The practice of Judges asking for evidence in sealed covers and making decisions based on such evidence is known as sealed cover jurisprudence. The Supreme Court and lower courts may ask for and accept sensitive and confidential information from government agencies or other persons in ‘sealed covers’. These envelopes can be accessed only by Judges. The contents of sealed covers in court proceedings are inaccessible to the other parties in the case.
The court asks for information in a sealed cover in broadly two circumstances:
- 1. When information is connected to an ongoing investigation.
- 2. When it involves personal or confidential information.
The logic is that disclosure of information linked to an ongoing investigation could impede the investigation, and the disclosure of personal or confidential information could violate an individual’s privacy or result in breach of trust.
- 1. This practice appears to be unfavorable to the principles of transparency and accountabilityof the Indian justice system. It goes not just against citizens’ access to information about the proceedings, but also the other party’s ability to understand all the facts of the case. Some have argued that this violates the principles of natural justice.
- 2. It stands in contrast to the idea of an open court, where decisions can be subjected to public scrutiny. Courts are bound to set out reasons for their decisions, and legal experts argue that not disclosing them leaves scope for arbitrariness in judicial decisions. It also takes away the opportunity to analyse judicial decisions, and to appreciate the rationale behind them.
- 3. It is also said to enlarge the scope for arbitrarinessin court decisions, as judges are supposed to lay down the reasoning for their decisions.
- 4. Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication as it prevents parties from having a full overview of the charges against them. 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.
- 5. Finally, 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. Most often than not this is the state
Concerns have arisen about the Court’s use of sealed cover jurisprudence in
- -Fundamental rights and civil liberties cases, such as in the arrests of the five activists in the Bhima Koregaon case – court relied on evidence submitted by the Maharashtra Government in a sealed cover;
- -Rafale Fighter Jet Deal case, 2018 -Info was given to the Court in a sealed cover by Union Government. The Union had argued that that the information was subject to the Official Secrets Act, 1923.
- -National Register of Citizens (NRC) case – information about the exercise to the Court was submitted in a sealed cover. The contents of the sealed cover were inaccessible to both the government and the petitioner (Assam Public Works).
A Bench led by (now) Chief Justice of India D Y Chandrachud last month criticized the practice of “sealed cover” jurisprudence as setting a “dangerous precedent”, which makes “the process of adjudication vague and opaque”. “A judicial order accompanied by reasons is the hallmark of the justice system. The sealed cover procedure affects the functioning of the justice delivery system both at an individual case- to case level and at an institutional level. The measure of nondisclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve, and that the exceptions should not become the norm”.