End To Sealed Cover Practice?

In March, at the  India Today Conclave, 2023, Union Law Minister Kiren  Rijiju spoke about ‘some retired judges being a part of the anti-India gang.

He had said, "It is a few of the retired judges, few -- maybe three or four -- few of those activists, part of that anti-India gang. These people are trying to make the Indian judiciary play the role of opposition party. Some people even go to court and say that and please rein in the government, please change the policy of the government."

The comments by the law minister came in the wake of statements made by some senior advocates and retired judges at a seminar organised by Campaign for Judicial Accountability and Reforms on 'Principles and Framework for Judicial Appointments'.

“Some senior advocates and retired judges spoke at the event. The topic of the seminar was accountability in judicial appointments. But the discussion centered on how the government was taking over the judiciary," Rijju said.

Contemporaneously Rijju said in a written reply to Parliament, "From time to time, complaints are received by the Department of Justice against sitting as well as retired judges of the Supreme Court and high courts” and we just play post office to Chief Justice of India. 

Where are We the People situated on this?

United Nations has a set of standards known as the ‘Basic Principles on the Independence of the Judiciary’.

We also haveThe Beijing Principles on the Independence of the Judiciary, 1997’ adopted at Manila by the Chief Justices of the Asia Pacific Region; and ‘The Bangalore Principles of Judicial Conduct, 2002’, at the core. 

Chief Justice of India J S Verma, then retired, said on 29 January 2010: “The essential values stated in the Bangalore Principles are: judicial independence, both individual and institutional, as a prerequisite to the rule of law; impartiality, not only to the decision itself but also to the process; integrity; propriety, and the appearance of propriety; equality of treatment to all; competence and diligence. It concludes with the need for effective measures to be adopted to provide mechanisms to implement these principles”. 

Justice V R Krishna Iyer said decades ago, “I  have for long pleaded that an Appointment Commission, a Performance Commission and a Punitive Commission of a very high status and stature are a necessity. Corruption is slowly creeping in the judiciary. Arrogance and ignorance of the robed brethren is an expanding pathology … A constitutional code must be enacted to keep our judiciary above board and like Caesar’s wife, be above suspicion. Among the weaknesses of our professions is their immunity from prosecution for crime. They cannot enjoy summary immunities. Even the contempt power must be reduced to the minimum and public criticism finally allowed, if made responsibly and truthfully’.

Do not forget that Iyer himself was once hauled up for contempt of court!

We the People readily associate ourselves with Iyer not Rijju. But for that, we need the judiciary to reciprocate with ‘mechanisms to implement the principles’ as Justice Verma said. Do we have one? Is it effective? Is it open and transparent and subject to public scrutiny? 

On 5 April,2023  in a major tailwind for press freedom and transparency, the Supreme Court reversed the ban on the Kerala based Malayalam news channel MediaOne, while deprecating the Union of India practice of filing ‘sealed cover’ reports. “Sealed cover proceedings infringe the principles of natural justice and open justice,” the bench of Chief Justice of India (CJI) DY Chandrachud and Justice Hima Kohli observed.

It was lovely to read that the top court caught the bull by the horn.

In the Pegasus spyware case judgment, the apex court did not mince words, when it wrote, “Union of India must necessarily plead and prove the facts which indicate that the information sought must be kept secret as their divulgence would affect national security concerns… The state cannot get a free pass every time the spectre of ‘national security’ is raised. National security cannot be the bugbear that the judiciary shies away from”.

In the MediaOne judgment Chief Justice Chandrachud writes, “ The claimant would be jumping into a pit of fire with their eyes closed even if they consent to a sealed cover procedure. As Lord Kerr remarked in Al Rawi (supra), the claim that closed material procedure would provide a fairer outcome is premised on the assumption that the adjudicator is impartial. However, beyond this assumption, it must be recognised that the court could be misled by the material that is not subject to inspection and examination. This would lead a situation where the court renders an unfair judgment and such an unfair decision would not be amenable to both judicial review and public criticism on merits. (paragraph 155)”. 

But the mischievous wag in me pops up inconveniently that when it comes to the conduct of judges under the ‘in-house mechanism’, it is still ‘closed material procedure’ that prevails.

One is deliberately, intentionally, advisedly and abundantly cautiously refraining from alluding to specific instances, in order ‘to be guarded and careful when it comes to our law lords imbued with contempt power, be it called for or not’ as Harish Salve once counseled.

Anyway, we know who they may be or are!

That is not the issue. The question is Why?

Do we not need to know that there was a ‘fair consideration’ and a ‘fairer outcome’?

Was the issue ‘subjected to inspection and examination’ that it deserved? Do we have reasons on why ‘ the information sought must be kept secret as their divulgence would affect…..” as the benchmark the justices have laid in MediaOne. Or whether judiciary has a ‘free pass’ which UOI was rightly denied of? All troubling questions for which we have no answer. 

Are We the People entitled to it? Do we need an Accountability Commission? You be the Judge.