Bombay HC judge’s decision to reject sealed cover submissions should be the guiding principle for the judiciary

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September 23, 2020 5:20 AM

The decision of Justice Gautam Patel not to allow sealed cover submissions is remarkable—it marks a break with a trend that put transparent judicial decision-making under a cloud.

To that end, Justice Patel’s contention that “anything I can see (as a judge), all parties before me are entitled to see” should be a guiding principle for the judiciary.

The decision of Justice Gautam Patel of the Bombay HC not to allow sealed cover submissions is remarkable—it marks a break with a trend that put transparent judicial decision-making under a cloud. While the practice serves a certain purpose, given the fact that its usage has not been kept narrow by a set of official guidelines, it has been left to the predilection of individual judges.

For instance, it became a favoured instrument of former CJI Ranjan Gogoi, who had accepted/sought sealed cover submissions in multiple cases—from the Rafale matter, where the information, some would argue, was so sensitive that it merited sealed cover submission, to matters that were of wide public interest (the NRC process in Assam, the in-fighting in CBI, the electoral bonds case, etc).

The former CJI had even asked the Election Commission to watch the Narendra Modi biopic that had run into controversy and submit its comments in a sealed cover! Ironically, it was an SC bench that castigated the Delhi HC for accepting sealed cover submissions and relying on these to deny bail to Congress leader P Chidambaram—the SC bench did study the contents of the submissions, but decided in favour of bail.

When sealed cover submissions become routine, they become an instrument for violation of the principle of open and accountable courts. Given it keeps information from parties—on one occasion, the SC refused to share the contents of a sealed cover submission with the Attorney General—it also could violate the principles of natural justice. To that end, Justice Patel’s contention that “anything I can see (as a judge), all parties before me are entitled to see” should be a guiding principle for the judiciary.

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