End sealed cover business, read it or take it back: CJI lashes out at Govt’s top lawyer

New Delhi: Chief Justice of India DY Chandrachud has once again reacted strongly to the practice of using sealed cover envelopes for submissions to courts.

He refused to accept a sealed cover envelope by the Union government in One Rank One Pension (OROP) arrears case today asking the government’s top lawyer to either read it or take it back.

‘We will not take any confidential documents or sealed covers, and am personally averse to this. There has to be transparency in court. This is about implementing the orders. What can be the secrecy here?" he said, adding that he wanted to put an end to ‘the sealed cover business’.

A bench of Chief Justice DY Chandrachud and Justices PS Narasimha and JB Pardiwala is currently hearing the Indian Ex-Servicemen Movement's (IESM) plea over payment of OROP dues.

The Narendra Modi government has been facing flak from the Supreme Court on the OROP matter in recent hearings. The apex court, on March 13, came down heavily on the government for "unilaterally" deciding to pay OROP dues in four instalments.

The court has directed the Ministry of Defence (MoD) to file a three-page note specifying the exact amount of arrears due to be paid under the OROP scheme while also noting that it is “sad” that four lakh retired defence personnel have already died waiting for their pension.

‘If the Supreme Court follows it, High Courts will also follow’, he told the Attorney General.

The CJI further said that sealed covers were 'completely against' settled judicial principles. ‘It can be resorted to only when it is about a source or endangering someone's life’, DY Chandrachud said.

The move is likely to be a setback to the government which has over the past few years exploited the ‘sealed cover’ route to escape scrutiny by making information public.

The use of a sealed cover 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.

Information is filed in a sealed cover on the grounds that the contents are highly sensitive in nature and could impact even national security or "public order".

In cases like money laundering, the practice of sealed covers is used as open disclosure would affect the ongoing investigation, a reason given by state agencies.

The origin of ‘sealed covers’ has been “traced to service or administrative cases. Official service records and promotion assessments of individual personnel were received in sealed cover in order to avoid harm to the reputation of officers. The court continues to receive confidential documents in sexual assault cases to protect the identity of survivors, as quoted by The Hindu.

However, recent times have seen the government produce myriad documents, ranging from status reports to ‘notes’, alleged evidence collected during investigation into terror and money-laundering cases. Even court-appointed committee reports, as in the BCCI case, have been accepted in sealed covers, says the report.

The Supreme court has accepted sealed cover envelopes in several important cases such as challenges to the Rafale deal, Assam’s National Register of Citizens case, the electoral bonds case and the Ayodhya title dispute, the Gujarat police ‘fake’ encounter case, Narendra Modi biopic release case, the sexual harassment case concerning then CJI Ranjan Gogoi, the Bhima Koregaon case and the anticipatory bail plea for Congress leader P. Chidambaram.

However, in these cases, submitting sealed cover envelopes were termed as ‘due procedure’. Information in sealed cover was also relied upon in the 2G and coal scam cases.

There is no specific law that defines the sealed cover jurisprudence. However, Rule 7 of Order XIII of the Supreme Court Rules, 2013 provides that the Chief Justice or the court can, through a judicial order, direct any document to be kept confidential in a sealed cover if publication of the records is “considered to be not in the interest of the public”, according to The Hindu.

The Supreme Court has now been taking a U-turn on the matter.

In the Media One telecast ban case, the Centre produced the relevant documents in a sealed cover informing the Supreme Court that the denial of security clearance to the news channel was based on sensitive and secret intelligence inputs.

During the hearing, the apex court had orally observed that the government should claim “specific privilege” in an affidavit and explain the “extenuating circumstances” to keep documents secret from the other party.

It said the burden would lie on the government to prove that even sharing redacted copies of the records would prove detrimental to national security and public order.

Justice D Y Chandrachud remarked that, " there were only a "small exception" of cases in which the court, for the benefit of the parties, did not want them to see the government files."

While hearing the case, the apex court had stated that the issue of sealed-cover reports will have to be dealt with separately.

Senior advocate Dushyant Dave, appearing for the channel, told the bench that, “This is a very serious fundamental problem and goes against the principle that both sides should have access to material that the other side is relying upon. Whether a sealed cover creates bias, a sealed cover affects the mind of a judge, because once judges see the sealed cover on which it is written national security, a different impression is created."

Last year, the Supreme Court observed that the practice of sealed cover sets a ‘dangerous precedent’ as it makes “the process of adjudication vague and opaque”.

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

In March last year, then CJI N.V. Ramana also disapproved of filing submissions in sealed covers.