The Open Society

THIS WAS THE week the sealed cover made a reappearance but, for once, in a salutary way. There was the Supreme Court Chief Justice NV Ramana refusing to accept one with the words, as the legal website Live Law reported: “Don’t give any sealed covers. Keep it with you, I don’t want any sealed cover.” Another court, too, had something to say. The report said: “In a related development, a bench led by Justice Chandrachud indicated today that it will consider the legal tenability of the “sealed cover” process in the MediaOne case.”

The sealed cover flouts ideas of justice as we know it. You expect government agencies to be wary of sharing information because it works in their interest. Any action against anyone must be legal and based on reasoning. But how do the people know if it’s sound if they are not told anything? The judiciary is by default an open institution. Judgments and orders record facts, both sides of an argument, and then spell out why the verdict is what it is. The sealed cover takes away that window of transparency, too, for sunlight to disinfect.

In the MediaOne case, the television channel from Kerala was refused a renewal of licence by the government, which in the high court cited national security along with a sealed cover. MediaOne therefore didn’t know why the action had been taken against it, and obviously could make no counterarguments. The high court upheld the government’s position. The Supreme Court has now stayed it and permitted the channel to air. It is welcome because transparency is both necessary and good. For example, if the airing of MediaOne is a danger to national security, then there is no reason for people to not know it. There is no reason for the government to not tell it. But the Indian state is often too lazy or incompetent to collect hard evidence. Plus, it has a long history of infantilising its citizens, as subjects with no ability to decide what is good and bad, right and wrong. The sealed cover makes the judiciary party to this shenanigan. The term “national security” puts judges on the back foot because they don’t want to take a chance.

But once the Pandora’s box is opened, then something as ominous is not needed anymore. When the Board of Control for Cricket in India committee gave the Supreme Court a sealed cover with names of cricketers who had been named in match-fixing, what national security considerations could have been involved? The idea that the judiciary was a place where it was alright to have private conversations, had become normalised. Hopefully, there is sustained throwback against this mechanism.

Even if there is a role for secrecy in government—which itself is questionable—the judiciary must be the opposite because it is a check on the government. That is why Cabinet ministers take an oath of secrecy and judges do not.

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