Every judge or lawyer has witnessed cases where arguments in court seemed attractive at first, but they collapsed in the face of effective counter-arguments. Our legal system is based on the principle that opposing parties will actively contest the issues so that the court can decide the matter on the distilled facts and arguments that survive this rigorous authentication process. There are elaborate rules for pleading at every stage of adjudication. The increasing trend in the Supreme Court (SC) in directing one of the parties, usually the state or its agencies, to submit factual details in a sealed envelope, without a copy to the contesting party, allows the state to increasingly prejudice or even misguide the court.
The SC’s recent Rafale judgment illustrates these risks the best. As has been widely reported, this judgment states that the pricing details of the Rafale deal have been shared with the CAG, and the report of the CAG has been examined by the PAC and a portion of the report was placed before Parliament and is in the public domain. It turns out that no such CAG report exists and has therefore not been placed before any authority, PAC and Parliament included. This finding is at a minimum a serious embarrassment for the court and can even be the basis for setting aside the entire judgment.
An application for correction moved by the Centre states that this finding is based on a “bullet point” in one of the notes given in sealed cover. The bullet point, as extracted in this application, is itself quite badly drafted and the interpretation reached by the Court is a possible one. It is not clear if this note was even signed by any officer of the government and if anyone will take responsibility for it. Factually inaccurate or false averments in an affidavit will invite perjury and other penal action and, therefore, government affidavits are vetted at different levels before filing. The sealed cover process functions independently of these restrictions. In the absence of any penal consequences and potential contestation by the opposing party, the risk of unverified or even deliberately false information being put in sealed covers is high.
The Hadiya case before the SC, in which multiple sealed cover reports were filed by the NIA, is a case in point. Based on these reports, which were not supplied to opposing parties, vociferous arguments were made in court that Hadiya and many others in Kerala had been brainwashed as part of a large criminal conspiracy. While the court decided the fate of Hadiya in accordance with her wishes, as expressed in a packed courtroom, it allowed the NIA investigation to continue in respect of the alleged larger conspiracy. More than a year later, these investigations are stuck without evidence and the sealed envelopes have now been even returned by the court to the NIA. We will never know if the envelopes contained only the fruits of the fertile imagination of an NIA officer or something more credible.
In the recent past, sealed covers have been used by the SC in matters concerning the administration of cricket, the citizenship status of lakhs of individuals in Assam and the CBI director’s challenge to his de facto removal. Each of these is a matter of extreme public importance, and adjudication based on sealed cover reports simply does not inspire sufficient confidence.
The intent behind the use of sealed covers is to reduce public commentary and media discussion on the details so as to insulate the decision-making process from unmanageable public discourse. It is well-intentioned, but may not be the correct way to approach issues of constitutional, national or institutional importance. Decisions on these matters have large social and political significance. It is therefore natural that citizens groups, media and political parties will have views on them. In the absence of an appellate forum above the SC, its decisions gain acceptability, when its reasoning carries demonstrable credibility. Decisions based on untested facts, emanating from secret dialogue between the state and the court lack the desired credibility. As the Rafale verdict has shown, such decisions are likely to fuel controversy rather than settle it. An often-used phrase in SC judgments is “sunlight is the best disinfectant”. In the new year, the court must begin by illuminating every aspect of its adjudication process with it.