By Lokendra Malik
Recently, two benches of the Supreme Court objected to the disturbing practice of submission of information in sealed covers by the government and its agencies in courts, including the apex court. The first recent instance was in the Muzaffarpur shelter sexual abuse case, where a three-judge bench headed by Chief Justice of India (CJI) NV Ramana asked the counsel appearing for Bihar not to submit the action taken report in the sealed cover. The CJI remarked: “Do not give any sealed covers, keep it with you, I do not want any sealed covers”. On the same day, another three-judge bench of the apex court, headed by Justice DY Chandrachud, also came down heavily on the central government for submitting information in a sealed cover while hearing the appeal of the Malayalam TV channel MediaOne. Justice Chandrachud said that he was averse to what is called “sealed cover jurisprudence”.
On the appeal of MediaOne, the Supreme Court stayed the operation of the impugned order passed by the Kerala High Court which had relied on sealed cover material submitted by the centre against the channel. The centre had banned the broadcasting of the channel, alleging that it was involved in anti-national activities. The apex court framed a larger issue to examine the validity of the sealed cover procedure, especially in the background of the MediaOne case. It may be noted that it is quite disconcerting that the Kerala High Court ruled in favour of the central government without providing any opportunity to the channel to know what is being held against it, based on the sealed covers.
The Supreme Court has done well to disapprove the practice of sealed covers which violate the fundamental principles of the administration of justice. A democratic country does not need a secret judicial system. It is a welcome step that will send a strong message to the government and its law-enforcement agencies not to take the judicial process for granted.
While this is not the first time when sealed covers has become an issue, it is unfortunate that during the last few years, the Supreme Court has entertained sealed cover material submitted by the government and its agencies in important cases like Bhima Koregaon case, Rafale case, Assam NRC case, and Alok Verma case. In all these cases, the government submitted sealed cover materials in court.
The former CJI, Ranjan Gogoi, was fond of sealed cover jurisprudence. He promoted this practice greatly, particularly in the Assam NRC case which has no sound constitutional justification. The government also used the opportunity to submit sealed covers in many other cases to justify its undemocratic approach. It is sad to note that the highest judicial tribunal in the country allowed this kind of practice which goes against the basic principles of natural justice and an open judicial adjudication system.
In a democracy founded on the rule of law, only highly restricted acts by government authorities may remain in the realm of secrecy. Some issues like national security, delicate international negotiations, or survivors of sexual abuse cases may be some exceptions where sealed cover material can be accepted by the courts. Admittedly, the Supreme Court rules and the Evidence Act allow the sealed cover system in exceptional cases when the government submits any confidential or privileged information to the court. But even in such cases, the courts have the power to peruse the material and satisfy themselves with the claim. The courts can reject the government’s claim of privileged or confidential communication. The government usually justifies the submission of secret material directly to the court, citing national security or ongoing investigation-related issues. The courts have often justified accepting sealed cover material by underscoring that it is to satisfy their judicial conscience. However, the practice has sometimes undesirable consequences that harm the interest of other parties involved in the litigation, mainly in cases of violation of fundamental rights. The principles of natural justice demand that all parties involved in the litigation get a fair opportunity to scrutinize evidence submitted against them by the prosecution agencies. Not only this, but the common people are also entitled to know how courts decide cases and how evidence is appreciated by the courts.
Transparency strengthens the credibility of the judiciary and public trust is the greatest strength of the judiciary. Justice should be administered openly, not behind closed doors. The government is duty-bound to share evidence with the affected persons who have the right to defend themselves. We have seen how the sealed cover procedure has been mostly used against persons accused of posing a threat to national security, or involved in money laundering and corruption cases. In such cases, the undisclosed material submitted in sealed envelopes is often used to refuse bail to the accused persons who do not get a chance to refute such material.
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A few years ago, the Supreme Court had also criticised this practice in the P Chidambaram case when the Delhi High Court had denied bail to Chidambaram based on the sealed cover information submitted by the central government against him. This is what the Court had observed: “While the learned judge was empowered to look at the materials produced in a sealed cover to satisfy his judicial conscience, the learned judge ought not to have recorded findings based on the materials produced in a sealed cover… It would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or refusal of bail.”
Given the above situation, the time has come when the Supreme Court should discourage the practice of sealed cover material and ask the government not to use it as routine and the practice can be reserved for exceptional situations. This practice is very harmful to a free, fair, and open administration of justice that has no place for secrecy.
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The practice of sealed cover violates the basic principles of natural justice and helps the government or its prosecution agencies to prejudice the court against those who knock on their doors when their fundamental rights are infringed by the state. Justice is not a matter between one party in the case and the court. It is a matter of public interest. Justice should not only be done but it must also be seen to be done. Why so much secrecy in judicial adjudication?
In one of his media interviews, eminent jurist Professor Upendra Baxi has rightly said that the administration should be public. “But I will add an additional remark that in the last ten years a system of ‘sealed envelopes’ has developed. We do not know as citizens what is in those sealed envelopes. Jeremy Benthem, the English philosopher, jurist, and founder of modern utilitarianism, said in 18th century that “publicity is the best disinfectant”. Therefore, administration of justice should be in public. That is the cardinal principle of the rule of law. And jurisprudence of ‘sealed envelopes’ withdraws from the public information which is rightfully theirs. Be it inquiry commissions, or CBI, everyone is giving sealed envelopes. You never get to know what is in the sealed envelope. That is not justice in my view. Justice is done in broad daylight. A new jurisprudence of secrecy being evolved. It is unconstitutional, and should end”.
The writer is an advocate, Supreme Court
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