The Chief Justice of India (CJI) recently reprimanded a counsel for presenting a ‘sealed cover report’ during a criminal appeal against the Bihar Government. The method, known as sealed cover jurisprudence, is not new to the Indian courts and has been frequently used in important cases like the Rafale Fighter Jet Deal 2018, the 2014 BCCI Reforms Case, and Bhima Koregaon case of 2018, among others.
Sealed cover jurisprudence refers to a practice where the Supreme Court, and occasionally lower courts, solicit or accept information from government agencies in sealed envelopes. These documents can only be accessed by the judges of the court. Even though no specific law stipulates this doctrine, its power is derived from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.
Legal Framework Supporting Sealed Cover Jurisprudence
Rule 7 of order XIII of the Supreme Court Rules authorizes the Chief Justice or court to direct that certain information be kept under sealed cover if considered confidential. In such cases, no party is allowed access to the contents of such information unless the Chief Justice himself permits it. This rule also maintains that information can be kept confidential if publicizing it is deemed not in public interest.
Section 123 of the Indian Evidence Act of 1872 protects official unpublished documents related to state affairs, and a public officer cannot be compelled to disclose them. Other instances where information may be sought secretly are when its publication impedes an ongoing investigation, such as details which are part of a police case diary.
Issues with Sealed Cover Jurisprudence
Sealed cover jurisprudence, however, faces criticism on several fronts. It goes against the principles of transparency and accountability, foundational to the Indian justice system, contradicting the concept of an open court that encourages public scrutiny. It restricts the scope for reasoning, allowing room for arbitrariness in court decisions as judges are supposed to provide reasoning for their decisions, a task made impossible when the information is confidential.
The practice is also challenged on the grounds of fair trial and adjudication. The fact that accused parties do not have access to these sealed documents is argued to hamper their right to a fair trial. Moreover, the usage of sealed covers is dependent on individual judges seeking to substantiate a point in a particular case. This ad-hoc nature makes the practice appear arbitrary.
Supreme Court’s View on Sealed Cover Jurisprudence
There have been precedents where the Supreme Court has adopted a proportionality test while dealing with sealed cover jurisprudence. In the case of Modern Dental College vs State of Madhya Pradesh (2016), the court suggested that a limitation of a constitutional right will be permissible if it fulfils certain conditions like proper purpose, rational connection to the fulfilment of that purpose, necessity, and a proper relationship between achieving the purpose and social importance of avoiding curtailment of the constitutional right.
This viewpoint was reiterated during the K.S. Puttaswamy vs Union of India (2017) case. However, in 2019, in P. Gopalakrishnan vs The State of Kerala, the Supreme Court stated that disclosing documents to the accused is constitutionally mandated, even during an ongoing investigation. The same year, the Delhi High Court was criticized for denying bail to a former union minister based on documents presented by the Enforcement Directorate (ED) in a sealed cover.
The Way Forward
As a democratic nation, the process of judicial review is very important in India since it holds the executive accountable. The executive must be able to convincingly justify its actions, particularly when these involve curtailment of fundamental rights such as free speech. The Indian Constitution does not allow the executive to pass arbitrary orders violating such rights. Therefore, any court that does not scrutinize the executive’s actions can be seen as a crude manifestation of democratic decay.
When an action is alleged to infringe upon fundamental rights, it’s crucial for the court to examine the legality of that action through the lens of proportionality. It is this principle that will ensure the continued flow of justice in the country.
