REVISITING THE PRIVILEGE OF CONFIDENTIALITY, A.K.A “SEALED -COVER JURISPRUDENCE”

Name: ANGEL

Year of Study : 4th Year

Institution: ICFAI UNIVERSITY,DEHRADUN

Co- Author: DR.VIVEK KUMAR

Designation: ASSISTANT PROFESSOR AT ICFAI UNIVERSITY DEHRADUN

ABSTRACT

This article is an attempt to examine the sealed cover doctrine and throw light upon its undue advantage taken by the parties. Since the Adani- Hindenburg case the sealed cover jurisprudence is in the limelight. It is an informative legal piece which critically examines the nature of the doctrine, and also discuss about its historical development in relation to evidence act which plays a crucial role in determining the privilege enjoyed by the government. It also highlights the vital role of the court in deciding whether the issue requires such privilege or not. In addition to these we have also tried to limelight, the position of these doctrines in USA and U.K through a comparative outlook to understand the lacuna and resolve it. Concludingly, it tries to point out the loopholes of the doctrine and gives a crisp comment upon its effect on the rights of the citizens of India.

1. INTRODUCTION

Recently, CJI D.Y. CHANDRACHUD was hailed for rejecting the sealed cover document by the government, which proposed the names for the committee established by the division bench for investigating in the infamous Adani-Hindenburg issue. Sealed cover documents are evidence which are not published in public because of being sensitive and has the propensity to disturb the public tranquility. The said document is then scrutinized by the judge and. The disclosure of the content of the said document depends upon the discretion of the court. The court can disclose the contents of the document when it deems fit or if it deems it necessary, the contents will remain a secret and out of public court record.

In recent years there has been a sharp increase in the practice of sealed cover jurisprudence. The privilege is used either to hinder the court trials or to gag media reports where the opposing party has no idea what he is defending against. It is not only against the credibility of court trials but also swirls the fundamental rights of the citizen.

2. HISTORICAL DEVELOPMENT OF SEALED COVER JURISPRUDENCE

In India these doctrines were considered draconian as they were embedded by the britishers to grind their own axe and save the employees of The East India Company. 

Section 123 of the Indian Evidence Act (IEA) states: “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.”. 

Read with section.162 of IEA which states: 

“Production of documents. —A witness summoned to produce a document shall, if it is in his possession or power, bring it to the Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court. The Court, if it sees, fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility. Translation of documents. —If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence: and, if the interpreter disobeys such direction, he shall be held to have committed an offence under section 166 of the Indian Penal Code (45 of 1860).”

There is no statutory definition of the concept however it can be drawn from the aforementioned sections that S.123 ascertains privilege to the state from producing any document ‘unpublished’ relating to affairs of state. The rationale is to protect national security or the document is not in the public interest. Under this aspect the court has the ultimate power to decide whether the document falls within the category of s.123 or not. It is the court’s discretionary power to decide whether the secrecy of the evidence shall be maintained or disclosed to the public. Apart from these the court may also adopt sealed cover jurisprudence in cases which involve personal information whose disclosure may lead to breach of trust or infringement of individual’s privacy.

Rule 7 Order 13 of supreme court rules lays down “Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies of 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 the Court.”  

It is the ultimate power of the court to decide regarding the confidentiality of the document or any sort of evidence adduced. The court now and then has used its judicial mind while approving the use of sealed documents keeping the abuse at check as it not only questions the credibility of the court trials but also counts for public despair. 

In Raj Narain v. state of UP the High Court at Allahabad held that no privilege can be claimed by govt. of Uttar Pradesh. The court also upheld the decision of State of Punjab v. Sodhi Sukhdev Singh according to which the court has power to inspect the document regarding which privilege is claimed .

In Ratan Tata v. UOI The Additional Solicitor General submitted several copies of sealed cover documents in the court including the copy of the complaint, investigation reports of the inter-ministerial committee, transcripts of the tapes, after scrutinizing the tapes the outcome of the scrutiny and at the end report filed by the Central Bureau of Investigation (CBI). All the mentioned sealed documents were observed by the court and then sealed by the court master and returned to the learned counsel. The court also directed to keep these documents in safe custody and they are not to be disclosed without the permission of the court.

3. A COMPARITIVE OUTLOOK OF THE SEALED COVER JURISPRUDENCE

1. Position in USA

The “Executive Privilege Doctrine” gives right to the President of the United States and other members of executive branch to maintain confidential information under “certain circumstances” aloof from the subpoena and other governmental organs. This right is used when revealing the information would impair governmental functions. This doctrine is not defined under the constitution of the USA but is derived from the doctrine of separation of power.

 The Supreme Court of USA confirmed the legitimacy of this doctrine in the case of United States v. Nixon popularly known as the Watergate scandal where the court remarked “A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions, and to do so in a way many would be unwilling to express except privately. These are the considerations justifying a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government, and inextricably rooted in the separation of powers under the Constitution”. 

However, the court also demarcated that this privilege to be used only under specific events and that such specific need shall be demonstrated accordingly to the military or diplomatic security proven per se.

2. Position in U.K.

The “Doctrine of Public Interest Immunity” also known as the crown privilege under which the ministers or the crown has the right to withhold evidentiary documents in any legal proceedings on the ground that it may injure public interest.

In Conway v. Rimmer the court laid down that the court will decide independently that the claim for which the privilege is asked shall be withheld or not. It disallows unnecessary governmental secrecy in litigation. The court will look into whether it will cause injury to public interest or not. Deference would be given to defense, security, external – relations, security, high level policy discussions and up to a little extent in proper performance of public services. Consequently, the absolute power to decide the claim is necessary lies with the court.

While comparing the statutes of all the three nation it seems that:

1. The court has the final authority to determine the use of privilege is necessary depending upon the circumstances.
2. It shall be in the public interest.
3. It is rather for the specific documents than for class of documents.

4. CONCLUSION

Concludingly, there lies a serious lacuna in this area of law, which if not dealt properly may lead to the collapse of the legal justice system of the nation. The court need to find the balance between the executive privilege and individual rights since the only silver lining is that the court has the final authority to decide whether the circumstances of the case demand such privilege or just used to escape the court of justice.

 While analyzing the concept of “sealed cover jurisprudence” it appeared to clash with the core fundamental rights of the individual like, ‘Right to Privacy’, ‘Right to information’, ‘Right against self-incrimination’, keeping in mind that the fundamental rights and executive privilege are two opposite spectra of law. The clash needs to be resolved as sometimes it may overlap the basic rights leading to encouragement of “dictatorship” as certainly it may be used by the government or powerful people to grind their own axe.The duo fiddling between the court and the person claiming privilege leaves the opposing party no clue what he is actually defending against. The executive privilege has got the legal identification but there are still no stringent rules to guide its usage. S.123 (IEA) in itself is a vague concept as it leaves the field open for any type of cases to be canopied. The court can work upon it and channelize its objective by specifically mentioning the events where such privilege should be claimed. The court should also mandatorily disclose the privilege claimed in ‘a closed court’ so that the opposing party knows the decision is free from the influence of the privileged document. However, it should only be done in cases where the court has rejected the requirement of sealed cover jurisprudence and it is not against any public interest or the security of the nation. Instead of being a standard procedure, sealed covers depend on the individual judges’ need to support a position in a given case, leading to the credibility of the court vulnerable.