The Supreme Court on Tuesday agreed to examine whether the Enforcement Directorate (ED) is entitled to file writ petitions seeking relief, as it admitted separate petitions filed by the Kerala and Tamil Nadu governments challenging a Kerala high court ruling that had upheld the investigating agency’s right to do so.
A bench of justices Dipankar Datta and Satish Chandra Sharma issued notices on the pleas filed by the two states after senior advocate Kapil Sibal, appearing for Kerala, pointed out that the Kerala HC order passed on September 26, 2025, would also have a bearing on Tamil Nadu, which has raised a similar objection to the ED’s move to approach the Madras high court seeking to quash criminal cases lodged against it by the state.
The September 26 order held that the ED is a statutory body, that its officers are designated statutory authorities, and that they are not deprived of their statutory right to seek recourse under Article 226 of the Constitution, which empowers high courts to issue writs.
The Kerala high court order arose from a petition filed by the ED challenging the Kerala government’s decision to constitute a Commission of Inquiry (CoI) in the gold smuggling case. The case acquired political sensitivity after the prime accused, Swapna Prabha Suresh, recorded an audio clip that was released to the media, alleging that the ED was coercing her to implicate persons holding high office in the state. This was followed by a letter from a co-accused making similar allegations. The Pinarayi Vijayan government subsequently requested the CoI to probe the audio clip and the letter to ascertain the truth.
The ED had approached the Kerala high court in 2021 challenging the May 7, 2021, order constituting the CoI. The Kerala government raised a preliminary objection, questioning the ED’s right to challenge a state order that, according to it, had no connection with the Prevention of Money Laundering Act (PMLA). A single judge rejected Kerala’s objection, and the September 2025 order was later passed by a division bench while deciding the state’s appeal.
In its petition filed before the apex court through advocate CK Sasi, Kerala argued, “A statutory body can exercise only the power conferred by the relevant statute and all statutory bodies need not be body corporate with power to sue. Only a body corporate, with power to sue specifically conferred by the statute, can claim legal status or juristic person, which the Enforcement Directorate admittedly does not have.”
Supporting Kerala’s challenge, Tamil Nadu filed a separate appeal and said, “The said judgement (of Kerala HC) has emboldened the ED to venture a similar line of action in the High Court of Judicature at Madras in the case involving the petitioner state of Tamil Nadu.”
Tamil Nadu contended that it was placed in almost identical circumstances, alleging that the ED had indulged in a “gross and blatant abuse of the process of law” by filing a petition in the Madras HC in connection with the registration of a case relating to alleged illegal mining in the state.
Both states maintained that the ED is not a juristic person and took exception to the Kerala high court’s observation dismissing the maintainability objection as a “trivial defect”, holding that in matters of this nature what mattered was the “substance” and not the “form”. The single judge had also stayed the May 2021 notification constituting the CoI.
The petitions relied on a 2003 Supreme Court judgment in ‘Chief Conservator of Forests, Government of A.P. v. Collector’, which held that whether a legal entity — natural or artificial — could sue or be sued in its own name was not a mere procedural formality but a matter of substance and considerable significance, and that proceedings would fail if the necessary party did not approach the court.
In the gold smuggling case, the National Investigation Agency (NIA) had registered a case in July 2020 under the Unlawful Activities (Prevention) Act against Swapna Suresh and two others. A PMLA case was registered the same month. In November 2020, Swapna’s audio clip was released by an online news portal, followed by a letter from co-accused Sandeep Nair in March 2021, both alleging that the ED was pressurising them to name persons holding high office in the state. Based on the audio clip and the letter, the state registered criminal cases.
The ED later approached the high court and succeeded in getting the two FIRs quashed on the ground of the bar under Section 195(1)(b)(i) of the Code of Criminal Procedure, which restricts courts from taking cognisance of certain offences involving public servants. It was thereafter that the state issued an order constituting the CoI, leading to a fresh petition by the ED before the Kerala high court.