Sealed Cover Jurisprudence

IN NEWS:

• A Bench led by Chief Justice of India criticised the practice of “sealed cover” jurisprudence as setting a “dangerous precedent”, which makes “the process of adjudication vague and opaque”.

SEALED COVER JURISPRUDENCE:

• It is the practice followed by the courts of seeking and accepting information from government agencies in sealed envelopes that can only be perused by the judges.
• Sealed cover enjoys legal identification but there are no specific and stringent guidelines for its usage.
• Court derives its power to use it from:
  • Order XIII Rule 7 of the Supreme Court Rules, 2013, states that no person has the right to access the information contained in a sealed cover prepared under the directions of the Chief Justice or the Court.
  • Section 123 of the Indian Evidence Act of 1872: Official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.
• Courts ask for information in a sealed cover in broadly two circumstances:
  • When information is connected to an ongoing investigation; and
  • When it involves personal or confidential information.
• A government-appointed committee on criminal law reforms is currently exploring the need for guidelines on admissibility of evidence submitted in sealed cover.

NEED OF SEALED COVER JURISPRUDENCE:

• Protect individual’s privacy:
  • Sealed cover jurisprudence is often needed to protect sensitive information affecting the privacy of individuals such as the identity of a sexual harassment victim.
• Ensure proper investigation:
  • Disclosure of information linked to an ongoing investigation could impede the investigation. In such cases, sealed cover jurisprudence is necessary.
  • Eg: In the Bhima Koregaon case, in which activists were arrested under the UAPA, the Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover. The police had stated that certain information could not be disclosed to the accused as it would impede the ongoing investigation.
• Secure national security and public order:
  • Certain information must be kept confidential if its publication is not considered to be in the interest of the public and national security.
  • For instance, in the case pertaining to the Rafale fighter jet deal, sealed cover was called for since the requested details were subject to the Official Secrets Act and Secrecy clauses in the deal.
• Ensure complete justice:
  • Sealed covers are typically used when the information submitted is so sensitive that the public must not learn about it. In these situations, the Court requests information in sealed covers to ensure ‘complete justice’.

CRITICISM:

• Violates ‘open court’ principle:
  • Sealed cover jurisprudence is not favorable to the principles of transparency and accountability of the Indian justice system and stands in contrast to the idea of an open court, where decisions can be subjected to public scrutiny.
• Impedance to fair trial:
  • Sealed cover denies the aggrieved party’s ‘Right to know’ and to effectively challenge an evidence/order since the adjudication has proceeded on the basis of unshared material.
  • It also tilts the balance of power in a litigation in favour of a dominant party which has control over information. Most often than not this is the government.
  • There are also chances of illegally obtained evidence being presented through sealed covers.
• Increases arbitrariness:
  • The common practice for use of sealed cover protection is through submitting an affidavit to the court without mandating any requisite conditions to be fulfilled by the party/parties. Hence, it is purely an ad hoc decision and decisions may vary from one judge to the other.
  • Also, Courts are bound to set out reasons for their decisions. But sealed cover jurisprudence takes away the opportunity to analyse judicial decisions and to appreciate the rationale behind them.
• Violates SC Judgements:
  • In the 2019 judgment in the case of P Gopalakrishnan V. The State of Kerala, the Supreme Court had said that disclosure of documents to the accused is constitutionally mandated, even if the investigation is ongoing and said documents may lead to breakthrough in the investigation.
• Risk of abuse:
  • Sealed covers can be used to conceal information that is not legitimately confidential, or to gain an unfair advantage in the legal process.
• Presence of alternatives:
  • Measures like in-camera hearings already provide appropriate security to sensitive information. So, the frequent use of sealed covers can be avoided.

CONCLUSION:

The measure of nondisclosure of information must be proportionate to the purpose that the non-disclosure seeks to serve. So, courts must balance the competing interests of executive and individual rights on a case-to-case basis.

While doing so, factors such as the relevancy of the evidence, availability of alternate evidence, the sensitivity of the litigation and the role of the government must be accounted for by the court.

PRACTICE QUESTION:

Q. A judicial regime dominated by the jurisprudence of sealed covers has no place in a democratic set-up. Discuss.