NEWS

While hearing a criminal appeal against the Bihar Government recently, Chief Justice of India admonished a counsel for submitting a ‘sealed cover report’ to the court.

SEALED COVER JURISPRUDENCE

WHAT

• Practice used by the Supreme Court and sometimes lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by judges
• While a specific law does not define the doctrine of sealed cover, the Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872
• Under the said rule that if the Chief Justice or court directs certain information to be kept under sealed cover or considers it of confidential nature, 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
• Mentions that information can be kept confidential if its publication is not considered to be in the interest of the public
• As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents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

WHAT IS THE CRITICISM AND WHAT DO THE COURTS SAY?

• Critics of this practice contend that it is not favourable to the principles of transparency and accountability of the Indian justice system, as it stands against the idea of an open court, where decisions can be subjected to public scrutiny.
• It is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down reasoning for their decisions, but this cannot be done when they are based upon information submitted confidentially.
• What is further contested is whether the state should be granted such a privilege to submit information in secrecy, when existing provisions like in-camera hearings already provide sufficient protection to sensitive information.
• Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication. In the 2019 judgment in the case of P. Gopalakrishnan vs The State of Kerala, the Supreme Court had said that disclosure of documents to the accused is constitutionally mandated, even if the investigation is ongoing and said documents may lead to a breakthrough in the investigation.