[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]
[This is a guest post authored by Digvijay S. Chaudhary and Afzal Mohammad.]
There has been a lot of talk about the Supreme Court’s sealed cover exercise. The issue has been flagged only recently but the exercise has existed since the inception of the court. The following post follows from research that the authors conducted where they analysed this exercise from the inception of the Supreme Court until early 2019. The focus of the research was only the Supreme Court, but there exist thousands of cases in various High Courts regarding the same. The following post will trace the history and purpose of the exercise and then detail how it has evolved over the years and finally examine its legal backing.
It is important, first, to distinguish the various ways in which the Supreme Court has resorted to the sealed cover exercise. It is not always the case that whenever a sealed cover is used, the court does not reveal the contents of the sealed cover to the other party. The court has also (barring a couple of instances which shall be dealt later) never justified its stance of using the sealed cover. In a majority of the cases, it has been mentioned on record that a document was submitted to the court in a sealed cover but after this mere mention, there isn’t any record of such a document; whether it was relied on by the court or the impact those documents had on the judgment—no such information exists. It has also been observed that many times that the counsel themselves urge submitting documents in a sealed cover.
A distinction must also be drawn between the act of claiming privilege over documents and the sealed cover exercise we are dealing with. Under section 123 of the Indian Evidence Act, certain documents are not permitted to be presented in the court; the content of such documents is privileged and therefore, they are barred from being put on the record. Sometimes such documents lie in the hands of investigative agencies and if their content is disputed, they are called for by the court in a sealed cover. Only when the claim of privilege is not allowed, are these documents are made public. For the purposes of our discussion, such sealed cover documents shall not be included. It must also be borne in mind that all the exchanges that happen inside a courtroom are not part of the official record and hence details of the document in question cannot always be gathered by reading the judgment. As stated above, certain documents are ordered by the court in a sealed cover and their whereabouts and usage are not recorded by the judges in their judgment.
It can be inferred that over the years, the court’s approach has been four-fold when asking for documents in a sealed cover: Protection (sealing the evidence so as to avoid hampering), confidential (where the court acknowledges the confidentiality of the document and provides the document only to the counsel of both the parties and doesn’t dictate the contents in an open court), secret/arbitrary (where only the presiding judge opens and sees the sealed cover) and unknown (where it’s only mentioned that a certain document was submitted or asked to be submitted in a sealed cover, but nothing more is mentioned of such a document).
In the early years of the Supreme Court, the court used to resort to the sealed cover for protection of evidence as, “the absence of sealing naturally gives rise to the argument that the recording medium might have been tampered with.” Other purposes that we found the court resorting to the sealed cover were in cases concerning bids and tenders. That changed in 1972, when in the case of Unichem Laboratories v. Workmen, the statements of a private company were presented to the court in a sealed cover; no objections are present on record regarding their presentation or if the court itself asked for them in a sealed cover, but what is important is the court’s furnishing of reasons as to why the documents could not be made public: the court stated that these statements could have been extracted in the judgment but due to the fact that the company was a private company and the documents were presented in a sealed cover, therefore, they could not be made public. This deserves attention because the court reasons that the documents could not be made public as they were presented in a sealed cover—the sealed cover, here, acts as an authority which the court is supposed to rely on. Such a casual stance by the court, in this case, indicates that there might have been previous instances too where sealed cover was resorted to by the counsel/judges but written record of the same does not exist, as such instances have not found place in the judgments.
The pre–2000 era witnessed fewer variations in the documents submitted in a sealed cover. In this phase, the contents of the sealed cover were often revealed in an open court. In TADA cases too, evidence was frequently presented to the court in a sealed cover.
Wings of Fire
Post–2000, the sealed cover widened its ambit to investigation reports, reports in a court-ordered enquiry, report of the governor, status reports and steps taken in an investigation. Submission of status reports rose exponentially in the last four years (since 2016), as this term doesn’t even find a mention prior to this period. CVC reports, SIT reports, case diary, report of the inquiry conducted by the CBI, accounts, and list of assets of promoters, all came within the ambit of the sealed cover during this phase.
This exercise originates not only from the court’s end but also from the counsel, who themselves urge submitting documents in a sealed cover and which the court usually accepts. But in one such instance, in the case of Subramaniam Swamy v. Arun Shourie, the respondent prayed that, in view of the sensitive nature of the facts, he would choose to refrain from setting out those facts in the affidavit but would prefer to put them in the form of a signed statement in a sealed cover for the perusal of the Court, and which may be treated as an integral part of the counter affidavit. The Court, however, rejected his prayer and observed that the procedure suggested by the respondent was not acceptable, and was inconsistent with the recognized form of the pleadings. The respondent was granted liberty to withdraw the sealed cover from the Court. He was given an opportunity to file an additional affidavit. There are no reasons recorded by the learned judge as to why the procedure was not an acceptable procedure or any other details regarding such submission by the counsel. Nonetheless, this case is the only one the researchers could find in which the court has rejected the submissions in a sealed cover.
In another case, the High Court of Kerala directed the members of the CBI’s investigating team stating that, should they feel any interference with their freedom either from CBI or from elsewhere, such member shall be free to address this Court through the Registrar-General in a sealed cover. When this matter was brought to the Supreme Court, the court recognised the faith that the High Court had put in the members and allowed them to address the court through the Registrar in a sealed cover, but it did not comment on the validation of this exercise by the court.
The most extensive use of the sealed cover, however, has been observed in the case of Ratan N. Tata v. Union of India. There was a long list comprising a copy of a complaint, mentioned in the counter affidavit in a sealed cover. This sealed cover was directed to be kept in lock and key and be produced before the court on the next hearing. On the next hearing, there is no mention of this sealed cover. However, the ASG submitted another sealed cover which contained investigation reports of the inter-ministerial committee. This sealed cover was opened in court, resealed by the court master and returned to the counsel. Then, sealed envelopes containing the transcripts of all the tapes were presented to the court. In another hearing, the outcome of the scrutiny of alleged tapes was handed to the court in a sealed cover. The court opened the same and perused them. Finally, the report filed by the CBI was presented in a sealed cover to which the court ordered the registry to keep it in the same fashion and not to open it without the leave of the court. There are many similar examples.
There also have been instances where the court has issued reasons for resorting to the sealed cover. In Board of Control for Cricket in India v. Cricket Assn. Of Bihar, the Supreme Court accepted the statement of Justice Mudgal committee as to why the report was being submitted in a sealed cover: namely, that they were only allegations and were not established and, therefore, the report was being submitted in sealed cover so as not to sully the reputation of any innocent person. The court went through the report and said that the allegations in the report submitted in sealed cover required verification and investigation, and that the allegations were relevant to the subject-matter of the PIL. In SEBI v. Sahara India Real Estate Corpn., the Supreme Court stated that the press clippings be taken on record but should be kept in a sealed cover to maintain confidentiality in regard to the proposed transactions. In Sunil Bharti Mittal v. CBI, the court stated that since the matter was being monitored by this Court, progress reports of investigation were filed from time to time in sealed envelopes. And after perusing certain documents in a sealed cover, the court directed CBI to take action in accordance with the views expressed by it.
Sometimes, the document in the sealed cover is opened by the court, resealed and given to the registry to be kept in a sealed cover until further notice. Any future references/information about these reports/documentary are missing. Despite such a large extent of this exercise, the court has cautioned itself of this exercise only once. In the Alok Verma case the court stated that “we also make it clear that the present order requiring furnishing the report of the CVC in sealed cover to the learned counsel for the petitioner is being made in the peculiar facts of the case and as a one time measure. And, the above course of action has been considered necessary by the Court keeping in mind the need to preserve and maintain the sanctity of the institution of the CBI and public confidence in the said institution.”
Supreme Court’s Backing For The Sealed Cover
The Supreme Court derives power for the sealed cover exercise from the Supreme Court rules. Rule 14 Chapter XX of the Supreme Court Rules provides:
“Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies of or extracts from any minutes, letter or document of any confidential nature or any paper sent, filed or produced, which the Chief Justice or the Court directs to keep in sealed cover or considers to be of a confidential nature or the publication of which is considered to be not in the interest of the public, except under and in accordance with an order specially made by the Chief Justice or by the Court.”
As per Article 145, the Supreme Court rules do not exist independently, and are subject to other laws in force. Section 327 of CrPC also provides for withholding publication of certain documents. However, section 327 lists the cases in which publication can be withheld. First, it bars access to the court in circumstances the presiding judge thinks fit. Second, it provides for in-camera trial for offences under section 376. Third, it prohibits publication of any matter in relation to in-camera proceedings only. This is logical as the concept of in-camera trials is created as an exception to the open justice principle and therefore, publication is restricted only in such circumstances.
The above rule, on the other hand, restricts publication whenever the court deems fit. This position stands in direct contrast to section 327. The said rule also stands in direct contrast to section 123 of the Indian Evidence Act. Section 123 has to be read with section 162 which provides for the act of claiming privilege over a confidential document by the state. Whenever privilege is claimed on any document, such documents are, until the question of privilege is decided, kept in a sealed cover. However, if privilege is not claimed on evidence under section 123, then there exists no other backing in law to provide for documents in a sealed cover. In addition to section 327 of CrPC, the rule now acts as an exception to this section too.
The court’s approach over the years has been patronizing; from protection, confidentiality, and secrecy, the sealed cover has touched all these spheres. Infantilisation through this exercise has been stated previously, but we think that this has much to do with convenience as well. The exponential rise (around 50% of all cases involving a sealed cover have been in the past 10 years) in the sealed cover exercise by the court in recent years is indicative of the fact that the apex court is slowly developing a constitutionalism of convenience.
In a history spanning more than 68 years and more than 402 cases, the Supreme Court has furnished reasoning in only the above cases. This speaks a lot of the neglected side of this exercise and how liberally it is used without giving any regard to reasons. It is important to reiterate that the Supreme Court does not publish the transcripts of hearing, it does not live-stream proceeding (not yet), does not publish written materials and requires an advocate-on-record’s signature on a form to physically access its premises; with such conditions on open justice, how does the Supreme Court plan on ensuring public confidence?