SEALED COVER JURISPRUDENCE: BOON OR BANE?

INTRODUCTION

Every citizen of this Democratic country has the right to information enshrined under Article 19 (1) of the Constitution[1], according to which every individual has a right to know how the government is working, what roles it has, what functions it has to disseminate and the duties it has to fulfil. The right not only provides a right to the citizens but also a negative corresponding duty upon the government to be answerable to the people of the country and it creates transparency. However, in the recent past, there have been instances where information in sealed covers has been presented in the courts and consistently it has been the government side.

Sealed cover jurisprudence is a procedure where the courts accept information that is in sealed covers and can only be examined by the judge. We can say that this doctrine works as an exception to the right to information, as our Constitution allows us to restrict the Fundamental Rights on the grounds of national security, public order and morality. Indian Courts have perpetually used this doctrine but recently, it is stirring up debates upon the validity and constitutionality of the same as it has become a trend to give information in sealed covers, which does have benefits but can also be abused very easily.

LEGALITY OF THE DOCTRINE

This doctrine has not been defined under the Indian laws but has been in practice since time immemorial. The doctrine of sealed cover derives its legality from Section 123[2] of the Indian Evidence Act, 1872 (hereinafter IEA) and Rule 7 of Order XIII of the Supreme Court Rules. Section 123 IEA protects or provides a privilege to the government that their unpublished documents which relate to the affairs of the state, cannot be used by the witnesses in court and such documents if submitted in court cannot be disclosed and has to be kept in secrecy. Additionally, Rule 7 of Order XIII which is a non-obstante clause, declares that unless the Chief Justice or the court allows, no individual is permitted to receive any document that the court considers to be kept in sealed covers as it affects the interest of the public at large.

IS IT A BOON?

Conventionally, this doctrine was used for the following purposes:

  • For national security,
  • Public order and morality,
  • Public interest,
  • In cases where privacy is the primary issue,
  • Where it would impede the investigation,
  • Where in-camera proceedings are held, or
  • Where a risk of tampering with the evidence is involved.[3]

It is the courts’ discretion to decide whether such information should be disclosed or not. The Courts are highly cautious because the information which is related to the above-mentioned matters if published could affect the public at large. Thus, the courts are given this unbridled power to exercise their discretion and choose which information is necessary to be published and which is necessary to be kept in secrecy as the interest of the public is of paramount importance.

As we know it, India is a welfare state, therefore it is the responsibility of the State to take care of its citizens by making laws which protect their social and economic needs. Similarly, this doctrine is also one such practice which protects the citizens from being affected by such sensitive information or helps in protecting the privacy of an individual in sexual offences or helps the prosecution to keep some information secret from the accused, so that the accused who may have strong connections cannot influence the witnesses or tamper the evidences. The Constitution, which is considered to be supreme in the Indian scenario, provides the citizens Fundamental Rights and the right to information is one such right as upheld by the Supreme Court in the case of State of U.P v. Raj Narain & Ors[4], which makes it a basic right of every citizen to know every detail about the functioning of the government unless curtailed on the above-mentioned grounds.

IS IT A BANE?

Transparency and accountability are the two most basic and important principles in a democratic nation, it becomes fundamental that the decisions of the Indian Courts should be based on proper reasonings which are published and are open to public criticism. Whereas, this doctrine opposes this ideology and permits the Courts to do away with the requirement of ‘reasoned judgement’ and the information is also kept from the opposite party which deprives them of justice as they cannot completely defend their case. A Bench of Justice A.M. Khanwilkar has opined in the case of  P. Gopalakrishnan @ Dileep v. State of Kerala[5], that the documents submitted in the court have to be communicated to the accused as the Constitution gives him the right to a fair trial.

Recently, this practice has been used in various judgements, like in the Rafale aircraft case 2018 where a three-judge Bench led by Ranjan Gogoi delivered the judgement based on a sealed cover note submitted by the Central Government on pricing details, in the Bhima-Koregaon case 2018 the Supreme Court relied upon the details given in sealed cover by the Maharashtra Police stating that disclosing such information would obstruct the investigation, in INX media case 2019 the Delhi High Court when granted bail to P. Chidambaram relied upon the information submitted by the Enforcement Directorate in a sealed cover, in Assam’s National Register of Citizens case as well this doctrine was specifically asked by the Supreme Court to be followed.[6] Thus, it is quite evident that the doctrine has become extremely prevalent in recent years.

Though this doctrine has been in practice, still it does not make it appropriate for the Courts to use it as a matter of routine. Present, CJI N.V Ramana made remarks on this issue, that such a  method should be used only when it is inevitable otherwise it must be discouraged and deprecated. The CJI made such remarks when it was hearing the Muzaffarpur shelter home sexual abuse case and the action taken report was submitted in a sealed cover, to which the CJI asked that what was the need to submit action taken report in a sealed cover.[7] In another case, Justice DY Chandrachud clamped down on the Government while hearing the appeal of the Malayalam TV channel MediaOne against the order of the Kerala High Court, which was passed based on sealed cover information presented by the Government. Justice DY Chandrachud stayed the order passed by the Kerala High Court citing reasons that the channel was not given enough opportunity to know why such a decision was passed against it.

CONCLUSION

As it is rightly said by Lord Acton, power corrupts and absolute power corrupts absolutely. The statement fits in the present scenario precisely because unconstrained power has been given to the Government and the Judiciary to hide behind the ‘sealed cover’ which in a way directly affects Constitutionalism which is all about checks and balances upon the powers of the Government. Considering that the Constitution is supreme in India and the Government has only limited powers, the Supreme court must provide some guidelines for applying the doctrine of sealed cover. Allowing the use of this doctrine as a routine would only obstruct the principles of natural justice and create a situation where arbitrariness prevails. A procedure which goes against the Principles of Natural Justice should be restricted in a manner that does not deprive any person of the right to a fair trial because ultimately the procedures are only to support the law and not obstruct them.

Author(s) Name: Shubhi Rathore (IMS Unison University, Dehradun)

References:

[1] Constitution of India, 1950, art.19(1)

[2] Indian Evidence Act, 1872, s 123

[3] Namita Shetty, ‘Practice of Sealed Cover Doctrine: A case of Constitutionalism of Convenience?’ (Legal Formats India, 30 November 2020) <https://legalformatsindia.com/practice-of-sealed-cover-doctrine-a-case-of-constitutionalism-of-convenience/> accessed 7 June 2022

[4] State of U.P v Raj Narain & Ors., (1975), AIR 865

[5] P. Gopalkrishnan @ Dileep v The State of Kerala (2019) Criminal Appeal No. 1794/2019

[6]Diksha Munjal, ‘What is sealed cover jurisprudence and why is it being opposed’ (The Hindu, 18 February 2022) <https://www.thehindu.com/news/national/explained-what-is-sealed-cover-jurisprudence-and-why-is-it-being-opposed/article65056013.ece> accessed 9 June 2022

[7] ‘Sealed Justice: On sealed cover jurisprudence’ (The Hindu, 25 March 2022) <https://www.thehindu.com/opinion/editorial/sealed-justice-the-hindu-editorial-on-sealed-cover-jurisprudence/article65256773.ece> accessed 9 June  2022