It’s advantage Thomas Isaac in first round, Kerala HC upholds his ‘right to privacy’

It depends on the subsequent satisfaction of the officer who is conducting the inquiry, it said.
Former Kerala Finance Minister TM Thomas Isaac. (Photo | EPS)
Former Kerala Finance Minister TM Thomas Isaac. (Photo | EPS)

KOCHI: In a moral victory to TM Thomas Isaac, the Kerala High Court on Thursday reminded the Enforcement Directorate of his “right to privacy” and directed the agency to explain why the former finance minister was asked to produce private information at the preliminary stage of the case.

Justice V G Arun raised the query when a petition filed by Isaac challenging the ED’s summons, asking him to appear before it in connection with the financial transactions of the KIIFB, came up for hearing. The agency had sent him two summonses, and the second one had asked him to produce the details of his movable and immovable properties.

ED’s counsel undertook that Isaac need not appear before it till Wednesday, which is the next date of hearing. The court orally observed that it did not want to record the undertaking, but it would be there. “He has a right to privacy and that can’t be breached without following the procedure established by law. It can be done for reasons,” the court observed. But in this case, the agency asked for all these documents in the first instance. At the preliminary stage itself can a person be asked to produce all these documents. It depends on the subsequent satisfaction of the officer who is conducting the inquiry, it said.

“What is the material before you for asking to produce all these materials? To ask someone to produce all private information, the reason has to be explained. I don’t say he should not be summoned. If it is required he has to be summoned,” the court observed orally.

What’s contravention, asks Isaac’s counsel

Rather than the summons, it seems that the objectionable part was that the ED is asking to produce all these documents, including personal details, the court observed. “The first summons is only for the identification details. Then why the sudden shift as the second summons is asking all these details?” The court said it wants an answer on the reasons for requiring him to produce all these documents which are purely personal in the first instance.

ED’s counsel sought time to respond to the questions, and the court posted the case for next Wednesday.
Senior counsel Sidharth Dave, appearing for Isaac, submitted that the ED has to inform the petitioner what contravention he has committed. Although the ED claims that the enquiry is into KIIFB and not into the petitioner, the summons makes it seem otherwise. “Now they are searching for the contravention. Find the contravention, and then the petitioner will give all the information asked for. He is dutybound to comply but in this case, what is the contravention? He is kept in the dark,” Dave submitted.

It was settled that the ED could conduct an enquiry only on an accusation of wrongdoing, which has to be disclosed to the persons from whom the information had been sought, he said. The summons was illegal and beyond the jurisdiction and the scope of inquiry contemplated under the FEMA since, admittedly, there was no violation of any provision of the Act.

All actions of KIIFB were legal, Dave contended. ED’s counsel Jaishankar V Nair submitted that Isaac had not been made an accused. He presumed himself to be accused. He had been summoned to collect certain details regarding the issue of the Masala bonds. He should obey the investigation officer and he can appear before the agency. If he doesn’t have the documents he can convince the officer in this regard. “What is the problem in appearing before the officer following a summons?” asked the counsel.

Opposition leader V D Satheesan has rallied behind former finance minister T M Thomas Isaac for his stand against appearing before the Enforcement Directorate officials. Speaking to reporters in Thiruvananthapuram on Thursday, Satheesan said that the ED has no right to issue a notice to Isaac. Satheesan maintained that the issue of masala bond does not come under the jurisdiction of ED. Recalling that the Opposition’s stand on Kerala Infrastructure Investment Fund Board (KIIFB) as a mechanism outside the budget, Satheesan said eventually it will come within the ambit of the budget.

He warned that ultimately KIIFB will become a liability to the LDF Government. Satheesan maintained that KIIFB will not stand constitutionally. ED cannot probe such financial transactions. The agency is supposed to investigate money laundering, he said. “The Opposition stands vindicated in the KIIFB issue following the Comptroller and Auditor General’s report over the last two years. But we are against the ED probing the masala bond scheme as it doesn’t come under its jurisdiction. Hence the ED giving notice to Isaac has got no relevance,” said Satheesan.

The Kerala High Court on Thursday reserved its order on a public interest litigation filed by five LDF MLAs, including K K Shailaja, seeking to restrain ED from interfering in KIIFB’s affairs.

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