How Supreme Court is trying to seal sealed covers

When the Central government handed over a sealed cover report in the One Rank One Pension (OROP) case before the Supreme Court today, Chief Justice of India DY Chandrachud on Monday said that sealed covers were against transparency..Attorney General for India R Venkataramani sought to submit the stand of the Defence Ministry in the case through a sealed cover, prompting the CJI to say, “Please share the sealed cover with opposite side or take him to the chamber. We want to put an end to the sealed cover business being followed by the Supreme Court since High Court follows it also.”.Although there have been times when Supreme Court has allowed sealed cover reports to be filed by governments in cases involving significant public interest, the top court has of late discouraged the practice in the recent past.Interestingly, it has also been argued that theory of sealed covers is not a legislative one, but a result of procedural norms that have evolved over time and can primarily be associated with service matters in cases of promotions and disciplinary committee proceedings..Hindenburg-Adani case.Most recently, a Bench headed by CJI Chandrachud in the Hindenburg Report on Adani case had constituted a committee of experts to examine the issues in the case.The decision to appoint the committee came after the apex court rejected the Central government’s proposal to file its suggestions in a sealed cover. “We will not accept the sealed cover suggestion by you because we want to maintain full transparency and if we accept suggestions in sealed cover it is like we have kept it away from other side as people will think it is a government appointed committee,” the CJI made it clear on February 17..A 'dangerous' precedent.In a judgment passed on October 20, 2022, the Supreme Court said that the non-disclosure of relevant information and disclosing it only in a sealed cover to the court is a “dangerous precedent”.The observation came in a batch of appeals against an order of the Armed Forces Tribunal (AFT) which had dismissed applications challenging the denial of Permanent Commission in the Indian Navy. The principle issue before the top court was whether the AFT could have adjudicated on the validity of the selection proceedings when relevant material was disclosed only to the AFT in a sealed cover and not to the aggrieved party..The judgment of Justice Chandrachud (as he then was) and Justice Hima Kohli highlighted that the elementary principle of law demanded that all material relied upon by either party in the course of a judicial proceeding be disclosed. "Even if the adjudicating authority does not rely on the material while arriving at a finding, information that is relevant to the dispute, which would with ‘reasonable probability’ influence the decision of the authority must be disclosed,” it held. .‘Shrouded in sealed cover’.Last year, the Madras High Court had ordered for an inquiry report against former Tamil Nadu minister SP Velumani to kept in a sealed cover.When the matter reached the top court, the High Court’s decision to deny the former minister access to the report received flak. Censuring this act, a Bench headed by former Chief Justice of India NV Ramana found "no good reason” for the High Court to permit the report to have remained “shrouded in a sealed cover” even when no “specific privilege” was claimed by the State..Rule 7 of Order XIII of Supreme Court Rules provides for the Chief Justice of India or the court to direct any document to be keep in a sealed cover if it considers such information to be confidential in nature or not in the interest of the public..Sealed covers have been accepted by courts in cases involving departmental inquiries against individuals besides cases of sexual assault, sharing of state secrets, personal liberty or terror, where agencies or respective parties withhold sensitive information to avoid public dissemination.But information can also be flagged sensitive in cases, where privilege is not claimed, thereby limiting or restricting it reaching the opposite party or the media. Courts, on the other hand, have observed selective sharing, or for that matter, censoring of information wherever it is legally permissible to be in violation of the principles of natural justice and the right to fair trial. And perhaps the CJI’s remark that sealed covers are "completely against settled judicial principles” is a shot in the arm for the same argument. .Senior Advocate Shrihari Aney has never used a sealed cover during his tenure as Maharashtra’s Advocate General perhaps because the need to use it did not arise.Aney feels what the CJI said was an understatement and in no case should a sealed cover proceedings be permitted. “When you have available the law, which governs privileged communication, if at all a communication is not to be produced in open court, and made available to both sides, then it is only possible when you claim privilege. And if you can’t claim privilege, you can’t find backdoor methods of avoiding bringing facts to the court — one such method being sealed cover,” he said..According to Aney, in an adversarial system of justice, if the other side doesn’t know what has been shown to the court, it wouldn’t know what it has to answer. “And if the court is supposed to make up its mind, it is not supposed make up its mind behind somebody’s back. It is abhorrent to the idea of justice — not to mention the fact that it doesn’t permit equal treatment of the litigant in the court,” he noted. Aney explained that the test of claiming privilege was a “high” one as the cause is that the disclosure of such information or document would lead to some impact on the sovereignty of the nation or security of the State. .More often than not sealed covers are used to escape the rigour that is set down by law of the requirement for privilege.Shrihari Aney, Former Maharashtra Advocate General.“That is a very high test and not everything hurts sovereignty of a nation and to hurt security of the state, you can’t use a law and order problem with hurting security unless the problem is of such a magnitude that it hurts the security of the State. More often than not sealed covers are used to escape the rigour that is set down by law of the requirement for privilege," he underlined. Once the test is placed on such a high pedestal, then the ramifications of what is sought to be disclosed have to be of that potentiality, argues Aney.Most of the cases he has come across where privilege was used were matters related to service law, career records of people, confidential records, etc., which most often did not have a relation to either sovereignty or security. .“We also find it is used when the government feels uncomfortable to reveal something. Now that may touch at times on security of the State. But the distinction I would always draw is that there is a difference between the government of a State and the State. Now hurting the security of the government is not the same as hurting the State,” he said.Drawing a distinction between the two, Aney said when we say State, it is the Union of India or the authority of the State of Delhi, or Maharashtra or any other State — and not the government. .The very fact that a sealed cover is played is like playing a trump card — you throw out a game with a whack; it is no longer a level playing field.Shrihari Aney.But there are bound to be cases of sensitive nature, which he suggests, can be heard in-camera. In such a scenario, the other side is also privy to the material placed on record, prepared to either defend itself or challenge its validity or question the authenticity of the such a material. “And the court would then have both sides before it. When you have a sealed cover, you don’t permit that. Then the court more often than not says we’d look at the sealed cover inside our chambers or we will not look at the sealed cover — neither of which is the solution. The very fact that a sealed cover is played is like playing a trump card — you throw out a game with a whack; it is no longer a level playing field,” he added..According to former Additional Solicitor General of India and senior advocate Sidharth Luthra the origins of sealed cover jurisprudence can be traced to a seven-judge bench judgment of the Supreme Court in State of UP v. Raj Narayan in 1975.Here in the context of Section 123 of the Indian Evidence Act — pertaining to evidence as to affairs of state — the apex court held that when privilege is claimed, it must be supported by an affidavit of the head of department and the court can see the document to satisfy itself as to the objection to its production and admissibility. .In other words, even in the context of privilege, the State cannot claim an absolute right nor can it withhold the documents from the court. However, if the court is satisfied that privilege is wrongly claimed, or any part of the document is innocuous, it can order disclosure of the innocuous part..In my view wherever law mandates identity to be protected an alternative is to redact identity related content otherwise sealed covers detract from natural justice, fair trial and open court principles.Sidharth Luthra, Senior Advocate.“Firstly sealed cover is relevant when State privilege is claimed but that must be supported by affidavit and only if court is satisfied on the claim of privilege is it be allowed,” Luthra says.He highlighted that during criminal investigation, reports or documents can be handed over during investigation “only” in sealed covers as till that stage the accused is not entitled to have access to case diaries. “After that sealed cover has no meaning. If judges would instead scrutinise the case dairies personally then even at this stage recourse to sealed cover use would be obviated,” he added..He pointed out sealed covers were used to shield identity in writ petitions and civil claims.“In my view wherever the law mandates that material or identity is to be kept protected—such as for protected witnesses—an alternative is to redact identity related content but otherwise sealed covers use must be curtailed as it detract from natural justice, fair trial and open court principles,” suggested Luthra.