In recent times, the Courts’ recourse to ‘sealed covers’ has become an unhealthy norm rather than a rare exception. There have been many cases where courts have allowed submission of evidence in sealed cover. ‘Sealed cover’ procedure may be adopted in only two cases –
(i) Ongoing investigations that form part of the police diary, and
(ii) where information of a confidential or private nature is being disclosed.
The idea in both these instances is obvious: the judicial process must not result in harming the course of investigation, or cause harm to a party by revealing sensitive information.
There are several instances of ‘in-camera’ trials held in closed chambers, especially in heinous privacy-threatening crimes like rape. This is done to enable documents submitted or arguments made remain away from the public eye and retain the privacy of the persons involved. However, in these cases, copies of documents submitted by one party to the Bench are invariably also available with the opposite party. In sealed-cover cases (which have become very popular these days among the higher judiciary), the contents of the sealed cover is hidden from not just the public, but from one or more parties to the case! This is a single judicial practice that is responsible for many ills and sharp erosion in the credibility of our judiciary.
The Indian Evidence Act, 1872 gives statutory sanction to sealed cover evidence under section 123 read with Rule 7 of Order XIII of the Supreme Court Rules, 2013. Section 123 of the Indian Evidence Act, which deals with Evidence as to Affairs of State reads as below:
No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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."
Rule 7 of Order XIII of the Supreme Court Rules, 2013 reads as below:
7. 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 in accordance with an order specially made by the Chief Justice or by the Court.
Tendering evidence in sealed covers and keeping the opposite party in the dark militates against transparency and makes complete accountability impossible. We can safely say that orders relying on sealed-cover submissions cannot, by definition, be speaking orders. This practice is pernicious and brings a hitherto unheard-of level of ad hocism to judicial proceedings. It militates against the principle that justice must not only be done, but also seen to be done. The opacity it brings to decisions of the highest court in the land is shocking. It is a violation of natural justice principles, preventing parties to a litigation from having full appreciation of the facts and from cross-questioning the opposite party based on the submissions.
A recent decision of the Bombay HC in Rajeev Kumar (HUF) & Ors v Anugrah Stock & Brokers Pvt. Ltd. (LD-VC-COMM Arbitration Petition No. 30 of 2020) stands in refreshing contrast to the ‘popularization’ of the sealed-cover doctrine. One may say that it serves as guiding principle for the whole of the Indian judiciary on the use of sealed-cover procedure. In this case, the court, while emphasizing on transparency in the decision-making process, rejected the party's request to furnish documents in a sealed cover merely to save embarrassment for itself, saying: “I am making it abundantly clear that at least in my Court there is no question—and there will be never be a question—of anything being done ‘in sealed cover’. … Anything that I can see, all parties before me are entitled to see. That is all there is to it. This is the only method that I know of to ensure an open and transparent decision-making process”. However, the sealed cover era is upon us, until it is reviewed and deprecated by another larger SC Bench, because as we shall presently see, the era has been ushered in by a CJI (now ex-CJI).
A recent article in The Print pointed out that the sealed-cover doctrine started gaining prominence during the tenure of an ex-CJI (name withheld). Post-retirement, this ex-CJI is a nominated member of the Upper House. The same ex-CJI had asked a former Assam National Register of Citizens (NRC) coordinator to submit a detailed report of people excluded from the draft document in a sealed cover. On one occasion, the article says, the contents of the sealed cover were not even shared with the Attorney General!
The high-stakes Rafale jets case (Manohar Sharma v. Narendra Modi 2018 SC 2807) was all about paying an unjustifiably high price for the jets. The most important submission relating to pricing of the jets purchased was not given to the petitioners when the Supreme Court rejected all petitions related to the Rafale jets deal. The Supreme Court, while hearing a public interest writ petition on an allied matter in early 2018, asked the Central Government to provide details of the decision-making process in the Rafale deal with France in a sealed cover. Since pricing was the main reason for the controversy, several political figures and parties said that the secrecy over pricing was evidence of a scam.
In the Alok Verma vs CBI case (also known as the CBI v CBI case) in the Delhi HC, the lawyer for one of the parties informed the court that he has incriminating documents pertaining to the case but he would file them only in a sealed cover. Later, when this case went up to the SC, a 3-judge SC Bench headed by the ex-CJI ordered the CVC to give CBI Director Alok Verma its report in a sealed cover, and directed Alok Verma to file his response – you guessed it – in another sealed cover.
The former CJI’s penchant for sealed covers was again of great significance in what is known as the electoral bonds case (Association for Democratic Reforms v. Union of India, Writ Petitions (Civil) Nos. 333 of 2015, 880 of 2017, 59 of 2018 and 434 of 2018). The Election Commission told the Supreme Court that it had received status of filing of electoral bonds from various political parties, including the BJP and the Congress, in a sealed cover. This ensured that the names of parties funding the bonds were not made available to the petitioners and the public, thus protecting both, bond buyers and bond money recipients. (Just wondering: What if, say 5 years from now, the contents of the sealed cover were made public, and we found only blank sheets of paper? Or, what if the contents were such that if known to the other party, the judgment would need to be reversed?)
The ex-CJI’s sealed-cover solution reared its head again in the Narendra Modi biopic film release case (WP (C) 501/2019, Judgment summary) just before the 2019 Lok Sabha elections. He passed an order directing the Election Commission to finalize its decision and inform the result to the Court in a sealed cover (see this judgment).
One more recent case that underlines the reliance on the sealed-cover doctrine is the case involving arrest of 5 human rights activists (in what is now known as the Bhima-Koregaon case) for allegedly conspiring to target Prime Minister Narendra Modi in Romila Thapar v. Union of India(Writ Petition (Crl.) no. 260 of 2018 decided on 28.09.2018). The police in this case submitted that items recovered in searches would be made available for the court’s perusal in a sealed cover, to be returned also in–right again–a sealed cover!
Now that the Supreme Court has heartily embraced the doctrine of sealed-cover evidence and set several precedents, lower courts have also begun followed this practice way beyond its originally intended scope. The Bom HC decision cited above is a shining exception, which should be recommended to the apex court. Apart from their inexplicable nature, such sealed-cover orders fundamentally go against the cardinal principle of an open court. They violate the principle of natural justice as well. The Bombay High Court decision cited above lays down the correct view.
The recent surge of instances (see the several documented cases above) where evidence is sought in sealed covers, seems to be happening mainly in cases involving individuals claiming violation of fundamental rights. In all these cases mentioned above, individual citizens challenged the government’s narrative and the state machinery. Rather than factoring in the power asymmetry between citizens and the State and questioning the Government's version more aggressively, the Supreme Court has time and again taken recourse to the asymmetrical sealed-cover approach and accepted the State's version without giving the manifestly weaker party the natural justice right to cross-question the submissions.
A recent article in The Wire, which concentrated on the ex-CJI’s contribution to the debates in the Upper House and found nothing of note, ended the article with this devastatingly sarcastic last paragraph: “In accepting the government’s nomination to the Rajya Sabha, (the ex-CJI) said that it would be an opportunity for him to provide his services to Parliament. So what are these services of (sic) Parliamentarian? Perhaps the answer lies in a sealed cover.”
Rajesh is a qualified CA & CWA. He has served as a Director of PricewaterhouseCoopers, a Director of a large urban co-operative bank and Dean of a B-School over the years. He has taught Finance for over 20 years & trained participants from several Companies and B-Schools. He is an educator and a learner (he believes both are inextricably intertwined), and a knowledge product developer. Law Gyani, which he has founded to help Law Students with their exam preparations, and to understand nuances of the law.
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