‘Averse to sealed cover notes’: CJI to govt over OROP arrears

During the proceedings on Monday, the bench returned the confidential documents submitted by the AG but allowed the Centre’s request for additional time to clear OROP arrears.

The Supreme Court must put an end to the sealed cover jurisprudence since it is contrary to the fundamentals of judicial processes and transparency, Chief Justice of India (CJI) Dhananjaya Y Chandrachud said on Monday, as a bench led by him reproached the Union government for trying to give it information in a sealed cover to justify the delay in clearing the dues to army pensioners under the one rank, one pension (OROP) scheme.

The Supreme Court. (PTI)

Even as the court gave the government extended time (till February 28, 2024) to pay the OROP arrears to around 2.1 million army pensioners, the CJI-led bench, refused to accept a document handed over by attorney general R Venkataramani in his endeavour to account for the reasons why the government cannot pay the arrears in one go.

“I am personally averse to sealed covers. The sealed cover jurisprudence is fundamentally opposed to judicial processes. There cannot be any secrecy in judicial proceedings,” said the CJI, flatly refusing to take on record the document after the AG said that he cannot share the document with the counsel on the opposite side.

“Then we will not take this on record. We can understand confidentiality when it relates to safety or life of an individual but what can be the great secrecy in a matter when payment of arrears is concerned? This is not fair on the other side at all,” said the bench, which also included justices PS Narasimha and JB Pardiwala, disapproving of the practice of presenting information to a court confidentially in a sealed envelope or cover.

As Venkataramani said that the document reflects the consideration of the “highest authority concerned” and is “sensitive in nature”, the CJI retorted emphatically: “We want to put an end to this practice of sealed cover jurisprudence in the Supreme Court which will then be followed by the high courts. This is fundamentally contrary to the basic processes of court of law. We want this to end.”

The CJI’s statements on Monday affirmed his disapproval of the practice, which has often attracted criticism over trampling upon the parties’ right to know and for militating against the apex court’s function of public reasoning, transparency and open-court doctrine. On February 17, the CJI turned down the Centre’s “sealed cover” suggesting nominees for a probe committee to look into the Adani-Hindenburg episode, observing that only full transparency can lead to a sense of confidence in the court proceedings. Last year, justice Chandrachud took strong exception to a judicial order from Kerala high court that relied on certain documents submitted in a sealed cover to justify non-renewal of a news channel’s license to telecast.

During the proceedings on Monday, the bench returned the confidential documents submitted by the AG but allowed the Centre’s request for additional time to clear OROP arrears in view of the financial implications of the outlay required to clear the outstanding to the tune of approximately ₹28,000 crores.

Modifying the orders passed in January and February 2023 that set a deadline of March 15 to make the payments, the court on Monday directed that the OROP arrears of 6 lakh family pensioners and gallantry award winners would be settled by April 30 while around 4 lakh army pensioners, who are above 70 years of age, will be paid their dues by June 30. The payments can be made in one go or in a phased manner within the outer time limit, the bench clarified.

For the remaining 11 lakh pensioners, the court directed that arrears be paid in three equal quarterly instalments – by August 30 and November 30 this year, and February 28, 2024.

The government, in its latest application moved on March 18, pleaded for time till March 31, 2024 to clear the dues, adding it has already initiated the process to withdraw the January 20 communication which prescribed the payment of arrears in four half-yearly equal instalments.

The bench, while extending the time, took into account the fact that the ministry of defence (MoD) had taken up the matter with the ministry of finance, which showed its inability to provide the funds in one go on the grounds that borrowing more to enable payment of pension arrears in cash will not only be against fiscal prudence butalso likely have adverse macro-economic implications .

Accepting the government’s arguments, the top court noted in its order: “While the government is duty comply with the judgement of this court to implement OROP, the fixing of time schedule has a significant bearing on the nature of the orders to be passed by this court to ensure compliance.”

It also clarified that the spreading out of payment shall not have any bearing of dues for the purposes of the next equalisation of the pensions for the ex-servicemen.

The Supreme Court order on Monday may mark the end of a protracted battle instituted by an association of ex-servicemen, which was represented in the court through senior advocate Huzefa Ahmadi and advocate Balaji Srinivasan.

By its March 2022 judgment, the top court affirmed the Centre’s November 7, 2015, notification on OROP. The scheme had to be implemented with effect from July 2014 and envisaged a revision every five years.

Subsequently, there were three extensions given to the government by the court. The first extension of three months was granted in June 2022 and the second for the same length of time in September that year. On January 9 this year, the bench directed the government to clear the pension arrears of nearly 2.5 million ex-servicemen by March 15.

However, on January 20, a communication was issued by the ministry, seeking to extend the March 15 timeline by making provision for the payment of arrears in four half-yearly equal instalments.

During the court hearings on February 27 and March 13, the bench expressed its anguish at the January 20 letter and made it clear that any request by the government on further time shall be entertained only after this letter is withdrawn. The court, on these dates, remarked that MoD is not expected to go against the rule of law and that sanctity of the judicial process has to be maintained.

The ministry then moved its application on March 18, apprising the court of the initiation of the process for withdrawal of the January 20 letter while making the further request for granting it additional time to clear the payments.

In December, the Union cabinet headed by Prime Minister Narendra Modi approved the revision of pension of ex-servicemen and family pensioners under the OROP scheme, with effect from July 01, 2019, with arrears to be paid for the period July 2019 to June 2022.

In a media briefing, information and broadcasting minister Anurag Thakur announced on December 23 that the move would benefit more than 2.5 million defence pensioners who would be paid arrears amounting to ₹23,638 crore.

Retired jawans are expected to get OROP arrears amounting to ₹87,000, colonels ₹4.42 lakh and lieutenant generals ₹4.32 lakh.