While the Supreme Court plays a pivotal role in ensuring transparency to engender public trust in state machinery and institutions, sealed covers are often used in matters where national security and public peace is at stake.
The use of sealed covers to produce evidence derives its legitimacy from a combined reading of the Indian Evidence Act and the Supreme Court rules. The Evidence Act protects unpublished official documents relating to the affairs of the State, and specifies that a public officer cannot be compelled to produce any information whose disclosure can be detrimental to public interest. As per the Indian Evidence Act, the burden of proof currently rests on the party who wishes to convince the court of a particular fact.
In addition, Rule 7 of Order XIII of the Supreme Court Rules specifically states that no party or person will have the right to receive documents that the Chief Justice directs to keep in a sealed cover. The only exception to this is when the Chief Justice himself orders production of such a document to the opposite party. However, the need for a detailed explanation proving the unique necessity of a case to conceal information to protect public peace has not been mandated.
The recent bail order passed in favour of P. Chidambaran in the INX Media case strongly criticised the use of sealed covers and the reliance of courts on such evidence in their verdict. This is in stark contrast to the widespread use of sealed covers in the Alok Verma issue, BCCI investigation, Bhima-Koregaon case, Rafale jet deal controversy and the implementation of the NRC. An inconsistency in the courts’ stance on sealed covers can be attributed to the lack of defined safeguards to deter over-exploitation of them.
The ability to produce documents aids one’s right to defend oneself, and their right to a free and fair trial. In the recent Supreme Court judgment on P. Gopalkrishnan v. The State of Kerala, the court said that fair disclosure by the prosecution to the accused is a constitutional mandate. The court, relying on Section 207 of the Code of Criminal Procedure, held as follows,
“...Even in the cases where during investigation a document is bona fide obtained by the investigating agency and in the opinion of Prosecutor is relevant and would help in arriving at the truth, that document should also be disclosed to the accused.”
This was also seen in the INX Media case in the order passed by the Supreme Court on 4th December, 2019. The High Court invoked its discretionary ability to rely on material which was not disclosed to the accused, which was criticized by the Supreme Court. The Supreme Court had refrained from accessing evidence in the sealed covers in order to avoid prejudicing the accused pre-trial. It was held that:
“...Though it is held that it would be open for the Court to peruse the documents, it would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed and the same is treated as having a bearing for denial or grant of bail”
On the other hand, there are several instances where sealed cover evidence has been admitted without any sufficient reasoning for the same. For instance, in the suspension of the ex-CBI Chief Alok Verma, the Supreme Court stated that the failure to use sealed covers would hamper public trust in the CBI. However, such reasoning potentially establishes a precedent for any cases involving public institutions to follow suit, as they could all conceivably impact public trust.
Similarly, in the BCCI spot-fixing scandal, it was argued that sealed covers were necessary in order to protect the identity of the individuals charged in the case, lest they are innocent. Again, this could be applicable to every criminal matter, as there is a presumption of innocence, thus illustrating the limited burden of proof in justifying the need for sealing covers.
The Indian Evidence Act and the Supreme Court Rules merely address the ability of the court to conceal the contents of certain documents submitted before it as evidence. However, the lack of a clear law leads to contradictory views within the Supreme Court, leading to the law being ambiguous and unjust.
The judiciary is predicated on testing the legality of the legislature and executive’s exercises of power. In such crucial verdicts, it is vital that the party suggesting that the disclosure of evidence risks public outrage or national security proves the presence of an undeniable and imminent threat. This would validate the need for concealing the document from the party against whom the content is being used and the public.
Currently, the jurisprudence surrounding sealed covers operates in a grey area. While secrecy is necessary in certain situations, it must be warranted beyond a reasonable doubt, particularly in cases against elected persons and state institutions, which are both accountable to the public. This would provide a constitutional backing to this atypical procedure, while retaining public trust in the discretion of the court, and placing checks and balances on the court’s power.
Reference List
The Code of Criminal Procedure (Act No. 2 of 1974).
The Constitution of India, 1950.
The Indian Evidence Act, 1872 (Act No. 1 of 1872).
The Supreme Court Rules, 2013.
Chidambaram v. Directorate of Enforcement (Criminal Appeal No. 1831/2019 arising out of SLP (Criminal) No. 10493 of 2019).
Gopalkrishnan alias Dileep v. State of Kerala and Anr. (Criminal Appeal No. 1794 of 2019).
Sidhartha Vashisht alias Manu Sharma v. State (NCT of Delhi) (Criminal Appeal No. 179 of 2007).
Bhatia, G. (2018, October 19). Justice must be open, not opaque. Hindustan Times. Retrieved on 2 December 2019, from https://www.hindustantimes.com/analysis/justice-must-be-open-not-opaque/story-uOIfNMAKfX0sijzmkAETnM.html.
Bhatia, G. (2019, November 17). Guest Post: “For Your Eyes Only”: On the Supreme Court’s Sealed Cover Jurisprudence. Indian Constitutional Law and Philosophy. Retrieved on 2 December 2019, from https://indconlawphil.wordpress.com/2018/11/17/a-petty-autocracy-the-supreme-courts-evolving-jurisprudence-of-the-sealed-cover/.
Chaturvedi, A. (2019, March 6). Sealed Covers vs Judicial Transparency: How to strike a balance? Bloomberg Quint. Retrieved on 2 December 2019, from https://www.bloombergquint.com/law-and-policy/sealed-covers-vs-judicial-transparency-how-to-strike-a-balance.
Chaturvedi, A. (2019, September 9). Court Can Peruse Sealed Cover Documents While Deciding Bail Cases, Says Supreme Court. Bloomberg Quint. Retrieved on 2 December 2019, from https://www.bloombergquint.com/law-and-policy/court-can-peruse-sealed-cover-documents-while-deciding-bail-cases-says-supreme-court.
Chaudhary, D.S. & Mohmmad A. (2019, October 4). Guest Post: “For Your Eyes Only”: On the Supreme Court’s Sealed Cover Jurisprudence. Indian Constitutional Law and Philosophy. Retrieved on 2 December 2019, from https://indconlawphil.wordpress.com/2019/10/04/guest-post-for-your-eyes-only-on-the-supreme-courts-sealed-cover-jurisprudence/.
Chishti, S. (2019, January 12). No evidence of corruption, decision of PM-led panel on Alok Verma very hasty: SC’s monitor. Indian Express. Retrieved on 2 December 2019, from https://indianexpress.com/article/india/alok-verma-cvc-panel-narendra-modi-supreme-court-5534472/.
DeSouza, P.R. (2014, November 11). The question of the sealed envelope. The Hindu. Retrieved on 2 December 2019, from https://www.thehindu.com/opinion/lead/opinion-on-black-money-case/article6584159.ece.
Jha, P. (2019, October 17). The judiciary needs to introspect|Analysis. Hindustan Times. Retrieved on 2 December 2019, from https://www.hindustantimes.com/analysis/the-judiciary-needs-to-introspect-analysis/story-p5BhperTfKlGpV0sVI4KSL.html.
Khan, F. (2019, April 12). SC Electoral Bonds Order: Some transparency or conveniently postponing the controversy? The Print. Retrieved on 2 December 2019, from https://theprint.in/talk-point/sc-electoral-bonds-order-some-transparency-or-conveniently-postponing-the-controversy/220738/.
Khan, F. (2019, April 15). Sealed-Cover Doctrine: SC ensuring secrecy or excluding Indians from public debate? The Print. Retrieved on 2 December 2019, from https://theprint.in/talk-point/sealed-cover-doctrine-sc-ensuring-secrecy-or-excluding-indians-from-public-debate/221754/.
Krishnan, R. (2014, March 27). Supreme Court and the Sealed Envelope. Economic Times. Retrieved on 2 December 2019, from https://economictimes.indiatimes.com/blogs/andwordsisallihave/supreme-court-and-the-sealed-envelope/.
Press Trust of India. (2019, November 21). Anonymity in litigation runs counter to India jurisprudence, says HC. Business Standard. Retrieved on 2 December 2019, from https://www.business-standard.com/article/pti-stories/metoo-can-t-permit-guerilla-warfare-by-allowing-anonymity-to-accusers-says-hc-119112101156_1.html.
Vishwanath, A. (2018, November 20). Supreme Court bats for transparency but seeks information in sealed envelopes. The Print. Retrieved on 2 December 2019, from https://theprint.in/india/governance/supreme-court-bats-for-transparency-but-seeks-information-in-sealed-envelopes/152184/.
Image Source: Scroll.in