ED’s Article 32 Petition Raises Alarming Questions About Writ Jurisdiction and Federalism

The Supreme Court issued notice to a writ petition filed by the Enforcement Directorate under Article 32 of the Constitution earlier this month, raising questions far larger than the immediate dispute between the Union and certain States.It forces us to confront a dangerous constitutional drift, one where the State, through its own investigative arm, seeks writ remedies against another limb of the State. This is not a mere procedural oddity. It strikes at the conceptual foundations of writ jurisdiction and threatens to distort the role of constitutional courts in ways that may cause lasting institutional harm.At the outset, it is important to remind ourselves what writ jurisdiction is, and more importantly, whom it exists for. Articles 32 and 226 were conceived as guarantees against State excess. They are not neutral dispute resolution mechanisms available to every legal actor. They are remedies crafted to protect citizens, and in limited cases non-State entities, from unlawful State action.Dr BR Ambedkar described Article 32 as the “heart and soul” of the Constitution precisely because it empowered individuals to directly approach the Supreme Court when their fundamental rights were violated by the State. The premise was simple and foundational: power must be answerable to those over whom it is exercised.The Enforcement Directorate is not an aggrieved citizen. It is not even an autonomous statutory authority in the true sense. It is an investigative arm of the Union Government, operating under executive control, funded by the Consolidated Fund, and tasked with enforcing parliamentary legislation. In constitutional terms, the ED is a statutory creation. When such an entity approaches the Supreme Court under Article 32, it inverts the logic of constitutional remedies. The State is no longer being called to account. It is asking the Court to resolve its own inter-governmental or inter-institutional disagreements.This inversion is not just conceptually flawed, it is constitutionally corrosive.The State cannot issue a writ to itself. This is not a rhetorical assertion but a doctrinal one. Writs are commands issued by a constitutional court to a public authority to act or refrain from acting in accordance with law.When an investigative agency seeks such a command, it is effectively asking the Court to strengthen or protect its coercive powers against other constitutional actors, often elected State governments. That is not the function writ jurisdiction was designed to serve.Should Supreme Court 'Read Up' a Law? Or Leave It to Parliament?Writ jurisdiction was designed as a shield for citizens, not a sword for the State. When an investigative agency like the Enforcement Directorate invokes Article 32, it turns constitutional logic on its head, transforming a remedy against power into a tool for entrenching it.Allowing this practice risks transforming constitutional courts into arbiters of executive turf wars. Today it is the ED. Tomorrow it could be another central agency, or a State police force, or a regulator, all seeking writ directions to overcome political or administrative resistance. Courts would then be routinely drawn into resolving conflicts that properly belong in the political or federal domain. This would weaken, not strengthen, constitutional governance.There is also a deeper federal concern. India’s Constitution establishes a delicate balance between the Union and the States. Investigative agencies like the ED already operate at the centre of this balance, often exercising powers that intersect with State policing, criminal law administration, and public order. When such an agency invokes Article 32 against States, it effectively elevates executive disagreements into constitutional disputes, bypassing established federal mechanisms. This risks converting federal friction into constitutional litigation, with courts becoming the primary arena for Centre-State contestation.One must ask a basic question: if the Union believes that States are acting unlawfully or obstructing central laws, what constitutional tools are available? The answer is clear. Parliamentary oversight, inter-governmental consultation, statutory remedies, and in extreme cases, constitutional mechanisms expressly provided for federal breakdowns. Writ jurisdiction was never meant to be one of them.It will no doubt be said in defence of the ED that Article 32 is textually open to “any person”, and that the Constitution does not expressly prohibit a State instrumentality from invoking it. That submission, however, mistakes form for substance. From the earliest years, the Supreme Court has read Article 32 not as a general forum for all grievances, but as a carefully designed remedy to protect individuals against unlawful State action. To stretch this provision into a platform for executive agencies to assert institutional power is to strip it of its constitutional character. Article 32 was never meant to be a convenience for the State when governance becomes difficult. It was meant to be a shield for liberty when power overreaches.Do States Really Have Power to Confer Minority Status? Has This Happened Before?There is also a practical danger. Investigative agencies wield extraordinary powers: arrest, attachment, search, and seizure. These powers are justified on the premise that they are subject to strict judicial scrutiny when exercised against individuals. If the same agencies begin to invoke writ jurisdiction to shield or expand their operational space, the balance between liberty and power tilts decisively in favour of the latter. Courts may find themselves endorsing, rather than scrutinising, the exercise of coercive State authority.Equally troubling is the precedent this sets for accountability. If an agency can directly approach the Supreme Court whenever it faces resistance from States, political authorities, or even statutory constraints, it weakens the chain of democratic responsibility. Agencies become answerable upwards to courts rather than outwards to legislatures and the public. That is not how executive power is meant to function in a constitutional democracy.The Supreme Court’s decision to examine the maintainability of such petitions is therefore welcome, but it must go further. It must draw a clear constitutional line. State instrumentalities, particularly investigative agencies exercising coercive power, should not be permitted to invoke writ jurisdiction under Article 32 or Article 226 to resolve disputes with other arms of the State. To do so is to blur the distinction between rights and power, between protection and control.If this line is not drawn now, the damage may be difficult to reverse. Constitutional courts derive their authority not just from text, but from restraint. When every institutional conflict is constitutionalised, the Constitution itself risks becoming a battleground rather than a framework for governance.The framers gave us writs so that the citizen could stand before the might of the State and be heard. Turning that remedy into a tool for the State to consolidate its power against itself is a distortion we can ill afford. The Constitution was not designed to protect the State from the consequences of federal disagreement. It was designed to protect liberty from the excesses of power. (Kumar Kartikeya is an advocate, Supreme Court of India. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)

BECOME A MEMBER

Federalism on Trial: Why ED’s Supreme Court Writ Blurs Constitutional Lines

When an investigative arm of the State invokes Article 32, a citizen’s safeguard risks becoming an executive tool.

Read Latest News and Breaking News at The Quint, browse for more from opinion

Topics: Supreme Court