Sealed Cover Jurisprudence

In News

• Recently, 11 MPs and others criticised the ‘sealed cover jurisprudence’ of Kerala High Court.

About

• Two separate benches of the Supreme Court did the right thing by red-flagging the disturbing practice of courts accepting information from government agencies in sealed envelopes.
• Instances where Supreme Court held otherwise:
  • In the Rafale aircraft case
  • While refusing to stay the arrest of activists held in the Bhima-Koregaon case, 
  • In the NRC exercise in Assam — that led to about 19 lakh citizens being excluded from the list. 
  • In the case involving corruption allegations against the CBI director, Alok Varma.

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.
• Rule 7 of order XIII of the Supreme Court Rules:
  • 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.
  • Exceptions: 
    • 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.
• Section 123 of the Indian Evidence Act of 1872:
  • Under this act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.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 are when its publication impedes an ongoing investigation, such as details which are part of a police case diary.

Reasons for Sealed Covers

• When the matter pertained to the Official Secrets Act. 
• To maintain public confidence in the Government agency.
• Delicate international negotiations or those that relate to sensitive aspects of security, 
• Details about survivors of sexual assaults or child abuse which may affect their future life and bring unncessary shame affecting the Right to Live with Dignity.
• Disclosure sometimes affects the ongoing investigation.

Criticisms/Issues with Sealed Cover Jurisprudence

• Arbitrariness in Judgements:
  • Sealed envelopes enlarges 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.
• Sufficient protection available:
  • The state shouldn’t be granted such a privilege to submit information in secrecy, when existing provisions like in-camera hearings already provide sufficient protection to sensitive information.
• Principle of natural justice: 
  • The principles of natural justice demand that all parties in litigation get a fair chance to scrutinise evidence. 
  • Not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication. 
• Transparency: 
  • Transparency is one of the sources of legitimacy of the institution of the judiciary which is severely hampered by this process. 
• Right to know:
  • Citizens are entitled to know the reasons for court verdicts and subject them to scrutiny. 
  • The Guardians of Fundamental Rights, Supreme Court, can not take away this from the citizens.

Way Ahead

• In a democracy, only a small set of acts by public agencies must remain in the realm of secrecy.
• Such acts not only keep the citizens in the dark but affect the overall policy making or functioning of the welfare state in a democracy.

Source: TH