Senior lawyers hail SC judgment against use of sealed covers, call it historic

Lawyers also criticise it for being opaque and against the principle of natural justice, wherein each party gets to present its case and counter the arguments made in documents.

In most cases, the government produces documents to the court in a sealed cover

What did the Supreme Court hold?

The issue of sealed covers came before the Supreme Court in a plea by a Malayalam TV channel, MediaOne, which challenged the Centre’s decision not to renew its license on grounds of national security.

The channel had initially approached the Kerala High Court, which dismissed its plea by relying on documents submitted by the Centre in a sealed cover. The channel did not have knowledge of the contents , which made allegations against it. The TV channel then approached the SC.

The top court, setting aside the Centre’s decision not to renew the TV channel’s license, came down heavily on both the Kerala HC and the government for using information contained in a sealed cover.

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The SC noted that sealed cover proceedings infringe the principles of natural and open justice and laid down certain guidelines for the use of sealed cover documents by the courts.

The judgment noted that Public Interest Immunity proceedings could be used instead of information in sealed covers.

A Public Interest Immunity proceedings entail cases in which a court allows one litigant to not disclose certain evidence to  other litigants if such a disclosure is damaging to public interest.

Furthermore, evidence that the litigant wishes to keep confidential is kept out of the process of adjudication so that neither the litigant nor the court can rely on the evidence.

The court has also held that an amicus curia (friend of the court) can be appointed to assess whether the documents should be disclosed or not. According to the judgment, “the amicus curiae will balance concerns of confidentiality with the need to preserve public confidence in the objectivity of the justice delivery process.”

The judgment noted that the courts could redact the confidential portions of the document and provide a summary of the contents of the document instead of opting for the sealed cover practice. According to the judgment, the courts must pass a reasoned order for allowing or dismissing the claim in open court.

‘Historic’ says Kapil Sibal:

Senior advocate and Rajya Sabha MP Kapil Sibal called the judgment historic because it advances the cause of natural justice.

He said: “The court has said that the opposing side has the right know what is alleged against them in the documents in a sealed cover in order to defend their case. If the documents contain portions that pertain to national security, it can be redacted and a summary of the contents could be given. Thus it is an important judgment on natural justice.”

Brings back balance: Amit Desai 

Senior advocate Amit Desai noted that natural justice was the substratum of the judicial process.

"Matters of privilege are to be claimed in a time tested manner. Sealed envelopes was a process to deal with matters of privilege and in exceptional cases , for speedy justice,” Desai said. “However, it was being used with increasing frequency and for matters outside the scope of permissible privilege claims. One hopes this judgement brings back a balance between natural justice and justifiable privilege claims and prevents its misuse to cover up inefficiencies, arbitrariness and illegalities of governmental actions.”

Agree with SC’s judgment: Vikas Singh

Vikas Singh, senior advocate and president of the Supreme Court Bar Association, agrees that there should never be any sealed cover procedure in any judicial proceeding.

“In fact, many a times you will see even at the trial court, the prosecution relies upon the evidence taken by them in police custody, to oppose grant of bail. Now, any statement given in police custody is not ever admissible at the stage. So how is that given in sealed cover? So, it's actually a gross miscarriage of justice in the judicial process, to rely upon deciding anything on the basis of sealed cover.”

Long overdue: Gopal Sankaranarayanan 

Senior advocate Gopal Sankaranarayanan said the SC’s judgment was long overdue. “This will be a strong message to the other courts and Union and State governments to avoid trying to fall back on this questionable mechanism,” he said.