On Thursday, the Attorney General for India, K.K. Venugopal, offered to place the minutes of the meetings of the Special Committee – constituted by the Supreme Court on May 11 to promptly review the ban on 4G mobile internet in Jammu and Kashmir – before the Supreme Court in a sealed cover.
The Special Committee comprises the Secretary of the Ministry of Home Affairs, the Secretary of the Department of Telecommunications, and the Chief Secretary of the government of Jammu and Kashmir.
The offer came during the hearing of the matter by a bench comprising Justices N.V.Ramana, R.Subhash Reddy and B.R.Gavai. Huzefa Ahmadi, who is senior counsel representing the petitioner, Foundation for Media Professionals (FMP), complained that there was no information available in the public domain about the workings of the Special Committee.
This, Ahmadi argued, went against the spirit of the Supreme Court’s previous decision in Anuradha Bhasin v. Union of India where it was clearly held that orders must be published to allow an aggrieved person to challenge them before courts.
Ahmadi also highlighted the suffering of the people in Jammu and Kashmir who are being deprived of telemedicine and online education during the COVID-19 pandemic while the rest of the country is able to enjoy these facilities.
In response, Venugopal claimed that the Special Committee had held two meetings so far on May 15 and June 10. According to him, the Special Committee examined the impact of internet restrictions on education, health, business activities and freedom of speech. “However, since there has been a rise in terrorism in the region, the Special Committee decided to defer the issue for two months after its last meeting,” Venugopal told the bench.
Since the constitution of the Special Committee on May 11, 2020, four orders have been issued by the government under the Telecom Suspension Rules 2017 to extend internet restrictions in Jammu and Kashmir. The most recent of these orders was issued on July 8, 2020, and it directs slowdown of mobile internet speed in Jammu and Kashmir to 2G till July 29.
The order, uploaded on the Supreme Court’s website, however, is silent on the AGI’s sealed cover offer. It simply says:
“Learned Attorney General for India undertakes to file reply affidavit to the contempt petition within a week’s time. He is permitted to do so. List the matters after one week.”
If the reply affidavit is accompanied with a sealed cover, the petitioner’s ability to file a proper counter to the reply will be limited as the petitioner’s counsel will not get access to the minutes of the meetings of the Special Committee.
The FMP filed the contempt petition itself on June 9, since there was no information available in the public domain about the Special Committee, and its constitution, as directed by the Supreme Court. The minutes of its meetings, therefore, are important to find out whether it examined the material placed on record by all parties and considered the viability of less restrictive alternatives, suggested by the FMP.
Prior to filing the contempt petition, FMP had also sent two representations to members of the Special Committee, urging them to comply with the directions of the Supreme Court, but it did not receive any response.
However, it is not clear whether the AGI wanted to submit only the minutes of the Special Meeting or the reply affidavit itself in a sealed cover, as the counsel could not make it out because of the limitations of hearing through a video link.
When Ahmadi expressed his concern over the minutes of the meeting not being made public, the bench asked the Centre to mention whatever it wants to in its reply affidavit. This has led to considerable anxiety over whether the bench has given its tacit nod to the AG’s sealed cover offer.
Law on sealed covers
In Dr. Subramanian Swamy v. Arun Shourie, (Contempt Petition (CRL) No.11 of 1990), decided by the Supreme Court’s five-judge constitution bench on July 23, 2014, the respondent prayed that, in view of the sensitive nature of the facts, he would choose to refrain from setting out those facts in the affidavit but would prefer to put them in the form of a signed document in a sealed cover for the perusal of the court, which might be treated as an integral part of the counter affidavit.
The court recalled that it had rejected Shourie’s prayer on March 4, 1991, because “the procedure suggested by the respondent was not an acceptable procedure and was inconsistent with recognised form of the pleadings”.
Thereafter, Shourie was granted liberty to withdraw the sealed cover from the court and given an opportunity to file an additional affidavit. In this case, Swamy had arraigned Shourie as the respondent in the contempt petition filed by him, for his editorial in The Indian Express on Justice Kuldip Singh, then a sitting judge of the Supreme Court.
As the editorial criticised Justice Kuldip Singh in his capacity as the chairman of the inquiry commission, set up to probe allegations against the former chief minister of Karnataka, Ramakrishna Hegde, the defence was that it did not amount to contempt of court. The Supreme Court held in this case that merely because a commission of inquiry is headed by a sitting judge of the Supreme Court, it does not become an extended arm of the court.
Although there are many examples of the Court accepting sealed covers with information from the litigating parties even after Swamy v. Shourie, the court appeared to do so reluctantly in some cases where it felt it ought to give reasons for the same.
In the Alok Verma case, the Supreme Court justified the submission of the report of the Central Vigilance Commissioner (CVC) in a sealed cover as a one time measure in view of the “peculiar facts” of the case, in order to maintain the sanctity of the institution of the Central Bureau of Investigation and public confidence in it.
The reliance on sealed covers by the former CJI Ranjan Gogoi when it came to the National Register of Citizens and Rafale cases had led to outcomes which were generally perceived as unsatisfactory and unjust.
It is well settled that Section 123 of the Indian Evidence Act which enables the state to claim privilege over a confidential document, has to be read with Section 162 of the same Act, which enables only the court to decide whether the claimed privilege could be permitted.