Need safeguards against 'state' violence

The use of sealed envelopes in court proceedings for a court to examine material that is not available to all parties before it, is now part of drawing room conversation in India. The Supreme Court’s ruling in the Rafale litigation was substantially based on a reading of material presented to the court by the government in a sealed envelope with the other parties not having a chance to review the content, or to present arguments on it. 

The court appears to have taken at face value the document presented in a sealed envelope. In a nutshell, the court believed that the matter had been examined by the Comptroller and Auditor General of India (CAG) while the government seeks to clarify that it had intended to convey in the sealed envelope that the matter would be examined by the CAG in future. The resultant controversy has brought to the fore of public discourse the very fact that material could be handed over in sealed envelopes to the exclusion of parties involved in the litigation. 

Elsewhere in the world, particularly, in the United Kingdom (UK), from which we have inherited our common law principles of justice, equity and good conscience, handing over sealed envelopes behind the back of litigants in the very same proceedings, is considered reprehensible. In India, however, it is par for the course. Lawyers involved in regulatory litigation are routinely faced with such practices.  

Every judicial or quasi-judicial forum is expected to place on par all parties to the litigation it presides over. A court hears arguments from all parties concerned on all the material before the court, and is meant to judiciously take a decision on the submissions from all parties on all aspects of the material. A fundamental principle of natural justice is that a person against whom an allegation is made, whether civil or criminal, must know all the material relevant to the allegation — not just material that would support the allegation but also material that would undermine the allegation. Likewise, it would follow that every piece of material on which any argument taken in defence is based, must be made available to the party levelling the allegations.

A departure from this principle is considered such a serious matter that in 2013, the UK made explicit legislation to closely regulate the circumstances in which a “closed material procedure” (CMP) may be used. The idea was to deal with claims for damages made against the state for having acted illegally. CMP is prohibited in criminal matters — it is not acceptable at all to convict anyone of a crime without the accused getting all the relevant material herself, which material in any case depends on the probity expected from the office of the public prosecutor. It may only be sought in civil proceedings. If the court allows a CMP, it would have to appoint an independent special lawyer (different from the party’s lawyer) who would address the court on the relevance and implications of such closed and hidden material.

The CMP has come up for review by the UK Supreme Court twice in recent years. Just last year, the court heard an appeal against a lower court’s order permitting a CMP in a case where a senior intelligence officer was accused of illegally handing over two individuals to Libyan authorities, leading to their torture. The Crown refused to prosecute the intelligence officer. The parties settled the dispute but the Supreme Court laid down the law with a 3:2 majority ruling — essentially, that a claim for damages relating to a criminal matter may seem like civil litigation, but the underlying matter being criminal, CMP could not be resorted to. If the accused intelligence official were to be tried in a criminal court, there would have been no resort to a CMP. Therefore, in a civil proceeding involving the same matter, there should be no resort to such a procedure.

A few years ago, in the case of Bank Mellat’s London business, which was ruined by the UK Treasury’s directions to freeze its assets on the ground that nuclear sanctions imposed on Iran were capable of being violated, the government tried to use CMP to defend itself. The Supreme Court treated CMP as a vice and refused to continue sitting beyond the few minutes it spent considering the material sought to be hidden. In a nutshell, if Bank Mellat was not given sufficient disclosure of material to enable it to not merely deny allegations but effectively refute allegations, requirements of fair trial would stand vitiated.

In any society, the state has monopoly over legitimate violence. The quality of safeguards against such violence is a function of what degree of unfairness would outrage that society. A society that celebrates and makes laudatory movies on “encounters” and has wide following of gurus who philosophise justification of abject violence has a long distance to travel.
The author is an advocate and independent counsel 
Tweets @SomasekharS

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