The Issue of Sealed Cover Jurisprudence – Explained, pointwise

Introduction

On March 15 2022, two separate benches of the Supreme Court red-flagged the practice of Courts accepting information from the Government agencies in sealed envelopes. In a case involving the Bihar Government, a three-judge bench headed by the Chief Justice N V Ramana made it clear that it wanted all arguments to be presented in open court. Justice D Y Chandrachud expressed similar concern while hearing on an appeal against Union Government’s ban on the Malayalam TV Channel, MediaOne. The channel had gone off air on February 8 after the Kerala High Court upheld the ban by relying on documents submitted by the Union Government in a sealed envelope. But when the government repeated this practice before the Supreme Court, it was pulled up by a three-judge bench led by Justice Chandrachud that stayed the ban. Both the situations have again ignited debates over the usage and relevance of ‘Sealed Cover Jurisprudence’. 

What is sealed cover jurisprudence?

It is a practice used by the Supreme Court and sometimes the lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by the judges.

No specific law defines the requirement of information in a sealed cover. The Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.

It is stated under the said rule that if the Chief Justice or Court directs certain information to be kept in a sealed cover, no party would be allowed access to the contents of such information, except without the permission of the Chief Justice or the Court.

What is the rationale behind its application?

Public Interest: Rule 7 states that Courts can accept sealed covers and keep the information confidential if its publication is not considered to be in the interest of the public e.g., not disclosing details about survivors of sexual assaults or child abuse. 

National Security: According to the Evidence Act, official unpublished documents relating to affairs of the State are protected and a public officer cannot be compelled to disclose such documents. This is required to maintain the national security of the country.

Facilitate Investigation: Information may be sought in secrecy when its publication impedes an ongoing investigation, such as details which are part of a police case diary or money laundering cases.

International Commitments: Information needs to be kept confidential if it falls under the secret clauses of international commitments that can’t be put in public domain by the participating nations.   

What are some of the well-known cases involving Sealed Cover Jurisprudence?

Rafale fighter jet deal Case (2018): The Court had asked the Centre to submit details related to the deal’s decision making and pricing in a sealed cover. This was done as the Centre had contended that such details were subject to the Official Secrets Act and Secrecy clauses in the deal.

National Register of Citizens (NRC) Case: The NRC coordinator was asked by the Supreme Court to submit period reports in sealed cover, which could neither be accessed by the Government nor the petitioners.

BCCI Reforms Case (2014): The probe committee of the cricket body had submitted its report to the Supreme Court in a sealed envelope. It requested the Court not to make public the names of nine cricketers who were suspected of a match and spot fixing scam.

Bhima Koregaon case (2018): In this case activists were arrested under the Unlawful Activities Prevention Act (UAPA). The Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover.

Information submitted by state agencies in a sealed cover was also relied upon in the 2G and coal scam cases, the Ram Janmabhoomi case, the high-profile case pertaining to the death of judge B.H. Loya etc.

What are the concerns associated with the sealed cover jurisprudence?

Impact on Fair Trial: Fair Trial involves an opportunity to see and cross examine the evidence produced by one party against the other party. However, sealed covers impairs this opportunity and undermines natural justice.

Undermines transparency and Accountability: Critics of this practice contend that it is not favourable to the principles of transparency and accountability. It stands against the idea of an open court, where decisions can be subjected to public scrutiny.

Breeds Arbitrariness: It is also said to enlarge the scope for arbitrariness in Judicial decisions. Judges are supposed to lay down reasoning for their decisions, but this cannot be done when they are based upon information submitted confidentially and can’t be quoted in the Judgment.

Credibility of Judiciary: An increased reliance on seal cover can impair the credibility of judges as well as the legal system. It can also create suspicion among masses towards formulation of bureaucratic-judicial nexus against them.

Restricts freedom of speech and expression: A citizen can duly exercise her right under Article 19 when requisite information is available to her. Sealed cover impedes flow of information thereby restricting freedom of speech and expression. Further freedom of press is also curtailed as seen in case of recent ban on Media one channel.

What are some of the cases where sealed cover jurisdiction was criticized by courts?

P. Gopalakrishnan vs The State of Kerala (2019): The Supreme Court said that disclosure of documents to the accused is constitutionally mandated, even if the investigation is ongoing. The documents may lead to a breakthrough in the investigation.

INX Media case (2019): A Bench of the Supreme Court had criticized the Delhi High Court for basing its decision to deny bail to the former Union Minister on documents submitted by the Enforcement Directorate (ED) in a sealed cover.

What lies ahead?

First, the government should resort to alternate methods for protecting sensitive information and maintaining confidentiality. For instance, in-camera hearings already provide sufficient protection to sensitive information. In the Anuradha Bhasin case (2020), that dealt with security measures in Jammu and Kashmir following the abrogation of Article 370; the Supreme Court had ruled that any portion perceived sensitive could be redacted, and the rest should be disclosed to the opposite party.

Second, the Supreme Court itself should reduce the demand for information in a sealed cover as the Court on many occasions has demanded sealed covers e.g., in the case involving corruption allegations against a former CBI director, the Court insisted that the Central Vigilance Commission submit its report in a sealed cover. The rationale was ostensibly to maintain public confidence in the agency.

Third, the three-judge bench in the MediaOne case has said that it will expand the ambit of the case to deal with sealed cover jurisprudence. It is expected that the Court may formulate some concrete guidelines for acceptance of information in a sealed cover.

Fourth, the government should function by upholding the doctrine of public trust which states that people are the real masters and government is a mere trustee holding things on their behalf. Therefore only a minuscule number of things must remain in the realm of secrecy like delicate international negotiations or those that relate to sensitive aspects of security etc.

Fifth, the courts also need to make sure that when an action is alleged to have curtailed fundamental rights, they are bound to examine the legality of the action through the lens of proportionality as said in K.S Puttaswamy Case (2017).

Conclusion

The Supreme Court’s red flagging of sealed cover jurisprudence is a welcome step. It must now decisively curtail this practice in order to enhance the trust of masses in the legal system and ensure due adherence to the principle of natural justice.

Summary in Graphics

Source: Indian Express, The Hindu, The Hindu, The Hindu