SCO Shorts: Sealed Cover Jurisprudence

What is ‘Sealed Cover Jurisprudence’?

The Supreme Court and lower courts may ask for and accept sensitive and confidential information from government agencies or other persons in ‘sealed covers’. These envelopes can be accessed only by Judges. The contents of sealed covers in court proceedings are inaccessible to the other parties in the case. The practice of Judges asking for evidence in sealed covers and making decisions based on such evidence is known as sealed cover jurisprudence.

Government agencies have increasingly begun to submit evidence in sealed covers—however, whether this practice is acceptable or not is being scrutinised. On March 15th, the Court, while staying the Union’s ban on Malayalam news channel MediaOne TV, decried the practice of submitting evidence in sealed covers.  

Why Does it Matter?

Sealed covers are typically used when the information submitted by government agencies or by other persons is so sensitive that the public must not learn about it. In these situations, the Court requests information in sealed covers to ensure ‘complete justice’. For example, sealed covers are to be used when the information in a case is confidential and sensitive, or when the information is collected as part of an ongoing investigation. This is to ensure that the investigation is not affected and that there is no adverse impact on the party submitting the information.

However, sealed cover jurisprudence may erode transparency, militating not just against citizens’ access to information about the proceedings, but also the other party’s ability to understand all the facts of the case. Some have argued that this violates the principles of natural justice. Concerns have arisen about the Court’s use of sealed cover jurisprudence in fundamental rights and civil liberties cases, such as in the arrests of the five activists in the Bhima Koregaon case.

Where Does the Court Derive the Power to Ask for ‘Sealed Covers’?

Order XIII Rule 7 of the Supreme Court Rules, 2013, states that no person has the right to access the information contained in a sealed cover prepared under the directions of the Chief Justice or the Court. Only with the permission of the Chief Justice and the Court can persons access the sealed cover.

When has Sealed Cover Jurisprudence Been Used in the Past?

While refusing to stay the arrest of five activists implicated in the Bhima-Koregaon case, a Bench led by Chief Justice Dipak Misra in 2018 relied on evidence submitted by the Maharashtra Government in a sealed cover.

In 2018, in the Rafale Fighter Jet Deal case, Chief Justice Ranjan Gogoi directed the Union to submit details of the deal, the decision-making employed while drawing up the deal, and the pricing structure to the Court in a sealed cover. The Union had argued that that the information was subject to the Official Secrets Act, 1923.

In the National Register of Citizens (NRC) case in Assam, a Bench led by Gogoi CJI in 2019 directed the coordinator of the NRC to submit information about the exercise to the Court in a sealed cover. The contents of the sealed cover were inaccessible to both the government and the petitioner (Assam Public Works).

In 2018, a Court-appointed committee submitted its report in a sealed cover in the challenge to the ‘fake encounters’ conducted by the Gujarat Police between 2002 and 2006. In 2019, the Election Commission submitted a report in a sealed cover in Narendra Modi’s Biopic Release case. Sealed covers were also submitted in the sexual harassment case against Gogoi CJI (2019), in the Ayodhya Title dispute (2019), and in the Electoral Bonds case (2021).

Recent Developments:

More recently, the Court has expressed displeasure with the use of the sealed covers. In March 2022, Chief Justice Ramana admonished the Bihar government for submitting information in a sealed cover in the Muzaffarpur Shelter case, stating that a sealed cover need not have been used. The very same day, a Bench led by Justice Chandrachud critiqued the practice while lifting the stay on MediaOneTV, saying that the Court would consider whether the practice of submitting information in sealed covers is legally tenable.