'Sealed Cover Procedure Infringes Open Justice' : Supreme Court Devises 'Public Interest Immunity Claim Procedure' As Alternative

Sealed cover procedure infringes the principles of natural justice and open justice, the Supreme Court said today while allowing Malayalam news channel MediaOne's plea against the telecast ban imposed on it by the Central government.

In this case, the channel was kept in the dark about the reasons for withholding security clearance, which were informed to the High Court by the Ministry of Home Affairs through documents submitted in a sealed cover.  Criticising the approach of the High Court, the Supreme Court observed that the sealed cover procedure rendered the appellant's remedies meaningless.

The bench comprising Chief Justice of India DY Chandrachud and Justice Hima Kohli ruled that the State cannot seek exemption from its duty to act fairly by merely raising the plea of national security. The Court's can always examine if the claim for non-disclosure has a legitimate and proportionate nexus with the claim of national security. 

The Court explained that here are two injuries that are perpetuated when a sealed cover procedure is adopted - First, the documents are not available to the affected party. Second, the documents are relied upon by the opposite party (which is most often the state) in the course of the arguments, and the court arrives at a finding by relying on the material. 

This sort of adjudication perpetuates "a culture of secrecy and opaqueness, and places the judgment beyond the reach of challenge", the Court opined.

Public interest immunity claim

Even in cases where the non-disclosure of information is justifiable on national security grounds, the Courts must adopt a less restrictive measure. In this regard, the judgment devised a "public interest immunity claim procedure".

The Court stated that if the the purpose could be realised effectively by public interest immunity proceedings or any other less restrictive means, then the sealed cover procedure should not be adopted. In this connection, the judgment made references to the practises in foreign jurisdictions such as UK , US and New Zealand.

The practice of "Totten claim" in USA was considered. In Totten claim, if claims are premised on state secrets, then they are barred from adjudication. UK has a "closed material procedure", something akin to the "sealed cover procedure", which is used often in terrorism cases. Then there is the "public interest immunity claims" which allows the State to remove the material from the proceedings on the ground that its disclosure would injure public interest. If such a claim by the State is allowed, the concerned document cannot be used in evidence. In effect, the public interest immunity claim renders the relevant document non-existent for the purposes of the proceedings. 

The difference between the closed material procedure and the public immunity claim is that in the former, the document is allowed to be used in evidence, without disclosing to the other side.

"The courts could adopt the course of action of redacting the confidential portions of the document and providing a summary of the contents of the document instead of opting for the sealed cover procedure to fairly exclude the document from the proceedings on a successful public interest immunity claim. Both the parties can then only be permitted to refer to the redacted version of the document or the summary in the proceeding", the judgment opined.

The Court added a balancing safeguard in this procedure by allowing the appointment of an amicus curiae in the public interest immunity claim procedure.

The procedure envisaged by the judgment will be as follows :

1. The Courts can appoint an amicus curiae to consider claims of immunity made by State from disclosure on public interest ground.
2. The amicus curiae appointed by the Court shall be given access to the materials sought to be withheld by the State.
3. The amicus curiae shall be allowed to interact with the applicant and their counsel before the proceedings to ascertain the case to enable them to make effective submissions on the necessity of disclosure. However, the amicus curiae shall not interact with the applicant or their counsel after the immunity proceeding has begun and the counsel has viewed the document sought to be withheld.
4. The amicus curiae shall, to the best of their ability, represent the interests of the applicant.
5. The amicus curiae would be bound by the oath to not disclose or discuss the material with any other person, including the applicant or their counsel.
6. The public interest immunity proceedings will take place in a closed setting.
7. The Court is required to pass a reasoned order for allowing or dismissing the claim in the open court.
8. Even while allowing the immunity claim, the Court is still required to provide a reasoned order on the principles that it has considered and applied, even if the material that is sought to be not disclosed is redacted from the reasoned order.
9. However, the redacted material from the reasoned order shall be preserved in the court records which may be accessed by the Courts in the future if the need arises.

The also cautioned that national security claims cannot be made out of "thin air" and there must be material facts backing it. It added that sealed cover procedure should not be adopted if less restrictive means are available and can be adopted. The order states,