Validity of Sealed Cover Jurisprudence

Sealed cover has been a long-gone debate in judicial practice. In this specifically Supreme Court and even lower courts take information from the government party and the concerned authority in sealed cover or enveloped. They consider the information to be confidential and something that cannot be made available to the public. This has been referred to as a controversial process because the judge can give the ruling or decision based on it without informing the other party of the information in the sealed cover.

This is an old practice and was always there in the judicial system. Certain documents were covered and given to the court at that time because they contained material deemed sensitive, potentially dangerous to the public’s safety, and hence should not be made public. The judge then decided and has the discretion as to whether this should be revealed or not.[1]

In the past few years, the usage of this process has escalated leading to misuse and violation of rights of the other party. It is alleged to harm the opposite party. As the information is only open to the eyes of the judge, it restricts the other party from any chance to defend themselves in this situation. It is said to impact the trial negatively. And there is no way to know if that information was basis or considered while pronouncing the judgment.

As said above earlier it was to conceal the evidence which has high risk and is susceptible to being tampered with. But because of evolution, there have been instances where it was alleged that sealed covers were used even though it was not necessary.

Legal provisions

The court can ask for confidential information when it is related to a current investigation that is going on and when disclosure of that information can result in the breach of certain rights. There is no legal provision that verbatim defines this procedure but the Supreme Court derived its powers from Rule 7 of the Order XIII Supreme Court rules, Section 123 of the Indian Evidence Act of 1872, and 327 of Criminal Procedure Court 1973.

Rule 7 of Order XIII Supreme Court rules states that –

‘No party or person, regardless of what is stated in this order, shall be entitled to copies of or extracts from any minutes, letters, or confidential documents, or any paper sent, filed, or produced, which the Chief Justice or the Court directs to be kept in sealed cover or which it considers to be confidential or the publication of which it considers not to be in the public interest, unless under and by an order.’[2]

The rule directs toward the discretion of the chief justice and the court. He has the final say to decide whether to keep any information under sealed cover where no party would be allowed to access it and he can also decide when can this information be made available to all.

Section 123 of IEA 1872 (Evidence as to affair of State) –

‘Without the approval of the head of the relevant department, who will give or deny such permission as he thinks appropriate, no one shall be permitted to present any evidence derived from unpublished official records relating to any State matters.’[3]

This section ensures the protection of unpublished information related to the state, no compulsion is to be used to disclose such information.

Section 327 of Criminal procedure code 1973 [4]–

This section also allows the judge to restrict some documents under certain conditions which include circumstances when the judge may deem it appropriate to have the same in-camera sessions instead of having the court’s proceedings take place in public, the proceedings in a trial-like action according to Indian penal code sections 376, 376A, 376B, 376C, and 376D, all hearings must take place behind closed doors, and no information relating to those procedures may be published or printed without prior court clearance. The courts carry out the procedures in this manner to safeguard the evidence that is vital to the case as well as the identities of the accused and victim.[5]

As mentioned above there is indeed an absence of specific laws that talks about the sealed cover jurisprudence. In the lack of strict laws and regulations, the majority of courts do not believe it necessary to provide any justifications or explanations regarding the usage of seal covers, and in the majority of cases, the courts proceed with the processes without mentioning the seal covers in the orders or judgments. In a few instances, the court has addressed the seal cover without explaining. In several instances, the courts have appropriately justified the use of seal covers.

Arguments against sealed cover jurisprudence

As mentioned above that this process has been in the news and has been debated over. Hence, the following are the issues because which people have come to criticize it [6]–

Transparency

Hearings held behind closed doors violate the fundamental principle of open justice, which is a cornerstone of a democratic judicial system. It decreases transparency and accountability by restricting public access to information and holding meetings in secret. To make sure that justice is done and that the court makes fair and impartial judgments, the public’s scrutiny is crucial.

Fair trial

Hearings held behind closed doors violate the fundamental principle of open justice, which is a cornerstone of a democratic judicial system. Limiting public access to information and holding meetings in secret, reduces transparency and accountability. The public’s scrutiny is essential to ensuring that justice is served and that the court renders decisions that are fair and unbiased.[7]

Possibility of power abuse

Government officials or other organizations can abuse their power when sealed cover processes are used. Without monitoring from the public, there is a higher potential for manipulation, corruption, or the suppression of information that might not be in the interests of those in positions of power. This secrecy threatens the rule of law and the public’s confidence in the justice system.

Limitations to public discussion

The practice of sealed cover law limits public discussion and debate on issues of public concern. It prohibits the public from fully knowing and participating in conversations that have an influence on society as a whole by withholding information or decisions about crucial legal cases or policy concerns. This may obstruct democratic processes and the formation of informed viewpoints.

Possibility of making decisions arbitrarily

When information is given behind sealed coverings, the judge is the only one who can determine if it is relevant and significant. As there is no outside inspection or input, this concentration of authority could lead to arbitrary decision-making. Additionally, it restricts the appellate courts’ capacity to evaluate the decision’s evidentiary support, which could result in incorrect or unfair results.

Unfair advantage

Due to potential advantages for parties with access to the information included in the sealed cover over those without, the application of sealed cover law can lead to an unequal playing field. The parties who are not privy to the information included in the sealed cover could not have the chance to reply to or contest the facts or claims made therein, which can impair their capacity to properly argue their case.[8]

Lack of reasoning

Making judgments in court more arbitrary since judges must defend their choices, which is impossible when they are based on personal data. Another concern is whether the state should be allowed to submit information in secret when currently in place protections, such as closed-door meetings, are adequate for sensitive information. The court orders do not provide any justification for using sealed covers. It is not even suggested that a decision would be made regarding whether the disclosure of the facts would serve the public interest more effectively.

P Gopalakrishnan vs. The State of Kerala

It taints the decision-making process and has an impact on the result. In situations when the facts supplied by the state are required to be discussed and studied to resolve a legal issue, sealed covers have been permitted. The Supreme Court stated in its 2019 ruling in the matter of P Gopalakrishnan v. The State of Kerala that it is constitutionally required to provide papers to the accused.[9]

Arguments in favor of sealed cover jurisprudence

Proponents have come in support of this process and have justified it in certain circumstances. The arguments in favor are –

National Security

For the protection of sensitive material related to national security, sealed cover proceedings may be required. Securing the material with sealed covers ensures its confidentiality and prevents its unauthorized dissemination in situations where the publication of such information could jeopardize a nation’s security or defense. This is especially important when it comes to situations involving intelligence services, military activities, or diplomatic discussions.[10]

Confidentiality

People interested in judicial procedures might benefit from sealed cover jurisprudence by having their privacy and confidentiality protected. Certain documents or evidence may need to be sealed when a private or sensitive business or personal information is involved to avoid unwarranted disclosure and potential harm. For instance, sealed covers might protect intellectual information in situations involving trade secrets or secret company plans.[11]

Preserving faith in the legal system

By guaranteeing people or organizations that their sensitive information will be handled with the requisite confidentiality, sealed cover proceedings can increase the public’s trust in the legal system. Due to worries about public exposure or punishment, this may encourage collaboration and the submission of crucial evidence that could otherwise be concealed. In delicate instances, the option of sealed covers might promote more engagement and disclosure.[12]

Integrating openness and necessity

Advocates contend that sealed cover jurisprudence finds a balance between openness and the preservation of important interests, rather than fully negating transparency. It is possible to protect significant interests while yet upholding general transparency in most proceedings by restricting who has access to sensitive material.

Protection of the ongoing investigations’ integrity

In situations involving organized crime, corruption, or terrorism, sealed covers can play a critical role in preserving the integrity of ongoing investigations. Sealing coverings guarantee that investigations can move forward quickly and efficiently without endangering the safety of the individuals involved or the operation’s success by avoiding the premature exposure of evidence or witness identification.[13]

Protection of vulnerable parties

Sealed cover procedures may be utilized to safeguard parties who may be threatened or intimidated, including witnesses, kids, and sexual assault victims. The sealed covers, which protect their identities and private information, make it safer for them to come forward, testify, and seek justice without worrying about reprisals.

Particular categories of cases where a sealed cover is usually used

National Security

It has been observed that sealed covers are used in cases involving national security issues. Sensitive documents, intelligence reports, or evidence, for instance, might be kept in sealed covers in situations involving terrorism or other acts that put the integrity of the country in danger.

Corruption and Fraud Cases

Sealed covers have been utilized to safeguard private information or evidence in well-known corruption and fraud cases. This makes a guarantee that private financial and investigative information is not made public in the courts.

Constitutional concerns

In cases involving constitutional concerns, sealed covers have been utilized to prevent the exposure of material that would have wider ramifications or could potentially disrupt public peace. These instances may concern issues with fundamental rights, governmental regulations, or private information about people or organizations.[14]

Contempt of court

Sealed covers have been used in contempt of court cases to conceal the identities of witnesses, informants, or whistleblowers who would suffer injury or face retaliation if their identities were made known to the public.

Electoral Disputes

Sealed covers have been used to manage sensitive material like voter lists, private reports, or evidence that could affect the fairness and integrity of the electoral process in situations involving electoral malpractices or disputes.

Indian cases where the sealed cover was used

Rafale jet case

Allegations of corruption and irregularities in the Indian government’s purchase of Rafale fighter jets from France were at the center of the Rafale jet case. In this instance, the usage of sealed covers relates to the transmission of confidential documents and deal-related information.

The Central Government requested that some documents be submitted in a sealed cover and asserted privilege over them during the hearings. The allegedly relevant documents dealt with the Rafale deal’s offset contracts, technical requirements, and pricing information. The government stated that the disclosure of such material might affect strategic objectives and national security.[15]

The method of sealed cover was used to safeguard the privacy of these documents while enabling the court to examine their content. In its decision on December 14, 2018, the Supreme Court of India agreed to review the sealed-cover documents to establish their relevance and whether they affected the case.

The documents’ sealed covers were unsealed by the court, and a three-judge bench discreetly reviewed them to determine their importance. The court later determined that the records did not demonstrate any anomalies or misconduct in the Rafale contract and that the procurement procedure was legitimate and following the relevant regulations.

National Register of Citizens case (NRC)

A list of Indian nationals living in the state of Assam is contained in the NRC. Verifying the citizenship of those living in Assam and identifying those who were regarded as illegal immigrants were both parts of the updating of the NRC.

The Supreme Court of India had mandated that certain papers, including reports and top-secret intelligence inputs, be submitted under sealed covers during the NRC proceedings. These sealed covers held information that was deemed sensitive owing to its possible influence on public safety, national security, or individual privacy.[16]

The documents’ confidentiality and ability to remain private were both protected by the sealed cover mechanism. The court-appointed authorities in charge of conducting the verification process and updating the NRC presented these documents to the court in sealed covers. The court or another designated authority then unsealed the sealed covers, examined the contents, and decided if they were relevant to the case.

2014 BCCI Case

Allegations of corruption and conflicts of interest inside the cricketing organization were made in the BCCI (Board of Control for Cricket in India) case in 2014. Securing sensitive information, private reports, or documents that are essential to the inquiry may be done in cases involving corruption or misbehavior. The use of sealed coverings ensures the confidentiality and accuracy of the data stored therein.

When the cricket organization’s investigating committee turned in its findings in a sealed envelope, the Supreme Court in this case asked that the names of nine players suspected of the match and spot-fixing not be made public.

In the 2014 BCCI case, the use of sealed covers would have certainly performed a similar function, allowing the court to review and weigh important information and evidence while protecting confidentiality. Only the court or the pertinent authorities involved in the case would have had access to the specifics of the documents and information included behind the sealed covers.[17]

Alternative to sealed cover jurisprudence

Media One News Channel case

The problem occurred after the Intelligence Bureau denied Media One News Channel MBL security clearance and disparaged MBL’s main financing source, which was allegedly from Jamaat-e-Islam (JEI-H) sympathizers, as well as its anti-establishment position. The UAPA, the Armed Forces (Special Powers Act), government development initiatives, encounter killings, the Citizenship (Amendment) Act, the NRC, and the NPR alleged “double standards in terrorism cases” by the Indian judiciary, and alleged negative portrayal of security forces was also mentioned in the report.

To determine whether these reasons are sufficient to deny security clearance and, as a result, limit MBL’s right to press freedom under Article 19(1)(a) of the Constitution (freedom of speech and expression), the Court was asked to issue its ruling.[18]

MediaOne TV battled against a government ban in front of the Kerala high court after the trial court improperly suspended the channel. Two of the most severe examples of “sealed cover” jurisprudence in Indian courts may be found in the decisions of the single judge and division bench of the high court, both of which maintained the government’s ban on the TV channel. Without explanation or a hearing, MediaOne had been prohibited. The government claimed “national security” and presented information in a “sealed cover” when it contested the prohibition in court, which prevented the government from making its case. The High Court agreed with the government. The case took a rather ludicrous turn when the division bench studied the data contained in the sealed cover and openly stated in its decision that the impact on national security was not “discernible” but yet upheld the ban.[19]

The appeal thereafter went to the Supreme Court –

The Supreme Court subsequently reviewed all the documents and issued a ruling on the sealed cover doctrine. The bench, made up of Justice Hima Kohli and Chief Justice of India (CJI) D.Y. Chandrachud, also commented on giving investigative agencies “blanket immunity” from disclosing some information to the public. Given that investigative agency reports have an impact on decisions affecting people’s lives, freedoms, and careers, it is inimical to an open and accountable society to grant them complete exemption from exposure. It is not possible to provide general immunity from disclosure of all investigative reports.[20]

The Supreme Court iterated the alternative procedure for the sealed cover [21]–

The judgment established a ‘public interest immunity to claim procedure’ as an alternative to providing information in sealed covers, serving as a less onerous safeguard when the withholding of information is justified based on national security.
The courts have the authority to appoint an amicus curiae to review claims of immunity from disclosure made by the state on the grounds of public interest.
The court shall grant access to the papers that the state is requesting to be withheld to the amicus curiae it has chosen.
Before the hearing, the amicus curiae should be allowed to speak with the applicant and their counsel to understand the facts of the case and to compile the evidence they will need to make a persuasive case for the need for disclosure. The amicus curiae is not allowed to contact the applicant or their attorney once the immunity procedure has begun, though.
To the best of their ability, the amicus curiae shall represent the applicant’s interests.
The amicus curiae would be required under the oath to keep the information confidential and not share it with anyone else, including the applicant or their legal counsel.
The hearing on public interest immunity will be held behind closed doors.
In open court, the Court must issue a reasoned decision on whether to accept or reject the claim
Even if the Court grants the immunity claim, it must nonetheless issue a reasoned order on the principles it has considered and applied, even if the data sought to be suppressed is redacted from the ruling.
The redacted portions of the reasoned ruling, however, must be retained in the court records so that the Courts can access them if necessary in the future.
To appropriately exclude items if a public interest immunity claim is successful, courts should redact private portions of the sealed cover document and provide a summary of its contents.

To prevent courts from arbitrarily employing the “sealed cover procedure,” the decision also offers a substitute methodology for evaluating state claims of immunity from disclosure in the public interest. Drawing on Indian and international legal precedents, the Bench has emphasized that it is now a well-established principle of natural justice that the necessary information must be supplied to the affected party to ensure that the right to appeal can be effectively exercised. The text states that maintaining anonymity and preserving national security may be “legitimate goals to limit procedural guarantees.”

The right standards, however, had to be adopted to ascertain whether or not such aspects were implicated. It was not practicable to provide all reports with general protection against disclosure. It is feasible to establish if a reasonable person would reach the same conclusion if there is evidence that keeping something secret improves national security. To achieve a balance between the public interest in anonymity and the one in ensuring a fair hearing, the Court has advised remedies include redacting sensitive parts and giving the impacted party a summary of the information disclosed. The Court may also appoint an amicus curiae who will have access to the pertinent data when the state asserts its immunity from disclosure.[22]

Conclusion

The research on this practice has shown several recurring themes, one of which is the court’s absolute discretion in presenting justification for the admission of a document made and submitted under a sealed cover. This practice prompts one to raise a crucial

Does this procedure, which allows it and denies the person a chance to defend himself against the information in the sealed document, allow the court to use the audi alteram partem principle? This method is now being employed too frequently and carelessly in routine court proceedings because no suitable guideline or specific regulation is limiting it.

In Minerva Mills v. Union of India,[23] the Hon. Supreme Court reaffirmed the importance of basic rights. Constitutional principles forbid the government from making arbitrary decisions that might infringe on these fundamental rights. In conclusion, it is advised to stop using sealed cover jurisprudence or to continue using it with greater checks and balances because doing otherwise would further undermine the principles of natural justice and would deprive citizens of their fundamental rights.

[1] Diksha Singh and Prateek Sharma, The practice of sealed cover An Interplay of Judicial Discretion and the rights of the accused, 3 INT’L JLMH 461-462 (2020).

[2] Supreme Court Rules 2013, Rule 7, Order XIII, 2013 (India).

[3] Indian Evidence Act 1872, § 123, Act of Parliament, 1872 (India).

[4] Criminal Procedure Code 1973, § 327, Act of Parliament, 1973 (India).

[5] Diksha Singh and Prateek Sharma, The practice of sealed cover An Interplay of Judicial Discretion and the rights of the accused, 3 INT’L JLMH 462-464 (2020).

[6] DRISHTI IAS, https://www.drishtiias.com/daily-updates/daily-news-analysis/sealed-cover-jurisprudence-1#:~:text=Sealed%20Cover%20Jurisprudence%20(SCJ)%20is,in%20charge%20of%20the%20case. (last visited 11^th June 2023)

[7] CLEAR IAS, https://www.clearias.com/sealed-cover-jurisprudence/ (last visited 12^th June 2023)

[8] THE HINDU, https://www.thehindu.com/news/national/explained-what-is-sealed-cover-jurisprudence-and-why-is-it-being-opposed/article65056013.ece (last visited 14th June 2023).

[9] P Gopalakrishnan v. The State of Kerala, AIR 2020 SC 1, 2019 (16) SCALE 752.

[10] THE HINDU, https://www.thehindu.com/news/national/on-sealed-cover-jurisprudence/article66529943.ece (last visited 16th June 2023)

[11] LIVE LAW, https://www.livelaw.in/top-stories/supreme-courts-changing-attitude-towards-sealed-cover-procedure-224310 (last visited 16th June 2023)

[12] BAR AND BENCH. https://www.barandbench.com/news/litigation/sealed-cover-proceedings-violate-principles-natural-justice-supreme-court-mediaone-judgment (last visited 17th June 2023)

[13] INDIA TIMES, https://www.indiatimes.com/explainers/news/what-is-sealed-cover-jurisprudence-judiciary-concerns-explainer-568973.html (Last visited 19th June 2023)

[14] NEWS LAUNDARY, https://www.newslaundry.com/2023/03/25/how-sealed-covers-in-court-became-the-norm-for-the-state#:~:text=Courts%20usually%20ask%20for%20sealed,believe%20the%20matter%20is%20sensitive. (last visited 20^th June 2023)

[15] THE HINDU, https://www.thehindu.com/news/national/sc-misinterpreted-statement-made-by-govt-in-sealed-cover-on-rafale-deal-pricing-details/article62016264.ece (last visited 20th June 2023)

[16] THE TIMES OF INDIA, https://timesofindia.indiatimes.com/india/explainer-why-sealed-cover-irks-supreme-court/articleshow/98846489.cms?from=mdr (last visited 21^st June 2023)

[17] SCROLL. https://scroll.in/field/854514/the-10-who-got-away-sreesanth-brings-the-mysterious-sealed-envelope-into-focus-once-again (last visited 21^st June 2023)