Can the State justify the ‘sealed cover method’ in cases of crimes against the society?

On May 22, the Maharashtra Police submitted two reports in a sealed cover to the Bombay High Court in relation to the progress of the ongoing investigation into the Palghar Lynching case.

The incident took place on April 16, when three persons were lynched by a vigilante group in Gadchinchale village, Palghar district of Maharashtra. Thereafter, three PILs were filed in the Bombay High Court and one in the Supreme Court, seeking transfer of the case to special investigation agencies like the Central Bureau of Investigation (CBI) or the National Investigation Agency (NIA) due to the sensitivity and gravity of the matter.

The Bombay High Court, by order dated April 30, had asked the Maharashtra Police to submit reports on the progress of the ongoing investigation and the inquiry conducted with respect to concerned police personnel.

The same was submitted by the state’s CID and senior police officer in a sealed cover, and the Court refused to supply the copies of the submitted reports to the petitioners while considering it inappropriate to interfere at this stage of investigation.

It is pertinent to note that this is not the first time a court of law has given the nod for the use of sealed covers by the State. Earlier instances include the 2G case, the NRC matter, the BCCI reforms case, the Electoral Bonds case, the Rafale deal case, Modi’s Biopic case, the Bhima-Koregaon case, and P Chidambaram’s bail matter.

The theory of sealed covers is not a legislative one; rather it’s a fruit of the procedural norms that have evolved over the years and can be primarily associated with service matters in cases of promotions and disciplinary committee proceedings. At most, it can be confined to defence or highly confidential matters, which means that it ought to be used as an exception and not as a general rule. It is based on the presumption that if the concerned information is disclosed at a sensitive stage, it would harm the person concerned and the investigation will be vitiated or could result in a biased conclusion.

However, recently, the exercise of this privilege by the State has become a trend and now it is opted for even in criminal matters, where in-camera proceedings or other precautionary measures already exist to avoid any such manipulation or bias due to disclosure of sensitive information. The crux being that in criminal matters, any sensitive information may not be made public owing to the gravity of the offence. Nonetheless, such information is never kept confidential from the accused or the opposite party so as to afford him a fair trial and to uphold the principles of natural justice.

The use of the sealed cover method in the Bhima Koregaon case for the arrest of Gautam Navlakha under the Unlawful Activities (Prevention) Act had already triggered a controversy. The Maharashtra Police in the said case submitted the allegedly incriminating material for the search and arrest of Navlakha. One of the main contentions of Navlakha's counsel at both the trial and appellate courts was that there is no substantive material available on record against him. It was also contended that the police, by submitting some documents in a sealed cover, has violated the principles of natural justice.

This contention, however, was not accepted by the Supreme Court in his matter, although prior to that, the Delhi High Court did acknowledge the issue while staying the remand order.

Last year, the Supreme Court Bench of Justices R Banumathi, AS Bopanna and Hrishikesh Roy, by an order of December 4, propounded that denial of bail on findings based on sealed cover documents presented by prosecution is against fair trial and granted bail to P Chidambaram in the INX media case. The Court ignored the documents submitted by the Enforcement Directorate (ED) in a sealed cover and commented specifically that it had consciously restrained itself from opening the sealed cover and perusing the documents.

In the same order, it said that the Court can rely on such documents to check whether the investigation is proceeding in the right direction. However, for the purpose of considering grant of bail, it cannot be the basis for its judgment.

What can be inferred is that the any sensitive information which will lead to bias against a particular person or that will prejudice highly confidential matters will be eligible to be protected from disclosure. These include cases related to defence, security matters, and state-related matters that pose a potential threat of misuse/misinterpretation/misinformation or can cause panic, service matters with regard to disciplinary committees, and promotion matters. Information related to ongoing investigations, including the case diary relating to any investigation in criminal matters, can also be exempt from disclosure if it can lead to tampering of evidence or threatening of witnesses.

The latter was explicitly pointed out by the Division Bench of the Supreme Court in September last year, while rejecting the anticipatory bail plea filed by P Chidambaram. Drawing an analogy between the documents submitted by the ED and the contents of a case diary since ED does not maintain a case diary, the Court denied disclosing the contents of the documents to the accused placed in a sealed cover before the Court. The same was deemed as contents of a police case diary, the contents of which cannot be accessed by the accused. It was also observed that the Court can very well rely on these materials to satisfy its conscience in regard to the ongoing investigation.

However, what continues to linger is the scope for arbitrariness and concerns surrounding transparency, which may ultimately violate the principles of natural justice and consequently affect the human rights of the accused. What justifies the adoption of such an extreme privilege by the State when there are already sufficient provisions available for the protection of witnesses and to the tampering of evidence without compromising the rights of the accused to a fair defence, is a question that needs to be mulled over.

In the Bhima Koregaon case, the State alleged a deep-rooted conspiracy by the so-called ‘urban-naxals’ to instigate discontent against the current ruling government. A severe allegation of plans to assassinate the Prime Minister was also levelled. By claiming these offences, the State evaded the disclosure of the documents to the accused.

But in cases like the Palghar Lynching case, when the crime itself is against the society and when questions have been raised against state machineries with respect to their failure to discharge their official duties, how far is the State justified in keeping information confidential?

The author is a criminal lawyer practicing at the Supreme Court and the trial courts in Delhi.