In refusing to entertain ‘sealed covers’ submitted by the government or its agencies, the Supreme Court has made a noteworthy and welcome shift away from this unedifying practice. At least two Benches have spoken out against it. Recently, in the Muzaffarpur shelter home sexual abuse case, Chief Justice N.V. Ramana wondered why even an ‘action taken’ report should be in a sealed envelope. The use of material produced in a ‘sealed cover’ as an aid to adjudication is something to be strongly discouraged and deprecated. However, it gained much respectability in recent years, with contents withheld from lawyers appearing against the government, but being seen by the judges alone. Unfortunately, in some cases, courts have allowed such secret material to determine the outcome. In a recent instance, the Kerala High Court perused confidential intelligence inputs produced in a sealed envelope by the Union government to uphold the validity of orders revoking the broadcasting permission given to Malayalam news channel Media One on the ground of national security. It is quite disconcerting to find that courts can rule in favour of the government without providing an opportunity to the affected parties to know what is being held against them. In this backdrop, it is significant that the Supreme Court has decided that it will examine the issue of ‘sealed cover jurisprudence’ while hearing the channel’s appeal. For now, the apex court has stayed the revocation order and allowed the channel to resume broadcasting.
It is true that the law permits the submission of confidential material to the court in some cases. In addition, courts can order some contents to be kept confidential. The Evidence Act also allows the privilege of non-disclosure of some documents and communications. Even when authorities claim privilege over classified material, they had no objection to judges perusing them to satisfy themselves about the claims. The government usually justifies the submission of secret material directly to the court, citing national security or the purity of an ongoing investigation. Courts have often justified entertaining material not disclosed to the parties by underscoring that it is to satisfy their conscience. However, the practice sometimes has undesirable consequences. It compromises the defence of those accused of some crimes, especially those involving an alleged threat to national security, or money laundering and corruption. Undisclosed material is often used to deny bail, something the apex court criticised the Delhi High Court for doing in a case against former Union Minister P. Chidambaram. It observed that recording a finding based on material kept in a sealed cover was not justified. The main mischief of the ‘sealed cover’ practice lies in the scope it gives the state to avoid deep scrutiny of the need and proportionality of its restrictions on freedom. The time has come for the Supreme Court to determine and circumscribe the circumstances in which confidential government reports, especially those withheld from the other side, can be used by courts in adjudication.