From Secrecy to Transparency: Rethinking Sealed Cover Procedures under the Sakshya Adhiniyam

Introduction

One of the fundamental principles of a democratic society is that governance should be “by the people, of the people, and for the people”, with transparency serving as a crucial element in public affairs.¹ However, the State has historically asserted the right to withhold evidence containing sensitive information on grounds of protecting national security and public interest, arguing that disclosure could compromise the State by exposing it to internal or external threats.² One method of doing so is through the submission of documents to the court in sealed covers.

In recent years, the use of sealed covers practice has markedly increased, resulting in instances of misuse and complications. The practice has come under scrutiny once more due to its application in high-profile cases such as the Rafale Jet Deal, Media One Ban, Bhima Koregaon, Board of Control for Cricket in India (BCCI) Reforms, and the Adani-Hindenburg issue.³ Such trend has raised serious concerns regarding its alignment with democratic principles and constitutional rights. This paper aims to demonstrate that the use of sealed covers undermines the transparency and accountability essential to a democratic society and infringes upon fundamental rights, including the right to a fair trial. The growing reliance on the practice underscores the need for its critical reassessment to ensure it does not compromise the fundamental principles of open justice and constitutional governance.

Firstly, the paper will examine the concerning trend of increasing use of the practice in India and its broader implications. Secondly, it will address the procedural and constitutional challenges associated with the sealed cover procedure, contending that the practice is both unfounded and inherently undemocratic. Thirdly, it will propose a framework to balance national security concerns with the imperative for transparency, analysing the Supreme Court’s judgment in Madhyamam Broadcasting case⁴. Lastly, the paper will advocate for amendments to the Sakshya Adhiniyam, 2023⁵ (BSA) to establish a clear framework for handling national security concerns while ensuring transparency.

The growing use of sealed covers in judicial proceedings

A plain reading of Section 129⁶, in conjunction with Section 165 of the BSA⁷, reveals that these provisions protect unpublished documents pertaining to State affairs until the court determines their admissibility or seeks the input of the State on the matter. What constitutes a document as related to State affairs is to be determined by the court on a case-to-case basis.⁸ But, broadly documents whose disclosure would be: (i) prejudicial to the public interest; (ii) related to the security of the State; and (iii) affecting diplomatic relations are protected as matters of State.⁹

Traditionally, documents placed under sealed covers are those deemed sensitive, with the potential to jeopardise national security or public order if disclosed. This practice is rooted in the principle of “Salus populi est suprema lex”, meaning “regard for public welfare is the highest law”, which justifies the non-disclosure of certain information for the greater good.¹⁰ Such sealed documents are employed in two primary scenarios by the State: first, when it has imposed bans, censored, or otherwise taken punitive action against an individual, and subsequently invokes the sealed cover to prevent that person from mounting a defence; second, when an individual challenges State action for a right’s violation but requires access to information held by the State to substantiate their claim.¹¹

The sealed cover procedure, although not legislated, has evolved through judicial practices.¹² When documents are produced under Section 165, they are placed in a sealed cover accessible only to the Judges until the issue of privilege is resolved.¹³ Documents claimed under Section 129 remain sealed and require departmental approval before being used as evidence if the national security claim succeeds.¹⁴ Neither the opposing party nor the public can access these documents.¹⁵

The Supreme Court derives its authority for accepting evidence through sealed covers from Rule 7 of Order 13 of its Rules, which restricts access to confidential documents unless explicitly permitted by the Chief Justice or the Court.¹⁶ Initially, such documents were used primarily to protect evidence at risk of tampering, but their use has expanded significantly. Today, they include not only sensitive State documents but also status reports, police diaries, and investigative reports from agencies like the Central Bureau of Investigation (CBI), National Investigation Agency (NIA), and Central Vigilance Commission (CVC).¹⁷ There are instances where the privilege is claimed even for documents unrelated to State affairs such as reports on sexual harassment, raising concerns about overreach.¹⁸ The absence of guidelines regulating it has led to its unchecked application, often turning what should be an exceptional measure into a routine practice.

This broadening use poses substantial challenges, particularly for opposing parties. Courts often invoke the sealed cover procedure without providing reasoning, and in many cases, the sealed cover is neither referenced in orders nor justified in judgments.¹⁹ A notable exception is the Alok Verma case, where the contents of the document were made available to the opposing party, allowing for a defence.²⁰ However, even in this case, the justification for using the sealed cover was inadequate. Unlike other methods of claiming the privilege like public interest immunity (PII) claims where documents are excluded entirely from proceedings, this procedure allow Judges to rely on unseen material²¹, creating an opaque and potentially prejudiced adjudicatory process. Such practice threatens the principles of open justice as the affected party loses the opportunity to challenge the evidence, undermining the fairness of the trial.

Thus, the increased reliance on sealed covers, with nearly half of cases involving such documents arising in the last decade, indicates a troubling shift towards “constitutionalism of convenience”.²² Due to the growing frequency of this practice there is an erosion of public trust in the judicial process as the Supreme Court has rarely provided detailed justifications for its use, setting dangerous precedents based on undisclosed evidence.²³ The restrictive measures of the court, such as the lack of published hearing transcripts, the reluctance to live stream proceedings, and restricted access to case materials, further weaken the perception of judicial openness.²⁴ While secrecy may be a characteristic of the executive, the increasing adoption of sealed covers by the judiciary signals a concerning shift towards functioning with executive like opacity,²⁵ compromising its role as an independent arbiter of justice committed to transparency and fairness.

The constitutional and procedural issues with sealed cover documents

The validity of sealed cover documents has long been a contentious issue. Upon careful examination, the practice appears concerning in a constitutional democracy.²⁶ It obstructs the right to a fair trial for the parties involved and infringes upon their fundamental rights.²⁷

Article 145 of the Constitution empowers the Supreme Court to frame its own rules²⁸, such as the Supreme Court Rules, 2013, which permit the submission of evidence in a sealed cover under Order 13 Rule 7²⁹. Notably, no equivalent provision exists within the procedural frameworks governing trial or civil courts (lower courts). The absence of powers to frame comparable rules for these courts strongly indicates that the authority to admit evidence in sealed covers was not extended to them by the legislature.³⁰ If such an authority had been intended, the legislature would have enacted a similar provision for such courts.³¹ Therefore, when lower courts accept and rely on sealed cover evidence during trials, they act beyond their procedural mandate, resulting in a breach of established procedural law.

Even for the Supreme Court, the trend of using sealed cover documents is problematic. Article 145 mandates that all Supreme Court decisions be made in a public setting.³² This includes not only open court proceedings but also the transparency of the information used in decision-making. The practice of sealed cover documents undermines this requirement by potentially keeping parties unaware of critical information and limiting their ability to contest or respond to it, thereby weakening their case. While powers to deal with such documents is provided under the Supreme Court Rules, 2013, it must be interpreted in light of the Constitution which prioritises public accessibility and transparency. Therefore, any rule allowing for the acceptance of sealed cover evidence and pronouncement of judgments which lack reasons contravenes Article 145 and is thus unconstitutional.

Additionally, Article 21 guarantees the right to life and personal liberty, including the fundamental principle of natural justice which encompasses the right to a fair hearing.³³ This right entails being informed of and able to contest evidence presented against oneself in court. The use of sealed cover evidence undermines this right by obstructing defendants from accessing and challenging such evidence. Although Section 366 of the Nagarik Suraksha Sanhita (BNSS) provides for privacy in cases involving sexual offences,³⁴ it does not authorise evidence to be presented in sealed covers. Furthermore, the section ensures the right to cross-examine evidence in in-camera proceedings, a right that is compromised by the sealed cover procedure which conceals the contents of the evidence from the parties involved.³⁵ Adducing of such evidence infringes upon Article 21, as the right to life and liberty can only be restricted by a procedure established by law, encompassing both statutory enactments and principles of natural justice. The practice of accepting sealed covers falls outside both categories and instead violates the right to a fair hearing.

Thus, a judicial system that relies on such practice fosters a secretive dialogue between the court and the State, effectively excluding the public and undermining democratic principles.³⁶ The principle of an open government, as envisaged by the framers of the Constitution, is rooted in the right to information implicit in Article 19(1)(a)³⁷ which advocates for transparency in both government operations and judicial processes. The growing use of sealed covers contravenes this vision by depriving parties of their right to be fully informed, leading to a form of petty autocracy that diminishes constitutional principles and erodes the integrity of judicial orders.³⁸

Balancing transparency and national security

When evaluating the State’s claim of non-disclosure of documents, a recurring question that often comes up is whether the argument for the public interest is compelling enough to rule out all alternative solutions for reconciling transparency with confidentiality.³⁹ Transparency is a fundamental principle of democratic societies, ensuring accountability and fostering public trust. However, national security concerns sometimes require the confidentiality of certain information to protect citizens from potential harm. Therefore, a careful balance must be struck between transparency and security. To achieve this, clear criteria must be established for determining when information should be withheld. This process should involve a comprehensive assessment of national security risks in relation to the public’s right to access information.

While addressing this balance, the Division Bench of the Supreme Court in Madhyamam Broadcasting, led by Chief Justice Chandrachud and Justice Hima Kohli, endorsed a version of proportionality test as a means to evaluate the necessity of sealing documents.⁴⁰ The Court noted that PII proceedings represent a less restrictive alternative, though it did not categorically exclude the use of sealed covers.⁴¹ CJI Chandrachud observed, “While it is beyond the scope of this judgment to outline all scenarios for using the sealed cover procedure, if the purpose can be achieved through less restrictive means such as PII proceedings, then sealed covers should not be adopted.”⁴²

Additionally, the Court introduced a new procedure involving amicus curiae to assess the necessity of PII claims. The amicus will review the withheld information and consult both parties to determine the need for disclosure.⁴³ Bound by a non-disclosure oath, the amicus will not reveal the reasons for withholding information to the parties.⁴⁴ The Court is to issue a reasoned order on the PII claim, and if the claim is upheld, it may opt to redact confidential portions or provide a summary of the document instead of using sealed covers.⁴⁵

While the judgment represents a progressive step by incorporating amicus curiae to evaluate PII claims, it raises significant concerns regarding its compatibility with Section 165⁴⁶. The section allows courts to consider only “other evidence” and does not grant authority for document inspection.⁴⁷ Similarly, it also restricts amicus curiae, who act as “friends of the court”, from engaging in such inspections. Permitting amici curiae to review sealed documents to assess PII claims seems to conflict with the legislative restriction set in Section 165, creating a potential issue of judicial overreach. The principle of separation of powers establishes clear boundaries between legislative and judicial functions. As reaffirmed in Union of India v. Deoki Nandan Aggarwal⁴⁸ and Suresh Seth v. Indore Municipal Corpn.⁴⁹, the judiciary is not authorised to modify or expand statutes in ways not explicitly defined by the legislature. Thus, the Supreme Court’s suggestion in Madhyamam Broadcasting⁵⁰ becomes redundant in the present context, where the court lacks the legislative authority to permit the involvement of amicus curiae.

Conclusion

The increasing reliance on sealed cover documents in recent years has raised significant concerns regarding their impact on judicial transparency and the right to a fair trial. Balancing the need for transparency with national security considerations is imperative. Currently, there is an absence of a legislative framework in India that provides for conducting closed proceedings with the assistance of an amicus curiae to address the deficiencies in this process. It is incumbent upon Parliament to amend the BSA to incorporate the procedural safeguards recommended by the Supreme Court in Madhyamam Broadcasting case⁵¹.

Furthermore, the Indian legislature must also address several critical issues pertaining to the national security exception. Notably, a precise definition of “national security” must be established.⁵² While the Right to Information (RTI) Act, 2005⁵³ offers a progressive framework and has an overriding effect on BSA, its Section 8 lays down exception to RTI relies on ambiguous terms such as “prejudicially affect the sovereignty and integrity of India”.⁵⁴ Courts have sought to broaden this definition to encompass socio-political stability, territorial integrity, and other factors.⁵⁵ However, the concept of national security remains predominantly a matter of policy rather than law. A more detailed and specific definition is essential to confine PII claims to narrowly defined circumstances.

Moreover, there must also be a mechanism for regularly reviewing non-disclosed information. As circumstances evolve, information once deemed sensitive may no longer require confidentiality. Establishing a procedure for periodically reassessing the necessity of maintaining secrecy will foster greater transparency while still safeguarding national security.