IF LAW IS A LANGUAGE, THEN JURISPRUDENCE IS ITS GRAMMAR
Sealed cover jurisprudence refers to the practice of the Supreme Court and other courts of asking for or accepting public-interest-related information from government bodies in sealed envelopes that can only be read by the judges. If we talk about the legal provisions relating to this practice, one cannot find any particular law that defines this doctrine but the apex court of India empowers itself to use this practice from Rule 7 of Order XIII of the Supreme Court Rules and Sec.123 of the Indian Evidence Act,1872.
The said rule states that “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”.
In recent times, the CJI N.V. Ramana and many other senior judges of the Supreme Court have red-flagged this disturbing practice while delivering judgments. First is, when the bench was hearing a criminal appeal against the Bihar government, CJI reprimanded the counsel for submitting a sealed cover report in the court, he further ordered the counsel to stop the practice of submitting reports in sealed covers and remarked that “We will not accept it.” Next in line is the instance where Justice DY Chandrachud was hearing an appeal on a government-imposed ban on the MediaOne a Malayalam TV channel. This case was first taken up by the Kerala HC after the channel had gone off air and pronounced the judgment on the grounds of sealed cover reports submitted by the Centre. The SC pulled up the Centre when it repeated this practice and eventually Justice DY Chandrachud stayed the ban.
PRACTICE OF THE PAST
The practice of sealed covers is not new in the area of jurisprudence, the apex court has been using it in many of its judgments delivered in the recent past.
During the term of former CJI Ranjan Gogoi, several documents have been examined in sealed covers & in many noteworthy cases. For instance, in the case concerning the Rafale fighter jets deal, after the Centre contended that the details of the documents were subject to the Official Secrets Act the court accepted the sealed cover documents.
Furthermore, we have the 2014 BCCI reforms case. In this, the probe committee approached the SC with a sealed envelope, where they urged the SC not to make public the names of 9 cricketers who were under the suspicion of a match & spot-fixing scam. Similarly, the court relied on evidence supplied by Maharashtra police in a sealed envelope while denying to stay the arrest of activists held under U.A.P.A in the Bhima Koregaon case.
Other prominent cases where the supreme court relied on the information submitted in sealed covers are the Coal & 2G scam cases, the Case of activist Gautam Navlakha, the Ram Janambhoomi case & the high-profile case on the death of Judge B.H. Loya. The list of cases where the SC or the lower courts accepted the seal-covered documents is endless and one can observe that it is recently that the courts have started questioning this practice of the past.
CRITICAL ANALYSIS OF THE SEALED COVERS
Through the critical analysis of this practice, we will be delving into the merits & demerits of the practice that have been pointed out by the judiciary and the government. In general, the government currently supports the practice of sealed cover jurisprudence and opines that the confidentiality of some official documents can only be maintained by following this practice. It is of the view that if this practice is stopped the national security will be compromised.
In the opinion of the critics of this practice, the sealed covers violate two very basic principles of our Indian Justice system viz. Accountability & Transparency because this type of jurisprudence stands against the idea of an open court. Not only this but it also restricts the judges to perform their basic function of providing reasoning for a specific judgment leading to an increase in the scope for arbitrariness in court decisions in the end. It is also asserted that impairing the access of the sealed documents to the accused parties further hinders their passage to a fair trial & adjudication.
IMPORTANT GUIDELINES LAID DOWN BY SC IN 2019
The year 2019 saw two SC cases that shred a close nexus with the concept of sealed cover jurisprudence, they are as under:
P Gopalkrishnan Vs The State of Kerala
In this case, while balancing two conflicting rights which sprang out of the Article 21, the SC stated that disclosure of documents to the accused is constitutionally mandated, and the same cannot be denied to him because the investigation is in process and might lead to a breakthrough in the same.
P. Chidambaram Vs Directorate of Enforcement
Famously known as the INX Media Case, was the case where the SC while granting bail to P.Chidambaram criticized the Delhi HC for making the documents submitted by the ED in sealed covers ground for denying the bail to the plaintiff.
After reading all the facts and laws related to the concept of sealed cover jurisprudence, I conclude that only a small set of acts by the government bodies must be kept in secrecy, such as important international talks or those involving sensitive security issues or information regarding survivors of sexual harassment or child abuse. The principles of natural justice dictate that all litigants be given an equal opportunity to examine the evidence. In today’s liberal society citizens have the right to know and scrutinize the reasons for courts decisions.
Lastly, I opine, that justice must not be compromised in any case by following a practice that can be used as a tool to conceal important pieces of evidence and documents.
- Sealed Justice: On sealed cover jurisprudence,25 March 2022, https://www.thehindu.com/opinion/editorial/sealed-justice-the-hindu-editorial-on-sealed-cover-jurisprudence/article65256773.ece
- Supreme Court’s red flagging of sealed cover jurisprudence is welcome. It must now decisively curtail this practice, 17 March 2022, https://indianexpress.com/article/opinion/editorials/supreme-courts-red-flagging-of-sealed-cover-jurisprudence-is-welcome-7823350/
- Supreme Court Rules,2013,https://main.sci.gov.in/sites/default/files/Supreme%20Court%20Rules%2C%202013.pdf
- P Gopalkrishnan Vs The State of Kerala,2019
- P. Chidambaram Vs Directorate of Enforcement,2019
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