Can ED invoke Article 226? SC to decide if ED can move Writ Courts after HC says Statutory Status is Enough

The Supreme Court issued notice on petitions filed by the States of Kerala and Tamil Nadu challenging a Kerala High Court ruling that recognised the Enforcement Directorate (ED) as a statutory authority competent to file writ petitions under Article 226 of the Constitution, setting the stage for a key constitutional examination on the scope of the ED’s powers. No interim stay was granted.

Both States have approached the apex court questioning the correctness of the Kerala High Court’s view that the ED, being a statutory body under the Prevention of Money Laundering Act, can independently invoke writ jurisdiction. The challenge arises from proceedings linked to the gold smuggling case originating from Thiruvananthapuram, where multiple central agencies, including the ED and NIA, initiated investigations.

The ED had moved the High Court to challenge the constitution of a State-appointed inquiry commission probing alleged misuse of central agencies, a move resisted by the State on the ground that the ED lacked locus standi to file a writ petition.

A Bench comprising Justice Dipankar Datta and Justice Satish Chandra Sharma took note of the submissions and issued notice, returnable in four weeks. While Justice Sharma observed that the impugned order was interim in nature, Senior Advocate Kapil Sibal, appearing for Kerala, argued that it had final consequences for the State, as it conclusively recognised the ED’s competence to invoke Article 226.

The Court’s reasoning, that “the proposition that a statutory body is entitled to file a writ petition invoking Article 226 of the Constitution cannot be doubted”, will now be tested before the Supreme Court, which declined to stay the operation of the impugned order at this stage.