The Supreme Court of India. (Source: Supreme Court of India Website)

Sealed Covers Vs Judicial Transparency: How To Strike A Balance?

Transparency in judicial proceedings and open hearings have been a topic of public debate dating back centuries. The English jurist Jeremy Bentham once said, “Secrecy being an instrument of conspiracy, ought never to be the system of a regular government.

But much like any other aspect in philosophy, some real-life situations call for a deviation from open hearings. In courts, these deviations are: in-camera trials and sealed-cover submissions.

The courts in India opt for in-camera trials (behind closed doors which can’t be reported by the media) primarily in cases where personal details are involved which might not be appropriate for public consumption in marital disputes or rape trials involving minors.

But sealed-cover submissions are different. While in an in-camera trial the accused gets a chance to access the information and arguments being made against him, in case of sealed covers, one or at times both the parties don’t get access to those submissions. It’s strictly between the court and the party asked to submit the information.

A reason why there’s a debate on when should a court allow submissions in sealed cover. More so after the Supreme Court dismissed public interest litigations seeking an independent inquiry into India’s purchase of Rafale fighter jets from France’s Dassault Aviation. The court had sought submissions on details such as pricing and the negotiation process in a sealed cover.

Other cases where the court sought information in a sealed cover included the plea against former Central Bureau of Investigation Chief Alok Verma being sent on leave, Assam’s National Register of Citizens, the 2G trials and the Board of Control for Cricket case.

While refusing to comment on the judgment in the Rafale petition, Justice J Chelameswar, retired Supreme Court judge, said if it was up to him, he wouldn’t have sought information in sealed covers.

As I understand in the Rafale matter, the whole issue in front of the Supreme Court is on the integrity of the negotiating process and the pricing. I don’t see any reason why it should be done. I wouldn’t do it.
Justice J Chelameswar, Retired Supreme Court Judge

The retired judge elaborated that submission via sealed cover would be justified if in information sought by the court was technical in nature and had national security implications. “If any information regarding the aircraft and its technical specifications have to be gone into, whether the court should go into it at all is the first question. Second, even if it has to be gone into, then it’s certainly not a matter for public debate as it concerns a serious security issue,” Justice Chelameswar told BloombergQuint.

Justice Chelameswar said he would call for sealed-cover submissions only in two cases: where it was a personal matter such as a marital dispute, or in situations where information related to national security. “Certain proceedings cannot be in public, the law always recognises that,” said Justice Chelameswar. “The normal rule is it should be open court. But there are always exceptions to the rule. It all depends on case to case. Whether a particular case calls for sealed cover is a matter of assessment.’’

If some material comes to me in a sealed cover and which in my opinion would be absolutely dangerous for national security, then I would record it saying that there is some sensitive material which if revealed to the public would be detrimental to national security. I would keep that confidential and order it to be revealed maybe after five years or such time when its revelation is not detrimental to national security.
Justice J Chelameswar, Retired Supreme Court Judge

Justice AP Shah, retired chief justice of the Delhi High Court, said he never sought any submissions in a sealed cover except in the rarest of cases. He would seek such submissions in instances of ongoing criminal investigations, Justice Shah told BloombergQuint.

Chander Uday Singh, senior advocate in the Supreme Court, finds little justification for the sealed cover. More so when the court doesn’t share the information with one party and relies on it to deliver its verdict.

The court can seek sealed-cover submissions for information which is contested to be privileged but in such situations should only decide whether that information is privileged or not, he said.

“The court should not look at anything unless it is going to share it with the other side. If it wants to look at something which it does not want to share with the other side then the court can’t take that into account at all,” Singh told BloombergQuint. “You cannot have a situation where a court takes a thing from one party, relies on it against the other party but does not show it to the other party.’’

Singh does accept that in certain situations there is a need for information in sealed covers but those he said are extremely rare. But he reiterated that such information cannot be relied upon in deciding the matter.

In certain situations it may be justified if the court calls for a report from a neutral third-party arbiter. Suppose the government and a private citizen are pitted against each other in a litigation and the court feels that some neutral body from whom they can get expert assistance, there may be such rare situations where the court wants the report in a sealed cover and just educates itself with that and does not use it for or against either party.
Chander Uday Singh, Senior Supreme Court Advocate