Can the ED file writ petitions before Courts? | Explained

Explore the Supreme Court's examination of the ED's writ jurisdiction, with significant implications for Central-State power dynamics in India.

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.

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.