Whether the doctrine of Sealed Cover Jurisprudence followed in India as an Antithesis

of the Principle of Natural Justice?

- Ms. Ishika Kedwal1

Abstract: Beyond a shadow of doubt, the principle of natural justice is the most basic right
enjoyed in all civilized societies. The aforementioned right could be curtailed by the protectors
of the Constitution of India, the Supreme Court of India and subordinate courts, by invoking
Section 123 of the Indian Evidence Act or Rule 7 of Order XIII of Supreme Court Rules to call
for information or documents in sealed covers. The implication of these sealed cover
documents lies in the fact that they are tagged as ‘Confidential Information’ which is beyond
the reach of parties. Only judges are privileged to access the information called for under
sealed covers. In a way, sealed cover jurisprudence could be said to be antithesis of the
principle of natural justice and right of the accused to defend his case. The present research is
to address the practice in the common parlance of the counsels to suffice documents in sealed
covers. Whether the sealed cover privilege is a violation of the principle of natural justice or
whether the practice of sealed cover violates the constitutional right to know and defend?

Keywords: Sealed Cover Jurisprudence, confidential information, antithesis, Section 123 of

Indian Evidence Act, principle of natural justice

Introduction: “Why sealed cover?” beseeched the Chief Justice of India, NV Ramana to State
Counsel for Bihar during the court proceedings of the Muzaffarpur Shelter Home Case.2
Nonetheless, a mere remark is a strong condemnation of the popular ‘sealed cover practice’.
Remarkable is the paradigm shift in the court’s attitude towards the practice which has been
resorted to most often by state counsels. Truth be told, this practice has existed since the day
existence of the court was marked. Time and again the government counsels have exercised
this practice in numerous cases before high courts and the Supreme Court considering the
confidentiality and secrecy of the matter. The jurisprudential approach behind the sealed cover
practice is public policy, public interest and national security. The very principle is embedded

1
Advocate Ishika Kedwal, Delhi High Court (ishikakedwal@gmail.com ).
2
Nivedita Jha v. State of Bihar, SLP (C) 24978 OF 2018.

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in the maxim Solus populi suprema lex esto3. The welfare of the people of the country is the
supreme purpose that needs to be protected. On the contrary, the basic practice of
supplementing documents in sealed cover denies the other party to know the charges,
allegations or evidence tendered against himself. Whether the evidence, document, charges or
allegations are levelled by government counsel or prosecution, it outrightly violates the
principle of natural justice of the other party or accused. The research paper will further
intricately and painstakingly discuss the concept of “sealed cover”.

Definition Clause: Considerably, the terminology “sealed cover” has never been defined by
any legislative document. Nor any authority has ever attempted to define the term. Yet, certain
epigraphs such as ‘Executive privilege’ as used in the USA, ‘common interest privilege’ used
in the UK, ‘crown privilege’ or ‘state privilege’ are the other terminologies that have been used
time and again. The term “privilege”4 as used in evidence law means freedom from the
compulsion to give evidence or to discover material, or a right to prevent or bar information
from other sources during or in connection with litigation, but on grounds extrinsic to the goals
of litigation.5 Alternatively, sealed cover terminology is more popular in India. 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.6

Legal Viability: Courts derive essential authority to call for sealed cover documents under two
heads, one is under Section 123 of the Indian Evidence Act, 18727 {hereinafter referred to as
IEA,1872} and two, Rule 7 of Order XIII of Supreme Court Rules, 20138 {hereinafter referred
to as SCR}.

Section 123 of IEA,1872 states that;

3
John Locke, Two Treatise of Government, P. 289
Interpretation: the welfare of the people is supreme law
4
The Indian Evidence Act, 1872, s.123, Act No. 1, Acts of Parliament, India
5
Law Commission of India, 88th Report on Governmental Privilege in Evidence: Sections 123-124 and 162, Indian
Evidence Act, 1872 and Articles 74 and 163 of the Constitution, 1983 (January 1983).
6
Diksha Munjal, Explained | What is sealed cover jurisprudence and why is it being opposed?, THE HINDU (Feb.
18, 2022, 13:43 IST) URL:https://www.thehindu.com/news/national/explained-what-is-sealed-cover-
jurisprudence-and-why-is-it-being-opposed/article65056013.ece (accessed on May 3, 2022).
7
The Indian Evidence Act, 1872, Act No. 1, Acts of Parliament, India.
8
See, Rule 7 of Order XIII of Supreme Court Rules, 2013.

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“123. Evidence as to affairs of State. —No one shall be permitted to give any evidence derived
from unpublished official records relating to any affairs of State, except with the permission of
the officer at the head of the department concerned, who shall give or withhold such permission
as he thinks fit”.

The interpretation of the abovementioned provision enables the head of the department to keep
official unpublished records essentially related to the affairs of the state out of the public
domain on account of public interest. It is emphasized that the principle laid down under S. 123
of IEA, 1872 does not provide umbrella protection to all sorts of the affairs of the State that are
privileged, but only those the disclosure of which would result in an injury to the public
interest.9 The foundation of the principle is injury to the public interest. 10 Therefore, it is
understood that not every case fits for the protection under s. 123 of IEA, 1872. The Law
Commission 88th report11 identifies s.124 of the IEA, 1872 overlapping with s.123 of IEA,
1872 yet they differ. While it also emphasized the importance of s.162 of IEA, 1872 in
connection with the aforementioned provision. Section 162 of IEA, 1872 is not confined to
state privilege as such but concerns itself with the procedure for determination of all questions
of privilege, whether the privilege is claimed under the head of State privilege or under any
other head.12 The Supreme Court often invokes the Supreme Court rules as well for the same
purpose.

Rule 7 of Order XIII of SCR states that;

“Notwithstanding anything contained in this order, no party or person shall be entitled as of

right to receive copies or extracts from any minutes, letter or document of any confidential
nature or any paper sent, filed or produced, which the Chief Justice or the Court directs to
keep in sealed cover or considers to be of confidential nature or the publication of which is
considered to be not in the interest of the public, except under and in accordance with an order
specially made by the Chief Justice or by the Court.”

Sealed cover enjoys legal identification but there are no specific and stringent guidelines for
the usage of this particular practice.

9
Dinbai v. The Dominion of India, AIR 1951 Bom 72 (P)
10
State of U.P. v. Raj Narain, AIR 1975 SC 865
11
Supra 5 at 2.
12
Ibid.

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Minimize sealing, maximize transparency and enhance independence:

“Exceptions to the demand for every man’s evidence are not lightly created nor expansively
construed, for they are in derogation of the search for truth.”13

While the administration is responsible for handling matters of national security, it is up to the
courts to make a distinction between private information that might jeopardize national security
and the justifications offered by the government.

It is evident that courts believe that some considerations take precedence over fair trials, natural
justice, and public access to court documents. In order to promote judicial openness, it is
important to reduce the sealing of evidence and provide legal guidelines for its use.

A court must meet the following requirements in order to seal a document or procedure,
according to a comparison of the sealed cover doctrine's current framework:

(1) public notice of the intended sealing must be provided along with the opportunity to object
to it should be given to interested parties;

(2) proper reasoning for sealing must be provided; and

(3) reasoning for the inadequacy of alternatives must be furnished.

Another such model exists in the United Kingdom in the form of Closed Material Proceedings,
under which judges may not share sensitive material with defendants only when it is established
that public interest would be harmed. The provision requires appointment of a Special Attorney
who shall be bound by duty of confidentiality to not disclose material to the client but would
still represent the party in their best interest.14

Need for a standard test: In India, the common practice for use of sealed cover protection is
through submitting an affidavit to the court without mandating any requisite conditions to be
fulfilled by the party/parties. It is purely an ad hoc decision. The ‘test of need standard’ was
developed by the U.S. Supreme Court in U.S. v. Nixon15, in which the court propounded that
in order to pray for sealing, it is necessary for the pleading party to lay down the following two

13
U.S. v. Nixon, 418 U.S. 683 (1974).
14
Neha Rani, Sealed cover jurisprudence is without a rationale, THE LEAFLET (May 30, 2022) URL:
https://theleaflet.in/sealed-cover-jurisprudence-is-without-a-rationale/ (accessed on June 7, 2022)
15
Supra Note 14.

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essentials: that the evidence holds importance with respect to the central issue at hand, and that
there exists no other source to access evidence or any equivalent evidence.

The party praying for the seal must establish a connection between the reason for such prayer
and the kind of document it seeks to seal. Merely stating the general category of privilege
without proper specification does not satisfy the essentials to allow the production of a sealed
document. Our Supreme Court has itself remarked in a judgment that “though it is held that it
would be open for the Court to peruse the documents, it would be against the concept of a fair
trial if in every case the prosecution presents documents in a sealed cover and the findings on
the same are recorded as if the offence is committed and the same is treated as having a bearing
for denial or grant of bail”.

Conclusion: The strict commitment to natural justice principle provides equality and justice
for the parties involved and improves decision-making while also increasing trust in the
integrity of the decision-maker. If challenged in a court of law, our lack of knowledge of the
law and due process will not be a recognized defence. To comprehend and implement the
concepts of natural justice in the performance of our administrative duties, we do not
necessarily require a professional legal degree. It is both a legal and moral need. It is not a
virtue to adhere to natural justice ideals. It is morally required. The application of natural justice
principles goes beyond the purview of official investigation procedures. Their intellectual
significance and moral foundation are of utmost importance in therapeutic practice as well.

Electronic copy available at: https://ssrn.com/abstract=4818490