[Answered] What do you understand by sealed cover jurisprudence? Highlight the concerns associated with this practice?

The sealed cover jurisprudence is a practice used by the Supreme Court and lower courts, of accepting information from government agencies in sealed envelopes that can only be accessed by judges. The Supreme Court derives this power 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 under sealed cover or considers it of confidential nature then no party would be allowed access to that information, except if the Chief Justice himself orders to do so.

It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public, part of the police’s case diary or breaches the privacy of an individual. It was examined in multiple prominent cases like in the controversial Rafale fighter jet deal, INX Media case in 2019, in the matters related to the National Register of Citizens (NRC) in Assam etc.

Concerns:

• It is not favorable to the principles of transparency and accountability of the Indian justice system, standing in contrast to the idea of an open court, where decisions can be subjected to public scrutiny.
• It can enlarge the scope for arbitrariness in decisions as judges are supposed to lay down reasoning for their decisions, but this cannot be done when they are based upon confidential
• There is not much need to grant such a privilege to state to submit information in secrecy, because in-camera hearings already provide sufficient protection to sensitive information.
• By not providing access to such documents to the accused parties, it goes against the right to a fair trial and adjudication.
• It gives the state to avoid deep scrutiny of the need and proportionality of its restrictions on freedom. It also compromises the defence of accused of crimes like threat to national security, or money laundering and corruption, as undisclosed material is often used to deny bail.

In a democracy, only a small set of acts by public agencies must remain in secrecy as such acts affect the overall policy making or functioning of the welfare state of democracy. The time has come for the Supreme Court to determine and define the circumstances in which confidential government reports, especially those withheld from the other side, can be used by courts in adjudication.