Sealed Cover Jurisprudence: All about it.

 ~Preet.

While hearing a criminal appeal against the Bihar government, the Chief Justice of India (CJI) recently chastised a counsel for submitting a'sealed cover report' to the court. Courts have regularly used sealed cover jurisprudence in recent years, for example, in the Rafale Fighter Jet Deal 2018, 2014, the BCCI Reforms Case, the Bhima Koregaon Case 2018, and so on. 

It is a practise utilised by the Supreme Court and sometimes lesser courts of requesting or accepting material from government entities in sealed envelopes that only judges may open. While the theory of sealed cover is not defined by law, the Supreme Court draws its authority to apply it from Rule 7 of Order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872. According to Rule 7 of Order XIII of the Supreme Court Rules, if the Chief Justice or court directs that certain information be kept under sealed cover or is of a confidential nature, no party will be permitted to access the contents of such information, unless the Chief Justice himself orders that the opposite party be permitted to access it. It also indicates that material might be kept secret if its disclosure is not deemed to be in the public's best interests. Official unpublished papers related to state matters are protected by Section 123 of the Indian Evidence Act of 1872, and a public officer cannot be compelled to reveal such materials. Other times when material may be sought under secret or confidence is when its disclosure may jeopardise an ongoing investigation, such as facts from a police case diary. 

To broaden the scope for arbitrariness in court decisions, because judges are supposed to provide reasoning for their decisions, which cannot be done when they are based on confidential information. What is also being debated is whether the state should be granted such a privilege to submit information in secret, when existing provisions such as in-camera hearings already provide adequate protection for sensitive information. It is also argued that denying accused parties access to such documents obstructs their path to a fair trial and adjudication. Individual judges looking to substantiate a point in a specific case, rather than common practise, use sealed covers. As a result, the practise is haphazard and arbitrary. 

In Modern Dental College vs. State of Madhya Pradesh (2016), the Supreme Court adopted the proportionality test proposed by Aharon Barak, former Chief Justice of the Israeli Supreme Court, which states that "a limitation of a constitutional right will be constitutionally permissible if it is designated for a proper purpose." The measures taken to implement such a limitation are rationally related to the achievement of that goal. The measures taken are necessary because there are no other options for achieving the same goal with a lesser degree of constraint. There must be a proper relationship ('proportionality stricto sensu' or 'balancing') between the importance of achieving the proper purpose and the social importance of preventing constitutional right limitations. This was reaffirmed in the case of K.S. Puttaswamy vs. Union of India (2017). The Supreme Court stated in its 2019 decision in the case of P. Gopalakrishnan vs The State of Kerala that disclosure of documents to the accused is constitutionally mandated, even if the investigation is ongoing and the documents may lead to a breakthrough in the investigation. The Supreme Court criticised the Delhi High Court in the INX Media case in 2019 for basing its decision to deny bail to the former union minister on documents submitted by the Enforcement Directorate (ED) in a sealed cover. 

The judicial review procedure is crucial because it holds the executive responsible. The government must respond forcefully to its acts, especially when basic rights like as free expression are violated. The administration in India is not given carte blanche to issue arbitrary orders infringing on such rights, according to the country's constitution. A court that stands by and does nothing in the face of presidential action is a basic symbol of democratic disintegration. When an action is claimed to have violated basic rights, the court must consider the action's legality through the lens of proportionality.