The story so far:
On January 20, the Supreme Court agreed to examine whether the Enforcement Directorate (ED) is entitled to invoke the writ jurisdiction of constitutional courts to seek relief. A Bench comprising Justices Dipankar Datta and Satish Chandra Sharma admitted separate petitions filed by the Kerala and Tamil Nadu governments challenging a Kerala High Court ruling that upheld the agency’s right to do so. Taking note of the substantial question of law raised by the Opposition-ruled States, the Bench directed that the matter be listed for hearing after four weeks.
When can courts issue writs?
In India, the Supreme Court is vested with the power to issue prerogative writs under Article 32 of the Constitution, while High Courts exercise a similar jurisdiction under Article 226. These writs trace their origins to English common law, where they evolved as extraordinary remedies issued by the sovereign in situations where ordinary legal remedies were unavailable or ineffective.
The Constitution recognises five such writs — habeas corpus (to secure the release of a person from unlawful detention), mandamus (to compel a public authority to perform a statutory or public duty), prohibition (to restrain a lower court or tribunal from acting beyond its authority), certiorari (to quash an order of a lower court or tribunal for lack of jurisdiction or illegality), and quo warranto (to question the legality of a person’s claim to a public office).
While Article 32 enables the Supreme Court to issue writs primarily for the enforcement of fundamental rights, Article 226 vests High Courts with broader authority, allowing them to issue writs not only for enforcing fundamental rights but also “for any other purpose”, including the enforcement of legal rights and the review of administrative action. However, the grant of such writs is discretionary, and courts may decline relief where an effective alternative remedy is already available.
Further, under Article 361 of the Constitution, a writ of mandamus cannot be issued against the President or the Governor of a State with respect to the exercise and performance of the powers and duties of their office. A writ also does not ordinarily lie against private individuals or bodies, except in cases where the state is alleged to have acted in collusion with a private party in violation of constitutional or statutory provisions.
Why did Kerala approach the SC?
The dispute traces its origin to a September 26, 2025 ruling of a Division Bench of the Kerala High Court, which held that the ED, established by the Union government under Section 36 of the Foreign Exchange Management Act, 1999 (1999 Act) pursuant to a June 2000 notification, is a statutory body entitled to invoke the writ jurisdiction of High Courts under Article 226 of the Constitution.
The ruling arose from a writ petition filed by the ED challenging the Kerala government’s decision to constitute a Commission of Inquiry (CoI) in connection with the diplomatic gold smuggling case. The case relates to the seizure of 30 kg of gold, valued at ₹14.82 crore, from diplomatic baggage arriving from the United Arab Emirates at the Thiruvananthapuram International Airport on July 5, 2020. The National Investigation Agency subsequently registered a case under the Unlawful Activities (Prevention) Act, 1967, alongside parallel proceedings initiated by the ED under the Prevention of Money Laundering Act, 2002 (PMLA).
The case later emerged as a flashpoint between the Centre and the State after Swapna Prabha Suresh, the prime accused, released an audio clip alleging that ED officials had coerced her into implicating persons holding high office in the State. Similar allegations were subsequently made in a letter by a co-accused. Acting on these allegations, the Pinarayi Vijayan government had tasked the inquiry commission to probe if there was a conspiracy afoot against the State’s leaders and, if so, to unearth the identity of those behind the plot.
The ED, thereafter, through its Deputy Director, approached the High Court challenging the May 7, 2021, notification constituting the CoI. It sought a writ of mandamus to call for the relevant records and a writ of certiorari to quash the notification on the ground that it was wholly without jurisdiction and contrary to law.
However, the Kerala government questioned the ED’s locus to maintain a writ petition, contending that it is merely a department of the Union government and not a juristic person or body corporate capable of suing or being sued. It further argued that the agency’s only available remedy lay under Article 131 of the Constitution, which vests the Supreme Court with exclusive jurisdiction to adjudicate disputes between the Centre and the States. To buttress its contention, the State also relied on the Supreme Court’s 2003 ruling in Chief Conservator of Forests, Government of Andhra Pradesh versus Collector, which had deprecated the practice of Centre and State governments filing writ petitions against each other before High Courts.
What did the High Court rule?
In August 2021, a single judge of the High Court rejected the State government’s objection to the maintainability of the ED’s writ petition, observing that ED officers exercise statutory powers and that the agency cannot be treated as merely a department of the Union government. The State’s appeal against this decision was dismissed by a Division Bench in its September 2025 ruling.
The Bench, comprising Justices Sushrut Arvind Dharmadhikari and Syam Kumar V.M., reiterated that the ED is a statutory body and that its officers are designated statutory authorities under Sections 48 and 49 of the PMLA. Rejecting the State’s contention that the agency lacked juristic personality and the capacity to sue, the Bench observed that such an objection amounted to a “trivial defect” and was “a matter of form and not substance”, which could not defeat the ED’s statutory right to seek recourse under Article 226 of the Constitution.
What have Kerala and Tamil Nadu argued before the Supreme Court?
In its appeal before the top court, the Kerala government objected to the High Court’s characterisation of its challenge to the maintainability of the ED’s writ petition as a “trivial defect”. It pointed out that the Supreme Court, in Chief Conservator of Forests, had held that the capacity of a legal entity — natural or artificial — to sue or be sued is a matter of considerable importance and that proceedings would fail if the necessary party lacked such capacity.
The State further contended that the Deputy Director of the ED, being only an officer and not a juristic person, lacked the locus to file a writ petition. “Hence, he also could not have filed a writ petition. Therefore, the finding of the High Court that the Deputy Director of Enforcement has locus standi to institute the writ petition is erroneous… Neither the provisions of the 1999 Act nor the PMLA confer any legal personality on the ED so as to entitle it to be treated as a juristic person competent to sue,” the petition stated. Tamil Nadu, supporting Kerala’s challenge, submitted that it had been placed in nearly identical circumstances. It alleged that the ED had indulged in a “gross and blatant abuse of the process of law” by filing a writ petition before the Madras High Court in connection with proceedings relating to alleged illegal mining in the State. In a separate appeal before the Supreme Court, Tamil Nadu argued that the Kerala High Court’s ruling had “emboldened the ED to venture a similar line of action” before the Madras High Court in its case.
What are the possible implications?
“It is contested whether the ED can be placed on the same footing as statutory bodies such as the Securities and Exchange Board of India or the Reserve Bank of India, which are juristic entities with perpetual succession and an express statutory capacity to sue and be sued”, Alok Prasanna Kumar, co-founder of the Vidhi Centre for Legal Policy, told The Hindu. He noted that the ED is widely regarded as an instrumentality of the Union government, prosecuting cases on its behalf rather than functioning as an autonomous legal entity.
Mr. Kumar further pointed out that the ED does not have any independent legal rights vis-à-vis State governments. “State governments do not owe any ‘public duty’ to the ED that could justify the issuance of a writ of mandamus or certiorari against them. At best, the allegation may be that a State has encroached upon the powers of the ED as an arm of the Union government. Such a claim would have to be pursued as a Centre-State dispute under Article 131 of the Constitution, over which the Supreme Court has exclusive jurisdiction”, he said.
Published – January 29, 2026 08:30 am IST
