Sealed cover: Supreme Court again repeats no, this time over OROP case

A Bench comprising Justice Chandrachud and Justices P S Narasimha and J B Pardiwala refused to accept a sealed cover note by the Centre on its views regarding the payment of One Rank One Pension (OROP) arrears to ex-service personnel. “We need to put an end to this sealed cover practice in the Supreme Court…This is fundamentally contrary to the basic process of fair justice,” the Bench said.

“I am personally averse to sealed covers. There has to be transparency in court… This is about implementing orders. What can be secret here,” the CJI said.

Sealed covers are a practice followed in the Supreme Court (and sometimes lower courts as well) of seeking and accepting information from government agencies in sealed envelopes that can only be seen by the judges.

The CJI spoke on similar lines on sealed cover submissions last month while hearing a clutch of petitions on the Hindenburg Research report and its aftermath. Justice Chandrachud, who was then heading a three-judge Bench, told Solicitor General Tushar Mehta that the Court wanted to maintain “full transparency”. The move came after Mehta submitted a folder with the names proposed by the government for a committee of experts who could suggest a mechanism for the protection of investors.

Justice Chandrachud responded, “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. Then there may be an impression that well, this is a government-appointed committee which the Supreme Court has accepted even if we have not accepted your suggestions. So, we want to maintain the fullest transparency in the interest of protecting the investors.”

Finally, in its order on the matter on March 2, the Supreme Court set up a six-member expert committee “to investigate if there was a regulatory failure in dealing with the alleged contravention of laws pertaining to the securities market in relation to the Adani Group or other companies”. It said this committee could submit a report in a sealed cover in two months.

Earlier, in October 2022, a Bench led by Justice Chandrachud and Justice Hima Kohli called sealed cover submissions a “dangerous precedent”, which make “the process of adjudication vague and opaque”. ‘

In its order issued in ‘Cdr Amit Kumar Sharma v Union of India’, the Bench 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”.

It said that this “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, they said, the practice “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.”

In March 2022, two separate Benches of the Supreme Court flagged the practice.

In a case involving the Bihar government, pertaining to the Patna High Court orders granting bail to 56 persons who were arrested in March 2020, a three-judge Bench headed by then Chief Justice N V Ramana said it wanted arguments to be presented in open court. “Please don’t give us a sealed cover, we don’t want it here,” CJI Ramana told the Patna High Court’s counsel in the case.

The CJI’s displeasure was echoed later in the day by Justice Chandrachud, during a hearing on an appeal against the Centre’s ban on Malayalam TV Channel MediaOne. 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 when the government repeated this practice before the apex court, it was pulled up by a three-judge Bench led by Justice Chandrachud, that stayed the ban.

The Court can itself seek information in sealed covers under two circumstances: when information is connected to an ongoing investigation, and when it involves personal or confidential information.

The Supreme Court, for example, relied on sealed covers in the 2G case, in which it cancelled telecom licences. Between 2018-’19, the Court relied on information in sealed covers in cases related to the National Register of Citizens (NRC) in Assam, the BCCI reforms case, the Rafale case, and a petition seeking the quashing of FIRs in the Bhima Koregaon case.

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In February 2020, interlocutors tasked by the Supreme Court to talk to anti-CAA protesters occupying a public road in Shaheen Bagh submitted a report in a “sealed cover” to the Supreme Court. The report was neither taken on record by the Bench nor made available to any of the lawyers.

With PTI inputs