Supreme Court Institutes Alternative Procedure to End 'Sealed Cover Jurisprudence'

In matters where the non-disclosure of information is justifiable on national security grounds, courts should appoint an amicus curiae to consider claims of immunity made by the state from disclosure on public interest grounds.

New Delhi: While reversing the ban imposed by the Union government on Malayalam news channel MediaOne, the Supreme Court on Wednesday, March 5, also established an alternative procedure to eliminate the practice of sealed cover submissions – which it said goes against the principles of natural justice.

The matter came to the Supreme Court after MediaOne was banned by the Union government in early 2022, which was upheld by the Kerala high court. The channel was not informed about the reasons for which its security clearance was withheld. This information was submitted to the Kerala high court in a sealed cover by the Union home ministry. Examining the documents, the top court said, “There is no explanation on what weighed with the high court in holding the decision is valid.”

The bench, comprising Chief Justice of India (CJI) D.Y. Chandrachud and Justice Hima Kohli, also made some comments on granting “blanket immunity” to investigative agencies from placing certain information in the public domain.

“The reports by investigative agencies impact decisions on the life, liberty, and profession of individuals and entities, and to give such reports absolute immunity from disclosure is antithetical to a transparent and accountable system. A blanket immunity from disclosure of all investigative reports cannot be granted,” the judges said, according to LiveLaw.

As an alternative to submitting information in sealed covers, the judgment devised a “public interest immunity claim procedure”, which would function as a less restrictive measure in cases where the non-disclosure of information is justifiable on national security grounds.

According to LiveLaw, the judgment dictated the procedure as such:

1. The Courts can appoint an amicus curiae to consider claims of immunity made by State from disclosure on public interest ground.

2. The amicus curiae appointed by the Court shall be given access to the materials sought to be withheld by the State.

3. The amicus curiae shall be allowed to interact with the applicant and their counsel before the proceedings to ascertain the case to enable them to make effective submissions on the necessity of disclosure. However, the amicus curiae shall not interact with the applicant or their counsel after the immunity proceeding has begun.

4. The amicus curiae shall, to the best of their ability, represent the interests of the applicant.

5. The amicus curiae would be bound by the oath to not disclose or discuss the material with any other person, including the applicant or their counsel.

6. The public interest immunity proceedings will take place in a closed setting.

7. The Court is required to pass a reasoned order for allowing or dismissing the claim in the open court.

8. Even while allowing the immunity claim, the Court is still required to provide a reasoned order on the principles that it has considered and applied, even if the material that is sought to be not disclosed is redacted from the reasoned order.

9. However, the redacted material from the reasoned order shall be preserved in the court records which may be accessed by the Courts in the future if the need arises.

10. Courts should take the recourse of redacting confidential portions of the sealed cover document and providing a summary of the contents of the document to fairly exclude materials after successful public interest immunity claim.

The order also held that claims about “national security” cannot be made out of “thin air” – echoing the sentiment that the top court made when hearing pleas about the misuse of the Pegasus spyware. While hearing the MediaOne case, the Kerala high court had said that this observation was “not relevant“.

The court added, according to LiveLaw:

“The dilution of procedural guarantees while hearing the claim cannot be ignored by the court. It is only the court and the party seeking non disclosure of the material who are privy to the public interest immunity proceedings. The court has a duty to consider factors such as the relevance of the material to the case of the applicant while undertaking the proportionality standard to test the public interest immunity claims. However, the applicant who’s unrepresented in the proceedings would be effectively impaired. While there may be material on serious concerns of national security which cannot be disclosed, the constitutional principle of procedural guarantees is equally important at it cannot be turned and it cannot be turned into a dead letter. As the highest constitutional court, it is our responsibility to balance these two considerations when they are in conflict.”