The Supreme Court asked the Election Commission Monday to watch the biopic PM Narendra Modi and submit its decision in a sealed envelope. This is not the first time the court has asked for documents to be submitted in sealed covers – electoral bonds, Rafale deal, National Registry of Citizens, and loan defaulters’ list from the RBI were some of the previous instances.
ThePrint asks: Sealed-cover doctrine: SC ensuring secrecy or excluding Indians from public debate?
Sealed covers needed to safeguard confidential details, but CJI’s liking for them unfathomable
Alok Prasanna Kumar
Senior Resident Fellow, Vidhi Centre for Legal Policy
“Sealed cover” procedure is usually adopted in only one of two cases – ongoing investigations that form part of the police diary, and where information of a confidential or private nature is being disclosed. The idea in both these cases is obvious, the judicial process must not result in harming the course of investigation or cause harm to a party by revealing information.
Chief Justice of India Ranjan Gogoi’s preference for “sealed covers”, however, is unfathomable. Far from being used in exceptional circumstances, the sealed covers seem to have become due procedure in any and every case that the CJI deems fit, most recently in the electoral bonds case and the Narendra Modi biopic case. Apart from their inexplicable nature, such orders fundamentally go against the cardinal principle of an open court. They violate the principles of natural justice as well, preventing parties from having a full appreciation of the facts of the case.
The process that has led to this outcome is best outlined in Anuj Bhuwania’s “Courting the People“. The dangers are all too evident as explained in Bhuwania’s book. Unfortunately, the Supreme Court, specifically CJI Gogoi, seems ill-inclined to understand the pitfalls of such a “procedure”.
Also read: SC electoral bonds order: Some transparency or conveniently postponing the controversy?
Sealed envelopes are important in sensitive cases that have huge consequence on India’s economy
The jurisdiction of our Supreme Court and the matters it hears often have direct connection with the use of sealed covers. India’s Supreme Court has such expanded powers that a variety of cases — including some highly sensitive ones — fall under its purview. These include defence deals or policy-related cases that will have a huge consequence on the economy of the country. In these cases, sealed envelopes become extremely important and their use becomes inevitable.
You cannot have defence-related documents be discussed in public for everyone to see. It becomes a matter of national security. Even in private disputes, courts have in-camera proceedings. This is because even cases dealing with individual’s personal lives cannot be part of court records.
This is why, in some cases, the sealed cover doctrine becomes essential. However, these have to be very narrowly defined. In every other case, the court should steer towards live-streaming.
Let us remember, the court has also passed a judgement saying live-streaming should be conducted during proceedings of important matters. Sealed covers and live streaming are two opposite ends of the spectrum. These days, sealed covers are being used much more freely than they should. That said, the doctrine of sealed covers cannot be demolished.
Supreme Court has turned the presumptive need of secrecy for sealed cover upside down
Lawyer and researcher, Centre for Law and Policy Research
The doctrine of sealed cover definitely goes against the citizens’ “right to know” and militates against the Supreme Court’s function of public reasoning. The noticeable aspect in the recent surge of seeking evidence in sealed covers is the type of cases the Supreme Court has applied this practice in — all these cases involved individuals challenging the government’s narrative and claimed violation of fundamental rights.
Three recent cases that underline the reliance on sealed cover jurisprudence are the arrest of five human rights activists for allegedly conspiring to target Prime Minister Narendra Modi (Romila Thapar v. UOI); the Rafale jet deal (Manohar Sharma vs Narendra Modi); and another PIL (ADR vs UOI) alleging that the Modi government’s electoral bonds scheme brings opaqueness and anonymity in political funding and goes against the citizens’ right to know.
In all these cases, citizens challenged the state machinery and rather than factoring in power asymmetry between citizens and the state and questioning the government’s version more aggressively, the Supreme Court took recourse to the state’s version without any scope for counter-factual questions.
The use of sealed cover is being treated as a norm and not an exception. The court orders do not bear justification or reasons for taking recourse to sealed cover. There is not even a verbal commitment to evaluate if public interest is better served by concealment of facts or disclosure. Secrecy on certain matters seems to be the default response.
Moreover, it vitiates the decision-making process and affects the outcome. Sealed covers have been allowed in cases where facts presented by the state needed to be debated and examined to settle the question of law.
The only exception to open justice system allowing for sealed cover could be instances where individual’s privacy or security warrants it. But the court seemed to have turned the presumption upside down by implicitly siding with the state and not the citizens.
Also read: Supreme Court bats for transparency but seeks information in sealed envelopes
Supreme Court is dangerously creating a society with scant regard for rule of law
The Supreme Court asking for information in sealed covers is one of its many innovations in procedures to ensure complete justice. Sealed covers doctrine is in vogue now but other examples include the dilution of locus standi in public interest litigation.
These innovations are a problematic reading of the law to begin with and their mindless application in every case will turn this into an epidemic simply because it is convenient.
Take today’s order to the Election Commission. The legal question before the court is on the powers of the EC to prohibit the release of a film. Instead of taking up that question, the court asked the EC to review the film and give its opinion in a sealed envelope. There is no reason why this should be privileged information.
It is no one’s case that the court does not have the power to make such innovations. But the court cannot use its power in a completely arbitrary manner. There are instances where efforts to contain information can be justified – when it is related to an ongoing investigation or when it can prejudice rights of a party. However, the court has arrogated itself by withholding information from public and even states in some instances because it is ‘sensitive’.
By excluding public from crucial issues that impact their lives directly or indirectly, the Supreme Court is dangerously creating a society that ends up with scant regard for rule of law.
By Fatima Khan, journalist at ThePrint.
Another Rafele type of verdict is in the offing.
This should be the rare exception, becoming not quite the norm, but more frequent now. In any proceeding, both sides should be aware of what material is being tendered to the Court. That also helps avoid grammatical errors from creeping in …
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