Central Information Commission
Davinder Anand vs Intelligence Bureau on 22 April, 2021
केन्द्रीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमागग, मुननरका
Baba Gangnath Marg, Munirka
नईनिल्ली, New Delhi - 110067
द्वितीय अपील संख्या / Second Appeal No. CIC/INBRU/A/2018/629310
Sh. Davinder Anand ... अपीलकताा /Appellant
VERSUS/बनाम
PIO, Intelligence Bureau, MHA, ...प्रद्वतवादीगण /Respondent
Level - 5, East Block - 8,
Sector - I, R.K. Puram, New Delhi
Date of Hearing : 29.04.2020, 19.04.2021
Date of Decision-Interim : 30.04.2020
Date of Decision-Final : 22.04.2021
Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
RTI application filed on : 31.05.2018
PIO replied on : 02.07.2018
First Appeal filed on : 16.07.2018
First Appellate Order on : 31.07.2018
2ndAppeal/complaint received on : 22.08.2018
ORDER
The appellant filed an RTI application dated 31.05.2018 seeking therein queries, which are as follows:
".....1. Please provide complete details of the department/authority/ministry/individual which issued the Look Out Circular for the applicant at the BIAL-Bengaluru International Airport on his arrival dated 21.04.2018.
2. Please provide the date and time when the Look Out Circular was issued against the applicant.
3. Please clarify why applicant was not stopped by the Immigration officer on his exit from India to Kuala Lumpur dated 15.04.2018 if the Look Out Circular was issued already. Etc."
The PIO/Joint Dy. Director, IB vide letter dated 06.07.2018 denied information in the following lines:
"....It is mentioned the sought information (points 5 to 8) pertains to BOI/IB. However as per Chapter VI, Section 24(1) and Second Schedule of the RTI Act 2005 the Bureau of Immigration/Intelligence Bureau is exempted from providing any: information/details on the subject. ..."
Aggrieved by the denial of information by PIO/IB, the appellant filed a First Appeal dated 16.07.2018 which was disposed off vide FAA's order dated 31.07.2018 upholding the PIO's reply. Hence, the instant Second Appeal was filed by the appellant.
Proceedings during hearing:
Due to nation-wide lockdown being observed, to prevent the spread of the pandemic of COVID-19, hearings are being conducted through audio conference.
The appellant participated in the hearing on being contacted on his telephone number: 07709012994and reiterated facts of the case.
Before dealing with the merits of the case, the foremost point which needs to be addressed in the instant case is of the maintainability of the present appeal. Section 24(1) 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 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.
Decision - Interim The Commission's attention is drawn to a decision passed by a predecessor bench vide order dated 07.05.2018 in case no. CIC/INBRU/A/2017/118048 - Shri M. Dinesh Vs. PIO Bureau of Immigration/IB wherein it was held that:
"....7. In the considered opinion of the Commission, the appellant is entitled to information sought. The expression 'human rights' is defined in Section 2(d) of the Protection of Human Rights Act,1993.
"human rights" means the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India.
8. Article 21 of the Constitution of India guarantees a right to lead a dignified life with personal liberty. Article 14 guarantees equality before law to all citizens. In a catena of judicial pronouncements, the right to a have a fair trial is held to be an embodiment of the Article 14 read with Article 21.
10........I am left with no doubt that a man preparing for his self defense in penal proceeding exercises his basic human right. Any impediment in the same would invariably be a breach of human right. The term 'violation' as preceding the term 'human right' in proviso to Section 24 of the RTI Act has to be understood in a broader manner so as to cover any past or ongoing violation of human rights. It is not necessary that the breach of human rights has to be conclusively proved by the information seeker. A credible allegation of breach of human right, which weighs favourably with the Commission warrants disclosure of information.
11......The present case can also be viewed as a simple case of hardship which needs a sympathetic redressal by the public authority. The Commission is quite alive to the possible exponential increase in requests for information under RTI Act regarding foreign travel citing the present decision as precedent. It would not be possible to postulate all specific instances in which information shall be divulged. The same depends on facts and circumstances of each case and the present decision cannot be generalised.
12. In the facts of present case, the appellant is not seeking information related to any third party but his own travel details to prove his innocence in a criminal proceeding. The information sought is crucial to the appellant for a fair opportunity of self defence. The Commission is not considering the culpability or innocence of the appellant in the criminal case set up against him; but declining a fair opportunity to arrange for material of self defence would certainly breach the human right of appellant.
13. Furthermore, there is no impediment in terms of exceptions carved out in Section 8 of the RTI Act prohibiting dissemination of information sought. Accordingly, the Commission directs the PIO, Bureau of Immigration, Intelligence Bureau/MHA to provide complete information sought within four weeks of receipt of the present order.
14. The appeal is allowed in aforesaid terms."
Perusal of records of the case reveal that the appellant has sought the above information in order to defend his own case. Natural justice demands that the appellant should be provided the information in order to prepare his defence. The Commission is not convinced with the outright denial of information by the respondent under Section 24 of the RTI Act and is of the considered opinion that this case deserves more detailed hearing rather than summary dismissal.
In the light of the above decision of a predecessor Bench, the Commission is inclined to hear the matter in greater detail and obtain the considered views of the respondent. The information sought by the appellant has been denied by the respondent on the ground that the organization is covered by Section 24 of the RTI Act. The Commission grants an opportunity to the respondent to submit their stance in the form of a written submission in support of their denial of information in this case, within one month of the lifting of the lockdown. Registry shall schedule a fresh hearing of the case, whereupon hearing both parties; the Commission shall decide the matter.
Facts emerging in Course of Hearing on 19.04.2021 A written submission has been received from the Asst Director and CPIO, Intelligence Bureau, M/o Home Affairs vide letter dated 15.07.2020 and the same has been taken on record.
In order to ensure social distancing and prevent the spread of the pandemic, COVID-19, hearings through video conference were scheduled after giving prior notice to both the parties. Later, the hearings were held in audio conference mode, after informing the parties, in view of the rapid increase in Covid-19 infections.
The Appellant participated in the hearing through audio conference. He stated that since he suspected some foul play in the manner in which he was detained at Bengaluru Airport and the Look Out Circular (LOC) issued with regard to the same, he had filed the instant RTI application which was filed with the purpose of defending himself in the matter pending before the Hon'ble High Court of Jammu and Kashmir.
The Respondent represented by Shri Harminder Singh, DCIO, Bureau of Immigration, New Delhi participated in the hearing through audio conference. He referred to their written submissions dated 15.07.2020 wherein the guidelines issued by the MHA regarding issuance of LOC vide OM Dated 27.10.2010. He stated that as per the guidelines, the Bureau of Immigration only opens, renews, modifies and deletes LOC against any person on the written request from the originator of the LOC which in the present instance was the Government of Jammu and Kashmir. The particulars and details provided by the originator are classified as "secret" in nature.
Decision:
Keeping in view the facts of the case and the submissions made by the Respondent, the Commission is of the view that an appropriate response as per the provisions of the RTI Act, 2005 has been provided to the Appellant at this stage. Hence, no further intervention of the Commission is required in the instant Second Appeal which stands disposed off accordingly.
Y. K. Sinha (वाई. के. नसन्हा) Chief Information Commissioner (मुख्य सूचना आयुक्त) Authenticated true copy (अद्विप्रमाद्वणत सत्याद्वपत प्रद्वत) S. K. Chitkara (एस. के. द्विटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535