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By Venkatesh Nayak*
On October 27, 2015, a popular English language TV news channel debated the issue of disclosure of Annexures to the NN Vohra Committee report. This 1993 report authored by the then Secretary, Union Ministry of Home Affairs and currently Governor of Jammu and Kashmir (J&K) examined the issue of the criminal-politician-businessman-bureaucrat nexus and suggested several measures to clean up the system including the establishment of a Nodal Agency to investigate such nexus. The report was tabled in Parliament on August 1, 1995, after opposition parties compelled the Indian National Congress-led Government under the leadership of the then Prime Minister Narasimha Rao to so do in the aftermath of the gruesome murder of a young woman by her politician husband – notorious as the Tandoor murder case (or the Naina Sahni murder).
The latest round of debate on the aforementioned TV news channel focuses on the alleged Annexures to the Vohra Committee report which was not shared with Parliament. Incidentally, the text of the report itself is not accessible on any official website of the Government of India. However, a reproduction of the original is accessible on the blog of a well-known RTI activist. The arrest of a notorious underworld don of Indian origin in Indonesia and his possible extradition to India to stand trial has reignited the debate about the criminal-politician-bureaucrat-businessman nexus. The core issue that I am concerned with is the alleged “Annexure(s)” to the Vohra Committee Report and the possibilities in the age of RTI.
However, the text of the judgement records some very interesting facts. The first is the dispute about the actual length of the Vohra Committee report. According to the petitioners (which included the Delhi-based PILSARC and the Ahmedabad-based Consumer Education and Research Centre or CERC, both of which pioneered the demand for a national level RTI law in India way back in the 1990s before the demand for RTI became a people’s movement), a day before the Union Government tabled the Vohra Committee Report in Parliament, the Minister for Parliamentary Affairs had claimed that the report ran into 100 pages. However the report tabled in Parliament was only 115 pages long. They also pointed that the paragraphing in the document presented to Parliament was not continuous and suspected that a doctored version of the report was given to Parliament while the original report remained hidden within the lockers of the Government.
The then Home Secretary filed an affidavit before the Apex Court and annexed an “authenticated version” of the Vohra Committee report along with it. Another Annexure to the affidavit was his correspondence with the author of the report regarding the discrepancy in pagination and paragraph numbering. The errors in pargraphing were attributed to typos committed by the stenographer (the unnamed “fall guy”?). The author of the report stated that background materials used in writing the report were never annexed to it. In good faith the Hon’ble Supreme Court bought these arguments hook, line and sinker, and held that the Minister for Parliamentary Affairs might have been misinformed or misled and that there was no reason to suspect that a doctored version of the report had been tabled in Parliament.
Interestingly, in 2012, in response to an RTI application filed by noted RTI activist Subhash Chandra Agrawal, the Home Ministry replied that the Vohra Committee Report consists of 13 pages and demanded Rs. 26 for supplying a copy. However, it ignored his request for the Annexures to the Report. The Central Information Commission (CIC) ordered the Home Ministry to respond to the remaining queries within 2 weeks. According to Agrawal, the Home Ministry continues to maintain that there are no Annexures to the Vohra Committee report.
“We are reluctant to direct the disclosure of the supporting material which consists of information gathered from the Heads of the various Intelligence Agencies to the general public. To so direct would cause great harm to the agencies involved and to the conditions of assured secrecy and confidentiality under which they function. Furthermore, it must be noted that not all of the information collected and recorded in intelligence reports is substantiated by hard evidence. Often on the basis of unverified suspicion names are thrown by people to save their own skins. Intelligence Agents are not obliged to adhere to the principles of natural justice before they compile reports of possible suspects; quite frequently, individuals are shortlisted based purely on the investigators’ hunches and surmises or on account of the past background of the suspects.
“The disclosure of these reports would lead to a situation where public servants and elected representative who, though entirely innocent, are compelled by virtue of their offices to associate with individuals whose culpability is beyond doubt, will also find themselves mired in suspicion. Such a situation would, in the long run, prove to be disastrous for the effective functioning of government. This is because it would make every governmental functionary overcautious about taking the simplest of decisions.”
The aforementioned para in the Apex Court’s judgement hints at the possibility of the background material presented to the Vohra Committee containing names of individuals. Applying the harm test to disclosure of confidential information, which was first posited by Justice PN Bhagwati, judge of the Apex Court (as he then was) in the matter of SP Gupta vsPresident of India & Ors [AIR 1982 SC 149] and now firmly embedded in most of the exemptions listed in Section 8(1) of The Right to Information Act, 2005 (RTI Act), the Apex Court held that disclosure of people’s names without any firm basis for treating them as suspects would be harmful to the public interest. It would also harm the ability of the intelligence agencies to continue to work efficiently. This is a rare case where competing public interests – one in favour of transparency and others in favour of retaining confidentiality were weighed by the Court before arriving at a decision. According to the Court, the balance lay in favour of secrecy in this case.
“15.2 I have prepared only three copies of this Report. One copy each is being submitted to MOS (IS) and HM, the third copy being retained by me. After HM has perused this Report, I request him to consider discussing further action with Finance Minister, MOS (IS) and myself. The emerging approach could thereafter be got approved from Prime Minister before being implemented. At that stage other concerned officers would be taken into confidence.”
This paragraph makes it clear that the report had been put up to the Prime Minister (PM) and the Union Finance Minister (FM). Whether more copies of the entire report with Annexures were made, is difficult to ascertain especially with the Union Government’s vague stance. However, the file notings made by the then PM and FM should still be available on file and citizens may file RTIs to obtain copies of these documents. Perhaps Shri Vohra, now Governor of Jammu and Kashmir must make his copy of the report public in the interest of putting this controversy to rest.
In 2010, a Delhi-based NGO, Public Interest Foundation (PIF), filed an RTI application with the Union Home Ministry about the action taken by the Nodal Agency established in accordance with the recommendations of the Vohra Committee endorsed by the Hon’ble Supreme Court of India in the Dinesh Trivedi case in the following words:
“We are, therefore, of the view that the matter needs to be addressed by a body which function with the highest degree of independence, being completely free from every conceivable influence and pressure. Such a body must possess the necessary powers to be able to direct investigation of all charges thoroughly before it decides, if at all, to launch prosecutions. To this end the facilities and services of trained investigators with distinguished records and impeccable credentials must be made available to it. The Report, the supporting material upon which it is based and the unequivocal assistance of all existing intelligence agencies must be forwarded to this body.
“In time if the need is so felt, the body may even consider the feasibility of designating Special Courts to try those who are identified by it, which proposal may then be considered by the Union Government. To this end, and in the absence of any existing suitable institution or till its creation, we recommend that a high level committee be appointed by the President of India on the advice or the Prime Minister, and after consultation with the Speaker of the Lok Sabha. The Committee shall monitor investigations involving the kind of nexus referred to in the Vohra Committee Report and carry out the objectives described earlier.”
The PIO of the Home Ministry is said to have replied that the Committee had met 36 times since its constitution. Not satisfied with the reply, PIF filed a second RTI application in 2011 asking for the date of constitution of the Nodal Agency, its terms of reference and minutes of all 36 meetings. The PIO claimed that the information sought was not available with his Section. PIF’s first appeal was dismissed by invoking Section 8(1)(g and (h), namely, the exemptions relating to ongoing investigations and endangerment of the life and safety of informers who assist law enforcement officers. It is not clear whether the matter escalated to the CIC.
This brief narrative of the RTI interventions of PIF uploaded on its website ends with the following words:
“With the long-arm of justice yet to charge-sheet and prosecute many those accused, the general public has every right to know what concrete steps have been taken by the Nodal Group to reverse the disturbing trends mentioned in the Vohra Committee’s findings and whether there has been compliance to the Hon’ble Supreme Court’s judgement in toto. Sixteen years have passed, and it remains to be seen whether the government will undertake another fire-fighting exercise or sincerely carry out the mandate given by the Hon’ble Supreme Court.”
The above narrative on PIF’s website is attributed to one Nripendra Mishra. Mishra is currently the Principal Secretary to the Prime Minister. He is now in a position of sufficient authority to issue a direction from the PMO for the disclosure of information that he once demanded from the Government.
The National Democratic Alliance Government has been in power for more than 16 months now. To the best of my knowledge, there is very little information about the Nodal Agency that the Apex Court directed to be established in the Dinesh Trivedi case. Will this also remain only a “Quest for Transparency” as a prominent webpage of the PMO declares in its title? Very little information is available in the public domain about what the NDA Government did about the Apex Court’s directions during its previous tenure between 1999- and 2004.
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*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi
On October 27, 2015, a popular English language TV news channel debated the issue of disclosure of Annexures to the NN Vohra Committee report. This 1993 report authored by the then Secretary, Union Ministry of Home Affairs and currently Governor of Jammu and Kashmir (J&K) examined the issue of the criminal-politician-businessman-bureaucrat nexus and suggested several measures to clean up the system including the establishment of a Nodal Agency to investigate such nexus. The report was tabled in Parliament on August 1, 1995, after opposition parties compelled the Indian National Congress-led Government under the leadership of the then Prime Minister Narasimha Rao to so do in the aftermath of the gruesome murder of a young woman by her politician husband – notorious as the Tandoor murder case (or the Naina Sahni murder).
The latest round of debate on the aforementioned TV news channel focuses on the alleged Annexures to the Vohra Committee report which was not shared with Parliament. Incidentally, the text of the report itself is not accessible on any official website of the Government of India. However, a reproduction of the original is accessible on the blog of a well-known RTI activist. The arrest of a notorious underworld don of Indian origin in Indonesia and his possible extradition to India to stand trial has reignited the debate about the criminal-politician-bureaucrat-businessman nexus. The core issue that I am concerned with is the alleged “Annexure(s)” to the Vohra Committee Report and the possibilities in the age of RTI.
Was Parliament shown the full report of the Vohra Committee?
In addition to old and recent media reports, there is a very authentic source which has placed crucial facts about the Vohra Committee and its report in the public domain. This is the judgement of the Supreme Court of India in the matter of Dinesh Trivedi MP & Ors vs Union of India & Ors [(1997) 4 SCC 306] where the petitioner, currently an MP in the Lok Sabha, who filed a public interest litigation suit demanding the disclosure of all Annexures and background materials of the Vohra Committee Report. Print and electronic media reports indicate that the Court granted a stay on the disclosure of these materials. This is not correct. The Apex Court categorically rejected the demand for disclosure of these documents through a judgement which has become final. This case is no longer pending in the Apex Court.However, the text of the judgement records some very interesting facts. The first is the dispute about the actual length of the Vohra Committee report. According to the petitioners (which included the Delhi-based PILSARC and the Ahmedabad-based Consumer Education and Research Centre or CERC, both of which pioneered the demand for a national level RTI law in India way back in the 1990s before the demand for RTI became a people’s movement), a day before the Union Government tabled the Vohra Committee Report in Parliament, the Minister for Parliamentary Affairs had claimed that the report ran into 100 pages. However the report tabled in Parliament was only 115 pages long. They also pointed that the paragraphing in the document presented to Parliament was not continuous and suspected that a doctored version of the report was given to Parliament while the original report remained hidden within the lockers of the Government.
The then Home Secretary filed an affidavit before the Apex Court and annexed an “authenticated version” of the Vohra Committee report along with it. Another Annexure to the affidavit was his correspondence with the author of the report regarding the discrepancy in pagination and paragraph numbering. The errors in pargraphing were attributed to typos committed by the stenographer (the unnamed “fall guy”?). The author of the report stated that background materials used in writing the report were never annexed to it. In good faith the Hon’ble Supreme Court bought these arguments hook, line and sinker, and held that the Minister for Parliamentary Affairs might have been misinformed or misled and that there was no reason to suspect that a doctored version of the report had been tabled in Parliament.
Interestingly, in 2012, in response to an RTI application filed by noted RTI activist Subhash Chandra Agrawal, the Home Ministry replied that the Vohra Committee Report consists of 13 pages and demanded Rs. 26 for supplying a copy. However, it ignored his request for the Annexures to the Report. The Central Information Commission (CIC) ordered the Home Ministry to respond to the remaining queries within 2 weeks. According to Agrawal, the Home Ministry continues to maintain that there are no Annexures to the Vohra Committee report.
Did the Vohra Committee include any Annexures and were names mentioned in it?
The Annexure to the Vohra Committee Report was one of the bones of contention in the Dinesh Trivedi case as well. Although not phrased as “Annexures”, the petitioners in that case demanded disclosure of the background material that was presented by various Intelligence Agencies to the Vohra Committee. After waxing eloquent on the importance of people’s right to know in a democracy and the need for transparency in the functioning of the government, the Apex Court refused to order disclosure of such material in the following words:“We are reluctant to direct the disclosure of the supporting material which consists of information gathered from the Heads of the various Intelligence Agencies to the general public. To so direct would cause great harm to the agencies involved and to the conditions of assured secrecy and confidentiality under which they function. Furthermore, it must be noted that not all of the information collected and recorded in intelligence reports is substantiated by hard evidence. Often on the basis of unverified suspicion names are thrown by people to save their own skins. Intelligence Agents are not obliged to adhere to the principles of natural justice before they compile reports of possible suspects; quite frequently, individuals are shortlisted based purely on the investigators’ hunches and surmises or on account of the past background of the suspects.
“The disclosure of these reports would lead to a situation where public servants and elected representative who, though entirely innocent, are compelled by virtue of their offices to associate with individuals whose culpability is beyond doubt, will also find themselves mired in suspicion. Such a situation would, in the long run, prove to be disastrous for the effective functioning of government. This is because it would make every governmental functionary overcautious about taking the simplest of decisions.”
The aforementioned para in the Apex Court’s judgement hints at the possibility of the background material presented to the Vohra Committee containing names of individuals. Applying the harm test to disclosure of confidential information, which was first posited by Justice PN Bhagwati, judge of the Apex Court (as he then was) in the matter of SP Gupta vsPresident of India & Ors [AIR 1982 SC 149] and now firmly embedded in most of the exemptions listed in Section 8(1) of The Right to Information Act, 2005 (RTI Act), the Apex Court held that disclosure of people’s names without any firm basis for treating them as suspects would be harmful to the public interest. It would also harm the ability of the intelligence agencies to continue to work efficiently. This is a rare case where competing public interests – one in favour of transparency and others in favour of retaining confidentiality were weighed by the Court before arriving at a decision. According to the Court, the balance lay in favour of secrecy in this case.
How many copies of the Report were prepared?
According to the Apex Court, the affidavit submitted by the Union Home Secretary clearly stated that Shri N N Vohra had prepared three copies two of which were handed over to the Home Ministry and the third retained by him. The Court recorded the following portion of his correspondence with the then Home Secretary:“15.2 I have prepared only three copies of this Report. One copy each is being submitted to MOS (IS) and HM, the third copy being retained by me. After HM has perused this Report, I request him to consider discussing further action with Finance Minister, MOS (IS) and myself. The emerging approach could thereafter be got approved from Prime Minister before being implemented. At that stage other concerned officers would be taken into confidence.”
This paragraph makes it clear that the report had been put up to the Prime Minister (PM) and the Union Finance Minister (FM). Whether more copies of the entire report with Annexures were made, is difficult to ascertain especially with the Union Government’s vague stance. However, the file notings made by the then PM and FM should still be available on file and citizens may file RTIs to obtain copies of these documents. Perhaps Shri Vohra, now Governor of Jammu and Kashmir must make his copy of the report public in the interest of putting this controversy to rest.
Will the Prime Minister’s Office now live up to its promise of transparency?
The PM has time and again publicly stated his government’s commitment to increased transparency. During the recently concluded Annual Convention organised by the CIC, he vocally supported people’s right to question government and not just seek copies of documents under the RTI Act.In 2010, a Delhi-based NGO, Public Interest Foundation (PIF), filed an RTI application with the Union Home Ministry about the action taken by the Nodal Agency established in accordance with the recommendations of the Vohra Committee endorsed by the Hon’ble Supreme Court of India in the Dinesh Trivedi case in the following words:
“We are, therefore, of the view that the matter needs to be addressed by a body which function with the highest degree of independence, being completely free from every conceivable influence and pressure. Such a body must possess the necessary powers to be able to direct investigation of all charges thoroughly before it decides, if at all, to launch prosecutions. To this end the facilities and services of trained investigators with distinguished records and impeccable credentials must be made available to it. The Report, the supporting material upon which it is based and the unequivocal assistance of all existing intelligence agencies must be forwarded to this body.
“In time if the need is so felt, the body may even consider the feasibility of designating Special Courts to try those who are identified by it, which proposal may then be considered by the Union Government. To this end, and in the absence of any existing suitable institution or till its creation, we recommend that a high level committee be appointed by the President of India on the advice or the Prime Minister, and after consultation with the Speaker of the Lok Sabha. The Committee shall monitor investigations involving the kind of nexus referred to in the Vohra Committee Report and carry out the objectives described earlier.”
The PIO of the Home Ministry is said to have replied that the Committee had met 36 times since its constitution. Not satisfied with the reply, PIF filed a second RTI application in 2011 asking for the date of constitution of the Nodal Agency, its terms of reference and minutes of all 36 meetings. The PIO claimed that the information sought was not available with his Section. PIF’s first appeal was dismissed by invoking Section 8(1)(g and (h), namely, the exemptions relating to ongoing investigations and endangerment of the life and safety of informers who assist law enforcement officers. It is not clear whether the matter escalated to the CIC.
This brief narrative of the RTI interventions of PIF uploaded on its website ends with the following words:
“With the long-arm of justice yet to charge-sheet and prosecute many those accused, the general public has every right to know what concrete steps have been taken by the Nodal Group to reverse the disturbing trends mentioned in the Vohra Committee’s findings and whether there has been compliance to the Hon’ble Supreme Court’s judgement in toto. Sixteen years have passed, and it remains to be seen whether the government will undertake another fire-fighting exercise or sincerely carry out the mandate given by the Hon’ble Supreme Court.”
The above narrative on PIF’s website is attributed to one Nripendra Mishra. Mishra is currently the Principal Secretary to the Prime Minister. He is now in a position of sufficient authority to issue a direction from the PMO for the disclosure of information that he once demanded from the Government.
The National Democratic Alliance Government has been in power for more than 16 months now. To the best of my knowledge, there is very little information about the Nodal Agency that the Apex Court directed to be established in the Dinesh Trivedi case. Will this also remain only a “Quest for Transparency” as a prominent webpage of the PMO declares in its title? Very little information is available in the public domain about what the NDA Government did about the Apex Court’s directions during its previous tenure between 1999- and 2004.
Can the Annexures and background materials of the Vohra Committee report be disclosed under the RTI Act?
The Supreme Court’s judgement in the Dinesh Trivedi case may prove a stumbling block in the quest for the “Annexures” or the “background materials” relating to the Vohra Committee report, assuming they exist in the official records of the Central Government. Section 8(1)(b) of the RTI Act prevents a public authority from disclosing any information that is expressly prohibited by a court of law or tribunal. Now that the issue has become the subject of public debate again, there is good reason for releasing all information in public interest under Section 8(2) of the RTI Act. Moreover, the Government is at liberty to declassify all the background materials and “Annexures”, if any to the report and place them in the public domain voluntarily. Will the Central Government walk the talk of the Hon’ble PM vis-a-vis transparency? That is the billion Rupee question.Action Point
Citizens, academics, activists and journalists interested in ending the nexus between politicians-bureaucrats-businessmen-criminals must file RTIs in large numbers with the PMO and the Home and Finance Ministries to make all information about the Vohra Committee report, its annexures/background materials and the action taken on the Apex Court’s directions in the Dinesh Trivedi case public.—
*Programme Coordinator, Access to Information Programme, Commonwealth Human Rights Initiative, New Delhi
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