Am glad to see Gautam Bhatia focus on this business of sealed covers. Though it has been going on for a few years now and the present Chief Justice of India is not the first Supreme Court Judge to use this device of sealed covers without justification or cause.
A research project on all instances where sealed covers were used by Supreme Court Judges in the last twenty years would be very interesting. The use of sealed covers has certainly become more common though in more recent years.
If I remember correctly, sealed covers were used in the black-money case, in the case of high value debt defaulters, in the Radia-Tata case, and in the Sahara case among several other cases.
In fact, the Police tried to file a mischievous status report in sealed cover in my writ petition in the Delhi High Court as well, Writ Petition Civil No. 1280/2012. I asked for the report to be placed on the public record. This report was intended to be used to target me.
I would like to add the following to this debate.
A democratic system like the one our Constitution establishes and guarantees works on a system of checks and balances or in other words mechanisms of accountability. These checks and balances are required and mandated not just for the executive branch but equally also for the legislative and judicial branches of Government.
One method of providing checks and balances or accountability is by ensuring transparency, openness and public and media scrutiny of governmental action. This scrutiny works by providing for open decision making backed by publicly available reasoning.
Therefore our Parliament is an open institution where parliamentary proceedings are televised and recorded and made available for public scrutiny.
Our executive is also required to be transparent and to provide reasons for decision-making. Administrative and constitutional law serve to hold the executive branch accountable and transparent.
The Judiciary is equally required to be subject to checks and balances. We trust in our judiciary not because of some blind faith in the office of a Judge, or in the oath spoken by a Judge, or in the men who act as Judges; but because the judicial system works and is expected to work in accordance with natural justice, and with due process rules and procedure, and in accordance with the prescribed concept of ‘open justice’ where court proceedings, court decisions and judicial reasoning are all transparent, open to public scrutiny, and ultimately subject to public judgment.The legitimacy of the Judiciary as of other branches of Government ultimately rests on their accountability to the citizens.
Now this frequent and unjustified resort by the Supreme Court to sealed covers, i.e., to documents that are not placed on the public court record and remain secret, is troubling not just because it “infantilizes” the public as argued by Gautam Bhatia, but also because it removes the constitutionally mandated checks and balances imposed on the Judiciary. It transforms our open judicial system and Constitutional Court into a secret, unaccountable and unconstitutional court, where a man sitting as Judge places himself outside the realm of public and judicial accountability and pretends to dispense justice when the very basic requirement of justice that it be open and transparent has been negated.
Secrecy begets corruption and cover-ups. Secrecy allows for extraneous considerations and actors to influence decision making including judicial decision making.
Judges cannot in a democracy simply demand blind faith and trust from the citizen. They cannot demand that we allow them to take judicial decisions in secret and based upon secret reasoning simply because they are Supreme Court Judges, and because we must somehow profess blind faith in their integrity, honesty and competence. The Constitution of India did not create a Supreme Court of unaccountable (even if “benevolent”) dispensers of justice. The Constitution created a Supreme Court that is mandated to follow due process and to be accountable, open and transparent. The Supreme Court must therefore subject its proceedings, its decisions and its reasoning to public scrutiny. This requires that proceedings take place in open court, that court records be open and public, and that decisions be based upon publicly available reasoning, so that the ultimate consumers of justice - "We The People" - who gave ourselves the Constitution and who have created the Supreme Court. remain Supreme and are able to judge the Supreme Court.
Another plank on which this whole sealed covers issue needs to be discussed is from the perspective of the Articles 14, 20 and 21 fundamental rights of Alok Verma, Asthana and other involved CBI, RAW and PMO officials who are all now entangled in this web of intrigue.
Take the CBI Chief Alok Verma as an example: He stands accused of corruption and professional misconduct. He has constitutional and legal rights to due process and to defend himself.
The Supreme Court is denying him these rights by (i) acting as the investigating agency as well as the Court of last resort; (ii) denying him due process rights available under the law; and (iii) compelling him to defend himself in secret proceedings (which are sui generis and are investigative and original and final judicial proceedings all rolled into one), where the charges against him are secret, his response and defence is also to be kept secret, and where the rules of evidence and criminal trials do not apply.
What is really unfortunate is that the veteran lawyers lionized within the legal profession and the media continue to fail to stand up to the Supreme Court on this completely unconstitutional business of sealed covers among other things. This makes the critiques offered by young scholars like Gautam Bhatia even more admirable and brave.
