SUMAN K SHRIVASTAVA
Ranchi, May 23: The spotlight is back on the controversial practice of seeking and accepting investigation reports from government agencies in a sealed envelope that can only be perused by the judges.
The Supreme Court is set to take up the Jharkhand Government’s plea tomorrow challenging the Jharkhand high court to accept the Enforcement Directorate’s preliminary reports in a sealed cover with regards to the investigation into the shell companies and illegal mining involving Chief Minister Hemant Soren, his close family members, and associates.
These materials, according to the ED, have been gathered while it was probing the rural job scam committed by suspended Mining Secretary Pooja Singhal.
Notably, the Jharkhand High Court is hearing a bunch of PILs related to the MGNREGA scam involving Singhal, shell companies, and a mining lease involving Chief Minister Hemant Soren, his close family members, and associates.
Advocate General Rajiv Ranjan says that there is no FIR with regard to the shell companies. “Still, the ED is using the materials of other cases in this case. Therefore, we are opposing it,” he added.
“Moreover, the ED should not have submitted its report in a sealed cover. Even if it was submitted the high court should not have perused it. So, we have taken a plea that this court should not hear this case,” he added.
Critics of the sealed cover practice say that it prevents parties from having a full overview of the charges against them, and it is not compatible with the idea of an open court and a transparent justice system. Courts are bound to set out reasons for their decisions, and legal experts argue that not disclosing them leaves scope for arbitrariness in judicial decisions. It also takes away the opportunity to analyse judicial decisions, and to appreciate the rationale behind them.
Over the years, the Supreme Court has relied on information in sealed covers in several significant cases. In the cases related to the National Register of Citizens (NRC) in Assam, the court asked the then state coordinator Prateek Hajela to submit periodic reports in sealed covers, which were not disclosed even to the government. Sealed covers also had roles in the BCCI reforms case, the Rafale case, and the case seeking the quashing of FIRs in the Bhima Koregaon case.
However, the Apex court, in recent days, has discouraged this practice. In several of its judgements, the Supreme Court was critical about how the government and its agencies file reports in sealed envelopes directly in court without sharing the contents with the opposite party.
Legal experts, however, said that the sealed cover practice might be discouraged as a normal practice. “But in the present case, the suspects are in power. All the evidence is in their custody. So, they can tamper with them if they come to know them during the investigation. So, it will not be correct to hand over the materials which have been gathered during the investigation of other cases,” they added.
“Moreover, if the court finds the materials are sufficient for a thorough probe from a competent agency, nobody should restrict the court from passing an order,” they maintained.
According to legal experts, the court asks for information in sealed covers in two circumstances: when information is connected to an ongoing investigation, and when it involves personal or confidential information. Disclosure of information linked to an ongoing investigation could impede the investigation, and the disclosure of personal or confidential information could violate an individual’s privacy or result in breach of trust.
According to the petitioner’s counsel Rajiv Kumar, Kapil Sibal, representing the Jharkhand Government, referred to the Supreme Court order on May 19 delivered in S P Velumani case delivered the day the Jharkhand High Court was hearing the PILs. “But the order was related to a concluded investigation and not the ongoing one as it is happening in Jharkhand,” he argued.
ED’s lawyer Tushar Mehta also relied on the Supreme Court’s order in the P Chidambaram case while refusing to share findings with the Jharkhand Government.
What did the court say in Chidambaram’s case?
While maintaining that the court can seek information in sealed covers and pursue them “to satisfy its conscience that the investigation is proceeding in the right lines and for the purpose of consideration of grant of bail/anticipatory bail etc.,” it cannot rely on such information to make its decision, the court said.
It noted that in deciding on bail, it had “consciously refrained from opening the sealed cover and perusing the documents”.