Sealed Cover Jurisprudence and Fair Trial



The legal maxim “Lex uno ore omnes alloquitur” translates as “the law speaks to all through one mouth,” which means that all persons are treated equally under the law or all are equal in the eyes of the law. Article 14 of the Constitution exclusively provides equality before the law. Conducting a fair trial is an important facet of the law to ensure this equality as guaranteed under the constitution.

When before the court of law any documentary evidence is produced in a sealed cover, then it is for the court to establish a delicate balance between two conflicting interests. In many prominent cases, documents were produced in sealed covers before the Hon’ble Supreme Court by the state agencies.

In Yashwant Sinha and Ors. v. Central Bureau of Investigation through Director and Anr. (Review Petition (Crl.) No.46 of 2019), popularly known as the Rafale jet deal case, the Hon’ble Supreme Court had asked the central government to send information about how the agreement was decided and its price in a sealed cover. This was carried out since the center had argued that such information was covered by the Official Secrets Act 1923.

Romila Thapar and Ors v. Union of India and Ors, (Writ Petition (criminal) NO. 260 OF 2018), a case where activists were detained under the Unlawful Activities Prevention Act. The Maharashtra police provided information in a sealed cover to the court.


Sealed cover Jurisprudence is the procedure of producing documentary evidence or furnishing information before the Hon’ble Court in a sealed cover envelope so that the content is accessible only to the Hon’ble Judges. This method is generally adopted by the government or its agencies.

The right to a fair trial is a constitutional mandate as well as a principle recognised in international human rights law. A fair trial is an indispensable part of the administration of criminal justice in any country; its failure results in miscarriages of justice, mockery of the trial procedure, and the collapse of people’s faith in the justice system.

A fair trial is a trial that is conducted with all procedural regularity in an atmosphere of judicial calm before an impartial judge, where all possibilities of bias and prejudice against any of the parties are eliminated. In the realm of international law, major features of a fair trial are primarily encapsulated in the 1948 Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.


The practise of accepting information in sealed form by the Hon’ble Courts is primarily derived from and encapsulated in the Supreme Court Rules and the Indian Evidence Act of 1872.

Rule 7 of Order XIII of the Supreme Court Rules states:

“Notwithstanding anything contained in this order, no party or person shall be entitled as of right to receive copies of or extracts from any minutes, letter, or document of any confidential nature, or any paper sent, filed, or produced, which the Chief Justice or the Court directs to keep in sealed cover or considers to be of a confidential nature, or the publication of which is considered to be not in the interest of the public, except under and in accordance with an order specially made by the Chief Justice or by the Court.”

It can be ascertained from Rule 7 of Order XIII that if the nature of the information is confidential and sensitive, the disclosure of which is against the public interest, then it should not be disclosed and allowed to be produced under sealed cover.

Section 123 of the Indian Evidence Act, 1872 states:

“Evidence as to affairs of state. —No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of state, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.”

This section deals with the privilege granted to the state in the context of protecting unpublished official and confidential records of the state. The guiding principle behind Section 123 is that the public interest cannot be compromised. The maxim populi est suprema lex, which literally translates to “regard for the public welfare is the greatest law,” serves as the foundation for Section 123. According to this section, no one is allowed to provide any evidence based on unpublished public records pertaining to state issues. A copy of such an unpublished document may be obtained from the department’s official head, who may also refuse authorization in certain circumstances. This section forbids the disclosure of any proof generated from secret government files as well.

Whether a document falls within the ambit of the expression “unpublished official records” may be decided in accordance with Section 162 of the Evidence Act. Section 123 needs to be read in conjunction with Section 162 in order to determine if the state has made any claims regarding any documents and whether those documents fall under the privilege category. The effect of reading Section 123 with Section 162 is that the final decision is up to the court to determine whether permission should be granted or denied.


In the case of P. Chidambaram vs. Directorate of Enforcement (Criminal appeal NO. 1831/2019, arising out of S.L.P. (Criminal) No. 10493 of 2019 ), it was observed by the Hon’ble Supreme Court that “ it would be against the concept of a fair trial if in every case the prosecution presents documents in sealed cover and the findings on the same are recorded as if the offence is committed.”

In P. Gopalkrishnan vs. The State of Kerala, (Criminal Appeal No. 1794 of 2019 arising out of SLP (Crl.) No. 10189/2018), the Hon’ble Supreme Court pronounced that disclosure of documents to the accused is constitutionally mandated, even if the investigation is ongoing and documents may lead to a breakthrough in the investigation. Non-disclosure of such documents may affect the administration of criminal justice.

In a recent case titled Cdr Amit Kumar Sharma vs. Union of India & Ors.,(Civil Appeal Nos. 841–843 of 2022) the Bench comprising of Hon’ble Mr. Justice Dr. DY Chandrachud and Hon’ble Ms. Justice Hima Kohli observed that “the non-disclosure of relevant material to the affected party and its disclosure in a sealed cover to the adjudicating authority sets a dangerous precedent. The disclosure of relevant material to the adjudicating authority in a sealed cover makes the process of adjudication vague and opaque.”

In the judgement, two major issues pertaining to this practise were emphasized: firstly, it deprives the aggrieved party of the legal right to efficiently and effectively challenge the adjudicating. Secondly, it gives rise to an atmosphere of opaqueness and secrecy, thereby tilting the scales of justice in favour of the party with control of information.


A cogent analysis of various statutes will lead to the inference that the intention of the legislature is always to eliminate arbitrariness, bias, and opaqueness. This is prima facie evident from the scheme of various procedural laws like the Code of Criminal Procedure (1973), through its Section 327, and the Code of Civil Procedure (1908), by virtue of Section 153B, which provides that trials shall take place in an open court. Wherever in the procedural laws discretion is exercised by the learned judges, the reasons are recorded in writing so as to ensure that their decisions are tenable in law, can withhold judicial scrutiny, and no scope for arbitrariness is left behind.

The practise of presenting documents under a sealed cover has far-reaching consequences; it is likely to have an impact on the functioning of the justice delivery system both at the institutional level and at the individual case level.

If in a case the court relies on the information produced before it under a sealed cover and the opposite party has no information about the content, it may cause prejudice to the party as it may deprive the party from preparing and presenting justifiable submissions, and eventually the party may lose equal footing in the case. The principle of natural justice makes it mandatory that evidence is to be shared with both parties involved in the dispute.

However, it cannot be said or made mandatory that all information, records and content, etc. that are relied upon in the case be revealed or disclosed to the public at large. For instance, information that is confidential or of a sensitive nature and has the potential to affect the privacy of individuals, such as the identity of a victim of sexual harassment or a child in conflict with the law, ideally should not be disclosed.

In exceptional circumstances, the amount of sensitive information that is kept concealed should be commensurate with the goal of the non-disclosure. According to the maxim “proportionality stricto sensu,” to be able to justify a limitation on a constitutional right, a definite and proportionate relationship should exist between the advantages reaped by fulfilling the objective and the injury caused to the constitutional right from achieving that object, but it is to be noted that the privilege of non-disclosure should be kept limited only to exceptional cases and it should not become an ordinary course of procedure.


In identifying the extent of fairness in a trial, it is of prime importance to detect all the suspected factors that may make the procedure opaque. Any competent system of administration of justice cannot be supposed to suffer from any latent defect that causes prejudice to any of the stakeholders.

In sum and substance, it can be ascertained that the doctrine of fair trial is integral to the justice delivery system and forms the spine of a just and fair trial. The connotation behind the word “fair” in terms of procedural law is the cardinal aim to realise equality before the law.



Yashwant Sinha and Ors. vs. Central Bureau of Investigation through Director and Anr. ( Review Petition (Crl.) No.46 of 2019 )

Romila Thapar and Ors v. Union of India and Ors, ( Writ Petition (criminal) NO. 260 OF 2018 )

P. Chidambaram vs. Directorate of Enforcement (Criminal appeal NO. 1831/2019, arising out of S.L.P. (Criminal) No. 10493 of 2019 )

P. Gopalkrishnan vs. The State of Kerala, (Criminal Appeal No. 1794 of 2019 arising out of SLP (Crl.) No. 10189/2018)

Cdr Amit Kumar Sharma vs. Union of India & Ors.,(Civil Appeal Nos. 841–843 of 2022)





































Author: Manas Dixit,

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