Sealed cover Affidavits

In News

• The Supreme Court has suggested a way out of routinely filing documents in sealed covers, especially in cases touching on national security.

More about the news

• Sealed cover affidavits:
  • The Supreme Court was recently urged to consider laying down a law on the practice of governments submitting affidavits in a sealed cover. 
• Statute:
  • The law permits the submission of confidential material to the court in some cases. 
  • The Evidence Act also allows the privilege of non-disclosure of some documents and communications. 
• How?
  • In cases where the government insists on keeping materials confidential from petitioners in the public interest, it ought to claim “specific privilege” in an affidavit and impress upon the court that the contents should remain confidential.
  • In addition, courts can order some contents to be kept confidential. 
• Supreme Court’s opinion:
  • The court said the government could redact the sensitive portions and show the rest to the petitioners. 
  • This would address both the state’s concerns about “national security” and the “right to know” of petitioners.

Issues & Criticisms with the Sealed cover affidavits

• Repeated practice:
  • National security is often being used in the courts across the country and this is happening repeatedly.
• Bias and no power in defence:
  • The practice compromises the defence of those accused of some crimes, especially those involving an alleged threat to national security, or money laundering and corruption.
  • This also creates a bias in the minds of judges.
    • Example:
      • A recent decision of the court in which an Armed Force Tribunal while dealing with a case related to Permanent Commission in the Navy had relied on a sealed cover report, while the other side did not get an opportunity to respond to that content.
• Denial of bail:
  • Undisclosed material is often used to deny bail.
• Sealed cover Vs Open courts:
  • The irony is that, in a court that has in the past entertained sealed covers even while efforts were on to embrace the concept of ‘open court’ through live-streaming proceedings. 
• Used in disputed cases:
  • Sealed covers were unquestioningly accepted, even sought for in cases, including the purchase of Rafale jets, the Bhima Koregaon case, the National Register of Citizens in Assam, etc. 
    • In these cases, sealed cover even rose to the status of due procedure.

Way ahead

• In courts of Western countries when this kind of material which deals with sensitive material like of national security comes before the court, it appoints a neutral person to have a look into it and assist the court.
• The main mischief of the ‘sealed cover’ practice lies in the scope it gives the state to avoid deep scrutiny of the need and proportionality of its restrictions on freedom. 
• The time has come for the Supreme Court to determine and circumscribe the circumstances in which confidential government reports, especially those withheld from the other side, can be used by courts in adjudication.

Source: TH