Justice must be open, not opaque

The growth of the jurisprudence of the “sealed cover” – which effectively involves the Court in a secret dialogue with (in most cases) the State – is a disturbing trend. We all understand that in a democracy, there is a small set of acts that the State must undertake in secrecy: military strategy, correspondence involving negotiating positions in international trade talks, and diplomatic relations, all fall within this set.

Last week, the newswires were abuzz with how a bench of the Supreme Court, headed by Chief Justice Ranjan Gogoi, asked the government to produce the details of the Rafale deal’s decision-making process in “a sealed cover”. This is not the first time that the Chief Justice has asked for material in a sealed cover: in the ongoing case about the updation of the National Register of Citizens in Assam, reports of the State Coordinator have been shared “confidentially” with the court, with neither the government nor the affected parties being allowed to look at them. The “sealed cover” was also at play in the recent, high-profile hearings involving the Judge Loya investigation, as well as the challenge against the Bhima-Koregaon arrests.

The growth of the jurisprudence of the “sealed cover” — which effectively involves the court in a secret dialogue with (in most cases) the State — is a disturbing trend. We all understand that in a democracy, there is a small set of acts that the State must undertake in secrecy: military strategy, correspondence involving negotiating positions in international trade talks, and diplomatic relations, all fall within this set. For obvious reasons, these are also domains that are traditionally believed to be outside the domain of the courts: the manner in which the Executive conducts trade talks or foreign relations cannot be litigated in a courtroom.

The character of the judiciary, however, is very different from the character of the Executive. Alone among the three wings of State, the judiciary is bound by the requirement that for every judgment or order that it passes, it must give reasons — reasons that are open to public scrutiny. The work of the courts is the work of public reason. This is what gives the phrase “open justice” its resonance: the dealing of justice must, at all times, be transparent and subject to public scrutiny. That is what separates justice under the Constitution from the firmans of an emperor.

This does not mean, of course, that there can never be secrecy in the courts. The names of sexual assault survivors are often redacted to protect their privacy, and in-camera trials perform the same function. In those cases, however, there are powerful, counterveiling individual rights at stake: the rights to privacy and a fair trial. There might also be cases of necessity: for example, when the outcome of an election is challenged, the court often asks the parties to hand over the results of the election in a sealed cover, until the final judgment. This, too, is uncontroversial.

The logic of the sealed cover in cases such as the NRC, however, is different: here, the court seems to be operating on the presumption that certain information is too “sensitive” for public scrutiny, and that therefore, it is only the court that is entitled to see it, and to decide. This is deeply problematic: not only does it violate the principles of open justice described above, but it also infantilises the public. Here, the court assumes the role of a universal guardian, the only entity that is capable of wisely and maturely processing the “sensitive” information, which cannot be revealed to the public — and taking a decision on it. When, as in the NRC case, this directly affects peoples’ rights (such as, for example, a decision on which documents can be used to prove citizenship), it is even more problematic: individual rights are effectively being made subject to a court-driven secret and opaque process.

That Indians are too immature to exercise their own rights, and must be governed from above by wiser and benevolent rulers, was the logic of the old colonial regime. This logic was repudiated when India attained independence, and the Constitution came into being. The framers of the Constitution reposed their faith in the people of India: not only did they recognise a right of universal adult suffrage (thus making the people the guardians of their own destiny), but the Constitution as a whole replaced a culture of authority with a culture of justification, where every exercise of public power must be justified to its citizens.

The jurisprudence of the sealed cover — especially when it is utilised in crucial constitutional cases such as the NRC, where the basic rights of millions are at stake — threatens the constitutional values of open justice and the culture of justification. There should be no doubt about this: once the Court admits the case — thereby acknowledging that it is beyond the domain of “reasons of State” and subject to judicial scrutiny — openness must be the universal norm.

Gautam Bhatia is an advocate in the Supreme Court

Source: Hindustan Times, 19/10/2018