The Supreme Court, by resolutely refusing to accept a ‘confidential’ submission from the Centre on the disbursal of arrears to retired defence personnel under the One Rank One Pension scheme, articulated on March 20 that enough is enough on matters pertaining to the questionable practice of ‘sealed cover’ jurisprudence. “We need to put an end to this sealed cover practice in the Supreme Court…This is fundamentally contrary to the basic process of fair justice,” a bench led by Chief Justice of India D Y Chandrachud said.
In March 2022, two separate benches of the Supreme Court had flagged the practice. In a case involving the Bihar government, pertaining to the Patna High Court’s orders granting bail to 56 persons who had been arrested in March 2020, a three-judge bench headed by then Chief Justice N V Ramana said it wanted arguments to be presented in open court.
“Please don’t give us a sealed cover, we don’t want it here,” Justice Ramana told the Patna High Court’s counsel. Later in the day, during a hearing on an appeal against the Centre’s ban on 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 Centre in a sealed envelope), when the government repeated this practice before the apex court, it was pulled up by a three-judge Bench led by Justice Chandrachud that stayed the ban.
In February 2020, interlocutors tasked by the Supreme Court to talk to anti-CAA protesters occupying a public road in Shaheen Bagh submitted a report in a ‘sealed cover’ to the Supreme Court. The report was neither taken on record by the Bench nor made available to any of the lawyers. Just last month, a bench of the SC led by the CJI had refused to accept names proposed by the Centre in a sealed cover for inclusion in the expert committee to examine the regulatory mechanism in the light of the Hindenburg report on the Adani Group.
The Supreme Court had bitten more than what it could chew when it began seeking information deemed to be of public interest in sealed envelopes. In the Rafale aircraft case, the Court accepted the government’s argument that the matter pertained to the Official Secrets Act. While refusing to stay the arrest of activists held in the Bhima-Koregaon case, it relied on ‘evidence’ submitted by the Maharashtra police in a sealed envelope.
In the NRC exercise in Assam – which resulted in about 19 lakh citizens being excluded from the list – the apex court sought details from the NRC coordinator in a sealed cover with neither the government nor the affected parties being allowed to look at them. In the case involving corruption allegations against former CBI director, Alok Varma, the court insisted that the Central Vigilance Commission submit its report in a sealed cover.
The Court apparently erred in these cases because the principles of natural justice demand that all parties in litigation get a fair chance to scrutinise evidence.Citizens need to know the reasons for court verdicts and no verdict is beyond scrutiny.
In fact, in December 2019, a bench of the SC in its order granting bail to P Chidambaram, had censured the Delhi High Court for relying on material submitted by the Enforcement Directorate in a sealed cover to deny bail to the former Union Minister. “It would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail,” the Bench said.While maintaining that the court can seek information in sealed covers and pursue them “to satisfy its conscience that the investigation is proceeding in the right lines and for the purpose of consideration of grant of bail/anticipatory bail etc.,” it cannot rely on such information to make its decision, the court said.
‘Sealed cover jurisprudence’ has been followed willy-nilly by the Supreme Court as well as lower courts. The practice of seeking and accepting information from government agencies in sealed envelopes must go. For, sealed covers have the potential to seal fate of judgements. The sole justification for this is Rule 7 of Order XIII (“Copying”) of the Supreme Court Rules, 2013 (notified in May 2014), which says:
“Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies of or extracts from any minutes, letter or document of any confidential nature or any paper sent, filed or produced, which the Chief Justice or the Court directs to keep in sealed cover or considers to be of confidential nature or the publication of which is considered to be not in the interest of the public, except under and in accordance with an order specially made by the Chief Justice or by the Court.”
That is, the court can ask for information in a sealed cover broadly under two circumstances: one, when information is connected to an ongoing investigation; and two, when it involves personal or confidential information. The logic behind this rule is that disclosure of information linked to an ongoing investigation could impede the investigation, and the disclosure of personal or confidential information could violate an individual’s privacy or result in breach of trust.
In any case, under the first circumstance, it prevents parties from having a full overview of the charges against them; and, in the second circumstance, it is not compatible with the idea of an open court and a transparent system of justice.
Courts are bound to set out reasons for their decisions. Non-disclosure of reasons leaves scope for arbitrariness in judicial decisions. It also takes away the opportunity to analyse judicial decisions. After all, the parties to a dispute and everyone interested in the case need to appreciate the rationale behind judicial decisions.
