A recent judgment by the High Court of Jammu and Kashmir and Ladakh has once again raised questions on what is often referred to as the ‘sealed cover jurisprudence’. But this time it is for different reasons.
The practice of courts relying on secret government documents in “sealed cover” is often frowned upon for making adjudication vague and opaque for litigants but the recent judgment by Justice M A Chowdhary revealing intelligence report classified as “top secret” raises graver concerns, touching upon both – law and national security.
The high court may have rightly sought reconsideration if the decision against renewal of passport to PDP leader Mehbooba Mufti’s octogenarian mother lacked reasons but it may have set a disturbing precedent by going ahead to discuss and quote the intelligence report submitted in sealed cover on the directions of the court.
The disclosure of the contents of the CID Police Verification Report has the potential to expose intelligence officers who may not be able to perform their functions fearlessly and also compromise the ongoing investigation, if any. The judgment clearly discloses that the intelligence report also pertained to Mehbooba Mufti, a political leader with considerable following in the valley. Her name was revealed despite the fact that she was not a party to the case.
The judgment extracts the case numbers referred to in the report and also records that the focus of the investigation was “with regard to some of the transactions regarding some bank accounts maintained by the petitioner either separately or jointly with Ms. Mehbooba Mufti.”
The court, as guardian of fundamental rights, no doubt can summon secret government reports for its perusal but disclosing it without the state waiving its right to keep such reports under wraps is clearly against the mandate of law and prejudicial to national security and maintenance of public order. In the case at hand, there was probably no occasion to discuss the intelligence report when the court in its wisdom finally decided to refer back the matter to the Passport Officer for considering the entire matter and taking a decision afresh.
The judgment lacks clarity on whether the intelligence report was shared with the Petitioner. If it was not shared, it is disturbing to note as to how the Petitioner vehemently argued that “there are no allegations against the Petitioner in the CID report”.
There can be a presumption that the Passport Officer did not apply his mind to the intelligence report if he did not give reasons for refusing renewal of the Petitioner’s passport. But the observation that he should not have acted “as a mouthpiece of the CID” was unwarranted, particularly when the matter was being referred back to him for deciding it afresh and was expected to take a decision without undue pressure.
The authority to take a decision on renewal of passport is the Passport Officer and it cannot be denied that he has to take intelligence report into consideration while taking the decision. The court was apprised of the fact that the process mandated due consideration of the CID report.
Further, the case sets a disturbing trend with an intelligence wing of the government being directly made a party to a writ before the court. The CID had rightly resisted being impleaded as a party in the case.
There are precedents on courts perusing secret government documents produced in sealed cover but they refrain from sharing it with the other party. This, so far, had been the predominant criticism of the sealed cover jurisprudence as the other party would remain unaware of the reasons for the judgment. The criticism has also been from within with the Supreme Court itself criticizing the sealed cover procedure as making adjudication vague and opaque.
Despite criticism, the courts have often pierced the veil by perusing for itself documents claimed to be secret to ensure justice in deserving cases. However, it has respected the spirit behind the law by not revealing classified secret documents unless the government itself waives the right and agrees to disclose it to any party.
The Supreme Court rules permit keeping of a document or information of confidential nature under sealed cover. This facilitates honouring the mandate of section 123 of the Evidence Act which bars giving of evidence derived from unpublished official records relating to affairs of state.
The sealed cover jurisprudence has survived criticism over the years on account of the balance which is maintained by ensuring justice without compromising with confidentiality. Such judgments will only sound the death knell for the innovative method ushered in for delivering justice.