In OROP case, CJI Chandrachud refuses to accept ‘sealed cover’: Why did he do so?

“I am personally averse to sealed covers,” the CJI told the A-G, Livelaw reported. “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.”

The CJI has repeatedly underlined the need for transparency in the functioning of the court, and expressed himself against secrecy in procedures unless required.

Last month, a Bench led by him had refused to accept names proposed by the Centre in a sealed cover for inclusion in the expert committee to examine the regulatory mechanism in the light of the Hindenburg report.

In October last year, Justice Chandrachud (who was not CJI then) had criticised the practice of “sealed cover” jurisprudence, saying it set a “dangerous precedent” and made “the process of adjudication vague and opaque”. He had expressed similar views earlier too, as had former CJI N V Ramana.

What is “sealed cover jurisprudence”?

It is the practice of seeking and accepting information from government agencies in sealed envelopes that can only be perused by judges. It has been followed by the Supreme Court in the past, and sometimes lower courts as well.

Under what circumstances does the court seek information in a sealed cover?

This can happen in broadly two kinds of cases: (i) when the information is connected to an ongoing investigation and, (ii) when the information is personal or confidential in nature.

It is understood that in the first situation, an ongoing investigation could be impeded by the disclosure, and in the second situation, an individual’s privacy could be affected or there may be a breach of trust.

So what is the problem then?

The secrecy could end up preventing a party from having a full overview of the charges against them. Also, sealed covers are at a fundamental level incompatible with the idea of an open court and a transparent justice system.

In its order in ‘Cdr Amit Kumar Sharma v Union of India’ delivered on October 20, 2022, the Supreme Court Bench of Justices Chandrachud and Hima Kohli said “the non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority…sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque”.

This, the court said, “perpetuates two problems”:

“Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover…

“Secondly, it perpetuates a culture of opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the balance of power in a litigation in favour of a dominant party which has control over information. Most often than not this is the state. A judicial order accompanied by reasons is the hallmark of the justice system… The sealed cover procedure affects the functioning of the justice delivery system both at an individual case- to case level and at an institutional level.”

But surely not all information can be circulated indiscriminately?

The Supreme Court in its judgment clarified that “this is not to say that all information must be disclosed in the public”. It gave the example of “sensitive information affecting the privacy of individuals such as the identity of a sexual harassment victim”.

But it also underlined that “the measure of nondisclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve”, and that “the exceptions should not…become the norm”.

Is the position taken by the CJI something new?

Not really. The court has expressed this view even before this week, last month, and in October last year. Some examples:

* In March 2022, in a case involving the Bihar government, a three-judge Bench headed by then CJI Ramana insisted that all arguments should be made in open court. “Please don’t give us a sealed cover, we don’t want it here,” the then CJI had told counsel for Patna High Court.

* Later that same day, Justice Chandrachud, during the hearing on an appeal against the Centre’s ban on the Malayalam TV channel MediaOne, said, “We are averse to sealed cover jurisprudence. Do you have issues if we go through the record now?”

The channel had gone off air on February 8 after the Kerala High Court upheld the ban by relying on documents submitted by the Centre in a sealed envelope. But the SC declined to allow the same practice, and subsequently stayed the ban.

* In December 2019, while granting bail to former Minister P Chidambaram in the INX media case, a Supreme Court Bench of Justices R Banumathi, A S Bopanna, and Hrishikesh Roy censured the Delhi High Court for relying on material submitted by the Enforcement Directorate (ED) in a sealed cover.

“It would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail,” the Bench said.

So how did the use of sealed covers become common?

The Supreme Court has itself encouraged the practice of seeking public interest-related information in sealed envelopes, most recently under former CJI and now Rajya Sabha member Justice Ranjan Gogoi.

* In the Rafale aircraft case, the court accepted the government’s argument that the matter pertained to the Official Secrets Act.

* While refusing to stay the arrest of activists held in the Bhima-Koregaon case, it relied on “evidence” submitted by the Maharashtra police in a sealed envelope.

* In the NRC exercise in Assam — which led to about 19 lakh citizens being excluded from the list — the apex court sought details from the NRC coordinator in a sealed cover with neither the government nor the affected parties being allowed to look at them.

* In the case involving corruption allegations against former CBI director Alok Verma, the court insisted that the Central Vigilance Commission submit its report in a sealed cover, ostensibly to maintain public confidence in the agency.

* In the 2G case, in which it had cancelled a large number of licences, the court had relied on sealed covers.

* During the hearing in the Chidambaram case, while trying to persuade the court to refer to information in the sealed cover, Solicitor General Tushar Mehta had referred to a case from 1997, involving P V Prabhakar Rao, the son of former Prime Minister P V Narasimha Rao.