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How to safeguard the open justice principle

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The last few weeks have witnessed a move by the Supreme Court (SC) against the practice of some parties, usually governments and official agencies, submitting material and affidavits in sealed envelopes, either without giving a copy to contesting parties or redacting to the point of incomprehensibility, thereby denying others an opportunity to scrutinise or rebut its arguments in key cases.

Hearing a criminal appeal against the Bihar government on March 15, Chief Justice of India NV Ramana remarked, “Please do not give sealed cover reports in this court. We will not accept it”. Later the same day, justice DY Chandrachud, while hearing an appeal against the Centre’s ban on the MediaOne channel, said, “I am very averse to what is called the sealed cover jurisprudence.” He observed that the court would be examining the larger issue of sealed cover jurisprudence.

Reading the headlines the next morning, I recalled the words of Lord Atkinson in defence of openness in courts: “…in the public trial is to be found, on the whole, the best security for the pure impartial and efficient administration of justice, the best means for winning for it public confidence and respect.”

The SC’s concerns are not unique or case specific, but in the context of an ongoing legal debate on the practice, which has been allowed even in some constitutional cases, involving challenges to State action and fundamental rights violations. In some instances, this has not been accompanied by any judicial determination justifying such a recourse.

A glaring illustration is the National Register of Citizens case. While the declared aim of the Assam government was to check illegal cross-border migration and deport non-citizens, the court held an in-chamber presentation of reports by state officials, excluding litigants, stakeholders and the public, and approved a new method of determining citizenship — family tree verification, under which people had to furnish proof of parentage and blood relations. No opportunity was afforded to debate, challenge or question this method. In a largely rural country with migrant populations and scanty public records, proving a genealogical family tree became a formidable challenge.

Similarly, in a matter alleging corruption in defence procurement of fighter aircraft, pricing details, which were at the core of allegations, were permitted by the court to be submitted in sealed cover. In the electoral bonds case, the court directed political parties to furnish details of these bonds in sealed cover to the Election Commission. Ousting the public and the press from court proceedings by resorting to “sealed covers” and “confidential reports” derogates from the principles of open justice and is perilous to the justice delivery system as it erodes public confidence in the judicial process.

Even though the principle of open justice enjoys constitutional status in India, there is no doubt that it is not absolute and exists in tension with individual and corporate assertions of privacy and confidentiality, and State claims of national interest and national security. Such forces, however, should not overwhelm the objectives of open justice, namely, to protect individuals from the exercise of arbitrary power by the State, secure freedom of expression and ensure that judges act in accordance with law, probity and evidence.

In a trias politica (separation of powers) model, open justice is a key source of public information about, and a check on, legislative and executive actions. Exceptions should be restricted only to those situations where an open court would undermine the object and purpose of a hearing. Further, in consonance with the idea of the culture of justification, according to which each individual is a justificatory agent, every departure must necessarily be based on judicial evaluation and determination of whether interest of justice would be better served by concealment or disclosure. Understandably, the executive is reluctant to limit its right to claim privilege. It rests with the judiciary alone to develop a consistent position on the limits of open justice by laying down guidelines to prevent ad hocism and arbitrariness. And, the welcome move by the SC shows promise for change.

Samarth Krishan Luthra is a lawyer practicing in Delhi and currently studying at Columbia University The views expressed are personal



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