Those of us who pretend to be in the know are, thankfully, reminded every week of how little we know. It took a landmark judgement last week from the Supreme Court to highlight one of the strangest practices in India’s courts – the ‘sealed cover’ i.e. a bunch of documents that during a court case either the plaintiff or the defendant can hand over to the judge WITHOUT the other side getting to see the documents. Thankfully, the Supreme Court has now struck down this practice.

We learn from this piece in Scroll by Umang Poddar that “The issue of sealed covers has come under the spotlight recently since in several sensitive cases, such as the petitions challenging the Rafale deal on grounds of corruption and the sexual harassment allegations against former Chief Justice of India Ranjan Gogoi, parties submitted information in a sealed cover on the grounds that the information cannot be disclosed to the public….”

The Supreme Court has now highlighted an alternative to ‘sealed cover’ in case one of the parties in the case wants to highlight material to the judge WITHOUT the other side getting to know of the material: “The court also discussed various methods a party could choose to use if it did not want to disclose information to the other party. It said that if there are less restrictive methods than sealed covers, they should be used. One such method is the “public interest immunity” claim where the government can remove any material from proceedings on the grounds that it hurts public interest. In these cases, neither the court nor the parties can rely on those documents during the hearings. This is in contrast to sealed covers where the confidential material is relied on during hearings, but one party does not have access to them.

The public interest immunity case is then taken up separately in “a closed setting” where a “special advocate” is appointed to “represent the interests of the affected party”. The court said that an amicus curiae – an impartial advocate who would assist the court – will be appointed in such cases. They can interact with the affected party and understand their case before the public interest immunity proceedings begin. However, they cannot disclose the material to anyone, including the affected party.

Following this, the court could pass a reasoned order where it will note if any information cannot be relied on due to the public interest immunity proceedings. If required, the court might have to redact confidential information”

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