Redact sensitive portion’: Supreme Court gives a way out of sealed cover affidavits

Redact sensitive portion’: Supreme Court gives a way out of sealed cover affidavits

Context and issue:

Issue: Government regularly files for sealed cover material in the Supreme court without showing it to the general public, particularly the petitioner.

• In matters involving national security, the Supreme Court has recommended an alternative to habitually filing documents in sealed covers.
• The court ruled that the government might redact the private information and provide the petitioners with the rest. This would take care of the petitioners’ “right to know” as well as the state’s worries about “national security.”
• In the recent case SC was hearing the appeal of the telecast ban against Kerala-based Media One TV. The government desired to transmit its confidential documents behind a sealed cover. It refused to divulge the information to the media organisation whose security clearance was terminated in January for reasons of “national security and public order,” without providing any other information.
• The media company contended that submitting information to the court under secrecy would force the judges to accept the state’s account, even in situations where the petitioners’ fundamental rights are at risk and the government’s story is being contested.
• The court has previously allowed sealed covers, despite efforts to adopt the idea of “open court” through live-streaming hearings.
  • In situations including the procurement of Rafale jets, the Bhima Koregaon case, the Assam National Register of Citizens, the Board of Control for Cricket in India, and P. Chidambaram’s anticipatory bail request, sealed covers were without hesitation allowed and even requested. In certain instances, sealed cover even attained the stature of due procedure.
• The habitual handing on of sealed coverings, according to the opposing viewpoint, is an affront to natural justice. Numerous judgments stress the importance of the right to information as a component of the freedom of speech and expression. A democracy that pledges openness and accountability must unavoidably recognise the right of the person to information. The state cannot be allowed to “take away these rights impliedly or in a careless or cavalier manner.”

Supreme Court Cases:

1. In Anuradha Bhasin, the court said sensitive portions in government records “can be redacted or such material can be claimed as privileged, if the state justifies such redaction on the grounds, as allowed under the law”.
2. In the Ram Jethmalani case judgment, the court said the state is obliged to disclose information in cases in which petitioners seek the protection of fundamental rights.
3. In the Chidambaram case, the court held that “it would be against the concept of fair trial if in every case the prosecution presents documents in sealed cover.

What are Open Courts?

• The Open court principle requires that court proceedings presumptively be open and accessible to the public and to the media.
• Open courts are normal court where proceedings of the court are conducted where every person is allowed to watch the proceedings of the court.
• There are instances where it is not practical to accommodate persons other than parties to the proceedings. Therefore, such proceedings are held in camera.
• This means that the proceedings are held in a closed room where the public will not have access to watch the proceedings.
• In criminal cases like rape, it is necessary to protect the identity and modesty of the victim.

Article 142 of the Indian Constitution

• Article 142 allows the Supreme Court to pass any order necessary to do “complete justice” in any case.
• It supplements the powers already conferred upon the Supreme Court under the Constitution to guarantee that justice is done and in doing so the Court is not restrained by lack of jurisdiction or authority of law.
• The phrase ‘complete justice’ engrafted in Article 142(1) is the word of wide interpretation to meet situations created by legal errors or result of operation of statute law or law.
• Thus Article 142 is conceived to give the apex court the powers to meet the situations which cannot be effectively tackled by existing provisions of law.

CONCEPT OF NATURAL JUSTICE

Natural Justice implies fairness, reasonableness, equity and equality. Natural Justice is a concept of Common Law and it is the Common Law world counterpart of the American concept of ‘procedural due process’. Natural Justice represents higher procedural principles developed by judges which every administrative agency must follow in taking any decision adversely affecting the rights of a private individual.

Two Principles of Natural Justice

There are mainly two Principles of Natural Justice. These two Principles are:

1. ‘Nemo judex in causa sua’. No one should be made a judge in his own cause, and the rule against bias.
2. ‘Audi alteram partem’ means to hear the other party, or no one should be condemned unheard.