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Sealed Cover Jurisprudence: It's Implication For The Judicial Process In India

The sealed cover documents were always controversial due to their contradictory nature towards the principle of fair and natural justice, open court system, and transparency. Several judges criticized the government for presenting a document in a sealed cover before the Court; the other party has no way of knowing about the information shared against them, which is unfair. In the case of Madhyamam Broadcasting Limited v. Union of India & Ors. and Amit Kumar Sharma v. Union of India, the Supreme Court delved deep into the matter of sealed cover jurisprudence and suggested solutions.

Although this mechanism is necessary to maintain the confidentiality of government documents, its frequent and unnecessary use makes it a tool for the government to win cases. In the Pegasus case,[1] the Court asked the government to prove the confidentiality of the sealed cover document; such a question is necessary to ensure fairness in the judiciary. No doubt, the government is on a higher pedestal and needs a special privilege, but when it comes to judicial proceedings, this privilege should not be turned into a weapon against the other party. The frequent use of sealed cover procedures should be discontinued. When feasible, public interest immunity procedures should be employed instead because they are less constraining, although they are not an alternative.[2]

We need to end this sealed cover procedure which is being followed in the Supreme Court because then the High Court will also start following. And this is fundamentally contrary to the basic process of fair justice. observed by Chief Justice D.Y. Chandrachud in the landmark case of Madhyamam Broadcasting Limited v. Union of India & Ors.[3], The sealed cover documents have been presented to the Hon'ble Court for an extended period, usually by the government and official authorities; before this case, many cases were adjudicated without giving the information of the documents in a sealed cover to the affected parties.As a result, the affected parties do not know the arguments presented before the court in a sealed cover, eventually weakening their litigation. The affected parties cannot ascertain how or why the court has arrived at its ruling.

In recent times, the Hon'ble Supreme Court has received many sealed cover documents in cases such as the Rafale jets purchase deal, the Assam National Register of Citizens case, the Ayodhya title dispute, the Gujarat Police fake encounter case, the Narendra Modi biopic release case, the sexual harassment case concerning then Chief Justice Ranjan Gogoi, the electoral bonds case, Bhima Koregaon case, the anticipatory bail plea for former union finance minister P. Chidambaram and BCCI case.[4]

Most of these cases that have been disposed of were in favor of the government; the main reason for that is the sealed cover documents, which adversely affect the opposite parties, they do not get to know about the arguments presented before the Hon'ble Court against them, then how will they prepare counter-arguments is a big question. The most crucial part of litigation is the arguments given by the counsel of both parties; when one party gives their argument in a sealed cover, the scope for the arguments for the other party narrows down because they cannot read the sealed cover document, which itself is unfair to the parties as well as the legal system.

Many learned judges of the Supreme Court have criticized the sealed cover documents. Former Chief Justice N.V. Ramana condemned the practice of presenting sealed cover documents.[5] When we talk about the Judiciary, the first word that comes to our mind is fair justice to all; the sealed cover jurisprudence is contrary to that when it gives special treatment to the government. The argument presented in favor of this is national security, governmental confidentiality, and sensitivity of documents, which not only support the sealed cover documents in courts but also give a logical and practical explanation.

Exploring The History And Development Of Sealed Cover Jurisprudence In India

Sealed cover jurisprudence is a controversial practice followed by the courts (Supreme Court, High Court, and sometimes even by lower courts) in which it accepts information from governmental bodies in a sealed cover when they are a party in a case, the sealed cover can only be read by the judge or judges who are adjudicating the dispute. The other parties to the conflict or case cannot read or hear the information, which is sealed, which takes away the opposing side's chance to defend themselves.

The idea behind the sealed cover jurisprudence is the confidentiality of government documents. Still, when such a principle is used as a weapon against the opposite party or parties in every other case, it becomes contrary to the principle of fair and natural justice and transparency in the judiciary and will not fulfill its purpose; it has begun to threaten the credibility of the judicial institution.

Ironically, the Supreme Court is criticizing the sealed cover jurisdiction that gave rise to it; it gave legitimacy to sealed cover jurisprudence. It is not a result of any laws that the parliament has enacted.

Rule 7 of Order XIII of Supreme Court Rules, 2013, provides:
"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 by an order specially made by the Chief Justice or by the Court." [6]

Before the issuance of this notification, a similar kind of provision can be seen in section 123 of the Indian Evidence Act of 1872, which provides that:
"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."[7]

In some instances, the Court can ask for information in a sealed cover when it is connected to an ongoing investigation. Disclosure could affect the investigation, which the Supreme Court observed in the case of P. Gopalakrishnan v. The State of Kerala, or when it involves personal information, and disclosure would violate the right to privacy.

Judiciary's Position On The Sealed Cover Jurisprudence

In the recent case of Indian Ex-Servicemen Movement & Ors. v. Union of India & Ors.[8] (One Rank One Pension Scheme case), the Supreme Court refused to accept the sealed cover document and orally observed, "I am personally averse to sealed covers. There has to be transparency in what happens in court" and "There cannot be secrecy in the court. The court has to be transparent. Secrecy is understandable in a case diary; the accused is not entitled to it, or it affects the source of information or somebody's life. But this is the payment of pension in pursuance of directions in our judgment. What can be great secrecy in this"? Similarly, the Supreme Court bench has refused to accept the government's sealed cover document in the Adani-Hindenburg Case.[9]

Along with this, the Supreme Court has criticized several High Courts for accepting a sealed cover document without any firm ground of confidentiality. The S.N. Velumani case criticized the Madras High Court for accepting a sealed cover document when the state had not even claimed any specific privilege.[10]

Since the arguments for the sealed cover jurisprudence are also valid to a certain extent, the Supreme Court came up with a new idea to determine the confidentiality of the sealed cover document. The Pegasus case judgment 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�" So now, merely providing a document in sealed cover would not be sufficient; the government has to prove its confidentiality or why it should be kept secret.

Impact Of Sealed Cover Jurisprudence On The Indian Judiciary

The Indian Judiciary is well known for its transparency and fair justice; the sealed cover jurisprudence contradicts that. It provides special privileges to government agencies, many times even without asking. This sealed cover jurisprudence has three main fundamental issues; firstly, it prevents the opposite parties from looking into the documents placed before the Court against them, which gives an upper hand to the parties submitting information in a sealed cover, and in most cases, is the governmental agenesis.

This is purely unjust and wage; without knowing the information submitted against a party, it puts an extra burden on the counsel to make arguments. In such a situation, the counsel cannot make a counterargument, and the possibility of losing the case will increase; in other words, only one party will get a particular benefit, which in most cases is the State.

In Amit Kumar Sharma v. Union of India, the Supreme Court Bench led by Justices D.Y. Chandrachud and Hima Kohli observed the same problem with the sealed cover jurisprudence. It said, "The non-disclosure of relevant material to the affected party and its disclosure in a sealed cover to the adjudicating authority�sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the adjudication process vague and opaque."[11]

Secondly, it differs from the idea of an open and transparent court system in India. The judicial process must be transparent to provide fair and natural justice, but due to sealed cover, it becomes opaque, as Justice Chandrachud observed. In the two circumstances mentioned above in which the Court asks for the sealed cover document to maintain the secrecy of information, it could be considered reasonable, but when the government itself provides a sealed cover document, and that too without proving the facts, that asserts the confidentiality of the document against a party or parties to a dispute is just taking a special privilege. In such a situation, both parties are not litigating on the same surface; the government will stand on a higher pedestal than the affected party.

In the same case of Amit Kumar Sharma v. Union of India,[12] the Court observed that "it denies the aggrieved party their legal right to challenge an order effectively and since the adjudication of the issue has proceeded based on unshared material provided in a sealed cover�." In other words, the Court hints at the lack of transparency in following sealed cover jurisprudence.

Thirdly,[13] it emergence a culture of secrecy in the Indian legal system, which will reduce transparency and provide immense power to the dominant party (government) because they have control over the information so that they can declare any information as confidential and place it before the Court against any other party. It will weaken the whole judicial system, as the aim of the judicial system is to provide fair justice, which cannot be possible when one party gets privileges or, in other words, both parties need equal opportunities to present their arguments and know the counterarguments.

Necessity And Alternatives: Exploring The Role Of Sealed Cover Jurisprudence

It is necessary to hide some information from the general public, such as information regarding foreign policies of the government, formulas of nuclear weapons, information regarding the defense system of a country, which is essential for national security, but unnecessary secrecy to the matters is not required, as Supreme Court observed in Pegasus case, that government should explain why they consider certain information as confidential.

Although the Hon'ble Supreme Court has addressed the issue of sealed cover jurisprudence in the case of P. Gopalakrishnan v. The State of Kerala (2019)[14], Madhyamam Broadcasting Limited v. Union of India & Ors. (2019)[15], but in the case of Amit Kumar Sharma v. Union of India (2022)[16], the Supreme Court delved deep into the realm of sealed cover jurisprudence. The Court also looked into the necessity of such a principle; along with that, it also pointed out the frequent unnecessary use of it. The Court observed, "A judicial order accompanied by reasons is the hallmark of the justice system. It espouses the rule of law. However, the sealed cover practice places the process by which the decision is reached beyond scrutiny. 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."

Nevertheless, the judgment explicitly outlined that not all information is subject to public disclosure. It articulates that confidential details that would impact an individual's privacy, such as the identity of a sexual harassment victim, must kept confidential. And it underscores that using sealed cover jurisprudence should only be done in exceptional circumstances where a reasonable need occurs.

The Role Of Public Interest Immunity Proceedings As A Less Rigid Method

The Supreme Court in the case of Madhyamam Broadcasting Limited v. Union of India & Ors. Observed that by not disclosing the relevant materials to the other party, it violated the right to a fair hearing protected under Article 21 of the Indian Constitution; in the judgment, the Court talked about the "Public Interest Immunity System," which is less rigid and constraining, though the Court made it clear that it is not a replacement to the sealed cover documents. It observed, "It was not intended that the sealed cover procedure shall replace public interest immunity proceedings, which constitute an established method for dealing with confidentiality claims. The sealed cover procedure cannot be introduced to cover harms that public interest immunity proceedings could not have remedied"[17].

The sealed cover procedure infringes upon the principle of natural and open justice; it has determined that the public interest immunity proceeding represents a less constraining method for addressing non-disclosure on public interest and confidentiality considerations.[18]

In sealed cover procedure and public interest immunity proceedings, certain documents are kept confidential and not shared with the other party or counsel. However, a critical difference lies in the use of disclosed material; the sealed cover procedure allows the Court to rely on the disclosed material during the proceedings, whereas public interest immunity claims remove the documents, prohibiting the reliance by both parties and their counsels.

On the argument that the removal of the documents from the proceedings would make the proceedings non-justiciable and wage, the Court observed, "Even if the disclosure would conceivably injure public interest, the courts may still dismiss the claim of public interest immunity if the non-disclosure would render the issue non-justiciable, and on the facts of the case it is decided that the injury due to non-disclosure overweighs the injury due to disclosure."

It also highlighted the role of an Amicus Curiae, which tries to keep things private while ensuring that people trust the justice system is fair and unbiased. In such cases, it will be given access to the material. It can interact with the applicant and their counsel only before proceedings to ascertain their case and to enable them to make effective submissions on the necessity of disclosure. Amicus curiae is bound by oath not to disclose it to anyone.[19]

The sealed cover proceeding has been controversial for a decade; various judges and legal scholars have criticized this method due to its rigidity and opaqueness of the Indian system. Although it has its reasoning, the idea behind the sealed cover jurisprudence is the confidentiality of government documents, which is justifiable to a certain extent. Still, it should not be used in most cases against the government, as various judges, including Chief Justice D.Y. Chandrachud and former Chief Justice N.V. Ramana, observed. The frequent use of sealed cover documents in court will eventually make it a weapon for the government to win cases.

As CJI Chandrachud observed, it is opaque and reduces the transparency of judicial proceedings. The other party has no way of knowing the information produced before the court against them, and based on that information, the case has been disposed of; it violates the right to fair and natural justice. It contradicts the open court system, where both parties are aware of the arguments present before the court against each other. As the material or relevant information is not provided to the opposite party, it will increase its counsel's difficulty in making arguments. On the other hand, it puts the government, which provides sealed cover documents, on a higher pedestal. Hence, it is a special privilege.

Both parties should be on the same level to get fair and natural justice. No party should get any special privilege, but in the case of government, they require such privilege to maintain secrecy on information about national security, foreign policy, defense system, etc. In the Pegasus case,[20] the court asked the government to provide relevant facts to prove the information provided in a sealed cover is confidential and must be kept in secrecy. This could reduce the frequent use of sealed cover documents.

The Supreme Court also suggested using Public interest immunity proceedings instead of closed cover proceedings whenever possible because of its less rigid and constraining process. However, it was observed that it is not an alternative to the sealed cover proceedings.

The sealed cover proceedings should not be strictly stopped as it is relevant to the present Indian legal system; some confidential information about the country must not be disclosed; the problem arises due to its frequent use as a tool to win the cases by the government which is purely unfair.

  1. Kishnadas Rajagopala, 'On sealed cover jurisprudence' THE HINDU (19 February 2023) - (accessed 18 January 2024)
  2. Madhyamam Broadcasting Limited v. Union of India and Ors SC (Civ) 8129/2022
  3. Ibid
  4. Kishnadas Rajagopala, 'On sealed cover jurisprudence' THE HINDU (19 February 2023) - (accessed 18 January 2024)
  5. 'Supreme Court flags 'sealed cover' again, says it is vague, opaque. What is this practice frequently seen in courts?' THE INDIAN EXPRESS (New Delhi, 12 November 2022) - (accessed 18 January 2024)
  6. The Notification Gazette of India, Order XIII of Supreme Court Rules (2013) Rule 7
  7. The Indian Evidence Act 1872, s 123
  8. Indian Ex Servicemen Movement and Ors v Union of India and Ors WP (Civ) 419/2016
  9. S.N. Thyagarajan, 'Supreme Court's chequered history with 'sealed cover' documents' (MONEYCONTROL.COM, 20 March 2023) - (accessed 18 January 2024)
  10. Kishnadas Rajagopala, 'On sealed cover jurisprudence' THE HINDU (19 February 2023) - (accessed 18 January 2024)
  11. Cdr Amit Kumar Sharma v. Union of India and Ors SC (Civ) 841/2022
  12. Ibid
  13. S.N. Thyagarajan, 'Supreme Court's chequered history with 'sealed cover' documents' (MONEYCONTROL.COM, 20 March 2023) - (accessed 18 January 2024)
  14. P. Gopalakrishnan and Ors v The State of Kerala and Anr KHC BA 248/2022
  15. Madhyamam Broadcasting Limited v. Union of India and Ors SC (Civ) 8129/2022
  16. Cdr Amit Kumar Sharma v. Union of India and Ors SC (Civ) 841/2022
  17. Madhyamam Broadcasting Limited v. Union of India and Ors SC (Civ) 8129/2022
  18. Ibid
  19. Prachi Bhardwaj, 'Sealed Covers violate natural and open justice': The Why-What-How of 'Public Interest Immunity proceedings', the 'fairer' alternative suggested by Supreme Court' (SCC Online, 06 April 2023) - (accessed 19 January 2024)
  20. Kishnadas Rajagopala, 'On sealed cover jurisprudence' THE HINDU (19 February 2023) - (accessed 19 January 2024)

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