Courts must balance the competing interests of executive privilege and individual rights on a case to case basis.
“JUSTICE should not only be done, but should manifestly and undoubtedly be seen to be done”. – England and Wales High Court (King’s Division Bench) in Rex versus Sussex (1924)
Judicial independence holds constitutional importance as it is required for judges to impart justice. Any form of justice that limits the public’s ability to monitor and examine the administration of justice is against the principle of judicial transparency; this extends to examining the results of the process as may be reflected in a judge’s decision or opinion.
However, a few situations call for deviation from open hearings, in which in-camera trials and sealed-cover submissions are used. In case of sealed covers, one or at times both the parties don’t get access to those submissions. The information is privy strictly between the court and the party asked to submit the information.
Traditionally, the sealed cover was conceptualized by courts as a measure to protect sensitive documents, which were capable of subverting national interest and public peace in case they were brought to public record. The disclosure of such documents was dependent upon the discretion of the court, and its usage would be limited to educating with such relevant facts which cannot be brought to the knowledge of judges by any other means without running the risk of tampering of confidential information.
Sealed cover enjoys legal identification but there are no specific and stringent guidelines for the usage of this particular practice.
Today, sealed covers are used extensively for all sorts of documents: be it evidence or status reports filed by the investigating agency or counter-affidavits. Sealed cover enjoys legal identification but there are no specific and stringent guidelines for the usage of this particular practice. The reasoning provided by judges while perusing a document reveals the judge‘s mind, on the basis of which the defendant opposes the view.
A glaring issue with the prevalence of sealed cover jurisprudence is that considering the individual’s right to privacy, it undermines the legality of adducing evidence. The only criteria required to show admissibility of evidence is its “relevance” at present. Courts have ordered that such evidence will be analysed with due care as it may enjoin illegally obtained evidence. Further, the sealed cover has been turned into an alternative to issue gag orders on the press. Freedom of the press is essential to the health of any democracy, and the union government must not be allowed to abuse its powers to curb critical voices and television news channels that dare to question the official narrative.
The key tension at the heart of the issue of the sealed cover is that the interests of justice may be served by both disclosure and non-disclosure, and an open court system ensures that judges act in accordance with law and with probity. It operates as a wholesome check upon judicial behaviour as well as upon the conduct of the contending parties and their witnesses.
”Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies of or extracts from any minutes, letter or document of any confidential nature or any paper sent, filed or produced, which the Chief Justice or the Court directs to keep in sealed cover or considers to be of a confidential nature or the publication of which is considered to be not in the interest of the public, except under and in accordance with an order specially made by the Chief Justice or by the Court.” [emphasis supplied]
The discretion of the Chief Justice/court is overt in the domain of public interest. The rule expresses no specific condition under which the document is withheld and does not obligate the court to provide any viable reasoning for the decision. Judgments that see recommendations wrapped in sealed envelopes from authorities/agencies as a basis for decision cannot be said to have been based on a legal reasoning, and to that extent cannot be called a “judgment”. The order or judgment of the court should be reflective of application of the judge’s mind to the submissions made by the parties.
Judgments that see recommendations wrapped in sealed envelopes from authorities/agencies as a basis for decision cannot be said to have been based on a legal reasoning, and to that extent cannot be called a “judgment”. The order or judgment of the court should be reflective of application of the judge’s mind to the submissions made by the parties.
Another such provision under Section 123 of India Evidence Act, 1872 provides:
“No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.”
InS.P. Gupta versus Union of India(1982), the Supreme Court held that any such immunity claim must be allowed on the touchstone of public interest; however, the court has power to inspect any such document when it requires so.
Recently, another category of cases involving the government as a party has seen rampant abuse of the ad hoc power of sealed cover. In the electoral bonds case pending before the Supreme Court, details of bonds were taken in sealed letters, and the court refused to stay the Bonds scheme; in the Rafale case, the court refused to allow a probe into the Rafale fighter jet deal based on sealed documents provided by the government. In several other cases related to the government, details and documents were asked to be submitted in a ‘sealed cover’ by the court.
Beware! The variants are coming
Supreme Court decisions have a ripple effect on the entire hierarchy of Courts. The ad hoc use of the sealed cover has seeped into the course of proceedings at various high courts over the past few years as well, as bizarre use of this discretionary power has been seen.
It is a settled principle that in any process of adjudication, especially one that involves fundamental rights, evidence must be shared with both parties to the dispute. The argument for a narrow construction of such privilege must be given weightage in cases where the public’s ability to know how its government is being conducted is at stake.
Recently, the Delhi High Court upheld bans on organisations on the basis of evidence in sealed cover, depriving them the fundamental rights to assembly and association on the basis of evidence that they could not see and could not contest.
In Madhyamam Broadcasting Ltd. versus Union of India & Ors. (2022), both a single-judge and a division bench of the Kerala High Court upheld the ban on the MediaOne news channel by the Union Government on the touchstone of national security on the basis of materials presented to the court in a sealed cover. Besides basing the judgment on vague standards of national security, the court ignited the much controversial issue of subjugation of fundamental rights by sealed materials. A decision of banning a news channel strikes the core of Article 19(1)(a) of the Constitution, that is, freedom of speech and expression. It is expected from courts to base the reasoning for a ban on the proportionality standard, and show how the threat was proportional to the government action of total ban. Instead, the court based its opinion on a sealed envelope containing information on national security, provided by the government.
The judgment appears problematic on so many fronts due to the usage of recommendations of a committee of officers under sealed cover, such as the principles of fair trial, open justice, violation of natural justice, and unjust use of national security to outweigh duty of fairness. It is a settled principle that in any process of adjudication, especially one that involves fundamental rights, evidence must be shared with both parties to the dispute. The argument for a narrow construction of such privilege must be given weightage in cases where the public’s ability to know how its government is conducted itself is at stake.
In yet another case, in Kashmir, communications were shut down and other restrictions were imposed upon the fundamental right under Article 19(1) through a government order as a reasonable restriction, the reasons for which, related to the disturbance of public peace, were shown to the court by the government to the Supreme Court. Thereafter, the court’s decision was pronounced in 2020 based on the document submitted in sealed cover. It is important to note that any such order that restricts rights of citizens cannot be subject to executive privilege of confidentiality.
In the opinion of the author, while the issue of national security is the realm of the executive, the courts are responsible for distinguishing between confidential information that may hamper national security and the reasons provided by the government. Thus, any such reasoning must be brought into the public realm whereas information can be kept as confidential. Here, there must be a balance struck between judicial legitimacy and national interest. The court must act in full responsibility for ensuring equal weightage to both; else to our utter dismay, institutional sanctity gets compromised.
Another perturbing issue in the Kerala High Court’s judgment is related to the usage of the term “security rating parameters”. The tension between executive and press is not a hidden issue. Therefore, it would amount to an unfair trial to side with the government based only on such vague/unexplained standards of security, and to outweigh the fundamental freedom of press.
In September 2020, Justice G.S. Patel of the Bombay High Court had noted that, “Anything that I can see, all parties before me are entitled to see. That is all there is to it. This is the only method that I know of to ensure an open and transparent decision-making process”. However, the c implied that any such decision to put material in sealed cover, if brought by consent of both the parties, may be subject to the evidence produced in the sealed envelope.
Minimize sealing, maximize transparency and enhance independence
“Exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” –United States Supreme Court in U.S. versus Nixon (1974)
While the issue of national security is the realm of the executive, the courts are responsible for distinguishing between confidential information that may hamper national security and the reasons provided by the government.
It is obvious that courts deem certain issues to override public access to court records, natural justice and fair trial. The need of the hour is to minimize sealing of evidence and draft legitimate standards for use of such discretion, which paves way for judicial transparency.
A comparative analysis of the existing framework of the sealed cover doctrine reflects that a court must fulfil the following pre-requisites in order to seal a document or proceeding: (1) a public notice of the intended sealing must be provided along with the opportunity to object to it should be given to interested parties; (2) proper reasoning for sealing must be provided; and (3) reasoning for inadequacy of alternatives must be furnished.
Another such model exists in the United Kingdom in the form of Closed Material Proceedings, under which judges may not share sensitive material with defendants only when it is established that public interest would be harmed. The provision requires appointment of a Special Attorney who shall be bound by duty of confidentiality to not disclose material to the client but would still represent the party in their best interest.
Need for a standard test
In India, the common practice for use of sealed cover protection is through submitting an affidavit to the court without mandating any requisite conditions to be fulfilled by the party/parties. It is purely an ad hoc decision. The ‘test of need standard’ was developed by the U.S. Supreme Court in U.S. versus Nixon, in which the court propounded that in order to pray for sealing, it is necessary for the pleading party to lay down the following two essentials: that the evidence holds importance with respect to the central issue at hand, and that there exists no other source to access evidence or any equivalent evidence.
The party praying for the seal must establish a connection between the reason for such prayer and the kind of document it seeks to seal. Merely stating the general category of privilege without proper specification does not satisfy the essentials to allow production of a sealed document. Our Supreme Court has itself remarked in a judgment 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”. [emphasis supplied]
However, the documents which are permitted to be produced in sealed cover may only have limited use; to educate oneself, for sensitive issues that cannot be a matter of public debate, national security or for a whistle-blower’s protection. The principle of open justice is subject to a few exceptions. First, the principle of in-camera trial requires sensitive cases, especially private issues, to be dealt with in camera, but only after hearing arguments on the issue. Secondly, in the matters of State secrets, the court has the power to decide whether the issue actually involves a State secret, and thus exemption of open justice can be granted thereafter. But, any such decision must be a decision of a court and not mere parameters of the Executive (as decided by the Kerala High Court in the MediaOne channel case), as it would lead to violation of rule of law.
Any organ of government cannot be above the rule of law. However, the Executive enjoys various privileges in the court of law in relation with national security, military matters, confidential information, international relations, and so on.Courts must balance the competing interests of executive privilege and individual rights on a case to case basis. In doing so, factors such as the relevancy of the evidence, availability of alternate evidence, the sensitivity of the litigation and the role of the government must be accounted for.
The party praying for the seal must establish a connection between the reason for such prayer and the kind of document it seeks to seal. Merely stating the general category of privilege without proper specification does not satisfy the essentials to allow production of a sealed document.
On a positive note, a government appointed committee on criminal law is holding public consultations to formulate guidelines to explicitly exclude the use of “illegally obtained evidence” submitted in sealed cover. The issue assumes primacy with the growing periphery of the right to privacy post the Supreme Court’s landmark Puttaswamy judgment of 2017. Each time that the court digresses from the responsibility attached to judicial independence, the usage of the sealed cover makes a mockery of the faith of the public in the judiciary.