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Information about deficiency of service, abuse of power & criminal intimidation by immigration officers at KIAL - CIC: Onus of substantiating the allegation of corruption & human rights violation lies on RTI Applicant and “perception” is no ground u/s 24

31 Jan, 2021

ORDER

The captioned appeal emanates from RTI application dated 23.03.2019 whereby the Appellant has sought information pertaining to deficiency of service, abuse of power and criminal intimidation by immigration officers at KIAL (Kempegowda International Airport Ltd.,). He specifically sought information on the following six points:

1. Copy of his complaint dated 17.01.2019

2. Report given by the concerned authority on 16.01.2019

3. Show cause notices sent to Mr. Virupakshaiah, Ms. Meenakshi and Mr. Naqeeb Ahmed along with replies of the mentioned officers on various dates.

4. CD in posession of the FRRO Bangalore (Mr. Labhu Ram) containing the video footage of the occurrence of the event at KIAL, Bangalore on the said date i.e., on 15.01.2019.

5. Steps taken by the FRRO with respect to his complaint.

6. All other documents in the file bearing his name since there was no complaint number or reference number provided to him.

The Respondent PIO vide his reply dated 22.04.2019 declined to furnish information citing exemption under Section 24(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: of the RTI Act. Being dissatisfied, Appellant filed a First Appeal dated 25.04.2019 which was adjudicated by the First Appellate Authority vide order dated 22.07.2019, wherein he has upheld the decision of the PIO. Being aggrieved as dissatisfied, the Appellant approached the Commission in the instant Second Appeal. The foremost contentious point which thus arises is of the maintainability of the present appeal. Section 24(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: of the RTI Act, 2005 lays that:

24. Act not to apply to certain organizations.–

(1) Nothing contained in this Act shall apply to the intelligence and security organizations specified in the Second Schedule, being organizations established by the Central Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the information shall only be provided after the approval of the Central Information Commission, and notwithstanding anything contained in Section 7, such information shall be provided within forty-five days from the date of the receipt of request.

The Respondent public authority is enlisted in the Second Schedule of the RTI Act and as such, exempt from provisions of this Act. The only exception carved out to the rule is wherein information sought relates to allegations of corruption / human rights violations and approval to disclosure is accorded by this Commission.

Thus, the present RTI request must satisfy two conditions. Firstly, the information sought must relate to allegations of corruption / human rights violations and the same must not be barred under various exemptions under Section 8 of the RTI Act.

Proceedings during hearing:

Due to nation-wide lockdown being observed, to prevent the spread of the pandemic, COVID-19, hearings are being conducted through audio conference. The Appellant participated in the hearing on being contacted on his telephone number and stated that he is extremely dissatisfied with the reply received by the Respondent public authority. He expressed his anguish that the Respondent public authority has violated his fundamental rights by denying the information to him citing Section 24(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: of the RTI Act. Upon being asked as to what exactly happened, Appellant alleged the following (summarized for the sake of brevity):

a. On 15.01.2019, the Appellant arrived at Kempegowda International Airport, Bangalore from Sri Lankan Airline Flight no. UL171 at around 2010 hrs.

b. He alleged that after alighting and proceeding to the immigration check, he was subjected to delayed procedure, harassment, intimidation and wrongful detention by the immigration officers.

c. Around 20-30 passengers were present for immigration clearance and there were only 6-7 officers present in the counters (including foreign national counter) and that the remaining counters were closed with no staff.

d. When his turn came for immigration check, he was asked to go to a different counter since the duty/shift timing of the official at the counter was over.

e. Yet again, when the Appellant’s turn came, he was asked to go to another counter. When asked for a reason, the concerned officer said that his duty/shift timing was over and he has to wait till the next official takes over.

f. Infuriated by such conduct, Appellant asked for a feedback form to submit his complaint, but he received a negative response.

g. When Appellant avowed that the immigration officers are abstaining from doing their duty, he was allegedly told by one of the immigration officers as to not to dictate terms and teach them how to do their duty.

h. Subsequently, the Appellant stated that he was taken to a different counter wherein his photograph was taken thrice and he was made to wait for more than the usual time required to process immigration documents. In addition, a photocopy of his passport was taken by the concerned Immigration officers.

i. After the arrival stamp had been affixed on his passport, the Appellant again asked for a feedback form. He was asked to leave the place and not to create a scene. In addition, he was told that there are no feedback forms and since the entire process has been digitized, the Appellant was asked to give his feedback on the kiosk screen.

j. After exiting the immigration department, Appellant enquired from the customs and help desk and was told that there were drop boxes in their respective wings.

Decision:

Commission has received a copy of the FRRO‟s reply through email. Upon perusal of the facts on record, Commission observes that Intelligence Bureau has been placed at Sl. No.1 of the Second Schedule to the RTI Act 2005 and as such the RTI Act is not applicable to the organization except where allegations of corruption and/or human rights violation have been made. Commission also observes that the Appellant has merely alleged that the instant matter involves corruption. In order to give a direction for disclosure of information, either of the two pre-conditions have to be met i.e., “allegation of corruption” and “violation of human rights” Although, these terms are not defined in the Act, it is thus open for the Commission to decide the veracity of allegations on both counts on a case by case basis. The onus of substantiating the allegation of corruption and human rights violation lies on the RTI Applicant and “perception” is certainly no ground to agitate for right to information under the proviso to Section 24(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: of RTI Act.

However, as per the dictum of the Appellant during the proceedings of the hearing, it is clear that the Appellant is claiming that the non-performance of duty by the concerned immigration officers, misguidance with regard to feedback form, intimidation through seizure of passport and detention, abuse of power, tampering of passport is nothing but corruption leading to violation of his human rights. Further, the Dy. Director/FRRO, Bureau of Immigration, Bengaluru has responded by e-mail to the averred complaint/grievance of the Appellant

It may be further pointed out that the RTI Act does not provide for grievance redressal and as such grievances should be addressed/resolved through a separate mechanism. In view of the circumstances, it is noted that the Appellant has not substantiated allegations of corruption or egregious violation of human rights to attract the proviso to Section 24(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations established by the Central Government or any information furnished by such organisations to that Government: Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section: of the RTI Act. Accordingly, Commission upholds the stand taken by the PIO in the instant matter.

With the above observations, the instant Second Appeal is disposed off.

Y. K. Sinha

Information Commissioner

Citation: Shri Ajay Shivaprasad v. Intelligence Bureau in Second Appeal No. CIC/INBRU/A/2019/654544, Date of Decision: 22.05.2020

Information about deficiency of service, abuse of power & criminal intimidation by immigration officers at KIAL - CIC: Onus of substantiating the allegation of corruption & human rights violation lies on RTI Applicant and “perception” is no ground u/s 24

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