Some Parliamentarians and prominent figures have issued a statement expressing discontent over the Kerala High Court’s verdict upholding the transmission ban on a Malayalam news channel.

What is the news?

• The channel went off air as the Centre suspended its telecast over “security reasons”.
• The High Court’s decision was based entirely on the assessment of documents presented by the MHA in a sealed cover.
• The contents of which were not shared with the news channel.

What is Sealed Cover Jurisprudence?

• It 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.
• A specific law does not define the doctrine of sealed cover.
• The Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.

Nature of the power: Upholding Secrecy

• If the Chief Justice or court directs certain information to be kept under sealed cover or considers it of confidential nature, no party would be allowed access to the contents of such information.
• There is an exception to this if the Chief Justice himself orders that the opposite party be allowed to access it.
• It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public.
• As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.

Grounds of such secrecy

Other instances where information may be sought in secrecy or confidence is when its publication:

1. Impedes an ongoing investigation
2. Details which are part of the police’s case diary or
3. Breaches the privacy of an individual

Prominent cases of sealed jurisprudence

Sealed cover jurisprudence has been frequently employed by courts in the recent past.

(1) Rafale Deal

• In the case pertaining to the controversial Rafale fighter jet deal, a Bench headed by CJI Ranjan Gogoi in 2018, had asked the Centre to submit details related to deal’s decision making and pricing in a sealed cover.
• This was done as the Centre had contended that such details were subject to the Official Secrets Act and Secrecy clauses in the deal.

(2) Bhim Koregaon Case

• In the Bhima Koregaon case, in which activists were arrested under the Unlawful Activities Prevention Act.
• The Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover.

Criticism of such acts

• Critics of this practice contend that it is not favorable to the principles of transparency and accountability of the Indian justice system.
• It stands in contrast to the idea of an open court, where decisions can be subjected to public scrutiny.
• It is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down reasoning for their decisions.
• Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication.

How has judiciary responded to this?

• In the 2019 judgment in the case of P Gopalakrishnan V. The State of Kerala, the Supreme Court had said that disclosure of documents to the accused is constitutionally mandated.
• This is possible even if the investigation is ongoing and said documents may lead to breakthrough in the investigation.

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