Sealed Cover Procedure Sets A Dangerous Precedent ; Affects Function Of Justice Delivery System : Supreme Court

The Supreme Court observed that sealed cover procedure sets a 'dangerous precedent' as it makes 'the process of adjudication vague and opaque'. 

The bench of Justices DY Chandrachud and Hima Kohli , in a judgment delivered on 20 October 2022, observed that this procedure affects the functioning of the justice delivery system and causes a serious violation of natural justice.

The measure of nondisclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve, the bench observed, adding that the exceptions should not become the norm.

The court made these observations while allowing the appeals against the order of Armed Forces Tribunal (AFT) that had dismissed the applications challenging the denial of Permanent Commission (PC) in the Indian Navy holding that there was no gender bias or mala fides in the grant of PC.  The main issue that arose in this appeal was whether the AFT could have adjudicated on the validity of the selection proceedings when relevant material (board proceedings) was disclosed only to the AFT in a sealed cover.

In this regard, the appellants contended that the sealed cover procedure, which was followed by the AFT, has resulted in substantial prejudice. On the other hand, the respondents submitted that it is a norm for the Board proceedings to only be provided to the AFT in a sealed cover.

The court, referring to some earlier decisions, made the following observations on Sealed Cover Procedure:

Causes a serious violation of natural justice

The elementary principle of law is that all material which is relied upon by either party in the course of a judicial proceeding must be disclosed. Even if the adjudicating authority does not rely on the material while arriving at a finding, information that is relevant to the dispute, which would with 'reasonable probability' influence the decision of the authority must be disclosed. A one-sided submission of material which forms the subject matter of adjudication to the exclusion of the other party causes a serious violation of natural justice. In the present case, this has resulted in grave prejudice to officers whose careers are directly affected as a consequence.

makes the process of adjudication vague and opaque ; sets a dangerous precedent.

The non-disclosure of relevant material to the affected party and its disclosure in a sealed-cover to the adjudicating authority (in this case the AFT) sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque.

Two problems with sealed cover procedure

Firstly, it denies the aggrieved party their legal right to effectively challenge an order since the adjudication of issues has proceeded on the basis of unshared material provided in a sealed cover. The adjudicating authority while 24 relying on material furnished in the sealed cover arrives at a finding which is then effectively placed beyond the reach of challenge. Secondly, it perpetuates a culture of opaqueness and secrecy. It bestows absolute power in the hands of the adjudicating authority. It also tilts the balance of power in a litigation in favour of a dominant party which has control over information. Most often than not this is the state. A judicial order accompanied by reasons is the hallmark of the justice system. It espouses the rule of law. However, the sealed cover practice places the process by which the decision is arrived beyond scrutiny. The sealed cover procedure affects the functioning of the justice delivery system both at an individual case- to case level and at an institutional level.

Exceptions should not become the norm

However, this is not to say that all information must be disclosed in the public. Illustratively, sensitive information affecting the privacy of individuals such as the identity of a sexual harassment victim cannot be disclosed. The measure of nondisclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve. The exceptions should not, however, become the norm

The court observed that, in this case, the failure to disclose relevant material has caused substantial prejudice to the appellants and that this case exposes the danger of following a sealed cover procedure. The court thus directed the AFT  to reconsider the entire matter afresh.

Case details

Cdr Amit Kumar Sharma vs Union of India | 2022 LiveLaw (SC) 951 | CA 841-843 of 2022 | 20 October 2022 | Justices DY Chandrachud and Hima Kohli

Headnotes

Practice and Procedure - Sealed Cover Procedure - The disclosure of relevant material to the adjudicating authority in a sealed cover sets a dangerous precedent and makes the process of adjudication vague and opaque - All material which is relied upon by either party in the course of a judicial proceeding must be disclosed - The measure of non - disclosure of sensitive information in exceptional circumstances must be proportionate to the purpose that the non-disclosure seeks to serve. The exceptions should not, however, become the norm. (Para 27,28)

Summary : Armed Forces Tribunal (AFT) dismissed applications challenging the denial of Permanent Commission (PC) in the Indian Navy observing that there was no gender bias or mala fides in the grant of PC - Whether the AFT could have adjudicated on the validity of the selection proceedings when relevant material was disclosed only to the AFT in a sealed cover ? The failure to disclose relevant material has caused substantial prejudice to the appellants. This case exposes the danger of following a sealed cover procedure -  AFT to reconsider the entire matter afresh.

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