, the court is also seized of another petition under Article 32, filed by some ED officials associated with the search, challenging the FIR registered by the state police against them.