Setback to Kerala government as High Court stays judicial probe against central agencies

The ED in its petition stated that the Chief Minister of Kerala, who holds the portfolio of Home Minister, has issued the notification abusing his official position
Kerala Chief Minister Pinarayi Vijayan (File | EPS)
Kerala Chief Minister Pinarayi Vijayan (File | EPS)

KOCHI: In a major setback to the Pinarayi Vijayan government, the Kerala High Court on Wednesday stayed its notification constituting a judicial commission headed by former High Court judge V K Mohanan to conduct a probe against the Enforcement Directorate officers investigating the gold and dollar smuggling cases.

Justice PB Suresh Kumar issued the interim order on a petition filed by the ED seeking to quash the notification. The court admitted the petition and issued notices to the state government and others. The court also made it clear that the notice to the Chief Minister and the commission of inquiry are dispensed with.

Solicitor General Tushar Mehta, Additional Solicitor Generals KM Nataraj and SV Raju, assistant solicitor general P Vijayakumar, Suvin R Menon, centre government counsel and Special Prosecutor TA Unnikrishnan appeared for the ED and central government.

The notification had asked the Commission to probe whether there was a conspiracy to frame the Chief Minister, ministers and other government officials in the gold smuggling case. The notification stated that central agencies like the Customs and Enforcement Directorate are falsely implicating the ruling political front in serious criminal cases. These actions of the central agencies clearly show their
unprofessional approach in conducting an investigation, stated the notification.

The ED in its petition stated that the Chief Minister of Kerala, who holds the portfolio of Home Minister, has issued the notification abusing his official position. The move is to impede and frustrate the investigations carried out by the Deputy Director, Enforcement Directorate in the gold smuggling case where "the Chief Minister and his subordinates are or can be a subject matter of
investigation."

The petition said that the notification was ultra vires the powers of the state government under section 3 read with section 2 (a) of the Commission of Inquiry Act. The state government is not the appropriate authority to appoint a commission of inquiry into any matter relatable to any of the entries in List 1 of the Seventh Schedule of the Constitution of India. Besides, the matter relating
to an investigation conducted by the ED under PMLA or even the National Investigation Agency under the UAPA cannot be the subject matter of inquiry of a Commission of Inquiry set up by the state government.

Advocate General K Gopalakrishna Kurup had submitted that the ED's petition was not maintainable as a department of the Centre could not file a petition against a state government. A department was not a body corporate that could sue or be sued. Since the matter involved a dispute between the state and Centre, the Enforcement Directorate should have approached the Supreme Court under Article 131.

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