By Arun Srivastava
This is the highest order of double talk. Union Law Minister Kiren Rijiju who in the past had on several occasions raised the issue of judicial accountability and transparency and had accused the Supreme Court of not following the ethics of transparency and probity in public life, has ventured to flout the basic tenet of transparency by sending the government stand on Adani to the apex court in sealed cover. He had even said “I just want to point out that there are loopholes and there is no accountability. It lacks transparency”.
Through its action the law ministry was denying the peoples’ right to know the government stand in the matter. “We would not accept the sealed cover suggestion because we want to maintain transparency,” Chief Justice of India DY Chandrachud said. “Sealed cover means the other side is not seeing it. The impression will be that it will be a government-appointed committee even though SC appointed it.” The Law ministry of the Modi government ought to have maintained highest order or transparency as its action would have direct bearing on the perception of the people.
At this point it is imperative to recall the statement of Rijiju; “judges don’t have to face elections and they have no public scrutiny, but people still “watch” and “assess” them for the way they deliver justice. In the era of social media, nothing can be hidden from anyone”. This distinctly manifests the double standard of the Modi government.
The bench said, “We will not accept sealed cover suggested names from you (the Centre). We will tell you why. In constituting a committee, we want to maintain full transparency. The moment we accept a set of suggestions from you in sealed cover, it would mean that the other side (petitioners) have not seen it. Even if we do not accept your suggestions, they would not know which of your suggestions we accepted and which we have not. Then, there will be an impression that, well, this is a government appointed committee which the SC has accepted, even when we do not accept your suggestions.”
In the past the governments submitted sealed covers to the apex court. But this was rare exercise. The number of such occasions could be counted on finger tips. But after Narendra Modi took over as the prime minister it has become a regular feature. It is really unfortunate that previous chief justices allowed this practice to acquire a legal procedure. If they had not encouraged this practice, the government must not have dared to dictate the Supreme Court and tried to turn it subservient.
It was after a decade the Supreme Court on February 17 applied the salutary transparency principle and rejected the envelope containing the names of the members who will be on the committee to probe into all aspects of the Hindenburg report. Bench of Chief Justice D Y Chandrachud and Justices P S Narasimha and J B Pardiwala nevertheless made it abundantly clear that it will constitute the committee to seek assistance of investigating agencies and regulatory bodies to fulfil its mandate.
Realising the mood of the bench, solicitor general Tushar Mehta preferred to play safe and said the Centre has nothing to hide. He did not press for inclusion of any of the suggested names in the committee. The CJI-led bench said, “If we have to consider the (Centre’s) suggestions, we have to first disclose them to the other side. Then there will be a sense of transparency and confidence in the process of the court. If you are not in favour of disclosing the suggested names, then trust us to come out with our own names. We will do a little research and come out with the names for the committee’.
When the SG said that the court has to keep in mind market sensitivity while taking a decision on the issue in hand, the bench said, “But you yourself have said that the market impact (from the meltdown of Adani shares) is zero. We are not really on that as according to you there was no impact on the market. Actually, irrespective of the statistical data, there cannot be any denial of the fact that investors have lost huge sums of money because of this incident.”
There is no denying the fact that market regulator SEBI has shut its eyes to this scam. Its claim that it was keeping a watch is a blatant lie. If short seller Hindenburg could come to know of Adanis indulging into stock manipulation and fraud how SEBI did not get these information. It is obvious that it was under instructions from its political masters not to meddle in Adani affair. If a short seller can ask questions, why can’t the regulators? In this backdrop an independent commission poses a potential threat to the political system.
The doctrine of sealed cover is absolutely against the citizens’ “right to know” and is against the Supreme Court’s function of public reasoning. The most tragic aspect of the envelop episode is even the complainant or petitioner is denied his fundamental right to know of the nature and content of the government submission.
Three recent cases on sealed cover jurisprudence are the arrest of five human rights activists for allegedly conspiring to target Prime Minister Narendra Modi (Romila Thapar vs. UOI); the Rafale jet deal (Manohar Sharma vs. Narendra Modi); and another PIL (ADR vs. UOI) alleging that the Modi government’s electoral bonds scheme brings opaqueness and anonymity in political funding and goes against the citizens’ right to know. In all these three cases justice has been denied. All the accused persons in conspiracy against Modi are still languishing in the jails Rafale is in cold storage.
In the Rafale case, the key issue was pricing of the jets and that information was filed in a sealed cover. This is in the true sense against the principles of the Constitution. In the hearing of the Ram Janmabhoomi-Babri Masjid case, basic submissions were filed in a sealed cover. It’s a different story that the chief justice Ranjan Gogoi had questioned the sealed covers since the contents appeared in media even before the judges could see.
An insight makes it clear that sealed covers were used as the instruments to conceal the misdeeds of the politicians, the government or frame someone who is not actually involved in any obnoxious game. There are several instances where sealed cover evidence has been admitted without any sufficient reasoning for the same. In the suspension of the ex-CBI Chief Alok Verma, the Supreme Court stated that the failure to use sealed covers would hamper public trust in the CBI.
Exceptions should not become the norm. What is really intriguing is the cases are presented in such a manner to justify it being a norm. None will say that the information affecting the privacy of individuals as the identity of a sexual harassment victim should be disclosed. But it is a fact that sealed cover procedure has caused irreparable damage to the petitioner or the appellants. (IPA Service)