“A petty autocracy”: The Supreme Court’s evolving jurisprudence of the sealed cover

The present Chief Justice of India likes sealed covers. In the ongoing National Register of Citizens Case, he has – on multiple occasions – asked the state coordinator of the NRC to submit the details of his work to the Court in a “sealed cover” (including, on one occasion, refusing to share the contents of the “sealed cover” with the Attorney-General for India).  In the Rafale Case, he asked the Government to submit pricing details about its purchase of the Rafale aircraft in a “sealed cover”. And in the case involving corruption allegations at the CBI, he directed that the CVC’s report about the CBI Director Alok Varma be given to the latter in a “sealed cover”.

These constant references to “sealed covers” may sound like the stuff of thrilling detective novels, but they also happen to be deeply and profoundly anti-democratic. Let us start with the foundational principle: in India, we are committed to the value of open justice. The Courts are public forums, their work characterised by transparency and openness to public scrutiny. Judgments – and the reasons underlying them – must ordinarily be public. The Indian Supreme Court is not the Court of the Star Chamber, with its opaque and secretive processes. In a democracy, it is of fundamental importance that justice be done in full public view.

Like any principle, the principle of open justice, of course, has its exceptions. The concept of an “in-camera trial” is well-known: there are a handful of cases whose sensitive nature requires that they be closed off to the public, especially when matters of personal privacy are involved. This, however, is meant to be a situation of the last resort, taken only after hearing arguments on the issue, formally enjoined by the judge, and not a decision that she ought to take lightly.

Next, consider the following situation: an election is challenged on the ground of procedural irregularities. The results of the election are due to be announced before the Court can adequately hear and decide the case. To prevent a fait accompli, the Court asks the election authorities to refrain from declaring the results, and – instead – hand them over to the Court in a “sealed cover”, pending the adjudication of the dispute. Here, the issue is purely procedural: the material submitted to the Court has nothing to do with the Court’s final decision, and it therefore raises no concerns of open justice.

There is a third category of cases: those involving State secrets. Consider, the famous example provided by the Supreme Court of the United States in The Pentagon Papers Case: that of troop movements in wartime. Nobody would suggest that details of this kind ought to be made public. But then again, nobody would suggest that this is a matter that is justiciable in the first place: issues involving State secrets fall within the domain of Executive prerogative, a domain where courts cannot tread. Of course, there can be – and often is – a dispute over whether something qualifies as a State secret or not – that, indeed, was the whole dispute in the Pentagon Papers Case, and that is certainly a matter for the courts to decide. However, once the courts have decided (with due deference to the Executive), then there can be no halfway house: if the question involves a State secret, then it is the absolute prerogative of the Executive to deal with the information as it sees fit. If it does not, then the traditional principles of open justice and open democracy apply: if it can be shared with the Court, then it must be shared with the public.

The problem with the Chief Justice’s evolving jurisprudence of the sealed cover is that in its arbitrary and ad-hoc character, it has become a matter of personal fiat, rather than a careful consideration of balancing the core principles of open justice with the narrow exceptions that may occasionally apply. Consider, for instance, the Rafale issue, where the challenge is to the government’s decision-making process as part of public procurement in a defence deal. Now, the government argues that the price at which it obtained the fighter jets cannot be revealed, as that would compromise the deal itself: in short, the determination of pricing is a core executive function when it is striking defence deals, and not something for the Court to go into. If you agree with the government’s argument, then there ends the matter: the question of pricing has to be excluded from the proceedings altogether. If you don’t agree with the government’s argument – if you believe that the corruption allegation cannot be decided without looking into the question of pricing – then that logic has to be carried through to its conclusion: the pricing details, along with the rest of the decision-making process, has to be subjected to judicial review, and ipso facto be public. What the Chief Justice has done, instead, is to take the pricing details in a “sealed cover”, with some stray observations about how, at this time, he does not consider it relevant to the case. Fair enough – however, why ask for the pricing to be made available only to him and his brother judges, if he does not consider it relevant? And what if he changes his mind later on? Will we get an affirmative judicial finding on whether or not there was corruption in the Rafale deal – a crucial public issue – on the basis of three judges’ reading of what is contained in a “sealed envelop”?

While the fate of the “sealed envelop” in the Rafale case lays bear some of the contradictions of the Chief Justice’s approach, in the NRC case, that approach has far more sinister results. Unlike Rafale, NRC is about core fundamental rights, including the right of citizenship. As I have argued before, the Chief Justice with his “sealed covers” (and “confidential reports”) has essentially set up a regime of secret justice, where individuals are faced with life-changing (and life-destroying) decisions about their rights, without any chance to challenge or interrogate them.

What explains this? The Chief Justice’s thought process – I suggest – was laid bare yesterday, in a throwaway remark that he made during the proceedings concerning the third of my examples – the CBI case. The Chief Justice’s rationale for handing over the CVC Report to Alok Verma in a “sealed cover” was that “public confidence in the CBI” must be maintained. Now consider the facts: the two topmost officials of the CBI accuse each other of graft, the government (long-accused of treating the CBI like a “caged parrot) intervenes in a manner that is questioned by many, and the CVC is brought in to investigate the CBI Chief. All this, we are expected to believe, would not affect “public confidence” in the institution, but making the CVC Report public would somehow achieve that.

But this is nothing better than a complete infantilisation of the public: the Chief Justice is essentially telling us, in his best Colonel Jessup impression, “You want the truth? You can’t handle the truth.” The truth will stay between the high officials involved, and then a second set of high officials – the judges – will render judgment on the basis of that cloistered truth – all of which is in keeping with the sanctity of the CBI. The only threat, apparently, is of the public getting to know what the CVC has to say about the CBI Chief. This is an approach that treats people as passive subjects of justice instead of active citizens, and makes of judges that “bevy of Platonic guardians” that Judge Learned Hand was so terrified of: “sit back, relax, and let the grown-ups handle it.

A judicial regime in which the first recourse is to the “sealed cover” – thus setting up a secret dialogue between the Court and the State, to the exclusion of the citizen – has no place in a democratic set-up. Rather, it resembles a petty autocracy, where the citizens are viewed as irritants, who have no stake in the process of justice, and just need to let the guardians “get on with it.” It was a regime that our constitutional framers explicitly rejected when they made India the first country in the world to initiate universal adult franchise in a single stroke, notwithstanding the poverty and the illiteracy. In 1947, there were those who resisted this, echoing the colonial logic that Indian could not be trusted to think and decide for themselves, and would have to be led and guided until they became mature enough to do so. The constitutional framers, however, took a leap of faith, and chose the path of democracy and openness. The “jurisprudence of the sealed cover” makes a mockery of that faith.

15 thoughts on ““A petty autocracy”: The Supreme Court’s evolving jurisprudence of the sealed cover

  1. The ‘colonial viewpoint’ argument is often swished around, usually these days in respect of the choice of the first post-Independence Army chief, where some verbal comments from a closed-door meeting of senior officers are freely aired, to lend credence to the implication that Nehru expressed colonialist views, while the actual pertinent remark is more credibly attributed to Gen Nathu Singh.

    Sounds familiar? Yes, we’ve been seeing that in other ‘nationalist’ rants about supposed remarks made by Nehru vis-a-vis SC Bose, that turn out to be the published opinions of other latter-day ‘nationalists’, whose own political affiliations pre-Independence were quite the opposite.

  2. Am glad that you are focusing on this business of sealed covers. Though it has been going on for a few years now and the present Chief Justice of India is not the first Supreme Court Judge to use this device of sealed covers without justification or cause.

    A research project on all instances where sealed covers were used by the Supreme Court Judges in the last 20 years would be very interesting. The use of sealed covers has become more common though in more recent years.

    If I remember correctly, sealed covers were used in the black-money case, in the case of high value debt defaulters, in the Radia-Tata case, and in the Sahara case among several other cases.

    In fact, the Police tried to file a mischievous status report in sealed cover in my writ petition in the Delhi High Court as well, Writ Petition Civil No. 1280/2012. I asked for the report to be placed on the public record. This report was intended t be used to target me.

    I would like to add the following to your excellent note above.

    A democratic system like the one our Constitution establishes and guarantees works on a system of checks and balances. These checks and balances are required and mandated not just for the executive branch but equally also for the legislative and judicial branches of Government.

    One method of providing checks and balances is transparency, openness and public and media scrutiny of governmental action. This scrutiny works by providing for open decision making backed by publicly available reasoning.

    Thus, our Parliament is an open institution where parliamentary proceedings are televised and recorded and made available for public scrutiny.

    Our executive is also required to be transparent and to provide reasons for decision-making. Administrative and constitutional law serve to hold the executive branch accountable and transparent.

    The Judiciary is equally required to be subject to checks and balances. We trust in our judiciary not because of some blind faith in the office of a Judge, or in the oath spoken by a Judge, or in the men who act as Judges; but because the judicial system works and is expected to work in accordance with natural justice and rules and procedure and in accordance with the prescribed concept of ‘open justice’ where court proceedings, court decisions and judicial reasoning are all transparent, open to public scrutiny, and ultimately subject to public judgment.

    Now this frequent and unjustified resort by the Supreme Court to sealed covers, i.e., to documents that are not placed on the public court record and remain secret, is troubling not just because it “infantilizes” the public as argued by Gautam Bhatia, but also because it removes the constitutionally mandated checks and balances imposed on the Judiciary. It transforms our open judicial system into a secret, unaccountable and unconstitutional court, where a man sitting as Judge places himself outside the realm of public and judicial accountability and pretends to dispense justice when the very basic requirement of justice that it be open and transparent has been negated.

    Secrecy begets corruption. Secrecy allows for extraneous considerations and actors to influence decision making including judicial decision making.

    Judges cannot in a democracy demand blind faith and trust from the citizen. They cannot demand that we allow them to take judicial decisions in secret and based upon secret reasoning simply because they are Supreme Court Judges, and that we must somehow therefore blindly trust in their integrity, honesty and competence. The Constitution did not create a Supreme Court of unaccountable “benevolent” dispensers of justice. The Constitution created a Supreme Court that is mandated to be open and transparent. The Supreme Court must subject its proceedings, its decisions and its reasoning to public scrutiny. This requires that proceedings take place in open court, that court records are open and public, that decisions are based upon publicly available reasoning and that the ultimate consumer of justice, the People, who gave themselves the Constitution and who have created the Supreme Court remain Supreme and are able to judge the Supreme Court.

  3. Another plank on which this whole sealed covers issue needs to be discussed if from the perspective of the Articles 14, 20 and 21 fundamental rights of Alok Verma, Asthana and other involved CBI, RAW and PMO officials who are all now entangled in this web of intrigue.

    Take Alok Verma as an example: He stands accused of corruption and professional misconduct. He has a right to due process and to defend himself.

    The Supreme Court is denying him these rights by (i) acting as the investigating agency as well as the Court of last resort; (ii) denying him due process rights available under the law; (Iii) compelling him to defend himself in secret proceedings (which are investigative and original and final judicial proceedings all rolled into one) where the charges against him are secret and his response and defence is also to be kept secret, and where rules of evidence and trial do not apply.

    What is really unfortunate is that the veteran lawyers lionized within the legal profession and the media continue to fail to stand up to the Supreme Court on this completely unconstitutional business of sealed covers among other things.

    This makes the critiques of young scholars like Gautam Bhatia even more admirable and brave.

  4. Am re-posting this using my Twitter login,

    Another plank on which this whole sealed covers issue needs to be discussed if from the perspective of the Articles 14, 20 and 21 fundamental rights of Alok Verma, Asthana and other involved CBI, RAW and PMO officials who are all now entangled in this web of intrigue.

    Take Alok Verma as an example: He stands accused of corruption and professional misconduct. He has a right to due process and to defend himself.

    The Supreme Court is denying him these rights by (i) acting as the investigating agency as well as the Court of last resort; (ii) denying him due process rights available under the law; (Iii) compelling him to defend himself in secret proceedings (which are investigative and original and final judicial proceedings all rolled into one) where the charges against him are secret and his response and defence is also to be kept secret, and where rules of evidence and trial do not apply.

    What is really unfortunate is that the veteran lawyers lionized within the legal profession and the media continue to fail to stand up to the Supreme Court on this completely unconstitutional business of sealed covers among other things.

    This makes the critiques of young scholars like Gautam Bhatia even more admirable and brave.

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