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Wednesday, January 22, 2020

Sealed cover: What P Chidambaram bail Bench rejected

The observations of the Bench have put the spotlight back on the Supreme Court’s controversial practice of seeking and accepting information from government agencies in sealed envelopes that can only be perused by the judges.

Written by Apurva Vishwanath | New Delhi | Updated: December 7, 2019 8:37:08 am
P Chidambaram outside Parliament a day after being released on bail from Tihar jail. (Express Photo)

In its order granting bail to P Chidambaram on Wednesday, 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 to deny bail to the former Union Minister.

“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.

The observations of the Bench have put the spotlight back on the Supreme Court’s controversial practice of seeking and accepting information from government agencies in sealed envelopes that can only be perused by the judges.

When can the court ask for information in a sealed envelope?

The court asks for information in sealed covers in two circumstances: when information is connected to an ongoing investigation, and when it involves personal or confidential information. Disclosure of information linked to an ongoing investigation could impede the investigation, and the disclosure of personal or confidential information could violate an individual’s privacy or result in breach of trust.

What is the problem with the court relying on information in sealed covers?

It prevents parties from having a full overview of the charges against them, and it is not compatible with the idea of an open court and a transparent justice system. Courts are bound to set out reasons for their decisions, and legal experts argue that not disclosing them leaves scope for arbitrariness in judicial decisions. It also takes away the opportunity to analyse judicial decisions, and to appreciate the rationale behind them.

In which cases has the court relied on sealed covers?

The practice of seeking information in sealed covers is not limited to the higher judiciary. The Supreme Court had relied on sealed covers in the 2G case, in which it cancelled telecom licences. In Chidambaram’s case, while trying to persuade the court to refer to information in the sealed cover, Solicitor General Tushar Mehta referred to a 1997 case of anticipatory bail involving P V Prabhakar Rao, son of former Prime Minister P V Narasimha Rao.

Over the past year, the Supreme Court has relied on information in sealed covers in several significant cases. In the cases related to the National Register of Citizens (NRC) in Assam, the court asked the then state coordinator Prateek Hajela to submit periodic reports in sealed covers, which were not disclosed even to the government. Sealed covers also had roles in the BCCI reforms case, the Rafale case, and the case seeking the quashing of FIRs in the Bhima Koregaon case.

What did the court say in Chidambaram’s case?

While maintaining that the court can seek information in sealed covers and pursue them “to satisfy its conscience that the investigation is proceeding in the right lines and for the purpose of consideration of grant of bail/anticipatory bail etc.,” it cannot rely on such information to make its decision, the court said.

It noted that in deciding on bail, it had “consciously refrained from opening the sealed cover and perusing the documents”.

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