Sealed Cover Jurisprudence

News: The Supreme Court, in the Media One ban case, has reiterated its intention to  examine the legality of  governments filing incriminating material in sealed covers without sharing the information with the accused/other party.The issue of ‘sealed cover jurisprudence’ came up in the previous hearing on March 15, when the Centre wanted to  pass on to the court its internal files regarding the ban in a sealed cover.

About: 
•  It is a practice used by the Supreme Court and sometimes lower courts, of asking for or accepting 
information from government agencies in sealed envelopes that can only be accessed by judges.
•  While a specific law does not define the doctrine of sealed cover, the Supreme Court derives its power to  use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of  1872.

What is Rule 7 of order XIII of the Supreme Court Rules?
•  It is stated under the said rule that if the Chief Justice or court directs certain information to be kept under  sealed cover or considers it of confidential nature, no party would be allowed access to the contents of such  information.

Are there any exceptions? 
•  If the Chief Justice himself orders that the opposite party be allowed to access it.
•  It also mentions that information can be kept confidential if its publication is not considered to be in the  interest of the public.
•  Section 123 of the Indian Evidence Act of 1872 
•  Under this act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.
•  Other instances where information may be sought in secrecy or confidence are when its publication  impedes an ongoing investigation, such as details which are part of a police case diary.

What is the need to have sealed covers? 
•  When the matter pertained to the Official Secrets Act.
•  At times it is needed to maintain public confidence in the Government agency.
•  Delicate international negotiations or those that relate to sensitive aspects of security.
•  Details about survivors of sexual assaults or child abuse which may affect their future life and bring  unnecessary shame affecting the Right to Live with Dignity.
•  Disclosure sometimes affects the ongoing investigation.

Issues: 
•  It is not favourable to the principles of transparency and accountability of the Indian justice system, as it  stands against the idea of an open court, where decisions can be subjected to public scrutiny.
•  To enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down reasoning for  their decisions, but this cannot be done when they are based upon information submitted confidentially.
•  It is also argued that not providing access to such documents to the accused parties obstructs their passage  to a fair trial and adjudication.
•  Sealed covers are dependent on individual judges looking to substantiate a point in a particular case rather than common practice. This makes the practice ad-hoc and arbitrary. In the 2019 judgement in the case of P. Gopalakrishnan vs The State of Kerala, the Supreme Court had said that  disclosure of documents to the accused is constitutionally mandated, even if the investigation is ongoing and  documents may lead to a breakthrough in the investigation.

Way Forward:
•  The process of judicial review is significant since it holds the executive accountable.
•  The executive must cogently answer its actions – especially when fundamental rights such as free speech  are curtailed. India’s Constitution does not give a free hand to the executive to pass arbitrary orders  violating such rights.