Sealed Cover Jurisprudence: Meaning, Explanation And Challenges
What does Sealed Cover Jurisprudence mean? To understand what sealed cover jurisprudence is, we will first look at the term ‘sealed cover’. As its name suggests, it is a cover/envelope which is sealed. Well, that was simple, but why sealed? Oh come on! Why do we seal something, because it contains a secret or some kind of confidential… Read More »
What does Sealed Cover Jurisprudence mean?
To understand what sealed cover jurisprudence is, we will first look at the term ‘sealed cover’. As its name suggests, it is a cover/envelope which is sealed. Well, that was simple, but why sealed? Oh come on! Why do we seal something, because it contains a secret or some kind of confidential information, isn’t it?
So sealed cover jurisprudence is nothing but confidential information that is provided to or asked by the court to be presented by any government body. It is a practice where the Supreme Court or any lower court asks for or directly accepts the sealed covers that contain information, and the sealed cover is only to be accessed by the judges and remains unapproachable to any of the parties related to the case or any other person per se without the permission of the Chief Justice of such court.
Why so confidential and who allows it?
The term ‘sealed cover jurisprudence’ does not find any direct trace in the laws, however, Rule 7 of Order XIII of the Supreme Court Rules, 2013 and Section 123 of the Indian Evidence Act, 1872 is where sealed cover derives its powers from.
According to 7 of Order XIII of the Supreme Court Rules,2013 – Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies for 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.[1]
Further, Section 123 of the Indian Evidence Act, 1872 says – Evidence as to affairs of State– No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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.[2]
From the abovementioned we can clearly make out that the reasons for keeping it confidential can be:
- To simply maintain peace and harmony: as 7 of Order XIII of the Supreme Court Rules,2013 says that no public officer can publish the official records except when permitted by the head of the concerned department.
- For smooth investigation: we can deduce from the laws mentioned above that sealed covers are also used to facilitate the investigation in a silent and smooth manner. If the same information is not kept confidential, then the chances are that the investigation might be disturbed or even ruined by malicious practices.
- State’s Secret: as Section-123 of the Indian Evidence Act indicates, any unpublished official record of the state is not be let out by any public officer. As, a state’s secret if published/broadcasted might lead to public unrest and ultimately a threat to the national security.
Don’t get confused!
The term sealed cover jurisprudence often tends to be intermingled with the term sealed cover procedure. The term sealed cover procedure is used in service jurisprudence. It is put at work when a disciplinary action/proceeding is due against a person who is an employee due for promotion, during that time the evidence of his entitlement to the benefits is kept sealed and covered. This was discussed in the case of Union of India v. K.V. Jankiraman (1991) and further also in the case of Food Corporation of India v. Abhay Ram.[3]
Whereas by now we are clear with the meaning of sealed cover jurisprudence and that it is not as same as sealed cover procedure.
Why are we discussing it?
In the Muzaffarpur Shelter Case from Bihar, a hearing was going on in the Supreme Court on 15th March, in which the Bihar Government was also a party. A sealed cover was presented before the three judges’ bench including CJI N.V. Ramana. Chief Justice Ramana heavily criticized the presentation of sealed cover and strongly insisted that the arguments be presented openly.
On the same day while hearing the Media One case, Justice D.Y. Chandrachud excoriated the presentation of sealed cover by the Union Government as it was in the same way that the Union Government won the case in the Kerala High Court against Media One.
Earlier instances where it has been used
It is not the first time that the Sealed cover Jurisprudence has been used and criticized, there have been earlier cases which are mentioned below:
In Romila Thapar v. Union of India W.P. (Cri.) No. 260 of 2018 case, infamous as the Bhima Koregaon case, the Maharashtra Police made around 5 arrests pressing charges of UAPA. Two computers were ceased from two arrested individuals among those five. The police presented the data/content found on the computers as a sealed cover stating that the publication of the same may compromise the ongoing investigation.[4]
In the BCCI Reform Case, a committee was set up to investigate the matter and it submitted its report in a sealed cover as it contained the names of nine cricketers who were alleged to have done match-fixing and spot-fixing scams.[5]
In the case of Manohar Lal Sharma v. Narendra Damodardas Modi known as the Rafael fighter jet deal Case (2018), the Centre submitted details related to the deal upon the request by the court to submit it in the sealed cover as it was regarding the decision making and pricing of the Rafael fighter jet. The court asked for it as there was such information which was subject to the Official Secrets Act and Secrecy clauses in the deal.[6]
The recent bail order passed in favour of P. Chidambaram in the INX Media Case strongly criticized the use of sealed covers and the reliance of courts on such evidence in their verdict. This statement was in sharp contrast as in recent times there is widespread use of sealed covers in numerous cases including Romila Thapar vs. Union of India Case, BCCI Reform Case, Rafael fighter jet deal controversy and the implementation of the NRC. [7]
Why did it not bother anyone earlier?
When there is a certain principle that is supported by law, it is very rare that it will come under the radar of suspicion or will bother anyone. The sealed cover jurisprudence is also backed by The Supreme Court Rules and the Indian Evidence Act. However, when an act takes place repeatedly without proper and logical reasoning, it pricks everyone’s eye and such has become the condition of sealed cover.
Although this practice has been seen various times in multiple cases over the past, in recent times, the frequency of using sealed cover has increased to such an extent which is capable of thrashing the transparency which is expected to prevail in the judicial system. It questions the constitutional value of a free and fair trial and is a disturbing scenario for the people who seek justice.
Challenges
- Threat to Natural justice: Free and Fair Trail hampered: In the process of sealed cover, somewhere the free and fair trial is hampered as the evidence/ the arguments are not presented in the open court but rather to the judges directly. Not providing access to proper documents obstructs the passage of fair trial and adjudication. In 2019, while handling the case of P. Gopalakrishnan V. State of Kerala, in the year 2019, the Supreme Court had said that disclosure of documents to the accused is constitutionally mandated, no matter if the investigation is going on and the documents may lead to a breakthrough in the investigation.
- Transparency at Cost: on one hand where such principles give protection to the investigation, on the other hand, it hampers the transparency of the whole judicial proceeding. When provisions like ‘on-camera’ are available then such practices may prove to be a threat to transparency and accountability as it stand against the idea of open court proceedings.
- Judicial system put at stake: When/If the judiciary/judges practices the sealed cover frequently, it may lead to citizens losing confidence in the judicial system and lead them to question the eligibility of the judges and courts. As the judiciary is an independent body from the legislature and executive, such practice may lead to a notion that the judiciary is being either governed by the legislature or the executive wing.
- Restrictions of Fundamental Rights: The more there is the usage of the sealed cover, the more it curtails the Right to Information of the citizens as the information contained in the sealed cover is extremely confidential and is only accessed by the judges and furthermore, it also restricts the Right to Broadcast as it is obvious that when information is not being let out to the people present in the court, then certainly, it is far beyond the reach of the general public. Hence, we can also say that the Right to Freedom of Expression is also somehow hampered.
Conclusion
“Please do not give sealed cover reports in this court. We will not accept it” were the exact words of CJ N.V. Ramana while he was hearing the Muzaffarpur Shelter case. “I am very averse to what is called the sealed cover jurisprudence” said Justice D.Y.Chandrachud while handling the Media One Case.
The statement made by both the Justices clearly shows their disappointment over the sealed cover jurisprudence and the damage that it does to the trial as well as the reputation of the honourable courts. A simple lack of assessing the sealed cover practice and taking a reasonable position in this regard can lead to lack of defined safeguards to deter its overexploitation.
For instance, in cases regarding child sexual assaults and rape cases in which it is better for the parties to not see the government files, such practice of sealed cover can be permitted. When a court decides on a case based on the information that it gets through sealed cover, it demoralizes the court’s openness and restricts the right of information of people, and except for the violation of fair trial and transparency, it also infantilizes the public.
References:
- The Issue of Sealed Cover Jurisprudence – Explained, pointwise, Blog Forum IAS, Available Here
- Malavika Parthasarathy, Sealed Covers: Safeguarding Secrets or Eroding Transparency?, Available Here
[1] Supreme Court of India Notification, New Delhi, 27th May 2014 ; Supreme Court Rules, 2013
[2] Indian Evidence Act, 1872
[3] India: Doctrine of Sealed Cover by S&A Offices (Mondaq)
[4] Romila Thapar vs Union Of India on 28 September, 2018, WRIT PETITION (CRIMINAL) NO. 260 OF 2018
[5] Devika Sharma, ‘Power’ of conducting IPL is vitally distinct from ‘Object’ of BCCI: ITAT explains substantive law, allows BCCI to continue registration under S. 12-A of Income Tax Act to avail tax exemption benefits, Available Here
[6] Manohar Lal Sharma v. Narendra Damodardas Modi on 14 December, 2018, WRIT PETITION [CRIMINAL] NO.225 OF 2018
[7] P Chidambaram v. Central Bureau Of Investigation on 22 October, 2019, CRIMINAL APPEAL NO. 1603, 2019 (Arising out of SLP(Crl.) No.9269 of 2019)
