Monday, March 4, 2024

The Secret of the Sealed Cover

The Chief Justice of India recently stated that the “sealed cover procedure must stop” as it is “fundamentally contrary to the basic process of fair justice”. What lies behind the procedure and why is it used so frequently?

By Dr Swati Jindal Garg

It has been rightly said that “Everything secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity.” In any democracy, the liberties of its people never were, nor will ever be, secure, when the transactions of their rulers may be concealed from them. Taking these words to heart, the Chief Justice of India (CJI) DY Chandrachud stated that the “sealed cover procedure must stop” as it is “fundamentally contrary to the basic process of fair justice”. The CJI also said that he was “personally averse” to it. The statement was given during the proceedings in an ongoing case pertaining to the Indian Ex-Servicemen Movement’s plea on payment of one rank one pension (OROP) arrears. 

Even though there is a specific law that defines sealed cover jurisprudence, the concept also finds a mention in Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872. It is generally used in cases in which information is sought in secrecy or where confidence is required when its publication impedes an ongoing investigation, such as details which are part of the police’s case diary, or breaches the privacy of an individual. Cases related to national security, sexual assault, or where minors are involved, also make use of sealed cover jurisprudence in order to protect the privacy of the parties involved.

The concept of sharing relevant information through sealed covers has found favour in several cases such as the Rafale fighter jet deal case. Former CJI Ranjan Gogoi in 2018 had directed the centre to submit details related to the deal’s decision-making and pricing in a sealed cover after the centre contended that such details were subject to the Official Secrets Act and secrecy clauses in the deal. 

Similarly, in the case related to the National Register of Citizens (NRC) in Assam, the Supreme Court-mandated coordinator of the NRC, Prateek Hajela, was asked by the apex court to submit period reports in a sealed cover.

In the Bhima Koregaon case, wherein activists were arrested under the Unlawful Activities (Prevention) Act, the Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover. In the case of activist Gautam Navlakha, the police had submitted a sealed envelope, including information recovered from the electronic devices seized from the activist. The police had stated at that time that this information could not be disclosed to the accused as it would impede the ongoing investigation. Apart from all this, the sealed cover method was also relied upon in the 2G and coal scam cases.

Even though the sealed cover jurisprudence is of great use in cases where the contents are highly sensitive in nature and may even impact national security or “public order”, as well as in money laundering cases, wherein disclosure would affect ongoing investigations, it is not a practice that is widely propagated. In fact, recently, CJI DY Chandrachud remarked that “there were only a ‘small exception’ of cases in which the court, for the benefit of the parties, did not want them to see the government files.” “Like in a case of child sexual abuse,” Justice Chandrachud pointed out.

The CJI also narrated how, some time ago, the then Attorney General of India KK Venugopal had dealt with sensitive government records concerning cross-border national security in a case before the Supreme Court—instead of putting them in a sealed cover, Venugopal had sent his junior with the records to the office of the opposite counsel, for him to go through them so that the latter could better assist the court.

However, the case that is currently in the limelight owing to the remarks made by the CJI is dealing with the OROP issue and the concerned bench comprised Justices PS Narasimha and JB Pardiwala, apart from the CJI himself. During the last hearing, the CJI had asked the government to submit a note on what had been done regarding the time schedule set by it for the payment of arrears to the pensioners categorised under several heads. In an answer to the queries posed by the Court, Attorney General of India R Venkataramani produced the note in a sealed cover, saying “it is confidential”.

The bench, on the other hand, did not agree to the same and asked why it couldn’t be shared with the counsel representing the pensioners. The CJI also said: “I am personally averse to sealed covers. What happens is, we see something he does not see. And we decide the case without showing it to him. This is fundamentally contrary to the judicial process. There cannot be secrecy in the Court. The Court has to be transparent.”

The CJI further clarified that the concept of secrecy was still understandable if it concerned a case diary to which the accused was not entitled, or something which affects the source of information, or even somebody’s life, but he asked as to what could be so secretive about paying pension? “We need to put an end to this sealed cover procedure which is being followed in the Supreme Court because then the High Courts will also start following. And this is fundamentally contrary to the basic process of fair justice,” the CJI further said.

The Attorney General then went on to read the said note that cited budgetary constraints in paying the arrears in a single instalment. The note pointed out that the budgetary outlay for the Union Defence Ministry for 2022-23 was Rs 5.85 lakh crore, of which Rs 1.32 lakh crore was the planned expenditure for pension. Of this, Rs 1.2 lakh crore was disbursed till February 2023 for 2022-23, it said, adding that OROP arrears amounting to about Rs 28,000 crore was an additional component.

The Attorney General also added that the matter had been taken up with the finance ministry which had further clarified that it would be difficult to provide the funds in a single instalment and favoured staggered payment. “You can’t pay attention to only one sector of paying pensions. It is about the economy. These are matters of fiscal policy…”

Taking note of his submissions, the Court provided a new time schedule for payment of arrears to the ex-service personnel. It directed that the payment of OROP dues to family pensioners and gallantry award winners shall be made in a single instalment on or before April 30, this year. The Court also said that the arrears due to pensioners who have completed the age of 70 years or above shall be paid in a single instalment or more by June 30 this year and the arrears for the remaining pensioners shall be paid in three equal instalments—on or before August 31, 2023, November 30, 2023, and February 28, 2024.

The counsel for the petitioners, however, told the Court that these instalments were due way back in March 2019. “They have served the country in the best years of their life and why is that they are the last priority of the government,” he argued.

“After having said that we’ll pay you in 2019, they’re now saying they’ll pay in April 2024. It’s extremely unfair. This circular could not have been issued without consulting the highest level. It’s not like they don’t have money,” the counsel contended. 

This is not the first time that the current CJI has deprecated the practice of sealed covers before the court. Some time back, while heading a three-judge bench hearing a clutch of petitions on the Hindenburg Research report and its aftermath, the CJI had told Solicitor General Tushar Mehta, who sought to submit the centre’s names for a committee of experts in a sealed cover, that the Court wanted to maintain “full transparency”.

“We would rather not accept the sealed cover suggestions from you for this reason; in constituting a committee which we want to do, we want to maintain full transparency. The moment we accept a set of suggestions from you in a sealed cover, it means the other side is not seeing them. Even if we don’t accept your suggestions, they will not know which of your suggestions we have accepted and which we have not,” the CJI had said.

In more ways than one, we often realize that information is becoming the lifeblood of our society. Information has immeasurable value and it can be used to one person’s advantage or at another’s cost. In such situations, if the same information is disclosed only to one of the parties before the courts, it goes without saying that the other party stands to be at a big disadvantage as it can be said to be shooting in the dark. A guarantee of public access to government information is indispensable in the long run for any democratic society because if officials make public only what they want citizens to know, then publicity becomes a sham and accountability meaningless. 

—The writer is an Advocate-on-Record practicing in the Supreme Court of India, Delhi High Court and all district courts and tribunals in Delhi


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