The story so far: 11 Members of Parliament and 30 other prominent figures including advocates, journalists and social activists on February 14 issued a statement expressing discontent over the Kerala High Court’s verdict upholding the transmission ban on Malayalam news channel MediaOne, imposed by the Ministry of Information and Broadcasting, after the Ministry of Home Affairs denied the channel security clearance. The channel went off air on January 31, as the Centre suspended its telecast over “security reasons”. One of the reasons for disappointment conveyed over the verdict is that 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.
The statement was issued by the opposition MPs including Congress’s Digvijaya Singh, TMC’s Mahua Moitra, DMK’s Kanimozhi and Shiv Sena’s Priyanka Chaturvedi, besides Supreme Court lawyers Prashant Bhushan and Colin Gonsalves.
According to the statement, basing the verdict on sealed or secret documents went against “the basic principles of natural justice”. It pointed out that the said principles mandate that in any process of adjudication, especially one that involves fundamental rights, evidence “must be shared with both parties to the dispute.”
“The growing spectre of what is called sealed cover jurisprudence”, Bhushan complained, was a “gross violation” of the principles of natural justice.
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 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.
As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.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.
Documents were examined in sealed cover in multiple prominent cases during the tenure of the former Chief Justice of India, Rajan Gogoi. 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. In the case of activist Gautam Navlakha for instance, the police had submitted a sealed envelope including information recovered from the electronic devices seized from the activist. The police had stated that this information could not be disclosed to the accused as it would impede the ongoing investigation. At the time, Navlakha’s counsel had countered the submission citing violation of his rights to fair adjudication, stating that the applicant did not know the contents of the sealed cover or whether it formed a part of the police’s case diary.
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. 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 to the former union minister on documents submitted by the Enforcement Directorate (ED) in a sealed cover.
The three-judge Bench of justices R Banumathi, A S Bopanna, and Hrishikesh Roy had said: “Though it is held that it would be open for the Court to peruse the documents, 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”.
