The curious case of sealed cover jurisprudence. What kind of information comes under the purview of ‘confidential’? Is this practice of withholding documents against the idea of a fair trial?

Sealed cover jurisprudence 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.

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.

Critics of this practice contend that it is not favourable to the principles of transparency and accountability of the Indian justice system.

Diksha Munjal

The story so far: While hearing a criminal appeal against the Bihar Government on Tuesday, Chief Justice of India (CJI) N.V. Ramana admonished a counsel for submitting a ‘sealed cover report’ to the court. The CJI asked the counsel to not submit the report in a sealed cover. “We will not accept it,” Justice Ramana remarked.

Later in the day, senior advocate Dushyant Dave recalled the same remarks to a bench led by Justice D.Y. Chandrachud hearing the government imposed ban on Media One channel. In this case too, the Centre had submitted relevant files to the court in a sealed cover.

“I am very averse to what is called the ‘sealed cover jurisprudence’,” Justice Chandrachud said.

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.

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, except 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.

As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.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.

When has it been done in the past?

Sealed cover jurisprudence has been frequently employed by courts in the recent past.

Documents were examined in sealed cover in multiple prominent cases during the tenure of the former Chief Justice of India, Ranjan Gogoi. In the case pertaining to the controversial Rafale fighter jet deal, a Bench headed by Chief Justice Ranjan Gogoi in 2018, had asked the Centre to submit details related to the deal’s decision making and pricing in a sealed cover. This was done as the Centre had contended that such details were subject to the Official Secrets Act and Secrecy clauses in the deal.

In the matters related to the National Register of Citizens (NRC) in Assam, the Supreme Court mandated coordinator of the NRC, Prateek Hajela, was asked by the apex court to submit period reports in sealed cover, which could neither be accessed by the government nor the petitioners.

Another instance was in the 2014 BCCI reforms case. The probe committee of the cricket body had submitted its report to the Supreme Court in a sealed envelope, asking it not to make public the names of nine cricketers who were suspected of a match and spot fixing scam.

Similarly, in the Bhima Koregaon case, in which activists were arrested under the Unlawful Activities Prevention Act (UAPA), the Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover.

In the case of activist Gautam Navlakha for instance, the police had submitted a sealed envelope including information recovered from the electronic devices seized from the activist. The police had stated that this information could not be disclosed to the accused as it would impede the ongoing investigation.

At the time, Navlakha’s counsel had countered the submission citing violation of his rights to fair adjudication, stating that the applicant did not know the contents of the sealed cover or whether it formed a part of the police’s case diary.

Information submitted by state agencies in a sealed cover was also relied upon in the 2G and coal scam cases, the Ram Janmabhoomi case, the high-profile case pertaining to the death of judge B.H. Loya, as well as the 2019 case pertaining to the release of Prime Minister Narendra Modi’s biopic around the national elections.

What is the criticism and what do the courts say?

Critics of this practice contend that it is not favourable to the principles of transparency and accountability of the Indian justice system, as it stands against the idea of an open court, where decisions can be subjected to public scrutiny.

It is also said to enlarge 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.

What is further contested is whether the state should be granted such a privilege to submit information in secrecy, when existing provisions like in-camera hearings already provide sufficient protection to sensitive information.

Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication. In the 2019 judgment in the case of P. Gopalakrishnan vs 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 a breakthrough in the investigation.

Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication. In the 2019 judgment in the case of P. Gopalakrishnan vs 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 a breakthrough in the investigation.

In the INX Media case in 2019, while granting bail to Congress leader P. Chidambaram, a Bench of the Supreme Court had criticised the Delhi High Court for basing its decision to deny bail to the former Union Minister on documents submitted by the Enforcement Directorate (ED) in a sealed cover.

The three-judge Bench of Justices R. Banumathi, A. S. Bopanna, and Hrishikesh Roy had said: “Though it is held that it would be open for the Court to peruse the documents, 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 grant of bail”.

With inputs from Saptaparno Ghosh