ARTICLE
22 April 2021

Doctrine Of Sealed Cover

SO
S&A Law Offices

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Though the Supreme Court plays a pivotal role in ensuring transparency to engender public trust in state machinery and institutions, sealed covers are often used in matters...
India Government, Public Sector

Though the Supreme Court plays a pivotal role in ensuring transparency to engender public trust in state machinery and institutions, sealed covers are often used in matters where national security and public peace is at stake. The use of sealed covers to produce evidence derives its legitimacy from a combined reading of the Indian Evidence Act, 1872 (Act) and the Supreme Court Rules. The Evidence Act protects unpublished official documents relating to the affairs of the State, and specifies that a public officer cannot be forced to produce any information whose disclosure can be detrimental to public interest.

In addition, Rule 7 of Order XIII of the Supreme Court Rules specifically states that no party or person will have the right to receive documents that the Chief Justice directs to keep in a sealed cover. The only exception to this is when the Chief Justice himself orders production of such a document to the opposite party. However, the need for a detailed explanation proving the unique necessity of a case to conceal information to protect public peace has not been mandated.

In service jurisprudence, the sealed cover procedure is adopted when an employee is due for promotion, but disciplinary/ criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefits are kept in a sealed cover to be opened after the proceedings in question are over.

This has been widely discussed in the case of Union of India vs. K.V. Jankiraman reported in (1991) 4 SCC 109. The same has again been discussed in the case of Union of India vs. Sudha Salhan as also in the case of Food Corporation of India vs. Abhay Ram.

The sealed cover can be opened only in case of exoneration of the employee. As 'censure' is a minor penalty, the sealed cover could not be opened and the case of the employee considered for promotion. This view has been discussed in the case of State of M.P. vs. I.A. Qureshi reported in (1998) 9 SCC 261. In the context of sealed cover procedure, the hon'ble Supreme Court has pointed out that the decision taken to initiate disciplinary proceedings is evident from the fact of issue of the charge-sheet which means dispatch of the charge-sheet to the Government servant, irrespective of its actual service on him. The claim for retrospective promotion was rightly rejected when sealed cover procedure was rightly adopted. "Sealed cover" procedure is usually adopted in only one of two cases – ongoing investigations that form part of the police diary, and where information of a confidential or private nature is being disclosed. The idea in both these cases is obvious, the judicial process should not result in harming the course of investigation or cause harm to a party by revealing information.

The doctrine of sealed cover definitely goes against the citizens' "right to know" and militates against the Supreme Court's function of public reasoning. The noticeable aspect in the recent surge of seeking evidence in sealed covers is the type of cases the Supreme Court has applied this practice in all these cases which involved individuals challenging the government's narrative and claimed violation of fundamental rights. Three recent cases on sealed cover jurisprudence are the arrest of five human rights activists for allegedly conspiring to target Prime Minister Narendra Modi (Romila Thapar vs. UOI); the Rafale jet deal (Manohar Sharma vs. Narendra Modi); and another PIL (ADR vs. UOI) alleging that the Modi government's electoral bonds scheme brings opaqueness and anonymity in political funding and goes against the citizens' right to know. In all these cases, citizens challenged the state machinery, and rather than factoring in the power imbalance between citizens and the state and questioning the government's version , the Supreme Court took recourse to the state's version without any scope for counter-factual questions.

Secrecy on certain matters seems to be the default response. Sealed covers have been allowed in cases where facts presented by the state needed to be debated and examined to settle the question of law.

The Supreme Court asking for information in sealed covers is one of its many innovations in procedures to ensure complete justice. Sealed covers doctrine is in vogue now but other examples include the dilution of locus standi in public interest litigation. These innovations are a problematic reading of the law to begin with and their mindless application in every case will turn this into an epidemic simply because it is convenient.

In the recent order to the Election Commission (EC), the legal question before the court is on the powers of the EC to prohibit the release of a film. Instead of taking up that question, the court asked the EC to review the film and give its opinion in a sealed envelope. There is no reason why this should be privileged information. It is no one's case that the court does not have the power to make such innovations. But the court can't use its power in a completely arbitrary manner. There are many instances where efforts to contain information can be justified – when it is related to an ongoing investigation or when it can prejudice the rights of a party. However, the court has arrogated itself by withholding information from public and even states in some instances because it is 'sensitive'. While the Supreme Court plays a pivotal role in ensuring transparency to engender public trust in state machinery and institutions, sealed covers are often used in matters where national security and public peace is at stake. The use of sealed covers to produce evidence derives its legitimacy from a combined reading of the Act and the Rules. The Evidence Act protects unpublished official documents relating to the affairs of the State, and specifies that a public officer cannot be compelled to produce any information whose disclosure can be detrimental to public interest. It is pertinent to note that as per the Indian Evidence Act, the burden of proof currently rests on the party who wishes to convince the court of a particular fact.

The recent bail order passed in favour of P. Chidambaram in the INX Media case strongly criticised the use of sealed covers and the reliance of courts on such evidence in their verdict. This is in stark contrast to the widespread use of sealed covers in the Alok Verma issue, BCCI investigation, Bhima- Koregaon case, Rafale jet deal controversy and the implementation of the NRC. An inconsistency in the courts' stance on sealed covers can be attributed to the lack of defined safeguards to deter its overexploitation. The ability to produce documents aids one's right to defend oneself, and their right to a free and fair trial. In the recent Supreme Court judgment on P. Gopalkrishnan vs. The State of Kerala, the court said that fair disclosure by the prosecution to the accused is a constitutional mandate. The court, relying on Section 207 of the Code of Criminal Procedure, held as follows,

"...Even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of Prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused."

On the other hand, there are several instances where sealed cover evidence has been admitted without any sufficient reasoning for the same. For instance, in the suspension of the ex-CBI Chief Alok Verma, the Supreme Court stated that the failure to use sealed covers would hamper public trust in the CBI. However, such reasoning potentially establishes a precedent for any cases involving public institutions to follow suit, as they could all conceivably impact public trust. The judiciary is predicated on testing the legality of the legislature and executive's exercises of power. In such crucial verdicts, it is vital that the party suggesting that the disclosure of evidence risks public outrage or national security proves the presence of an undeniable and imminent threat. This would validate the need for concealing the document from the party against whom the content is being used and the public. Similarly, in the BCCI spot-fixing scandal, it was argued that sealed covers were necessary in order to protect the identity of the individuals charged in the case, lest they are innocent.

The Indian Evidence Act and the Supreme Court Rules merely address the ability of the court to conceal the contents of certain documents submitted before it as evidence. However, the lack of a clear law leads to contradictory views within the Supreme Court, leading to the law being ambiguous . This would verify the need for concealing the document from the party against whom the content is being used in the public. Currently, the jurisprudence surrounding sealed covers works in a grey area. While secrecy is necessary in certain situations, it must be warranted beyond a reasonable doubt, particularly in cases against elected persons and state institutions, both of whom are accountable to the public. This would provide a constitutional backing to this unusual procedure, while keeping public trust in the discretion of the court, and placing checks and balances on the court's power.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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