the story So Far:
heyn 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 of Justices Dipankar Datta and Satish Chandra Sharma accepted separate petitions filed by the Kerala and Tamil Nadu governments challenging the Kerala High Court decision which had upheld the agency’s right to do so. Taking note of the important 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 has the power to issue prerogative writs under Article 32 of the Constitution, while the High Courts exercise the same jurisdiction under Article 226. These writs trace their origins to English common law, where they developed as extraordinary remedies issued by the sovereign in situations where ordinary legal remedies were unavailable or ineffective.
The Constitution recognizes 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 set aside an order of a lower court or tribunal due to lack of jurisdiction or illegality), and quo warranto (to compel a public authority to perform a statutory or public duty). Questioning the validity of the person’s claim to public office).
While Article 32 enables the Supreme Court to issue writs primarily to enforce fundamental rights, Article 226 gives wider powers to high courts, allowing them to issue writs not only to enforce fundamental rights but also “for any other purpose”, including enforcement of statutory rights and review of administrative action. However, the grant of such a writ is discretionary, and courts may refuse to grant relief where an effective alternative remedy is already available.
Furthermore, under Article 361 of the Constitution, mandamus cannot be issued against the President or the Governor of a State in respect of the exercise and performance of the powers and duties of his office. The writ does not generally extend against private individuals or bodies, except in cases where the State is accused of colluding with a private party in violation of constitutional or statutory provisions.
Why did Kerala approach SC?
The dispute has its origins in a September 26, 2025 judgment of a division bench of the Kerala High Court which had held that the ED, established by the Central Government under Section 36 of the Foreign Exchange Management Act, 1999 (1999 Act) as per a June 2000 notification, is a statutory body entitled to enforce the writ jurisdiction of the High Courts under Article 226 of the Constitution.
The decision came on a writ petition filed by the ED challenging the Kerala government’s decision to set up a Commission of Inquiry (CoI) in connection with the diplomatic gold smuggling case. The case pertains to the seizure of 30 kg of gold worth ₹14.82 crore from diplomatic baggage arriving from the UAE at Thiruvananthapuram International Airport on July 5, 2020. The National Investigation Agency later registered a case under the Unlawful Activities (Prevention) Act, 1967, along with parallel proceedings initiated by the ED under the Prevention of Money Laundering Act, 2002 (PMLA).
The case later emerged as a point of friction between the Center and the state when key accused Swapna Prabha Suresh released an audio clip alleging that ED officials had forced her to implicate persons holding high positions in the state. Similar allegations were later made in a letter by a co-accused. Acting on these allegations, the Pinarayi Vijayan government had tasked the inquiry commission to investigate whether there was any conspiracy going on against the state leaders and, if so, to find out the identity of those behind the conspiracy.
Subsequently, the ED, through its Deputy Director, approached the High Court challenging the May 7, 2021 notification constituting the CoI. It sought a writ of mandamus to summon the relevant records and a writ of certiorari to quash the notification on the grounds that it was wholly without jurisdiction and contrary to law.
However, the Kerala government questioned the jurisdiction of the ED to maintain a writ petition, arguing that it is only a department of the Central Government and not a juridical person or body corporate competent to prosecute or prosecute. It further argued that the agency’s only available remedy is under Article 131 of the Constitution, which confers exclusive jurisdiction on the Supreme Court to settle disputes between the Center and the states. To buttress its argument, the State also relied on a 2003 judgment of the Supreme Court Chief Conservator of Forests, Government of Andhra Pradesh vs. CollectorWhich had condemned the practice of the Central and State Governments filing writ petitions against each other before the High Courts.
What decision did the High Court give?
In August 2021, a single judge of the high court rejected the state government’s objection on the maintainability of the ED’s writ petition, observing that ED officers exercise statutory powers and the agency cannot be treated merely as a department of the central government. The state’s appeal against this decision was rejected by the Division Bench in its September 2025 judgment.
The division bench of Justices Sushruta Arvind Dharmadhikari and Shyam Kumar VM reiterated that the ED is a statutory body and its officers are designated statutory authorities under Sections 48 and 49 of the PMLA. Rejecting the state’s argument that the agency lacks judicial personality and capacity to prosecute, the bench said such objection is a “trivial defect” and “a matter of form and not substance”, which cannot defeat the ED’s statutory right to seek recourse under Article 226 of the Constitution.
What arguments have Kerala and Tamil Nadu given before the Supreme Court?
In its appeal before the top court, the Kerala government objected to the High Court terming the challenge to the maintainability of the ED’s writ petition as a “frivolous flaw”. It stated that the Supreme Court, in Chief Conservator of Forestshad held that the capacity of the legal entity – natural or artificial – to sue or be sued is a matter of considerable importance and proceedings will fail if the required party lacks such capacity.
The State further argued that the Deputy Director of ED, being only an officer and not a judicial person, does not have the jurisdiction to file the writ petition. “Therefore, he also could not have filed the writ petition. Therefore, the finding of the High Court that the Deputy Director of Enforcement has the jurisdiction to file the writ petition is wrong… Neither the provisions of the 1999 Act nor the PMLA confer any legal personality on the ED so that it can be treated as a juridical person capable of suing,” the petition said. Tamil Nadu supported Kerala’s challenge, saying it had been placed in almost similar circumstances. It alleged that the ED had committed “gross and blatant abuse of the process of law” by filing a writ petition before the Madras High Court in connection with proceedings related to alleged illegal mining in the state. In a separate appeal before the Supreme Court, Tamil Nadu argued that the Kerala High Court judgment has emboldened the ED to take similar action in its case before the Madras High Court.
What are the possible implications?
Alok Prasanna Kumar, co-founder of the Vidhi Center for Legal Policy, said, “There is controversy over whether the ED can be placed on the same level as statutory bodies like the Securities and Exchange Board of India or the Reserve Bank of India, which are judicial institutions with perpetual succession and a clear statutory capacity to prosecute and prosecute.” The Hindu. He said the ED is widely considered an instrument of the central government, prosecuting cases on its own behalf, rather than functioning as an autonomous legal entity.
Mr Kumar further pointed out that the ED has no independent legal authority compared to state governments. “There is no ‘public duty’ owed by the state governments towards the ED that could justify issuing mandamus or certiorari against them. The best allegation that can be made is that a state has encroached upon the powers of the ED as a branch of the central government. Such a claim should 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
