Supreme Court's Changing Attitude Towards 'Sealed Cover' Procedure

CJI DY Chandrachud made headlines yesterday by refusing to accept the sealed cover note submitted by the Central Government in the matter relating to disbursal of pension arrears to retired defence personnel under the One Rank One Pension (OROP) scheme. Stating that he was "personally averse" to sealed covers, he remarked that the practice of sealed covers was against the principles of fair justice.

This marks yet another instance highlighting the shift of the Indian Supreme Court's approach towards the use of sealed covers. In recent years, the Apex Court has been openly critical of the use of sealed covers, with judges often making remarks to this effect.

A "sealed cover" refers to a confidential document or information that is submitted to the court in a sealed envelope or cover. This document is not made available to the parties involved in the case or the general public. The use of sealed covers in Indian courts is based on the principle of confidentiality, which allows courts to protect sensitive information that may harm national security, public order, or affect the privacy of individuals. Accordingly, the court has in the past accepted sealed covers in cases such as the allegations of sexual harassment against the then CJI Ranjan Gogoi and the CVC inquiry report into the complaint against CBI director Alok Verma, among others. The sealed cover procedure was also followed in the matter concerning the 2015 Rafale deal dispute. It is interesting to note that former Supreme Court judge, Justice J. Chelameswar had remarked that he wouldn't have resorted to a sealed-cover procedure had he been hearing the petitions on the Rafale deal.

Naturally, the use of sealed covers has been a subject of debate in Indian jurisprudence owing to critics arguing that it undermines the principles of transparency and fairness in the judicial process. It now seems like the Supreme Court has realised the effects of sealed cover jurisprudence on its own credibility. Other than the comments made by CJI Chandrachud criticising sealed cover jurisprudence today, the court has on multiple occasions refused to accept sealed covers.

For instance, in the Adani-Hindenburg matter, the Supreme Court refused to accept the names proposed by the Central Government in a sealed cover for inclusion in the proposed expert committee to review the regulatory mechanism. The Chief Justice of India, while reserving orders, stated that the experts would be selected by the court itself and that there has to be full public confidence in the committee.

"We will select the experts and maintain full transparency. If we take names from the government, it would amount to a government constituted committee. There has to be full (public) confidence in the committee", CJI Chandrachud had orally observed on February 17 while reserving orders. However, the Court has directed the expert-committee on the Adani-Hindenburg issue to submit its report in a sealed cover.

Last year, the Apex Court had also criticised the Madras High Court for not allowing SP Velumani, former Tami Nadu Minister during the AIADMK term, to have a copy of the preliminary report filed against him in a corruption case.

Furthermore, even former Chief Justice of India NV Ramana has opposed the use of sealed cover documents in court. In the matter pertaining to the Muzaffarpur Shelter case, he remarked that an action taken report does not have to be in a sealed cover. In another matter, he said "don't give any sealed covers keep it with you, I don't want any sealed cover" while refusing to accept documents submitted. 

In fact, in a judgement concerning denial of Permanent Commission (PC) in the Indian Navy, a bench led by Justice Chandrachud observed that sealed cover procedure sets a 'dangerous precedent' as it makes 'the process of adjudication vague and opaque'.

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

The Supreme Court's view on sealed cover should only become clearer once its judgement concerning the telecast ban imposed by the Union Government on Malayalam news channel MediaOne comes out. While the judgement has only been reserved, during the course of hearings the court has expressed its aversion to sealed covers. In this case, the Kerala High Court had upheld the Centre's decision to not renew the channel's broadcast license on the basis of certain documents produced by the Ministry of Home Affairs in a sealed cover, which raised national security concerns. Though reliance was placed on these documents in reaching the conclusion and upholding the ban, the other side (Media One) did not get an opportunity to have a look at them.