The Supreme Court in New Delhi| Photo: Manisha Mondal | ThePrint
The Supreme Court in New Delhi | Manisha Mondal | ThePrint
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New Delhi: As the Supreme Court granted bail to former finance minister P. Chidambaram Wednesday in the INX Media case, it also noted that the Delhi High Court’s reliance on documents furnished by the Enforcement Directorate in a sealed cover earlier was “not justified”.

This was one of the key reasons why the top court granted bail to the senior Congress leader who spent 106 days under arrest.

The three-judge SC bench even said it wasn’t inclined to look at the sealed cover. However, since the high court had relied on them to deny bail to Chidambaram on 15 November, it became important for the top court to look into it.

ThePrint explains what the sealed-cover doctrine is and how it has evolved.


Also read: Sealed-cover doctrine: SC ensuring secrecy or excluding Indians from public debate?


Previous instances of sealed-cover doctrine by SC 

The sealed-cover doctrine gained prominence during the tenure of former Chief Justice of India Ranjan Gogoi. In 2018, Gogoi had asked former Assam National Register of Citizens (NRC) coordinator Prateek Hajela to submit a detailed report of people excluded from the draft document in a sealed cover (including, on one occasion, refusing to share the contents of the sealed cover with Attorney General K.K Venugopal).

In the Rafale case too, Gogoi had asked the government to submit details on the pricing of the jets in a sealed cover.

Similarly, in the case where former CBI director Alok Kumar Verma and its former special director Rakesh Asthana had levelled allegations of corruption against each other, Gogoi had asked the Central Vigilance Commission to submit its report in a sealed cover.

Cases of rape and those concerning national security

There are no historical records of sealed cover practice in courts but there are instances of what is known as in-camera trials.

Cases which are sensitive in nature are heard in closed chambers. This is done so that documents submitted or arguments made remain away from the public glare. But even in these cases, copies of documents that are submitted by one party to the bench is also with the opposite party.

However, documents are not shared with the opposite party in cases concerning national security — this happened in the Rafale case. In such instances, the court has to decide if some documents are “super secret” before taking them on record.

In rape cases, especially those of heinous nature, proceedings take place in-camera.


Also read: How will CJI Ranjan Gogoi’s legacy impact the Supreme Court?


Criticism against sealed-cover doctrine

Transparency and accountability form the cornerstone of Indian jurisprudence. In such a scenario, keeping one side of lawyers bereft of information that is submitted to a judge does not behove the constitutional principles that Indian courts abide by.

Also, sealed covers are dependent on individual judges looking to substantiate a point in a particular case rather than common practice. This makes the practice ad-hoc and arbitrary.

In the Rafale case, the key issue was pricing of the jets and that information was filed in a sealed cover. This is also said to be against the principles of the Constitution, especially because the petitioners were not given a copy of those documents. The SC, however, dismissed any need for a probe into it.

Is the practice being misused

The sealed-cover doctrine is now being used across courts in India. As mentioned above, in the CBI vs CBI case involving Verma and Asthana in the Delhi High Court, lawyer M.A. Niyazi had informed the court that he has incriminating documents pertaining to the case but he would file them only in a sealed cover.

With the Supreme Court accepting sealed covers and setting a precedent, lower courts have subsequently followed.

During the closure of hearings in the Ram Janmabhoomi-Babri Masjid case, even basic submissions — when parties had summarised the relief they wanted the Supreme Court to grant them — were filed in a sealed cover. It’s a different story that Gogoi had questioned the sealed covers since the contents appeared in media even before the judges could peruse them.

(Edited by Myithili Hazarika)


Also read: The unusual and quirky questions Supreme Court asked during Ayodhya hearing


 

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