Sealed Cover Jurisprudence

• 17 Mar 2022

For Prelims: Supreme Court, Chief Justice of India (CJI), Sealed Cover Jurisprudence.

For Mains: Judiciary, Indian Constitution, Fundamental Rights, Issue of Sealed Cover Jurisprudence, Fundamental Rights.

Why in News?

Recently, while hearing a criminal appeal against the Bihar Government, Chief Justice of India (CJI) admonished a counsel for submitting a ‘sealed cover report’ to the court.

• Sealed cover jurisprudence has been frequently employed by courts in the recent past for example Rafale Fighter Jet Deal 2018, 2014, BCCI Reforms Case, Bhima Koregaon case 2018 etc.

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.
  • Rule 7 of order XIII of the Supreme Court Rules:
    • According to the rule, if the Chief Justice or court directs certain information to be kept under sealed cover or considers it of confidential nature, no party would be allowed access to the contents of such information, except if the Chief Justice himself orders that the opposite party be allowed to access it.
    • It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public.
  • Section 123 of the Indian Evidence Act of 1872:
    • Under this act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.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 are when its publication impedes an ongoing investigation, such as details which are part of a police case diary.

What are the issues with the Sealed Cover Jurisprudence?

• Against the Principles of Transparency and Accountability:
  • It is not favourable to the principles of transparency and accountability of the Indian justice system, as it stands against the idea of an open court, where decisions can be subjected to public scrutiny.
  • In any process of adjudication, especially one that involves fundamental rights, evidence “must be shared with both parties to the dispute”.
• Reduce the Scope of Reasoning:
  • 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.
    • 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.
• Obstruction to Fair Trial and Adjudication:
  • It is also argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication.
• Arbitrary in Nature:
  • Sealed covers are dependent on individual judges looking to substantiate a point in a particular case rather than common practice. This makes the practice ad-hoc and arbitrary.

What is the Supreme Court’s View on Sealed Cover Jurisprudence?

• In Modern Dental College vs State of Madhya Pradesh (2016), the apex court adopted the proportionality test proposed by Aharon Barak, the former Chief Justice, Supreme Court of Israel, “a limitation of a constitutional right will be constitutionally permissible if:
  • It is designated for a proper purpose.
  • The measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose.
  • The measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation.
  • There needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.
• This was reiterated in K.S. Puttaswamy vs Union of India (2017).
• In the 2019 judgement in the case of P. Gopalakrishnan vs 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 documents may lead to a breakthrough in the investigation.
• In the INX Media case in 2019, the Supreme Court had criticised 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.

Way Forward

• The process of judicial review is significant since it holds the executive accountable.
• The executive must cogently answer its actions – especially when fundamental rights such as free speech are curtailed. India’s Constitution does not give a free hand to the executive to pass arbitrary orders violating such rights.
• A court that sits as a mute spectator to any executive action is a crude manifestation of democratic decay.
• When an action is alleged to have curtailed fundamental rights, the court is bound to examine the legality of the action through the lens of proportionality.

Source: TH