The curious case of sealed cover jurisprudence

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The curious case of sealed cover jurisprudence

  • Two separate Benches of the Supreme Court tore into the “sealed cover jurisprudence” practiced by the government in courts.

What is the news?

  • The Supreme Court has allowed the Malayalam TV news channel MediaOne to resume broadcast, nearly six weeks after the government revoked its security clearance forcing it to shut down.
  • The channel was given security clearance by the MHA in February 2011 following which it obtained a licence to operate the channel in September 2011.
  • On January 5 this year, the channel was issued a notice to revoke permission on the ground of “national security and public order”.
  • In February 2020, the channel’s licence was briefly suspended by MHA following its coverage of the Delhi riots.

What did the court observe?

  • The court was critical about how the government and its agencies file reports in sealed envelopes directly in court without sharing the contents with the opposite party.
  • Being kept in the dark about the material contained in a sealed cover report, the petitioners are crippled in mounting a defence, not knowing what they are supposed to defend against.
  • At times, their cases, mostly involving fundamental rights such as personal liberty, are dismissed on the basis of the secret contents ensconced in the sealed covers.

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.
  • 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.

Nature of the power: Upholding Secrecy

  • 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.
  • There is an exception to this 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  • As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.

Grounds of such secrecy

  • Other instances where information may be sought in secrecy or confidence is when its publication:
  • Impedes an ongoing investigation
  • Details which are part of the police’s case diary or
  • Breaches the privacy of an individual
  • Prominent cases of sealed jurisprudence
  • Sealed cover jurisprudence has been frequently employed by courts in the recent past.
  • Rafale Deal
  • In the case pertaining to the controversial Rafale fighter jet deal, a Bench headed by CJI 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.
  • Bhim Koregaon Case
  • 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.

Criticism of such acts

  • Critics of this practice contend that it is not favorable to the principles of transparency and accountability of the Indian justice system.
  • It stands 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 the reasoning for their decisions.
  • Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication.

How has the judiciary responded to this?

  • 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.
  • This is possible even if the investigation is ongoing and said documents may lead to breakthroughs in the investigation.