Justice must be open, not opaque
UNLIKE THE OTHER TWO WINGS OF STATE, THE JUDICIARY IS BOUND BY THE REQUIREMENT THAT FOR EVERY JUDGMENT OR ORDER THAT IT PASSES, IT MUST GIVE REASONS — REASONS THAT ARE OPEN TO PUBLIC SCRUTINY
on the presumption that certain information is too “sensitive” for public scrutiny, and that therefore, it is only the court that is entitled to see it, and to decide. This is deeply problematic: not only does it violate the principles of open justice described above, but it also infantilises the public. Here, the court assumes the role of a universal guardian, the only entity that is capable of wisely and maturely processing the “sensitive” information, which cannot be revealed to the public — and taking a decision on it. When, as in the NRC case, this directly affects peoples’ rights (such as, for example, a decision on which documents can be used to prove citizenship), it is even more problematic: individual rights are effectively being made subject to a court-driven secret and opaque process.
That Indians are too immature to exercise their own rights, and must be governed from above by wiser and benevolent rulers, was the logic of the old colonial regime. This logic was repudiated when India attained independence, and the Constitution came into being.
The framers of the Constitution reposed their faith in the people of India: not only did they recognise a right of universal adult suffrage (thus making the people the guardians of their own destiny), but the Constitution as a whole replaced a culture of authority with a culture of justification, where every exercise of public power must be justified to its citizens.
The jurisprudence of the sealed cover — especially when it is utilised in crucial constitutional cases such as the National Register of Citizens , where the basic rights of millions are at stake — threatens the constitutional values of open justice and the culture of justification. There should be no doubt about this: once the Court admits the case — thereby acknowledging that it is beyond the domain of “reasons of State” and subject to judicial scrutiny — openness must be the universal norm.
Gautam Bhatia is an advocate in the Supreme Court The views expressed are personal