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Subject: Polity

  • Government seeks law on Rights of Foreigners

    The Union government has urged the Supreme Court to help lay down a law with a “long–lasting” implication for the country on the subject of Foreigners’ Right to approach local courts for relief after violating their visa conditions.

    Why in news?

    • The government’s request came during the hearing of petitions filed by foreign nationals who were charged with violating COVID-19 guidelines by participating in a religious congregation in New Delhi during peak COVID outbreak.

    Citizens vs. Foreigners Rights

    Fundamental Rights available to both Citizens and Foreigners (except enemy aliens)

    Fundamental Rights Available Only to Citizens of India
    • Article 14 – Equality before the law and equal protection of laws
    • Article 20 – Protection in respect of conviction for offences
    • Article 21 – Protection of life and personal liberty
    • Article 21A – Right to elementary education
    • Article 22 – Protection against arrest and detention in certain cases
    • Article 23 – Prohibition of traffic in human beings and forced labour
    • Article 24 – Prohibition of employment of children in factories etc
    • Article 25 – Freedom of conscience and free profession, practice and propagation of religion
    • Article 26 – Freedom to manage religious affairs
    • Article 27 – Freedom from payment of taxes for promotion of any religion
    • Article 28 – Freedom from attending religious instruction or worship in certain educational institutions
    • Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
    • Article 16 – Equality of opportunity in matters of public employment
    • Article 19 – Protection of six rights related to freedom – (a) of speech and expression; (b) to assemble peaceably and without arms; (c) to form associations or unions; (d) to move freely throughout the territory of India; (e) to reside and settle in any part of the territory of India; and (f) to practice any profession, or to carry on any occupation, trade or business
    • Article 29 – Protection of language, script and culture of minorities
    • Article 30 – Right of minorities to establish and administer educational institutions

     

     

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  • Electoral democracy vs constitutional democracy: Post-poll lessons

    Context

    The recently concluded assembly elections have some larger implications that we need to take note of. The consequences are not confined to the five states where the electoral battle was fought.

    Undermining of non-electoral dimensions of democracy

    • In much of the world, the electoral aspects of democracy are now being used to undermine the non-electoral dimensions of democracy.
    • Today, such contradictions exist in Turkey, Poland, Hungary, Russia, to name just a few countries.
    • A freely conducted vote can thus be used to cripple the other freedoms that modern democracies also value.

    How electoral democracy can be a vehicle of assault on constitutional democracy

    • The triumph of such politics can now be used in three ways — in executive decrees, in legislative chambers to formulate laws, and on the street via vigilante forces.
    • Though minority rights are enshrined in India’s Constitution, election victories can now be used to create laws, or government policies that begin to attack precisely those rights.
    • Role of judiciary: The courts are the final custodian of constitutional proprieties in a democracy and can frustrate a legislative or executive attack on the Constitution.
    • But that depends on whether the judiciary is willing to play its constitutionally assigned role.
    • Judicial interpretation can go either way – in favour of the government or against it.

    Contradictory aspects of democracy from other parts of the world

    • These contradictory aspects of democracy do have older roots.
    • We can go all the way back to some tendencies that emerged in the democracy of America’s southern states in the 1880s, which lasted till the 1960s.
    • America’s Blacks lost their equality as well as franchise, and the courts did not invalidate a majoritarian attack on their rights.
    • The history of 1930s Germany is also viewed as an example of how democracy undermined democracy.
    • As early as the 1950s, Sri Lanka imposed a “Sinhala only” policy on the Tamil minority of the country.
    •  In the 1980s, a civil war was born as a consequence.
    • In Malaysia, following roughly similar policies, the Malay majority sidelined the Chinese minority.
    • Internal tensions and aggravations rose but, unlike Sri Lanka, a civil war did not.
    • The minorities pursued their interests by entering into coalitions with political parties within the larger parameters of the polity.

    Consider the question “How the electoral aspect of the democracy can affect the non-electoral aspect of the democracy. What are the implications of such phenomenon for the democracy?”

    Conclusion

    This process can be called the battle between electoral democracy and constitutional democracy. Processes internal to the democratic system can severely weaken democracy itself, even causing its collapse.

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  • Sealed cover’ jurisprudence is appalling

    Context

    A Division Bench of the Kerala High Court has dismissed the appeal filed by a television channel. The trouble emanating from the judgment is that the state need not even show that its security is threatened. It can conveniently choose the ‘sealed cover’ route.

    Background of the case

    • The Ministry had said that the licence could not be renewed for reasons related to national security.
    • The stand of the Government was endorsed by both the Single and Division Benches of the High Court.
    •  In the judgment of March 2, the Division Bench said: “It is true that the nature, impact, gravity and depth of the issue is not discernible from the files.
    • Still, the Bench chose to dismiss the appeals by bluntly saying that “there are clear and significant indications impacting the public order and security of the state”.
    • All that is necessary to ban a news broadcaster are these ‘indications’ — which are never revealed to the broadcaster.

    Issues with the judgement

    1] Violation of the fundamental rights

    • A whole set of rights are directly hit by the ban. The first is the  right to freedom of speech and expression of the television channel.
    • The rights to association, occupation and business are also impacted.
    • Moreover, the viewers also have a right to receive ideas and information.
    • All these rights are altogether suspended by the executive. The only contingency in which these rights under Article 19(1) can be interfered with are reasonable restrictions under Article 19(2).
    • The judgment creates a situation that endorses the breach of fundamental rights on the one hand, and blocks remedy for the victim through a court of law and a process known to law on the other hand.

    2] Takes away the power of judicial review

    • India’s Constitution does not give a free hand to the executive to pass arbitrary orders violating such rights.
    • Basic feature of the Constitution: The Supreme Court of India has repeatedly held that judicial review of executive action is the basic feature of the Constitution.
    • The decisions in Minerva Mills vs Union of India (1980) and L. Chandra Kumar vs Union of India (1997) reiterated this fundamental principle.
    • Test of reasonable restriction: If the executive wishes to limit rights — in this case, censor or restrict speech — it must show that the test of reasonable restrictions is satisfied.
    • The ‘sealed cover’ practice inverses this position.

    3] Lack of examination of national security ground

    • There was no examination of the national security plea based on the proportionality analysis, well established in our recent jurisprudence.
    • Also, when a three-judge Bench in the Pegasus case ( Manohar Lal Sharma vs Union of India, 2021) has categorically held that the state does not get a “free pass every time the spectre of ‘national security’ is raised”.

    Proportionality analysis

    • In Modern Dental College vs State of Madhya Pradesh (2016), the top court adopted the proportionality test “a limitation of a constitutional right will be constitutionally permissible if:
    • (i) it is designated for a proper purpose
    • (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose;
    • (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally
    • (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right”.
    • This was reiterated in K.S. Puttaswamy vs Union of India (2017).

    Conclusion

    The MediaOne case might create a real problem area that needs resolution by the Supreme Court.

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  • Women and Politics

    Context

    For a proper appraisal of the relations between gender and democracy, we ought to examine the links between violence, representation, and the political participation of women.

    Role of women in South Asian democracy

    • Historically, one of the peculiar paradoxes of South Asian democracy has been the continued presence of strong women leaders at the executive centre coupled with a generally appalling condition of women in society at large.
    • South Asia has had the largest number of women heads of state — including Sirimavo Bandaranaike, Chandrika Kumaratunga, Indira Gandhi, Khaleda Zia, Sheikh Hasina, and Benazir Bhutto — of any region in the world till recently.
    • Under-represented: While women have played very visible and important roles at the higher echelons of power and at the grassroots level in social movements, they have been under-represented in political parties as officials and as members of key decision-making bodies.

    Electoral representation of women in India

    • In India, women currently make up 14.6 per cent of MPs (78 MPs) in the Lok Sabha, which is a historic high.
    • Although the percentage is modest, it is remarkable because women barely made up 9 per cent of the overall candidates in 2019.
    • In electoral representation, has fallen several places in the Inter-Parliamentary Union’s global ranking of women’s parliamentary presence, from 117 after the 2014 election to 143 as of January 2020. 
    • In terms of electoral quotas, there were two outstanding exceptions in the 2019 general elections.
    • Voluntary parliamentary quota: West Bengal under Mamata Banerjee and Odisha under Naveen Patnaik opted for voluntary parliamentary quotas, fielding 40 per cent and 33 per cent women candidates, respectively.

    Growing turnout of women voters and its implications

    • Assertion of citizenship rights: In 1962, the male voter turnout in India was 16 percentage points higher than for women. Six decades later, in the 2019 Lok Sabha elections, women’s participation exceeded that of men for the first time.
    • This suggests an increasing assertion of citizenship rights among women.
    • The growing turnout of women voters could influence political parties’ programmatic priorities and improve their responsiveness to women voters’ interests, preferences, and concerns, including sexual harassment and gender-based violence.
    • Women-centric schemes: The state government in Bengal ran and highlighted many women-centric schemes that potentially played a central role in their victory.
    • The central government must be commended for its achievements in two areas in particular: Its DBT schemes such as the Pradhan Mantri Vaya Vandana Yojana and the Pradhan Mantri Surakshit Matritva Abhiyan.
    • As a result, maternal mortality rate has reduced from 167 (2011-13) to 113 (2016-18).
    • The Maternity Benefit (Amendment) Bill, 2017 is another landmark achievement that extended the paid maternal leave to 26 weeks from the existing 12 weeks.

    Way forward

    • Government must use its parliamentary majority to finally pass the Women’s Reservation Bill, as was promised in their 2014 election manifesto.
    • Until that happens, the initiative taken by the governments of Banerjee and Patnaik to increase women’s parliamentary presence must serve as an inspiration to other Indian states.

    Conclusion

    The extent to which parties represent women and take up their interests is closely tied to the health and vitality of democratic processes.

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  • Highlights of the Democracy Report 2022

    A Sweden-based institute has said that India is no longer an ‘electoral democracy’, classifying the country as an ‘electoral autocracy’ instead.

    About the report

    • The study, titled ‘Democracy Report 2022: Autocratisation Changing Nature?’ states that more than twice as many countries are undergoing Autocratisation as are witnessing democratization.
    • The conceptual scheme takes into account not only the electoral dimension (free and fair elections) but also the liberal principle that democracy must protect “individual and minority rights”.
    • The V-Dem report classifies countries into four regime types based on their score in the Liberal Democratic Index (LDI):
    1. Liberal Democracy
    2. Electoral Democracy
    3. Electoral Autocracy and
    4. Closed Autocracy

    What is the report’s methodology?

    • Since key features of democracy, such as, judicial independence, are not directly measurable, and to rule out distortions due to subjective judgments, V-Dem uses aggregate expert judgments.
    • It gathers data from a pool of over 3,700 experts worldwide who provide judgments on different concepts and cases.
    • Leveraging the diverse opinions, the V-Dem’s measurement model algorithmically.

    The Liberal Democratic Index (LDI)

    • The LDI captures both liberal and electoral aspects of a democracy based on 71 indicators that make up the:
    1. Liberal Component Index (LCI): It measures aspects such as protection of individual liberties and legislative constraints on the executive.
    2. Electoral Democracy Index (EDI): It considers indicators that guarantee free and fair elections such as freedom of expression and freedom of association.
    • In addition, the LDI also uses:
    1. Egalitarian Component Index (to what extent different social groups are equal)
    2. Participatory Component Index (health of citizen groups, civil society organisations) and
    3. Deliberative Component Index (whether political decisions are taken through public reasoning focused on common good or through emotional appeals, solidarity attachments, coercion)

    Highlights of the report

    • The democratic gains of the post-Cold War period are eroding rapidly in the last few years.
    • Autocratisation is spreading rapidly, with a record of 33 countries autocratising.
    • The level of democracy enjoyed by the average global citizen in 2021 is down to 1989 levels.
    • While Sweden topped the LDI index, other Scandinavian countries such as Denmark and Norway, along with Costa Rica and New Zealand make up the top five in liberal democracy rankings.

    What does the report say about India?

    • India is one of the top ten ‘autocratisers’ in the world says the report.
    • The report classifies India as an autocracy (‘electoral autocracy’) rather than a democracy, ranking it 93rd on the liberal democracy index, out of 179 countries.
    • The report notes that India is part of a broader global trend of an anti-plural political party driving a country’s Autocratisation.
    • Ranked 93rd in the LDI, India figures in the “bottom 50%” of countries.
    • It has slipped further down in the Electoral Democracy Index, to 100, and even lower in the Deliberative Component Index, at 102.
    • In South Asia, India is ranked below Sri Lanka (88), Nepal (71), and Bhutan (65) and above Pakistan (117) in the LDI.

    Concerns raised by the report

    • (Communal) Polarisation: The report also points out that “toxic levels of polarisation contribute to electoral victories of anti-pluralist leaders and the empowerment of their autocratic agendas”.
    • Rise of political hate speeches: The report states that measures of polarisation of society, political polarisation, and political parties’ use of hate speech tend to systematically rise together to extreme levels.
    • Misinformation as a policy tool: The report identified “misinformation” as a key tool deployed by autocratising governments to sharpen polarisation and shape domestic and international opinion.
    • Repression of civil society and censorship of media: These were other favored tools of autocratising regimes.
    • Declining autonomy of Election bodies: The report also found that decisive autonomy for the electoral management body (EMB) deteriorated in 25 countries.

    Note: The west uses every nook and corner to bully India in all walks of life. This report is an evidence. It ranks India as more autocratic than Pakistan (where democracy is a namesake joke). Credibility of such reports are definitely questionable. But we as an aspirant have to take cognisance of such reports (but not very seriously).

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  • Issue of handing down the death sentence in a cursory manner

    Context

    Last week, a little over 13 years after the blasts in 2008 (in July) in Ahmedabad, Gujarat, the designated court to conduct a speedy trial decided the fate of 78 of the accused people. Within a week, the court sentenced 38 of 49 people to death.

    The debate on the death sentence

    • The death sentence grants the state the monopoly of violence.
    • This monopoly is justified by claiming that such a step prevents crime or that it is a measure of long-due justice.
    • Use in ‘rarest of rare’ case: Fundamentally, ‘rarest of rare’ is a standard that allows a court of law to use public sentiment as a judicially reliable standard in handing out the death sentence.
    • Proportionality test: India’s carceral criminal jurisprudence requires a court to calculate proportionality between crime and punishment.
    • But a death sentence is a sentence that goes beyond the confines of these calculations to deprive a person of their life — committing an act whose central value itself is immeasurable.
    • The impossibility of reform, the heinous nature of the crime, the shock to the public conscience, none of these things sufficiently justify the right of a fallible institution to take someone’s life.

    Mitigating arguments

    • After the verdict is delivered in any criminal trial, lawyers make what are called ‘mitigating arguments’ — essentially to contextualise the convict as an individual and not as the accused.
    • Unlike other trial stages where a court adjudicates between competing legal identities of an accused, the complainant, etc., in mitigation, the court hears evidence of a person’s humanity. 
    • Hearing mitigating circumstances requires — however temporarily — for the trappings of distance and formality to be stripped away so that a court may see a person instead of a convict.

    The issue in the above case

    • In this case, first, the court orally convicted ‘en masse’ several of the accused instead of declaring the charges proved against them separately.
    • The prosecution argued that the defendants should argue for mitigation before it would even disclose which convicts it intended to seek the death sentence.
    • The role attributed to each of the accused was different.
    • By equating them for mitigation purposes (individual circumstances were unaccounted for and context and circumstances were considered to be the same) and handing down a mass death sentence, the court has only opened the door for greater misuse of a questionable power to end a life without any oversight.

    Conclusion

    A permanent sentence requires us to assume that our institutions are infallible and user-proof. To cast this as a simple ‘penalty’ ignores what it truly does — and did in this case; it negates the individual for the final time.

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  • Anti defection: Related issues

    Context

    In its verdict in the Goa MLAs case, Bombay High Court has misread the 10th schedule of the Constitution, which was meant to prevent horse trading among legislators.

    Understanding the Paragraph (4) of Tenth Schedule

    • Paragraph (4) is an exception to the Tenth Schedule’s main provisions.
    • It operates only when the defectors’ original political party has merged with the party to which they have defected and two-thirds of the members of the legislature belonging to that party have agreed to the merger.
    • Under this provision, the merger of the original political party has to take place first, followed by two-thirds of the MLAs agreeing to that merger.
    • The basic premise of the February 25 judgment is that sub-paragraph (2) is distinct from the parent paragraph, and a factual merger of the original political party is not necessary.
    • This does not square with the content, context and thrust of paragraph (4), which contemplates the factual merger of the original political party — in this case, the INC.
    • The court’s view — the merger of the 10 MLAs of the Congress Legislative Party with the BJP should be regarded as the Congress itself merging with the BJP — goes against the letter and spirit of the Tenth Schedule, paragraph (4) in particular.

    Process for the merger: 2 conditions need to be satisfied

    • 1] Merger alone is not enough: The opening words of sub-paragraph (2) — “for the purposes of sub-paragraph (1) of this paragraph” — clearly mean that to exempt a member from disqualification on account of defection, and for considering this member’s claim that he has become a member of the party with which the merger has taken place, a merger of two political parties alone is not enough.
    • 2] Not less than 2/3 members should also agree: Not less than two-thirds of the members should also agree to such a merger.
    • The lawmakers made it tough for potential defectors to defect.
    •  The words “such merger” make it clear beyond any shadow of doubt that the merger of the original political party has to take place before two-thirds of the members agree to such a merger.
    • The members of the legislature cannot agree among themselves to merge as the court has said, but they can agree to a merger after it takes place.

    Conclusion

    The anti-defection law was designed to eliminate political defection. However, the judgment of the Bombay HC seems to assume that paragraph (4) of the 10th schedule is meant to facilitate defection. This judgment is likely to open the flood gates to defection. The Supreme Court must intervene quickly.

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  • Judiciary needs more HC judges: CJI

    Chief Justice of India N.V. Ramana said there was a need to both increase the number of judges in High Courts and urgently fill existing vacancies.

    Judicial vacancy in India

    • The Indian judiciary faces high vacancies across all levels (the Supreme Court, High Courts, and subordinate courts).
    • Vacancy of judges in courts is one of the reasons for delays and a rising number of pending cases, as there are not enough judges to hear and decide cases.
    • As of today, more than four crore cases are pending across all courts in India.

    Appointing judges to the HC

    • The appointment of the judges to the high courts is governed by Article 217 of the Constitution.
    • In addition to the constitutional provisions, the process of appointments outlined in the Memorandum of Procedure (MoP) is a lengthy one.
    • It is initiated by the Chief Justice of the concerned high court who recommends the nominees to the state government.
    • Ideally, this process should begin six months prior to the occurrence of the vacancy.
    • The state government then sends the recommendation to the Union Law Ministry, which then sends it to the Supreme Court Collegium.

    HC Vacancies

    • The total sanctioned judicial strength in the 25 High Courts is 1,080.
    • However, the present working strength is 661 with 419 vacancies as on March 1.
    • The Supreme Court has been repeatedly conveying to the government its growing alarm at the judicial vacancies in High Courts.
    • Some of these High Courts are functioning only with half their sanctioned judicial strength.
    • On average, the courts suffered at least 40% judicial vacancies.

    Why is there a huge gap?

    Ans. Timeline of appointment is arbitrary

    • Appointments of High Court judges are guided by a memorandum of procedure.
    • As per this memorandum, the appointment process is to be initiated by the concerned High Court at least six months before a vacancy occurs.
    • However, the Standing Committee (2021) noted that this timeline is rarely adhered to by High Courts.
    • Further, in the final stage of the process, after receiving recommendations from the Supreme Court collegium, the executive appoints judges to the High Court.
    • No timeline is prescribed for this stage of the appointment process.

    How many judges do we need?

    • The Law Commission of India (1987) had noted the importance of manpower planning for the judiciary.
    • Lack of adequate number of judges means a greater workload per judge.
    • Thus, it becomes essential to arrive at an optimal judge strength to deal with pending and new cases in courts.
    • Over the years, different methods of calculating the required judge strength for subordinate courts (where the backlog of cases in the Indian judiciary is concentrated) have been recommended:
    Method of calculation Recommendation and its status
    Judge-to-population ratio: Optimum number of judges per million population The Law Commission of India (1987) had recommended increasing this ratio to 50 judges per million people.   For 2020, the judge-to-population ratio was 21 judges per million population.
    Rate of disposal: Number of additional judges required (to clear the existing backlog of cases and ensure that new backlog is not created) based on the average number of cases disposed per judge The Law Commission of India (2014) proposed this method.  It rejected the judge-to-population ratio method, observing that filing of cases per capita varies substantially across geographic units depending on socio-economic conditions.
    Weighted case load method: Calculating judge strength based on the disposal by judges, taking into account the nature and complexity of cases in local conditions It addresses the existing backlog of cases as well as the new flow of cases every year in subordinate courts.     In 2017, the Supreme Court accepted this model.
    Time-based weighted case load method: Calculating the required judge strength taking into account the actual time spent by judges in different types of cases at varying stages based on an empirical study Used widely in the United States, this was the long-term method recommended by the NCMS (2016) to assess the required judge strength for subordinate courts.  It involves determining the total number of ‘judicial hours’ required for disposing of the case load of each court.  The Delhi High Court used this approach in a pilot project (2017- 2018) to calculate the ideal judge strength for disposing of pending cases in certain courts in Delhi.

    Back2Basics:

    What is Collegium System?

     

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  • Enforcement of the Fundamental Duties

    The Supreme Court has asked the Union and the State governments to respond to a petition to enforce the fundamental duties of citizens, including patriotism and unity of the nation, through comprehensive, well-defined laws.

    What did the plea say?

    • The plea emphasized- the need to enforce FD arises from a new illegal trend of protest by protesters in the garb of freedom of speech and expression.
    • This has been increasingly done by way of blocking of road and rail routes in order to compel the government to meet their demands.

    What are Fundamental Duties?

    • The fundamental duties of citizens were added to the constitution by the 42nd Amendment in 1976, upon the recommendations of the Swaran Singh Committee.
    • It basically imply the moral obligations of all citizens of a country and today, there are 11 fundamental duties in India, which are written in Part IV-A of the Constitution, to promote patriotism and strengthen the unity of India.
    • The FDs obligate all citizens to respect the national symbols of India, including the constitution, to cherish its heritage, preserve its composite culture and assist in its defence.
    • They also obligate all Indians to promote the spirit of common brotherhood, protect the environment and public property, develop scientific temper, abjure violence, and strive towards excellence in all spheres of life.

    Judicial interpretation of FDs

    • The Supreme Court has held that FDs are not enforceable in any Court of Law.
    • It ruled that these fundamental duties can also help the court to decide the constitutionality of a law passed by the legislature.
    • There is a reference to such duties in international instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, and Article 51A brings the Indian constitution into conformity with these treaties.

    Total FDs

    • Originally ten in number, the fundamental duties were increased to eleven by the 86th Amendment in 2002.

    The 10 fundamental duties are as follows:

    1. To oblige with the Indian Constitution and respect the National Anthem and Flag
    2. To cherish and follow the noble ideas that inspired the national struggle for freedom
    3. To protect the integrity, sovereignty, and unity of India
    4. To defend the country and perform national services if and when the country requires
    5. To promote the spirit of harmony and brotherhood amongst all the people of India and renounce any practices that are derogatory to women
    6. To cherish and preserve the rich national heritage of our composite culture
    7. To protect and improve the natural environment including lakes, wildlife, rivers, forests, etc.
    8. To develop scientific temper, humanism, and spirit of inquiry
    9. To safeguard all public property
    10. To strive towards excellence in all genres of individual and collective activities

    The 11th fundamental duty which was added to this list is:

    1. To provide opportunities for education to children between 6-14 years of age, and duty as parents to ensure that such opportunities are being awarded to their child. (86th Amendment, 2002)

     

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  • Sealed Cover Jurisprudence

    Some Parliamentarians and prominent figures have issued a statement expressing discontent over the Kerala High Court’s verdict upholding the transmission ban on a Malayalam news channel.

    What is the news?

    • The channel went off air as the Centre suspended its telecast over “security reasons”.
    • The High Court’s decision was based entirely on the assessment of documents presented by the MHA in a sealed cover.
    • The contents of which were not shared with the news channel.

    What is Sealed Cover Jurisprudence?

    • It is a practice used by the Supreme Court and sometimes lower courts, of asking for or accepting information from government agencies in sealed envelopes that can only be accessed by judges.
    • A specific law does not define the doctrine of sealed cover.
    • The Supreme Court derives its power to use it from Rule 7 of order XIII of the Supreme Court Rules and Section 123 of the Indian Evidence Act of 1872.

    Nature of the power: Upholding Secrecy

    • If the Chief Justice or court directs certain information to be kept under sealed cover or considers it of confidential nature, no party would be allowed access to the contents of such information.
    • There is an exception to this if the Chief Justice himself orders that the opposite party be allowed to access it.
    • It also mentions that information can be kept confidential if its publication is not considered to be in the interest of the public.
    • As for the Evidence Act, official unpublished documents relating to state affairs are protected and a public officer cannot be compelled to disclose such documents.

    Grounds of such secrecy

    Other instances where information may be sought in secrecy or confidence is when its publication:

    1. Impedes an ongoing investigation
    2. Details which are part of the police’s case diary or
    3. Breaches the privacy of an individual

    Prominent cases of sealed jurisprudence

    Sealed cover jurisprudence has been frequently employed by courts in the recent past.

    (1) Rafale Deal

    • In the case pertaining to the controversial Rafale fighter jet deal, a Bench headed by CJI Ranjan Gogoi in 2018, had asked the Centre to submit details related to deal’s decision making and pricing in a sealed cover.
    • This was done as the Centre had contended that such details were subject to the Official Secrets Act and Secrecy clauses in the deal.

    (2) Bhim Koregaon Case

    • In the Bhima Koregaon case, in which activists were arrested under the Unlawful Activities Prevention Act.
    • The Supreme Court had relied on information submitted by the Maharashtra police in a sealed cover.

    Criticism of such acts

    • Critics of this practice contend that it is not favorable to the principles of transparency and accountability of the Indian justice system.
    • It stands in contrast to the idea of an open court, where decisions can be subjected to public scrutiny.
    • It is also said to enlarge the scope for arbitrariness in court decisions, as judges are supposed to lay down reasoning for their decisions.
    • Besides, it is argued that not providing access to such documents to the accused parties obstructs their passage to a fair trial and adjudication.

    How has judiciary responded to this?

    • In the 2019 judgment in the case of P Gopalakrishnan V. The State of Kerala, the Supreme Court had said that disclosure of documents to the accused is constitutionally mandated.
    • This is possible even if the investigation is ongoing and said documents may lead to breakthrough in the investigation.