Can ED Invoke Article 226 as a Juristic Person? Supreme Court Agrees to Examine Issue

The Bench of Justices Dipankar Datta and Satish Chandra Sharma issued notice on appeals filed by the Kerala and Tamil Nadu governments, which have challenged a Kerala High Court ruling that recognised the ED’s locus standi to file writ petitions under Article 226.

The appeals arise from proceedings linked to the 2020 gold smuggling case in Kerala, in which the ED had questioned the State government’s decision to order a judicial inquiry into the agency’s investigation.

In its September 26, 2024 order, the Kerala High Court upheld a single judge’s decision staying a judicial inquiry commission constituted by the State under the Commissions of Inquiry Act, 1952. The inquiry was set up to probe allegations that ED officials coerced accused persons in the gold smuggling case to implicate political leaders, including the Chief Minister.

The High Court had dismissed the Kerala government’s appeal against the interim stay, holding that it lacked merit and that the single judge had committed no error in entertaining the ED’s writ petition and staying the inquiry.

The controversy traces back to a May 7, 2021 notification issued by the Kerala government, ordering a judicial inquiry against ED officials over alleged coercion of accused persons. Former Kerala High Court judge Justice V.K. Mohanan was appointed to head the commission, which was tasked with examining materials including an audio clip attributed to accused Swapna Suresh and a letter by accused Sandeep Nair, both alleging pressure by ED officers to name political leaders.

Challenging the notification, the ED’s Deputy Director approached the High Court, questioning the State’s authority to order a judicial inquiry into the functioning of a central investigating agency. On August 11, 2021, a single judge held that the ED had the locus standi to approach the High Court and granted an interim stay on the inquiry, prompting the State government to file an appeal.

With the Court now issuing notice, the case is set to examine a significant constitutional question on whether a central investigative agency like the ED can be treated as a juristic person entitled to invoke Article 226 before High Courts.