Relevance: GS Paper II (Polity and Governance)
Theme of this article
The jurisprudence of the sealed cover threatens constitutional values and infantilizes the public.
Why has this issue cropped up?
Recently, the Supreme Court asked the government to produce the details of the Rafale deal’s decision-making process in “a sealed cover”.
Not the first time
- This is not the first time that the Supreme Court has asked for material in a sealed cover: in the ongoing case about the updation of the National Register of Citizens (NRC) in Assam, reports of the state coordinator have been shared “confidentially” with the court, with neither the government nor the affected parties being allowed to look at them.
- The “sealed cover” was also at play in the recent, high-profile hearings involving the Judge Loya investigation, as well as the challenge against the Bhima-Koregaon arrests.
Judiciary needs to be open
- The growth of the jurisprudence of the “sealed cover” — which effectively involves the court in a secret dialogue with (in most cases) the State — is a disturbing trend.
- In a democracy, there is a small set of acts that the State must undertake in secrecy: military strategy, correspondence involving negotiating positions in international trade talks, and diplomatic relations, all fall within this set.
- The character of the judiciary, however, is very different from the character of the executive. Alone among the three wings of State, the judiciary is bound by the requirement that for every judgment or order that it passes, it must give reasons — reasons that are open to public scrutiny.
- The work of the courts is the work of public reason. This is what gives the phrase “open justice” its resonance: the dealing of justice must, at all times, be transparent and subject to public scrutiny. That is what separates justice under the Constitution from the ‘firmans’ of an emperor.
Situations which require secrecy
- It does not mean that there can never be secrecy in the courts. The names of sexual assault survivors are often redacted to protect their privacy, and in-camera trials perform the same function. In those cases, however, there are powerful, countervailing individual rights at stake: the rights to privacy and a fair trial.
- There might also be cases of necessity: for example, when the outcome of an election is challenged, the court often asks the parties to hand over the results of the election in a sealed cover, until the final judgment. This, too, is uncontroversial.
Secrecy unjustified in several cases
- The logic of the sealed cover in cases such as the National Register of Citizens , however, is different: here, the court seems to be operating on the presumption that certain information is too “sensitive” for public scrutiny, and that therefore, it is only the court that is entitled to see it, and to decide.
- This is deeply problematic: not only does it violate the principles of open justice described above, but it also infantilizes the public.
- Here, the court assumes the role of a universal guardian, the only entity that is capable of wisely and maturely processing the “sensitive” information, which cannot be revealed to the public — and taking a decision on it.
- When, as in the NRC case, this directly affects peoples’ rights (such as, for example, a decision on which documents can be used to prove citizenship), it is even more problematic: individual rights are effectively being made subject to a court-driven secret and opaque process.
Faith in the people required
- That Indians are too immature to exercise their own rights, and must be governed from above by wiser and benevolent rulers, was the logic of the old colonial regime. This logic was repudiated when India attained independence, and the Constitution came into being.
- The framers of the Constitution reposed their faith in the people of India: not only did they recognise a right of universal adult suffrage (thus making the people the guardians of their own destiny), but the Constitution as a whole replaced a culture of authority with a culture of justification, where every exercise of public power must be justified to its citizens.
Conclusion
The jurisprudence of the sealed cover — especially when it is utilised in crucial constitutional cases such as the National Register of Citizens , where the basic rights of millions are at stake — threatens the constitutional values of open justice and the culture of justification.
