In legal parlance, presenting arguments and evidence in a confidential manner in a court of law such that the other party or the public at large is not cognizable of these facts and submissions is referred to as “sealed cover jurisprudence[1]”. This practice is essentially implemented in practice when the supreme court of India or any lower court of the country allows a party, predominantly a government body to put forward their arguments in “an envelope”. Whatever the rationale or averments present in that sealed envelope remains completely inaccessible to anyone apart from the judges of the court. This concealed information can only be brought into the eyes of the public after obtaining requisite orders from the chief justice of India. For justice to be rendered in a true sense, the fundamental principle is that it should not merely be executed for the sake of it rather the just practises ought to be cognizably manifested across the spectrum. On a close gauge, it is understood that if not cent per cent this jurisprudence has lacunas in it which can be ostensibly used to jeopardy this justice delivery mechanism. The “sealed cover jurisprudence” has for many years held hostage the right of people to properly represent themselves and seek justice.
History and the nuances of Sealed Cover Jurisprudence
A concept that has been time and again invoked by the government authorities to present claims and arguments which are plausibly “sensitive” in nature, has no explicit mention in the laws of the country. Any information which can have an adverse impact on the public at large and is of confidential nature that may harm the prospects of the submitting party is presented in the “sealed cover”. The only avenues which are available for the government authorities to present evidence in a “sealed cover” is when the information presented is any sort of private information or the one which is presently under the investigative procedure and is bound to be kept away from the public eye. Since there is no direct mention of this jurisprudence, the reference to presenting arguments in a seclusive fashion does find resonance in the Supreme Court Act of 2013, in which the law ie. Rule 7 of Order XIII[2] asserts that nobody is entitled to procure any data, evidence, files or any other type of documents in a confidential manner and one that is presented in a sealed envelope. The order also asserts that any information presented in a sealed envelope that is not in synchronisation with the objective of securing public peace and maintaining public order shall not be allowed to be presented in the manner mentioned in the order. Therefore, this order circumscribes the type of information to be presented in a sealed cover. When the government authority has sought specific permission from the chief justice of India it is only when the sealed cover concept is valid in the court of law.
Another legal authority from which the concept of “sealed cover” derives its authority is the Indian Evidence Act of 1872. Under this act, Section 123[3] mentions that any piece of record which is in reference to the affairs of the state shall not be disclosed under the purview of the people unless the same has been duly sanctioned by the head of the specific department. Thereby this mention of keeping the confidentiality of such unpublished records begets the concept of “sealed cover jurisprudence”. A fundamental aspect of this “sealed cover” doctrine is preserving the privacy of people who are involved in that evidence. This doctrine is implemented to dissuade any malpractice being undertaken which can ostensibly derail the entire investigative procedures.
Over the years this doctrine has expanded its application which has spurred apprehensions from all across the spectrum of society in a bid to scrutinise the veracity of this doctrine. The imminent question is that is the government entitled to have a leeway to use the “sealed cover” concept in domains that benefit its cause or if the “fundamental right to fair and transparent trial” supersedes this free pass.
What are the legal arguments presented in the dissonance of the sealed cover jurisprudence?
One of the predominant rationales put to the fore by people who are against the application of this doctrine is that the latter infringes upon the concept of “transparency and just practice” which is touted as the bedrock of a robust democracy like India. When transparency erodes the trust of the public in government and judicial authorities go down the barrel. The opponents of this doctrine assert that public scrutiny and constructive criticism is imperative for legitimate justice to prevail. However, when the “right to information” as per Article 19(1)(a)[4] of the Indian constitution every Indian citizen is entitled to procure relevant information, is taken away from the public it tends to diminish the value of the constitutional principle and the sanctity of the judicial orders that are passed. This also casts a plethora of suspicion if the judgement passed by the bench is upholding the “principle of natural justice” or is simply arbitrary in nature.
Another essential argument that is put forward is that one thing which comes under immense pressure is the fundamental right as mentioned under Article 21[5] of the Indian constitution is the “right to be heard” in case of a legal battle. This ensures that the person seeking judicial remedy is not deprived of his/her fundamental right. In a sealed cover jurisprudence, the party is prevented from being able to defend the case, this is because the rationale put forward by the other party is not known to the former. The Latin maxim of “Audi Alteram Partem[6]” entails that both parties to the case ought to have an equal opportunity to be heard. is compromised owing to the victim being unable to get hold of a fair opportunity to present facts of the case is not partisan to a particular party of the case. The ultimate contention is that an unriddled power to the executive to conceal the facts and evidence is in stark contrast to the philosophy of “judicial transparency”.
What are the legal arguments presented in favour of the sealed cover concept?
The government of India has mentioned to the supreme court of India that as a responsible state it is part of their obligations to protect the right of people and act as a bulwark against any potential violation of privacy or confidentiality of the investigative procedures. Another reference made on behalf of the government is that on multiple occasions there is a massive external threat to the sovereignty and integrity of the country and therefore, certain information is not released in the public domain. Keeping in mind the volatile nature of the information the same has to be kept under strict confidentiality and the discretion of the same remains with the government of India.
Averrments from the judiciary
In the past few years, there have been numerous occasions where the courts have had to rely on “sealed cover” evidence to pronounce their judgements. The latest judicial verdicts on Bhima Koregaon[7] in 2018 and the Rafael Jet deal case in the same year, underlined how the Union government used “national security” reasons as a rationale to present arguments in a sealed cover. The judges have explained that the mere reference to “national security[8]” cannot render the courts to remain a mere spectator to the draconian measures of the executive. They have even time and again vehemently asserted that it comes under the realm of the power of the judiciary to evaluate if the evidence in a true sense is essential to maintain public order. It is also essential that the government that is a party to the dispute must present specifications for the document that is submitted in a concealed format any irrational generalisation should be at any cost avoided. The judiciary has emphasised the “test of proportionality” for any executive action that jeopardises their fundamental rights. The decision ought to be reasonable and legitimate. The major vehemence is on the fact that there must exist a cognizant nexus between the restrictive measure adopted and the aim that is to be achieved the former should be in balance with the latter. An unrestrained immunity to the state on the aspects of either “public order” or “national security” is completely untenable.
MediaOne judgement
In this historical case, a Malyalam-based news channel, MediaOne[9] was banned on a notice furnished by the Ministry of Information and Broadcasting citing the reason that the media channel followed an “Anti-India” stance and reported news involving communally volatile issues including that of Muslims. Thereby, the license to the channel was suspended. The Kerala high court’s single as well as the division bench pronounced their verdicts against the news channel. The court relied on the documents presented by the union government under the “sealed envelopes”. After the case was taken to the apex court of the country, the Chief Justice of India (CJI) D.Y. Chandrachud[10], in the three-judge bench verdict pronounced that “sealed cover jurisprudence” is in strong contravention to the principles of natural justice as espoused under Article-21 of the Indian constitution. The party to the case is firstly not able to “access the true facts of the case” and thereby impedes the process to defend themselves in a proper manner”. Thereby, the party is neither able to get hold of the requisites information nor is able to defend themselves against any excessive carried out by the executive.
Conclusion
Judicial independence and transparency are sine qua non to the justice delivery mechanism. There has to be maintained a fine delicate balance between the “right to information and justice” and the national security of the country. An executive action ought o be well-vetted since it can infringe upon this delicate balance. It is incumbent on the judiciary to preserve the fairness, just and transparency” in the judicial process. And any dictatorial and blanket actions ought not to dictate the trajectory of the justice pronouncement. In the past few years, the apex court of the country has on numerous occasions underscored that the contention of curbing the fundamental right to information and that of accessing justice can not be superseded by any averments that the disclosure of information can be a “threat to national security”. It is at the same time essential to preserve the national integrity, security, public order and privacy of individuals. However, the path of restrictions on the fundamental right to fairness, justice and transparency must pass the litmus paper of proportionality. The judiciary cannot be the mute spectator to any activity by the executive if the “test of proportionality” is breached. The famous adage, “Power corrupts, but absolute power corrupts absolutely”, is fit for the present context since the cornerstone of the constitutional philosophy of our country is based on the system of checks and balances, thereby abiding by the same is pre-eminent. The upshot of the entire analysis is that a robust judicial system like ours has to walk a tightrope between “national security concerns” and the “right to transparent judicial redressal”.
[1] Pooja Yadav, What Is Sealed Cover Jurisprudence & Why Is Judiciary Concerned About It, India Times,<Explained: What Is Sealed Cover Jurisprudence & Why Is Judiciary Concerned About It (indiatimes.com)>, accessed on 22 May 2023
[2] Aishwarya Sandeep, SEALED COVER JURISPRUDENCE, <SEALED COVER JURISPRUDENCE – Aishwarya Sandeep> accessed on 22 May 2023
[3] DIKSHA MUNJAL, What is sealed cover jurisprudence and why is it being opposed? The Hindu,<Explained | What is sealed cover jurisprudence and why is it being opposed? – The Hindu> accessed on 22 May 2023
[4] Legal Service India, RTI Act and Constitution of India: An Analysis, <RTI Act and Constitution of India: An Analysis (legalserviceindia.com)> accessed on 22 May 2023
[5] Parul Soni, Law Time Journal, Fair Trial and its Principles, <https://lawtimesjournal.in/fair-trial-and-its-principles/#:~:text=Indian%20Constitution%20through%20its%20Article%2021%20renders%20the,which%20flows%20from%20article%2021%20of%20the%20Constitution. >, accessed on 22 May 2023
[6] iPleaders, Audi Alteram Partem,<https://blog.ipleaders.in/audi-alteram-partem/> accessed on 22 May 2023
[7] Supreme Court Observer, Bhima Koregaon: Judgment Summary, <Bhima Koregaon: Judgment Summary – Supreme Court Observer (observer.in)> accessed on 22 May 2023
[8]Gautam Bhatia, The Wire, Proportionality, Sealed Covers and the Supreme Court’s Media One Judgment <https://thewire.in/law/supreme-court-media-one-sealed-cover-analysis> accessed on 22 May 2023
[9] LiveLaw, ‘Averse To Sealed Covers’: Supreme Court Agrees To Examine Validity Of ‘Sealed Cover’ Procedure <https://www.livelaw.in/top-stories/sealed-covers-supreme-court-agrees-to-examine-validity-of-sealed-cover-procedure-194266?infinitescroll=1>, accessed on 22 May 2023
[10] Neha Rani, Sealed cover jurisprudence is without a rationale, The Leaflet, <https://theleaflet.in/sealed-cover-jurisprudence-is-without-a-rationale/> , accessed on 22 May 2023
Author: Aditi Saxena
Juris Centre 