Image: Shambhavi Thakur / The Newslaundry
What is this sealed cover business? Why would the governments, union or state, or their agencies of law enforcement, desire to make submissions to Courts in sealed envelopes? Such secretive sealed cover procedures have been in operation in not just in Supreme Court but courts at all four levels of the judicial hierarchy, becoming a rather entrenched undemocratic practice. Within a democracy, ensuring that the state has a position and stature at a more dominant level that the people, ordinary citizens, even those challenging arbitrary unconstitutional acts –including the breakdown of law and order – within courts. It is only very recently that the Supreme Court has refused to accept them, that too in some cases!
On March 20, 2023, present Chief Justice of India (CJI) Chandrachud categorically refused to accept sealed cover submissions from the government while hearing a matter relating to disbursal of arrears to retired defence personnel under the One Rank One Pension (OROP) scheme. The CJI declared that he was completely against sealed covers as they are against judicial principles. “It can be resorted to only when it is about a source or endangering someone’s life,” he said.
Significantly, in February 2023, in a major reversal of the SC’s decades-old practice relating to sealed cover material given by the government and probe agencies, (starting with Bofors case accused Ottavio Quattrocchi’s defreezing of London bank accounts to probes into 2G and coal scams) the CJI-Chandrachud led bench refused to accept names of experts given by the Centre for inclusion in the committee to probe the recent diversion of LIC funds to the Gautam Adani group by the Modi 2.0 government. The words used were telling. The bench said, “We will not accept sealed cover suggested names from you (the Centre). We will tell you why. In constituting a committee, we want to maintain full transparency. The moment we accept a set of suggestions from you in sealed cover, it would mean that the other side (petitioners) have not seen it. Even if we do not accept your suggestions, they would not know which of your suggestions we accepted and which we have not. Then, there will be an impression that, well, this is a government appointed committee which the SC has accepted, even when we do not accept your suggestions.” The CJI-led bench further said, “We want to maintain the fullest transparency in the interest of protecting the interest of investors. So, we will appoint a committee on our own, which might be all together better as that would promote a sense of confidence in the process.”
Ironically, not so long ago, in December 2022, a bench headed by Justice SA Nazeer and comprising Justices B R Gavai, A S Bopanna, V Ramasubramanian, and B V Nagarathna directed the Union government and Reserve Bank of India to place before “it in a sealed cover”, records pertaining to the government’s decision in 2016 to demonetise currency notes of Rs. 1,000 and Rs. 500. Ultimately, the court, in a majority judgement found no flaw in the demonitisation process, even though Justice Nagarathna was the sole dissenting judge calling the process unlawful. At the conclusion of the much-delayed judicial process in this case (challenges to demonitisation were pending since late 2016), the people of India, sovereign under the Constitution have been left in the dark about the process that led to a sudden decision by the present prime minister, Narendra Modi, moreover one that seriously damaged the economy, of both individuals and the country.
Procedural and substantive justice, hand in hand ensure justice delivery. One without the other, or partial practices that undermine both categories have seriously affected the Indian quality of jurisprudence. Here, we delve deep into the politics and practice behind the “sealed cover”, something that amounts to a pact of underlying secrecy between the judiciary and the excecutive, leaving the people of India, or litigants on the opposing deprived of the charmed circle of understanding what and who makes government decisions and why.
Former CJI NV Ramana was also visibly irked by the concept of sealed covers in March last year, 2022, when it was dealing with a case where the Bihar government was a party, he said, “Please don’t give us a sealed cover, we don’t want it here.” On the same day, Justice DY Chandrachud also deprecated the sealed cover practice from the Union government while hearing a case against the government’s ban on the Malayalam TV Channel, MediaOne. The Kerala High Court had upheld the ban against the channel relying on documents submitted by the Centre in a sealed envelope. The Supreme Court thereafter stayed the ban.
Ironically, however, former CJI, Justice Ramana himself, in August 2022, decided to keep reports of the Pegasus technical Committee as well as the report of Justice RV Raveendran, who was supervising the Committee, in a sealed cover “for the time being”. Reasoning? Justice Ramana had stated however in open court that the reports will be uploaded on the court’s website after necessary redaction. Something changed, however. The order of the court, finally, after a hearing on August 25, 2022 said that the reports have been re-sealed and kept in safe custody of the Secretary General of the court. It is this archival vault that holds answers to many issues raised by citizens while questioning the executive.
Today, while CJI Chandrachud, in some cases at least, appears to be vocally opposing sealed covers and refusing to accept them as a norm, he himself was part of a bench, led by Justice Deepak Misra in 2018, which accepted Maharashtra government’s submissions in “sealed cover”, when it was considering the plea for stay on arrests of the five accused in the Bhima Koregaon case.
Is there a need to maintain secrecy in the first place when it comes to making submissions before a court of law? Especially when crucial issues of state accountability and transparency to the people (de-monetisation), state policies, fundamental rights to life and freedoms (incarceration of individuals and groups) are in question?
In the recent matter, where the Supreme Court spoke unequivocally against this, the grievance of the appellant before the Supreme Court was that the Armed Forces Tribunal had adjudicated upon the matter of Permanent Commission for women in the Armed Forces by receiving records about vacancy in a sealed cover. The AFT dismissed the applications challenging the denial of Permanent Commission in the Indian Navy. The bench of Justice DY Chandrachud and Justice and Hima Kohli said in its judgement,
“non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority (in this case the AFT) sets a dangerous precedent.” (Para 28)
“The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque.” (Para 28)
The disclosure in a sealed cover perpetuates two problems.
it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover (Para 28)
it perpetuates a culture of opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the balance of power in a litigation in favour of a dominant party which has control over information (Para 28)
“The sealed cover practice places the process by which the decision is arrived beyond scrutiny.” (Para 28)
The judgement, however, also maintained that there are certain pieces of information that may not be revealed in the course of a case.
“Illustratively, sensitive information affecting the privacy of individuals such as the identity of a sexual harassment victim cannot be disclosed. The measure of nondisclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve. The exceptions should not, however, become the norm.” (Para 28)
Which laws allow the sealed cover?
The provisions of law that have permitted sealed cover jurisprudence are now discussed here.
The section 123 of the Indian Evidence Act states as follows:
123. Evidence as to affairs of State.—No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
Section 162 of the Evidence Act deals with production of documents and empowers the court to inspect any document produced before it “unless it refers to matters of State”. This clearly allows the state to claim privilege over a document it has been asked to produce.
Order XIII Rule 7 of the Supreme Court Rules, 2013, states:
Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies of or extracts from any minutes, letter or document of any confidential nature or any paper sent, filed or produced, which the Chief Justice or the Court directs to keep in sealed cover or considers to be of confidential nature or the publication of which is considered to be not in the interest of the public, except under and in accordance with an order specially made by the Chief Justice or by the Court.
It is important to note that these Rules of the Supreme Court are formulated under Article 145 of the Indian Constitution which states that the Rules are to be “Subject to the provisions of any law made by Parliament”. Keeping this in view, one needs to then look at the Code of Criminal Procedure, which provides for “Open Court” under section 327.
Section 327 of the CrPC states that
[(1)] The place in which any Criminal Court is held for the purpose of inquiring into or trying any offence shall be deemed to be an open Court, to which the public generally may have access, so far as the same can conveniently contain them:
Provided that the presiding Judge or Magistrate may, if he thinks fit, order at any stage of any inquiry into, or trial of, any particular case, that the public generally, or any particular person, shall not have access to, or be or remain in, the room or building used by the Court.
At the same time, the court is bestowed discretionary powers to bar public access to court at any stage of the hearing/trial. This also gives legal sanction to the sealed cover practice.
Thus, the law allows the practice of sealed covers, subject to the discretion of the court.
When have courts readily accepted sealed covers?
Gujarat Communal Violence case, 2006 onwards: In March 2006, the Supreme Court appointed a Special Investigation Team (SIT) to re-investigate/further investigate ten crucial 2002 carnage cases related to the violence in 2002 in Gujarat. The order in the ongoing National Human Rights Commission v/s state of Gujarat cases wherein Citizens for Justice & Peace (CJP) is an intervener actually came on an independent petition filed by independent citizens against the state of Gujarat (May 2002) demanding a transfer of investigation to the Central Bureau of Investigation (CBI). CJP was the driving force behind this petition, filing submissions, providing ground level data and even in 2009-2010 challenging the questionable functioning of the SC-appointed SIT itself. Though an active citizens legal rights group representing survivors of the violence, the litigants were throughout this process that was an attempt to secure substantive justice (ongoing) disadvantaged as bench after bench of the Supreme Court permitted the SIT to make submissions in sealed covers. This crucially disadvantaged the entire legal process in balance, favouring a state government whose actions in the serious constitutional breakdown of law and order were under challenge.
There have certainly been several such instances where courts have readily accepted sealed covers as an accepted norm. The Delhi High Court, in a copyright violation case, accepted Telegram’s sealed cover wherein it disclosed details of channels, including their mobile numbers and IP addresses, whereby these channels were allegedly sharing teaching materials created by the petitioner.
In May 2022, a local court in Varanasi accepted the report of filming of the Gyanvapi mosque in a sealed cover. Given that this entire dispute has been fostered by the politically powerful and dominant right wing, and the right to faith and life of minorities is at stake, this de-privileged an already marginalised minority. A chip with videos and photographs of the filming were in the sealed cover. The three premises of the Gyanvapi mosque were filmed after a petition was filed by 5 Hindu women that they should be allowed access to the mosque to worship idols on its outer walls.
In the period when Justice Ranjan Gogoi was CJI (Gogoi, after the completion of his term on November 17, 2019 was appointed by the ruling party to the Rajya Sabha less than six months after, on February 16, 2020) he frequently accepted –and therefore put the judicial seal of approval on the procedure, accepting “sealed covers”. For example, while hearing the case pertaining to the Rafale aircraft. In the Rafale case judgement delivered in December 2018, the court dismissed a batch of petitions, seeking a probe into the present, Narendra Modi government’s decision to buy 36 Rafale aircraft in April 2015. In October 2018, the bench led by then CJI, Justice Gogoi asked for the details of decision making process that went on in concluding Rafale deal “in a sealed cover” and said that the government need not include issues related to pricing or suitability of the fighter jet. The bench did not even issue notice, it wanted to see the details in the sealed cover first! A redacted version of the sealed cover report was shared with the petitioners which included details on the choice of India offset partners by Dassault.
Justice Gogoi also actively encouraged submissions of “sealed covers” in another substantial case, whereby it was monitoring the National Rgeister of Citizens (NRC) process in Assam that he heard for several years. Gogoi, hailing from Assam, presided over the bench that oversaw a controversial and difficult process for over four years, at least. This court had, in 2018, directed the then NRC co-ordinator, Prateek Hajela to submit data of the district wise percentage of population which was excluded from draft NRC, in a sealed envelope.
Interestingly, in 2018 when the Supreme Court refused to stay the arrest of five accused in the Bhima Koregaon case, they accepted the Maharashtra government’s submissions in a sealed cover (as mentioned above).
In a case involving corruption charges against the Director of the Central Bureau of Investigation (CBI) Alok Varma too, the court, in 2018, resorted to the sealed cover practice justifying the same by stating that it was necessary since it wished to maintain public confidence in the agency and to maintain the sanctity of CBI. Basically, the allegations against Varma were presented in sealed cover by the Central vigilance Commission (CVC) and the response to the allegations was also given in a sealed cover by Varma, as directed by the court! This was as good as an in-camera proceeding depriving the wider citizenry that is often the vicarious victim of criminalisation of actions given that the agency reports directly to the Prime Minister’s Office (PMO). A measure of transparency into its modes, methods and motives of functioning would hold power accountable but the highest court in the land has not really allowed that to happen.
In the 2G case as well (Ratan Tata v Union of India [WP(C) No, 398 of 2010]), the Union government, CBI and Income tax Department produced several sealed covers before the court, including those indicating status of investigation. The document containing investigation reports in Nira Radia Group case was kept in sealed cover as well. These submissions, including transcripts of the tape, investigations reports, were made before the Supreme Court from 2010 onwards. Even transcriptions of the infamous ‘Nira Radia tapes’ were presented in 48 sealed envelopes to the court. In September last year, the CBI told the Supreme Court that it found no criminality in the taped conversations.
Conclusion
What can be deduced after looking at the legal provisions as well as the jurisprudence related to sealed cover is that the law allows it –an essentially non transparent practice– and the courts allowed and even propagated its use, consistently. In many cases, it seems to have been done simply to shield powerful forces, owing to the high positions they held at the time.
Present CJI DY Chandrachud has pointed out that such a maintenance of secrecy is paramount only in exceptional cases like protecting the identity of sexual assault victims and that non-disclosure should be proportionate to the purpose that the non-disclosure seeks to serve.
This all boiled down then to the discretion of the court, be it under the Supreme Court Rules or the CrPC, or even the Evidence Act, where the latter applies to lower courts during trial of criminal matters.
Is serious about the rampant use which lawmakers have consistently held to be a “necessary evil”, the Supreme Court itself can include some proviso under the Supreme Court Rules to curb or control the indiscriminate application of this practice of sealed covers in its court. The CrPC, however whoever would need legislative intervention to amend the provisions. While, the Indian Evidence Act does not expressly mention sealed covers, as the Supreme Court Rules, 2013, does, the same is implied under section 162 of the Act where “matters of the state” are given protective privilege from disclosure.
So, if the apex court is serious to end this opaque and widely applied practice, change must begin at home, for the lower courts, then hopefully, to follow suit.
Related:
Do journalistic sources need protection?
Gyanvapi case: AIM finally gets copy of survey report
State-sponsored Doxing: Is it even legal?
Pegasus case: SC appointed Committee says GoI not cooperating