Sealed Cover Jurisprudence

February 20, 2023

Context:

The Chief Justice of India D.Y. Chandrachud firmly refused the ‘suggestions’ offered by the government in a sealed cover on the formation of a proposed committee to enquire into the Hindenburg report on the Adani Group.

About Sealed Cover Jurisprudence:

Sealed Cover Jurisprudence is a legal concept that refers to the practice of presenting sensitive or confidential information to a court or tribunal in a sealed envelope or cover.
The Sealed envelope is to be opened and reviewed only by the judge or judges in charge of the case.

Rule 7 of Order XIII of the Supreme Court Rules, 2013 provides that

The Chief Justice or the court can, through a judicial order, direct any document to be kept confidential in a sealed cover if publication of the records is “considered to be not in the interest of the public”.
In such a case, 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.

Section 123 of the Evidence Act of 1872 provides that

The government should give prior permission to a person who wants to give evidence “derived from unpublished official records relating to any affairs of state”.
Official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.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.

A history of sealed covers:

The origins of sealed cover jurisprudence can be traced to service or administrative cases.
Official service records and promotion assessments of individual personnel were received in sealed cover in order to avoid harm to the reputation of officers.
The court continues to receive confidential documents in sexual assault cases to protect the identity of survivors.
Sealed cover documents have been received by the apex court in cases such as the Rafale jets’ purchase deal, Assam National Register of Citizens case, Ayodhya title dispute, Gujarat Police ‘fake’ encounter case, Narendra Modi biopic release case, in the sexual harassment case concerning then Chief Justice Ranjan Gogoi, the electoral bonds case, Bhima Koregaon case.

Impacts of SCJ:

The “routine” handing over of sealed covers in court by the state, the contents of which are unknown to the other parties, often fighting for life and personal liberty, is eroding public confidence in the ‘open court’ principle of justice administration.
The petitioners are unable to defend themselves, not knowing what they are supposed to defend against.
Passing on materials in a sealed cover to the court compels judges to accept the state’s version, that too, in cases in which the government’s narrative is under challenge.

Exceptional Cases:

The court, during the Media One telecast ban hearing, orally observed that the government should claim “specific privilege” in an affidavit and explain the “extenuating circumstances” to keep documents secret from the other party.
The court said the burden would lie on the government to prove that even sharing redacted copies of the records would prove detrimental to national security and public order.
The court has made it clear that sealed covers could be used only in a “small exception” of cases.
In S.P. Velumani case verdict of 2022, the Supreme Court criticised the Madras High Court’s decision to permit a report to remain “shrouded in sealed cover” when the State had not even claimed any specific privilege.
Similarly, the court admonished the Bihar government for attempting to give information in sealed cover in the Muzaffarpur shelter case.
The Pegasus case judgement saw the court underscore that the “Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns.
The state cannot get a free pass every time the spectre of ‘national security’ is raised. National security cannot be the bugbear that the judiciary shies away from.