Holding

The Vohra Committee Report is genuine and a public document, but its supporting material cannot be disclosed as it would be detrimental to public interest, and the petition is dismissed.

Summary

A writ petition filed by MP Dinesh Trivedi and NGOs under Article 32 sought full disclosure of the Vohra Committee Report, its supporting annexures, and the names of officials implicated, and challenged the constitutionality of Section 5 of the Official Secrets Act, 1923. The Court held that the Report tabled in Parliament is authentic, unabridged and, by virtue of being tabled, a public document. However, the supporting material consists of intelligence reports and unverified material whose disclosure would jeopardise public security, the functioning of intelligence agencies and could lead to harassment of innocent persons; therefore it cannot be disclosed. The Court declined to rule on the constitutionality of Section 5, finding no need. It recommended the creation of a high‑level, independent committee (or an Ombudsman/Lokpal) to monitor investigations arising from the Report. The petition was dismissed.

Issues considered

The authenticity and completeness of the Vohra Committee Report tabled in Parliament.
The propriety of disclosing the supporting annexures, intelligence reports and names of officials under the right to information.
The constitutionality of Section 5 of the Official Secrets Act, 1923.
The need for an independent body to monitor investigations into the nexus between politicians, bureaucrats and criminal elements.

Legislation cited

Code of Criminal Procedures. 197
Constitution of Indias. Article 19(1)(a), s. Article 32
Official Secrets Act, 1923s. 5
Prevention of Corruption Act, 1947s. 6

Subjects

Right to InformationOfficial Secrets ActPublic Interest vs SecrecyArticle 19Article 32Intelligence AgenciesCrime SyndicatesNodal AgencyOmbudsmanLokpalHigh Level Committee

Judgment

SHRI DINESH TRIVEDI, M.P. AND ORS. A
v.
UNION OF INDIA AND ORS.

MARCH 20, 1997
B
[A.M. AHMADI, CJ. AND MRS. SUJATA V. MANOHAR, J.]

Constitution of India, 195(}-Articles 19(1)(a)(2) and 32-Right of in-
fonnation about govemment decisions and actions-Though a fundamental
right, not absolute in nature restricted by overriding interest of public security C
and secrecy-Demand for full-scale disclosure of the "Vohra Committee
Report" along with supporting mate1ial challenging the authenticity of the
Report table in the Parliament-Held : Allegation regarding authenticity of the
Report is baseless---Report tabled in the parliament is genuine, authentic and
unabridged and also a public document-Full-scale disclosure of the Report
would be against public interest there[ore can not be directed to be dis- D
closed-Creation of an all powerful body like Ombudsman or Lokpal sug-
gested for monitoring investigation involving the kind of nexus between
politicians, bureaucrats and criminals refe"ed to in the Report-Till its crea-
tion a High Level Committee be appointed by the President of India in con-
sultation with the Prime Minister and Speaker of the Lok Sabha-Volira E
Committee Report.

Official secrets Act, 1923-Sec. 5-Demand for declaring it unconstitu-
tional and unreasonable-Held, Constitutionality of Section 5 of the Official
Secrets Act need not be examined.
F
A member of Parliament filed the present writ petition in public
interest in conjunction with some non-governmental organisation under
Article 32 of the Constitution of India challenging the genuineness of the
"Vohra Committee Report" tabled in the Parliament on August, 1, 1995
alleging that it was not the complete report as it was not furnished alilng
with the supporting materials and it suppressed vital information regard- G
ing connection between politicians, criminals, bureaucrats and antisocial
elements. This assertion was based on the statement made in the Lok
Sabha, a day prior to the publication of the Report by the erstwhile
Minister of Parliamentary Affairs that the Report extended to about
hundred pages and the fact that the document placed before the House H
93
94 SUPREME COURT REPORTS (1997] 3 S.C.R.

A numbered only 11.5 pages. Moreover the Report was not in the form of
continuous paragraphs. The Petitioners urged the Courts to direct the
Union Government to make public the annexures, memorials and the
written evidence that were placed before the Committee as well as to reveal
the names of all bureaucrats, police officials, parliamentarians and judi·
cial personnel against whom there was tangible evidence. It was also urged
B to direct the Union Government to submit before the court an effective
package of the follow-up measures proposed to be taken with regard to the
Report and to declare Section 5 of the Official Secrets Act, 1923 to be
unconstitutional.

C Dismissing the writ petition, this Court

HELD : 1. The allega~ion regarding the authenticity of the Report is
baseless. There is nothing on record to raise a doubt that the Report, as
tabled in the Parliament is not genuine, authentic and unabridged. The
erstwhile Minister of Parliamentary Affairs, in maki~g the statement that
D the Report was 100 pages long, might have been either misinformed or
misled. That apart there is no other ground for doubting the genuineness
of the Report. Since it has been tabled in the Parliament, it now enjoys the
status of a public document. [105-D-F]

2.1. The supporting materials placed before the Vohra Committee can
E not be disclosed to the public at large, for the reason that such disclosure
would be severely injurious to public interest. Though In modern constitution·
al democracies, it is axiomatic that citizens have a right to know about the
affairs of the Government, like all other rights, even this right has recognised
limitations; it is by no means absolute. In deciding whether or not to disclose
F the contents of a particular document, relating to the affairs of the State, the
Court must balance two competing dimensions of public interest, namely the
right of the citizen to obtain disclosure ofinformation and the right of the State
to protect the information relating to its cmcial affairs. In transactions which
have serious public repercussions 011 public security, secrecy can legitimately
be claimed because it would be then in public interest that such matters are
G not publicly disclosed. Wherever itis clearly contrary to the public interest for
a document to be disclosed, then it is in law immune from disclosure.
[103-E, 104·C·H]
State of U.P. v. Raj Narain, [1975] 4 SCC 428, relied on.

H S.P. Gupta v. Union of India, [1981] Supp. SCC 87, followed.
j

DINESHTRIVEDI v. U.O.I. 95

2.2. To direct the disclosure of the supporting material which consists A
of information gathered from the heads of the various intelligence agencies
to the general public would cause great harm to the agencies involved and
to the conditions of assured secrecy and confidentiality under which they
function. Furthermore, all the information are not substantiated by hard
evidence. Intelligence agents are not obliged to adhere to the principles of
natural justice before they compile reports of possible suspects. The dis- B
closure of these reports would lead to a situation where public servants and
.elected representatives who, though entirely innocent, are compelled by
.virtue of their office 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 C
of the Government. This is because it would make every governmental
functionary over-cautious about taking the simplest of decisions. Therefore
the disclosure of the supporting material placed before the 'Vohra
Committee' to the public at large would, instead of aiding the interest of
the public be severely and detrimentally injurious to it. In that view of the
matter, there is no necessity for the court to express on the constitutionality D
of Section 5 of the Official Secrets Act, 1923. (106-F, 107-B, 107-F·G]

2.3. The full scale disclosure of the Intelligence reports will in

- absence of properly conducted inquiries, lead to the harassment and
victimisation of individuals who might well be entirely innocent of any
blame. Alternatively, such full scale disclosures would undoubtedly act to
the advantage of those individuals who are actually the central figures in
E

the nexus mentioned in the Report. Warned in advance of their complicity
being suspected, they would initiate reargued measures to exonerate them·
selves. [107·D-F]
F
3.1. The Report, while recording the widespread development of
crime syndicates within the country, points out that under the existing
system, there is not provisions by which the various intelligence agencies
can coordinate with each other in properly utilising the information relat·
ing to the links developed by crime syndicates which comes their way. The G
report therefore recommended the setting up of a Nodal Agency to which
all existing intelligence and enforcement agencies shall promptly pass on
any information relating to crime syndicate which they may come across.
The Report also simultaneously emphasised the need for ensuring that
information available With the Nodal set-up is used strictly and purely for H
96 SUPREME COURTREPORTS [1997] 3 S.C.R.

A taking stringent action against the crime syndicates, without offering any
scope whatsoever of its being exploited for political gain. The need for
complete confidentiality was also emphasised. [108-C-E]

3.2. The Nodal Agency set up by the Union Government pursuant to
B the recommendation of the Report, comprising of senior bureaucrats of
the highest level suffers from certain limitations. Being only a supervisory
body, without having clearly delineated powers, it can not effectively con-
trol the pace and thrust of investigative efforts. The Nodal Agency in its •
present form is suited to coordinate an exchange of information between
different investigating agencies, but its composition is such that it may not
C be viewed by the public as completely independent or immune from pres-
sures of every kind. It is, therefore, not suitable for pursuing an investiga-
tion of this kind and taking it to the stage of prosecution where there may
be nexus between the persons under investigation and powerful persons
such as those refer;ed to in the 'Vohra Committee' Report. Jn view of the
D seriousness of the charges involved and the clout wielded by those who are
likely to become the focus of investigation, it is necessary that the body
which is entrusted with the task of prosecution, be such that it is capable
of enjoying the complete trust and confidence of the peopll!. Moreover, in
view of the suspicion that those involved may well be individuals who
occupy, or have occupied, high positions in government, it is necessary that
E the body be able to obtain sanctions which are necessarily required before
any prosecution can be launched. The Nodal Agency, in its present form,
may not command the confidence of the people in this regard; this is a
serious handicap, for in such matters, people's confidence in the essence.
An institution like the Ombudsman or a Lok-pal, properly set up, could
p command such confidence and respect. [108-F, 109-E]

4. The matter needs to be addressed by a body which can function
with the highest degree of independence; being completely free from every .
conceivable influence and pressure. Such a body must possess the neces-
sary powers to be able to direct investigation of all charges thoroughly
G before it decides, if.at all, to launch prosecutions. To this end the facilities
and services of trained investigators with distinguished records and im-
peccable credentials must be made available to it. The Report, the sup-
porting material upon which it is based and the unequivocal assistance of
all existing intelligence agencies must be forwarded to this body. If the need
H is so felt, the body may even consider the feasibility of designating special
DINESH TRIVEDI v. U.O.L [AHMADI, CJ.] 97

courts to try those who are identified by it, which proposal may then be A
considered by the Union Government. To this end, and in absence of any
existing suitable institution or till its creation, it is recommended that a
High Level Committee, be appointed by the President of India on the
advice of the Prime Minister and after consultation with the Speaker of
the Lok Sabha. The Committee shall monitor investigations involving the B
kind of nexus referred to in the Vohra Committee Report and do the
needful as per requirement. [109-E, 110-A]

Balaji Raghavan v. Union of India, [1996] 1 SCC 361, referred to.

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 664 of C
1995.

(Under Article 32 of the Constitution of India.)

Ram Jethmalani and Dr. Rajiv Dhavan, Arvind Nigam and Ms.
Kamini Jaiswal for the Petitioners.
D
Altaf Ahmad, Additional Solicitor General, P.P. Malhotra and P.
Parmeswaran for the Respondent.

The Judgment of the Court was delivered by

AHMADI, CJ. Democracy in modern India is on the threshold of
E
completing fifty years of existence. Milestones such as this have tradition-
ally been occasions to embark upon wide-ranging assessments to survey the
achievements and failures, highpoints and pitfalls, as well as the future
prospects of the institution concerned. In our times, it is widely acknow-
ledged that democracy in India has not risen upto the high expectations F
which heralded its conception. Many reasons have been advanced to
explain the causes for the malaise which seems to have stricken Indian
democracy in particular, and Indian society in general. The matter which
we are presently concerned with professes to identify one the primary
causes for the present state .of affairs.
G
The genesis of the Controversy relates to the constitution of a Com-
mittee by the Union of India on July 9, 1993, by its order No.
S/7937/SS(ISP)/93. An examination of the brief order discloses that the
Committee was to be ·chaired by the Home Secretary and was to comprise
the Secretary (Revenue), the Director of the Intelligence Bureau (IB), the H
y
I

98 SUPREME COURT REPORTS [1997] 3 S.C.R.

A Director of the Central Bureau of Intelligence (CBI), and the Joint
Secretary (PP), Ministry of Home Affairs. Later, the Special Secretary
(Internal Security and Police) was also included as a member. The
erstwhile Home Secretary being Shri N.N. Vohra, the Committee came to
be popularly described as the "Vohra Committee". The order further
reveals that the Committee was set up "to take urgent stock of all available
B information about the activities and links of all Mafia organisations/ele-
ments, to enable further action". Based on the findings of the Committee,
the Union Government would then determine whether there was a need
"to establish a special organ/agency to regularly collect information and
pursue cases against such mafia elements". To this end, the Committee was
C declared to be competent to "invite senior officers of various concerned
departments (Customs, Revenue, Intelligence, etc.) to gather the required
information". The Committee was also required to submit its report within

D
three months.

The Report of the Vohra Committee, authored by its Chairman and
J
containing only his signature, was submitted on October 5, 1993. The
Report is essentially a compilation of the responses of its different mem-
bers and includes the reports of the Secretary, Research & Analysis Wing
(RAW), the Director, CBI, the Director, IB, and the views of the Secretary
(Revenue). In the main Report, these various reports have been analysed
E and it is noted that the growth and spread of crime syndicates in Indian
society has been pervasive. It is further observed that these criminal
elements have developed an extensive network of contacts with
bureaucrats, government functionaries at lower levels, politicians, media
personalities, strategically located persons in the non-Governmental sector
p and members of the judiciary; some of these criminal syndicates have
international links, sometimes with foreign intelligence agencies. The
Report recommended that an efficient Nodal Cell be set up with power to
take stringent action against crime syndicates, while ensuring that it would
be immune from being exploited or influenced. However, no follow-up
action on the findings of the Vohra Committee Report seems to have been
G initiated over the two years which immediately followed its submission.

During July 1995, a young political activist named Naina Sahni was
murdered and one of the persons arrested happened to be an active
politician who had held important political positions. Newspaper reports
H published a series of articles on the criminalisation of politics within the
D
DINESH TRNEDI v. U.O.L [AHMADI, CJ.] 99

country, and the growing links between political leader3 and mafia mem- A
bers. The attention of the masses was drawn towards the existence of the
Vohra Committee Report. It was suspected that the contents of the Report
were such that the Union Government was reluctant to make it public. As
a consequence of the resulting controversy, the Union Government agreed
to place the Report before Parliament. On August 1, 1995, the Report of B
the Vohra Committee was table in Parliament where it became the subject
of a prolonged, intense debate.

Shri Dinesh Trivedi, M.P. (Rajya Sabha), who is the fust petitioner
in W.P. (Civil) No. 664 of 1995, actively participated in the debates in
Parliament. On August 16, 1995, he made a written representation to the C
erstwhile Minister for Home Affairs demanding that the Union Govern-
ment make public the reports which were the basis for the Vohra Commit-
tee Report, and that the names of individuals who would become
identifiable as a result of studying the various background papers, be
released. He also alleged that the Union Government was trying to sup-
press these background reports and, without them, the Vohra Committee D
Report was "baseless".

Being unsuccessful in securing a satisfactory response to his repre-
sentation, Shri Dinesh Trivedi, in conjunction with the Public Interest Legal
Support and Research Centre (PILSARC) and the Consumer Education E
and Research. Centre (CERC), both of which are non-governmental or-
ganisations, filed the present writ petition in public interest. The following
were included as respondents; the Union of India, the Ministry of Finance,
the Director, RAW, the Director, CBI, the Director, IB, and the Special
Secretary to the Ministry of Home Affairs.
F
The petitioners allege that a cursory analysis of the Report reveals
the following disturbing aspects : (1) several governmental agencies have,
in their written reports, indicated that they are aware of the vast local,
national and international links of criminal syndicates; (2) these links are
such that they amount to a parallel system of government; (3) the common G
citizen is unprotected and must live in constant fear of his life and property;
(4) even the members of the judicial system have not escaped the embrace
of the mafia; and (5) the existing criminal justice system is unable to deal
with the activities of the mafia.

The petitioners state that since the Report reveals such alarming H
100 SUPREME COURT REPORTS [1997] 3 S.C.R.

A trends, it is of the utmost importance that it be made the subject of
considerable scrutiny. They allege that the document tabled in the Parlia-
ment is not the complete report but betrays an incomplete substitute
prepared hurriedly for the purpose of meeting the demand in Parliament
and suppresses vital information regarding the unholy connections between
B politicians, bureaucrats, criminals and anti-social elements. They base this
assertion on the statement made in the Lok Sabha, a day prior to the
publication of the Report, by the erstwhile Minister for Parliamentary
Affairs that the Report extended to about 100 pages, and the fact that the
document placed before the House numbered only 11.5 pages. In this
respect, the petitioners have also pointed out that the Report, as it was
C tabled in Parliament, is not in the form of continuous paragraphs; on the
contrary, after reaching paragraph 3.7, the next recorded paragraph is
numbered as paragraph 6.1. The petitioners further state that the Report
is itself based on a number of reports that had been placed before it and,
without this supporting material, the Report is incompkte. Thus the
D genuineness of the Report was shrouded in suspicion.
The petitioners aver that the people at large have a right to know
about the full investigatory details of the Report. Such disclosure is stated
to be essential for the maintenance .of democracy and for ensuring that
transparency in government is secured and preserved. Towards this end,
E the petitioners have urged us to direct the Union Government to make
public the annexures, memorials and the written evidence that were placed
before the Committee. A direction to the Union Government to reveal the -...
names of all bureaucrats, police officials, Parliamentarians and judicial
personnel against whom there is tangible evidence, to enable action to be
taken in accordance with law, is also being sought. We are also asked to
F direct the Union Government to present to us an effective pac:kage of the
follow-up measures taken or that are proposed to be taken with regard to
the Report. Lastly, a declaration to the effect that Section 5 of the Official
Secrets Act, 1923 is over-broad, unreasonable and unconstitutional and
ought to be supplanted by the formulation of a Freedom of Information
G Policy, is also sought.

On October 13, 1996, a Division Bench of this Court, while admitting
the present writ petition, issued notice to the Union of India and directed
that an authenticated version of the Report of the Vohra Committee be
placed before it; the Union of India was also required to apprise the Court
H of the follow-up measures initiated pursuant to the Report.
DINESH TRIVEDI v. U.O.I. [AHMADI, CJ.] 101

The case for the Union of India has been made out in a sworn A
affidavit filed by Shri K. Padmnabhaiah, the Home Secretary in the Minis-
try of Home Affairs and the successor-in-office of Shri N.N. Vohra. In the
affidavit, one of the annexures to which is an authenticated copy of the
Report, the Home Secretary has stated that the copy of the Report which
was tabled in Parliament was the genuine and authentic document. One of B
the other annexures to the affidavit is a copy of the correspondence upon
this aspect between Shri N.N. Vohra, the author of the Report and the
present Home Secretary. In his response, Shri N.N. Vohra clarifies that
though he had access to the reports, notes and letters furnished by the
Director, IB, Secretary (Revenue) and the Director, CBI, while making his
final Report, he did not consider it fit to include them as annexures for C
the Report was meant to be a summary of discussions held and of the
contents of the documents which were already on record. As for the
incorrect numbering of the paragraphs, Shri Vohra explained that it arose
as a result of a typographical error committed by his stenographer and his
own omission to detect and correct the error.
D
While apprising the Court of the follow-up measures initiated pur-
suant to the Vohra Committee Report, the Home Secretary, in his affidavit,
stated that the Vohra Committee was set up with a view to facilitating the
establishment of a nodal agency to supervise and coordinate the function-
ing of enforcement and intelligence agencies towards controlling the crime E
syndicates existing in the country. After the Report was placed in Parlia-
ment on August 1, 1995, and as a result of the views expressed by the
Members of Parliament during the debates, the Union Government set up
a Nodal Agency on August 2, 1995, in conformity with the recommendation
of the Vohra Committee Report and was to be chaired by the Home F
Secretary. The Committee also comprises the Secretary (Revenue), the
Director, IB, the Director, CBI and the Secretary (RAW). This Nodal
Agency was assigned the task of coordinating, directing and supervising the
activities of the Central and State investigative agencies responsible for
controlling the growth of crime syndicates without purporting to be a
substitute for them. Thereafter, the Nodal Agency met and considered G
issues of inter-agency cooperation and support. At the first meeting of the
Nodal Agency, it was decided to hold a discussion with the leaders of
different political parties with a view to evolving a Code of Conduct for
politicians and bureaucrats which would help expose the links developed
., by the mafia syndicates. In this regard, an All Party Meeting was convened H
1;;ii
~
102 SUPREME COURT REPORTS [1997] 3 S.C.R.

A by the erstwhile Home Minister on September 15, 1995 which was attended
by Parliamentarians representing the major political parties. From the
minutes of this meeting, it appears that several issues of grave importance
relating to the findings of the Vohra Committee Report were discussed at
length. On January 5, 1996, the Union Government issued a further order
B appointing the Cabinet Secretary as the Chairman of the Nodal Group,
while retaining the Home Secretary and all the other Members in the
Nodal Agency.

The affidavit further points out that under our constitutional scheme,
the maintenance of law and order is essentially the responsibility of the
C State Governments. The role of Central Intelligence Agencies, such as the
CBI, IB and of the Revenue Department is, therefore, limited to only about
5% of the total number of criminal cases, consisting of cases transferred
by the State Governments to the CBI, cases in Union Territories, and the
cases being investigated by Central Revenue Agencies. Much of the inves-
D tigatory work in the country falls within the purview of CID and Intel-
ligence Agencies within State Governments. The task of the Nodal Group
is, therefore, limited to ensuring that the investigative efforts of all these
separate agencies are synchronized towards their smooth functioning.

During the hearing of this matter, we asked the learned counsel
E appearing for the parties before us to put forth their suggestions in respect
of the options open to this Court. Shri Ram J ethmalani, learned senior
counsel appearing for the petitioners contended that the plea of the Home
Secretary that 95% of crimes are within the purview of State Governments
is an attempt to dilute the findings of the Vohra Committee Report. He
F averred that the Vohra Committee Report essentially addresses itself. to
those cases which fall, not within the Entry of "Public Order", but, instead,
with those cases involving narco-terrorist elements and smuggling of arms.
and ammunitions into the country, which are properly and wholly within
the domain of the executive power of the Union. Shri Jethmalani urged us
to direct that the details of the reports and events mentioned in the Vohra
G Committee Report be fully and completely disclosed. In his view, setting
up a Nodal Agency would serve not purpose for it would be as prone to
failure as the agencies it sought to supervise had proven themselves to be.
Instead, he urged us to set up a Committee consisting of two retired Judges
of the Supreme Court with sufficient experience of criminal matters, to
H probe into the disclosures that would be made consequent to our direc-
DINESH TRNEDI v. U.0.1. [AHMADI, CJ.) 103

. tions; further legal action could be pursued by this Court once such a .A
Committee had submitted its complete report. A similar suggestion, which
has been canvassed before us, is for the establishment of a Special
Authority, headed by a retired Supreme Court Judge, to get matters
involving the aforesaid nexus to be investigated by an independent agency
which would be empowered to exercise all the statutory powers of inves- B
tigation under the Code of Criminal Procedure. Such a Special Authority
would be able to launch prosecutions against politicians, bureaucrats,
police officers and criminals on the basis of evidence collected in the
investigations, for offences under the Indian Penal Code and other penal
laws under the Prevention of Corporation Act. Thereafter, it was sug-
gested, Special Courts could be designated to expeditiously try all such C
cases.

We may first deal with the assertion based on the petitioners' right
to freedom of information. It has been contended before us that the citizens
of India have a right to be informed not only of the contents of the report, D
but also of the details of the various reports, notes, letters and other forms
of written evidence that was placed for the consideration of the Vohra
Committee.

In modern constitutional democracies, it is axiomatic that citizens
have a right to know about the affairs of the Government which, having E
been elected by them, seeks to formulate sound policies of governance
aimed at their welfare. However, like all other rights, even this right has
recognised limitations; it is, by no means, absolute. This Court has had
many an opportunity to express itself upon this issue. In the case of State
of U.P. v. Raj Narain, (1975] 4 SCC 428, Mathew, J. eloquently expressed F
this proposition in the following words :

"In a government of responsibility like ours, where all the agents
of the public must be responsible for their conduct, there can be
but few secrets. The people of this country have a right to know every
public act, everything that is done in a public way, by their public G
functionaries. They are entitled to know the particulars of every
public transaction in all its bearing. The right to know, which is
derived from the concept of freedom of speech, though not ab-
solute, is a factor which should make one wary, when secrecy is
claimed for transactions which can, at any rate, have no repercus- H
104 SUPREME COURT REPORTS [1997] 3 S.C.R.

A sion on public security. To cover with veil of secrecy, the common
routine business, is not in the interest of the public. Such secrecy
can seldom be legitimately desired. It is generally desired for the
purpose of parties and politics or personal self-interest or
bureaucratic routine. The responsibility of officials to explain and
to justify their acts is the chief safeguard against oppression and
B
corruption."

(Emphasis added)

Implicit in this assertion is the proposition that in transactions which
C have serious repercussions on public security, secrecy can legitimately be
claimed because it would then be in the public interest that such matters
are not publicly disclosed or disseminated.

The case of S.P. Gupta v. Union of India, [1981] SCC Supp. 87,
D decided by a seven-Judge Constitution Bench of this Court, is generally
considered as having broken new ground and having added a fresh, liberal
dimension to the need for increased disclosure in matters relating to public
affairs. In that case, the consensus that emerged amongst the Judges was
that in regard to the functioning of government, disclosure of information
must be the ordinary rule while secrecy must be an exception, justifiable only
E when it is demanded by the requirement of public interest. The Court held
that the disclosure of documents- relating to the affairs of State involves two
competing dimensions of public interest, namely, the right of the citizen to
obtain disclosure of information, which competes with the right of the State
to protect the information relating to its crucial affairs. It was further held that,
p in deciding whether or not to disclose the contents of a particular document,
a Judge must balance the competing interests and make his final decision
depending upon the particular facts involved in each individual case. It is
important to note that it was conceded that there are certain classes of
documents which are necessarily required to be protected, e.g. Cabinet
Minutes, documents concerning the national safety, documents which affect
G diplomatic relations or relate to some State secrets of the highest importance,
and the like in respect of which the Court would ordinarily uphold
Government's claim of privilege. However, even these documents have to be
tested against the basic guiding principle which is that wherever it is clearly
contrary to the public interest for a document to be disclosed, then it is in law
H irnmune from disclosure. (Paras 73 and 74 at pp. 284-286).
DINESH TRIVEDI v. U.O.I. [AHMADI, CT.] 105

What then is the test? To ensure the continued participation of the A
people in the democratic process, they must be kept informed of the vital
decisions taken by the Government and the basis thereof. Democracy,
therefore, expects openness and openness is a concomitant of a free
society. Sunlight is the best disinfectant. But it is equally important to be
alive to the dangers that lie ahead. It is important to realise that undue B
popular pressure brought to bear on decision-makers in Government can
have frightening side-effects. If every action taken by the political or
executive functionary is transformed into a public controversy and made
subject to an enquiry to soothe popular sentiments, it will undoubtedly have
a chilling effect on the independence of the decision-maker who may find
it safer not to take any decision. It will paralyse the entire system and bring C
it to a grinding halt. So we have two conflicting situations almost enigmatic
and we think the answer is to maintain a fine balance which would serve
public interest.

This then is the test which we must now apply to the facts of the D
present case. Having examined the copy of the Report which has been
placed before us, the allegations regarding its authenticity, the explanation
forwarded in this behalf by the Home Secretary and the copy of the
communication with Shri N.N. Vohra in this respect, we find that there is
nothing on record to raise a doubt that the Report, as tabled in Parliament
and as presented to us, is not genuine, authentic and unabridged. We are E
of the view that the erstwhile Minister of Parliamentary Affairs, in making
the statement that the Report was 100 pages long, may have been either
misinformed or misled. That apart, there is no other ground for doubting
the genuineness of the Report. Since it has been table in Parliament, it now
enjoys the status of a public document. We will, however, have to consider F
whether the supporting material placed before the Vohra Committee can
be disclosed for the benefit of the general public.

The supporting material consists of reports, notes and letters fur-
nished by the other members of the Vohra Committee to its Chairman who
made them the basis of his re port. Before taking a decision on this aspect, G
we must record the perceptions of the author of the Report as to the
manner in which it was to be treated. We have already noted Shri Vohra's
statement that he had conceived of his Report to serve only as a summary
of the discussions and reports before the Committee. In addition, the
following paragraph extracted from the concluding portion of the Report H
106 SUPREME COURT REPORTS (1997] 3 S.C.R.

A are also relevant for this purpose :
"15.1. In the normal course, this Report would have been drafted
by the Member Secretary and finalised by the Committee. Con-
side1ing the nature of the issue involved, I did not consider it desirable
to burden the Members of the Committee with any further involve-
B ment beyond the views expressed by them. Accordingly, I decided
to personally dictate this Report. (Note that the Report is not
signed by the other Committee-members).

15.2. I have prepared only three copies of this Rep01t. One copy each
c 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 concemed officers would be taken into confidence."
D
(Emphasis and comments added)

It is, therefore, evident that Shri N.N. Vohra had himself drafted and
signed the Report in the belief that it would be read by a select few
E high-ranking officials who would then take necessary action. It is doubtful
whether the candour exhibited and the liberal mentioning of intelligence
reports would have been forthcoming if he had not felt assured of complete
confidentiality. Indeed, much of the information contained in the Report,
which has now become publicly available, might well have adversely af-
fected the various intelligence agencies involved.
F
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 GI
harm to the agencies involved and to the conditions of assured secrecy and 11
confidentiality under which they function. Furthermore, it must be noted
G 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
H shortlisted based purely on the investigators' hunches and surmises or on \!II
DINESH TRIVEDI v. U.O.I. [AHMADI, CJ.] 107

account of the past background of the suspects. The disclosure of these A
reports would lead to a situation where public servants and elected repre-
sentatives 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 B
is because it would make every governmental functionary over-cautious
about taking the simplest of decisions.

We may now cite an illustration to give shape to the afore- mentioned
apprehension. In the entire Report, apart from the reference to mafia
gangs of Bombay, only one person has been specifically named as being a C
prominent beneficiary of the nexus which is the focus of the Report. The
individual concerned is a certain Iqbal Mirchi whose name is mentioned
as having been disclosed by the Director, CBI. Shri Jethmalani has objected
'r
to this lone disclosure by stating that when the government sought to
pursue extradition proceedings against Iqbal Mirchi in London, it could
not produce even "an iota of evidence" against him. We think that this D
assertion by the learned Senior Counsel for the petitioners themselves adds
great support to our apprehension that the full scale disclosure of these
Intelligence reports will, in the absence of properly conducted inquires,
lead to the harassment and victimisation of individuals who might well be
entirely innocent of any blame. E
Alternatively, such full scale disclosures would undoubtedly act to
the advantage of those individuals who are actually the central figures in
the nexus mentioned in the Report. Warned in advance of their complicity
being suspected, they would initiate rearguard measures to exonerate
themselves. F
We are, therefore, of the view that the disclosure of the supporting
material place before the Vohra Committee to the public at large would,
instead of aiding the interest of the public, be severely and detrimentally
injurious to it. In that view of the matter, we think there is no necessity for G
us to express ourselves on the constitutionality of Section 5 of the Official
Secrets Act, 1923.

We may now turn our focus to the Report and the follow-up
measures that need to be implemented. The Report reveals several alarm-
ing and deeply disturbing trends that are prevalent in our present society. H
,
108 SUPREME COURT REPORTS [1997] 3 S.C.R.

A For some time now, it has been generally perceived that the nexus between
politicians, bureaucrats and criminal elements in our society has been on
the rise, the adverse affects of which are increasingly being felt on various
aspects of social life in India. Indeed, the situation has worsened to such
an extent that the President of our country felt constrained to make
B references to the phenomenon in his Addresses to the Nation on the eve
of the Republic day in 1996 as well as in 1997. The matter is, therefore,
one that needs to be handled with extreme care and circumspection.

The Report, while recording the widespread development of crime
syndicates with the country, points out that under the existing system, there
C is no provision by which the various intelligence agencies can coordinate
with each other in properly utilising the information relating to the linb
developed by crime syndicates which comes their way. Sharing of such
information is rare, and much of it is discarded without being put to any
productive use. The Report, therefore, recommended the setting up of a
Nodal Agency to which all existing intelligence and enforcement agencies
D (irrespective of the Department under which they are located) shall
promptly pass on any information relating to crime syndicates which they
may come across. The Report also contains recommendations as to the
manner in which the Nodal Agency should be set-up while simultaneously
emphasising the need for ensuring that the information available with the
E Nodal set-up is used strictly and purely for taking stringent action against
the crime syndicates, without offering any scope whatsoever of its being
exploited for political gain. The need for complete confidentialify was also
emphasised.

The Nodal A~ncy set-up by the Union Government pursuant to the
F Debates in Parliament upon the Report, conforms to the recommendations
contained in the Report. Later, presumably to add greater weight to the
body, the Cabinet Secretary was included in the Nodal Agency as its
Chairman. However, as we have already noted, the Nodal Agency suffers
from certain limitations. Being only a supervisory body, without having
clearly delineated powers, it cannot effectively control the pace and thrust
G of investigative efforts.

We are of the view that the grave nature of the issue demands deft
handling by an all-powerful body which will have the means and the power
to fully secure its foundational ends. The Nodal Agency, in its present form,
H comprises senior bureaucrats of the highest level. While it is suited to
DINESH TRIVEDI v. U.O.I. [AHMADI, 0.] 109

coordinate an exchange of information between different investigating A
agencies, its composition is such that it may not be viewed by the public as
completely independent or immune from pressures of every kind. It is,
therefore, not suitable for pursuing an investigation of this kind and taking
it to the stage of prosecution where there may be nexus between the
persons under investigation and powerful persons such as those referred B
to in the Vohra Committee Report. In view of the seriousness of the
charges involved and the clout wielded by those who are likely to become
the focus of investigation, it is necessary that the body which is entrusted
with the task of following the investigation through to the stage of prosecu-
tion, be such that it is capable of enjoying the complete trust and con-
fidence of the people. Moreover in view of the suspicion that those involved C
may well be individuals who occupy, or have occupied, high positions in
Government, it is necessary that the body be able to obtain the sanctions
which are necessarily required before any prosecution can be launched. In
the case of public servants, sanctions are required, for instance, under
Section 197 of the Code of Criminal Procedure and under Section 6 of the D
Prevention of Corruption Act, 1947. The Nodal Agency, in its present form,
may not command the confidence of the people in this regard; this is a
serious handicap for, in such matters, people's confidence is of the essence.
An institution like the Ombudsman or a Lokpa~ properly set-up, could
command such confidence and respect.
E
We are, therefore, of the view that the matter needs to be addressed
by a body which can 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 charge thoroughly before it decides, if at all, to launch prosecutions. p
To this end the facilities and services of trained investigators with distin-
guished 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 for-
warded 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 G
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 H
~-
~
110 SUPREME COURT REPORTS [1997] 3 S.C.R.

A shall monitor investigations involving the kind of nexus referred to in the
Vohra Committee Report and carry out the objectives described earlier.

Such a direction by us would not be without precedent. In Balaji
Raghavan v. Union of India, [1996) 1 SCC 361, a Constitution Bench of this
Court had recommended the establishment of a high level Committee to
B examine the guidelines relating to the conferment of the National Awards
i.e. the Bharat Ratna and the Padma Awards. (See paragraph 33 of the
judgment of Ahmadi, 01 speaking for the majority).

We dispose of the Writ Petition in the above terms with no order as
to costs.
c
H.K. Petition disposed of.

1