Sealed Cover Jurisprudence

POLITY/ GOVERNANCE

• GS-2: Judiciary

Sealed Cover Jurisprudence

Context: Recently, Kerala High Court’s verdict upheld the transmission ban on Malayalam news channel MediaOne, imposed by the Ministry of Information and Broadcasting, after the Ministry of Home Affairs (MHA) denied the channel security clearance. 

• The High Court’s decision was based entirely on assessment of documents presented by the MHA in a sealed cover, “the contents of which were not shared” with the news channel.

What is sealed cover jurisprudence?  

• It is a practice used by the Supreme Court and sometimes lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by judges. 
• While a specific law does not define the doctrine of 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 under sealed cover, no party would be allowed access to the contents of such information. 
• It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public. 
• As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents. 
• Other instances where information may be sought in secrecy or confidence is when its publication impedes an ongoing investigation, such as details which are part of the police’s case diary; or breaches the privacy of an individual. 

When has it been done in the past?  

• Sealed cover jurisprudence has been frequently employed by courts in the recent past. 
• In the case pertaining to the controversial Rafale fighter jet deal, a Bench headed by Chief Justice Ranjan Gogoi in 2018, had asked the Centre to submit details related to 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. 
• In the matters related to the National Register of Citizens (NRC) in Assam, the supreme court mandated coordinator of the NRC, Prateek Hajela, was asked by the apex court to submit period reports in sealed cover, which could neither be accessed by the government nor the petitioners. 
• In the case where CBI’s former director Alok Verma and the national agency’s former special director Rakesh Asthana had made counter allegations of corruption against one another, the Supreme Court had asked the Central Vigilance Commission (CVC) to submit its preliminary report in a sealed cover. 
• In the 2014 BCCI reforms case, the probe committee of the cricket body had submitted its report to the Supreme Court in a sealed envelope, asking it not to make public the names of nine cricketers who were suspected of a match and spot fixing scam. 
• In the Bhima Koregaon case, in which activists were arrested under the Unlawful Activities Prevention Act, the Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover. The police had stated that this information could not be disclosed to the accused as it would impede the ongoing investigation. 
• Information submitted by state agencies in a sealed cover was also relied upon in the 2G and coal scam cases, the Ramjanmabhoomi case, the high-profile case pertaining to the death of judge BH Loya, as well as the 2019 case pertaining to the release of Prime Minister Narendra Modi’s biopic around the national elections. 

What is the criticism and what do the courts say?  

• Critics of this practice contend that 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 is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down reasoning for their decisions, but this cannot be done when they are based upon information submitted confidentially. 
• It is considered as the violation of rights to fair adjudication whereby the applicant does not get to know the contents of the sealed cover.
• Basing the verdict on sealed or secret documents went against “the basic principles of natural justice”. The said principle mandates that in any process of adjudication, especially one that involves fundamental rights, evidence “must be shared with both parties to the dispute.”
• What is further contested is whether the state should be granted such a privilege to submit information in secrecy, when existing provisions like in-camera hearings already provide sufficient protection to sensitive information. 
• Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication. 
  • In the 2019 judgment in the case of P Gopalakrishnan V. The State of Kerala, the Supreme Court had said that disclosure of documents to the accused is constitutionally mandated, even if the investigation is ongoing and said documents may lead to breakthrough in the investigation. 
  • In the INX Media case in 2019, while granting bail to Congress leader P. Chidambaram, a Bench of the Supreme Court had criticised the Delhi High Court for basing its decision to deny bail on documents submitted by the Enforcement Directorate (ED) in a sealed cover. 

Connecting the dots:

• Judicial Activism vs Judicial Overreach
• Indianisation of Judiciary
• Language in Judiciary 
• Judicial Administration Reform
• Judiciary & AI
• All India Judicial Service