Special Police Establishment v. Kamta Prasad Mishra
“No Cloak of Secrecy for Anti-Corruption Bodies: Lokayukt's Police Wing Is Not an "Intelligence and Security" Organisation Under the RTI Act”
TL;DR
The Supreme Court held that the Madhya Pradesh Special Police Establishment (SPE) — the police wing that investigates corruption offences for the Lokayukt — is NOT an "intelligence and security" organisation under Section 24(4) of the Right to Information Act, 2005, and therefore cannot claim blanket exemption from the RTI Act. The State Government's Notification dated 25.08.2011, which had excluded the SPE from the RTI Act, was struck down as ultra vires Section 24(4) because the SPE's jurisdiction is limited to investigating corruption and economic offences under the Prevention of Corruption Act, 1988 and Sections 409, 420 and Chapter XVIII of the Penal Code — matters that have nothing to do with intelligence or security. The Court upheld the High Court's direction to supply an accused public servant the information he sought about the process of granting sanction for his prosecution, dismissing the SPE's appeal.
The Bottom Line
An anti-corruption investigating agency cannot wrap itself in the secrecy meant for spy agencies and security forces. The Supreme Court ruled that the SPE, which works under the Lokayukt to catch corrupt public servants, is not an "intelligence and security" organisation, so the State could not validly notify it as exempt from the Right to Information Act. The Court struck down the exemption notification and held that a public servant facing a corruption trap case is entitled to information about how the sanction for his prosecution was granted, because that disclosure did not impede any investigation that was already complete.
Case Timeline
The journey from FIR to Supreme Court verdict
Exemption Notification Issued by State
The General Administration Department of Madhya Pradesh issued a Notification under Section 24(4) of the RTI Act purporting to exempt the SPE of the Lokayukta Organisation and the State Bureau of Investigation of Economic Offences from the RTI Act.
Exemption Notification Issued by State
The General Administration Department of Madhya Pradesh issued a Notification under Section 24(4) of the RTI Act purporting to exempt the SPE of the Lokayukta Organisation and the State Bureau of Investigation of Economic Offences from the RTI Act.
FIR Registered Against Kamta Prasad Mishra
A First Information Report was registered by the SPE, Bhopal, implicating Kamta Prasad Mishra, then Town Inspector at Madhav Nagar Police Station, Katni, in a trap case under the Prevention of Corruption Act, 1988.
FIR Registered Against Kamta Prasad Mishra
A First Information Report was registered by the SPE, Bhopal, implicating Kamta Prasad Mishra, then Town Inspector at Madhav Nagar Police Station, Katni, in a trap case under the Prevention of Corruption Act, 1988.
Sanction for Prosecution Granted
After the investigation was completed and a charge-sheet filed, the Home Department of the State Government granted sanction for Mishra's prosecution under the Prevention of Corruption Act, 1988.
Sanction for Prosecution Granted
After the investigation was completed and a charge-sheet filed, the Home Department of the State Government granted sanction for Mishra's prosecution under the Prevention of Corruption Act, 1988.
RTI Application Filed
Mishra moved an application under Section 6(1) of the RTI Act seeking information about the decision-making process behind the grant of sanction for his prosecution and the Lokayukt's response to his queries.
RTI Application Filed
Mishra moved an application under Section 6(1) of the RTI Act seeking information about the decision-making process behind the grant of sanction for his prosecution and the Lokayukt's response to his queries.
State Information Commission Rejects Appeal
The State Information Commission rejected Mishra's appeal, holding that he was not entitled to the information in view of Section 8(1)(h) of the RTI Act, which exempts information that would impede the process of investigation.
State Information Commission Rejects Appeal
The State Information Commission rejected Mishra's appeal, holding that he was not entitled to the information in view of Section 8(1)(h) of the RTI Act, which exempts information that would impede the process of investigation.
High Court Directs Disclosure
The Madhya Pradesh High Court (Jabalpur) quashed the orders of the PIO and the Commission, holding that since the investigation was complete, Section 8(1)(h) could not be invoked, and directed the SPE to supply the information within 30 days with costs of Rs. 5,000.
High Court Directs Disclosure
The Madhya Pradesh High Court (Jabalpur) quashed the orders of the PIO and the Commission, holding that since the investigation was complete, Section 8(1)(h) could not be invoked, and directed the SPE to supply the information within 30 days with costs of Rs. 5,000.
State Heard on Validity of Notification
The Supreme Court heard the Advocate General and Senior Advocate for Madhya Pradesh on whether the Notification dated 25.08.2011 conformed to Section 24(4) of the RTI Act, granting the State full opportunity to defend the subordinate legislation.
State Heard on Validity of Notification
The Supreme Court heard the Advocate General and Senior Advocate for Madhya Pradesh on whether the Notification dated 25.08.2011 conformed to Section 24(4) of the RTI Act, granting the State full opportunity to defend the subordinate legislation.
Supreme Court Delivers Judgment
The Supreme Court dismissed the SPE's appeal, struck down the Notification dated 25.08.2011 to the extent it excluded the SPE, holding that the SPE is not an "intelligence and security" organisation under Section 24(4), and upheld the High Court's direction to disclose the information.
Supreme Court Delivers Judgment
The Supreme Court dismissed the SPE's appeal, struck down the Notification dated 25.08.2011 to the extent it excluded the SPE, holding that the SPE is not an "intelligence and security" organisation under Section 24(4), and upheld the High Court's direction to disclose the information.
The Story
Kamta Prasad Mishra was serving as Town Inspector at Police Station Madhav Nagar, Katni, in Madhya Pradesh when he came to be implicated by the Special Police Establishment (SPE), Bhopal, in a trap case under the Prevention of Corruption Act, 1988. A First Information Report was registered against him on 11 April 2017. After the investigation was completed and a charge-sheet filed, the Home Department of the State Government granted sanction for his prosecution on 20 May 2020.
Wanting to understand the decision-making process behind the grant of sanction — and the response of the Lokayukt to various queries he had raised — Mishra moved an application on 1 July 2020 under Section 6(1) of the Right to Information Act, 2005, seeking that information. His request was turned down by the Assistant Public Information Officer. He appealed to the Madhya Pradesh State Information Commission, which on 16 December 2020 also rejected his appeal, holding that he was not entitled to the information in view of Section 8(1)(h) of the RTI Act, which exempts information that would impede the process of investigation, apprehension or prosecution of offenders.
Aggrieved, Mishra approached the High Court of Madhya Pradesh (Principal Bench at Jabalpur) in Writ Petition No. 1575 of 2021. The Division Bench found that the investigation in the criminal proceedings against him was already complete, and therefore he could not be denied the information by relying on Section 8(1)(h). By its judgment dated 20 December 2021, the High Court quashed the orders of the Public Information Officer and the Commission, directed the SPE to supply the information sought within 30 days, and imposed costs of Rs. 5,000.
The SPE challenged this direction before the Supreme Court in Criminal Appeal No. 3743 of 2024. For the first time before the Supreme Court, the SPE relied on a Notification dated 25 August 2011, issued by the General Administration Department (GAD) of the State of Madhya Pradesh under Section 24(4) of the RTI Act, which purported to exempt the Madhya Pradesh Special Police Establishment of Lokayukta Organisation (and the State Bureau of Investigation of Economic Offences) from the application of the RTI Act, treating them as "intelligence and security" organisations. This Notification had never been challenged by Mishra in his writ petition. The question that arose was whether the SPE — an agency that investigates corruption offences under the superintendence of the Lokayukt — could be treated as an "intelligence and security" organisation entitled to exemption, and whether the Court could examine the validity of the Notification even though it had not been specifically challenged.
Legal Issues
Click each question to reveal the Supreme Court's answer
Arguments
The battle of arguments before the Supreme Court
Petitioner
Vihaan Kumar
Section 8(1)(h) exempts information likely to impede the process of investigation
The SPE argued that under Section 8(1)(h) of the RTI Act it was exempted from disclosing the information sought by Mishra, since that information was likely to impede the process of investigation of the criminal proceedings initiated against him. Reliance was also placed on Section 207 of the Code of Criminal Procedure, 1973 to urge that at the initial stage of investigation, material collected by the investigating agency could not be sought by an accused.
The SPE is exempt under the Notification dated 25.08.2011
The SPE relied heavily on the Notification dated 25.08.2011 issued by the GAD under Section 24(4) of the RTI Act, contending that by virtue of this Notification the RTI Act was not made applicable to the Madhya Pradesh Special Police Establishment of the Lokayukt Organisation. Since the investigation against Mishra had been carried out by the SPE, it was not permissible to supply him the information sought, as the provisions of the RTI Act were inapplicable.
The Notification was issued on the principle of institutional parity and cannot be examined now
The State of Madhya Pradesh submitted that the Notification dated 25.08.2011 had not been challenged by Mishra in his writ petition and there were no pleadings raised in that regard, so its validity should not be examined for the first time by the Supreme Court. The State Legislature was competent to enact the Lokayukt Act of 1981 under Entries 1 and 2 of List II, and the Notification had been issued keeping in mind the principle of institutional parity. The object behind Section 24 of the RTI Act would be defeated if the State were compelled to furnish exempted information.
Respondent
State of Haryana
No legal impediment to disclosure as investigation was complete
Mishra's counsel argued that Section 8(1)(h) of the RTI Act was not at all attracted to the facts of the case, since the investigation of the offence registered against him under the Act of 1988 was completed and a charge-sheet had already been filed. He had merely sought information about the manner in which sanction was granted to his prosecution and the communications exchanged in that regard. Supply of such information was not likely to impede the process of investigation, so the High Court was justified in directing disclosure.
The SPE is not an "intelligence and security" organisation
It was contended that the SPE, which assists the Lokayukt in carrying out functions under Section 3 of the Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam, 1981, could not be treated as an "intelligence and security" organisation. The SPE is empowered only to investigate offences under the Prevention of Corruption Act, 1988 and Sections 409, 420 and Chapter XVIII of the Penal Code — matters confined to corruption by public servants — and has nothing to do with intelligence or security as contemplated by Section 24(4).
The Notification dated 25.08.2011 is ultra vires Section 24(4)
Since the SPE is not an "intelligence and security" organisation, the Notification that exempted it from the RTI Act travelled beyond the authority conferred by Section 24(4). A subordinate legislation that does not conform to the parent statute under which it is made can be struck down even in the absence of a specific prayer, once the State is given an opportunity to justify it.
Court's Analysis
How the Court reasoned its decision
The Supreme Court approached the case at two levels. First, on the narrow question, it agreed with the High Court that Section 8(1)(h) of the RTI Act could not be invoked to deny Mishra the information he sought, because the investigation against him was complete and disclosure of the process of granting sanction would not impede any investigation. Second, and more significantly, the Court took up the validity of the Notification dated 25.08.2011 that the SPE had relied upon for the first time. After confirming, on the authority of Bihar Rajya Dafadar Chaukidar Panchayat, Bharathidasan University and the established line from Indian Express Newspapers and State of Tamil Nadu v. P. Krishnamurthy, that it could test a subordinate legislation's validity even without a formal challenge — provided the State was heard — the Court examined whether the SPE qualified as an "intelligence and security" organisation under Section 24(4). It analysed the character of the organisations listed in the Second Schedule (the Directorate of Enforcement, CRPF, BSF, CISF, NIA and others), all of which are genuinely concerned with intelligence and national security. By contrast, the SPE, constituted under the Madhya Pradesh Special Police Establishment Act, 1947, derives its limited jurisdiction from notifications under Section 3 confining it to offences under the Prevention of Corruption Act, 1988 and Sections 409, 420 and Chapter XVIII of the Penal Code, and it operates under the superintendence of the Lokayukt, whose jurisdiction (under Section 7 of the Act of 1981) is limited to "allegations" of corruption and misconduct against public servants. The Court drew on the Statement of Objects and Reasons of the 1981 Act and Section 63 of the Lokpal and Lokayuktas Act, 2013 to underscore that the Lokayukt is an anti-corruption ombudsman, not a security agency. It concluded that the SPE cannot be termed an "intelligence and security" organisation, and that the Notification — to the extent it exempted the SPE — did not conform to Section 24(4), was excessive, and was liable to be struck down. The Court expressly left untouched the Notification's operation regarding the State Bureau of Investigation of Economic Offences, which was not before it.
The object behind the provisions of Section 8(1)(h) of the Act of 2005 was that information that was likely to impede the process of investigation or apprehension or prosecution of offenders was not liable to be furnished. The first respondent had merely sought information as to the manner in which sanction was granted to his prosecution... Supply of such information was not likely to impede the process of investigation.
Para 4
Anchors the narrow holding: the Section 8(1)(h) exemption is purpose-bound and does not apply once the investigation is complete and the information sought is about the sanction process rather than investigative material.
Absence of a prayer seeking declaration of invalidity of a piece of subordinate legislation by itself would not deter the Court from testing its validity. Such issue can be examined but after granting opportunity to the concerned authority to justify its validity.
Para 9
Establishes the procedural gateway for the Court's suo motu examination — validity of a notification can be tested even without a formal challenge, so long as the State is given a fair chance to defend it.
It is, thus, clear that organisations referred to in the Second Schedule to the Act of 2005 are specifically concerned with 'intelligence' and 'security', having been constituted by the Central Government with that object in mind. On the other hand, the SPE has been clothed with limited jurisdiction to investigate offences punishable under the Act of 1988, Sections 409, 420 and Chapter XVIII of the Penal Code.
Para 20
Draws the central distinction: genuine intelligence and security bodies versus a corruption-focused investigating agency, demolishing the State's claim of institutional parity.
The statutory scheme under which the SPE stands constituted coupled with the jurisdiction conferred on the Lokayukt or Up-Lokayukt clearly indicate that the SPE cannot be termed to be an 'intelligence and security' organisation when it assists the Lokayukt or Up-Lokayukt in matters specified by Section 7 of the Act of 1981.
Para 20
The decisive conclusion on classification — the SPE's function is anti-corruption enquiry, not intelligence or security, so Section 24(4) cannot apply to it.
The Notification dated 25.08.2011 issued by the GAD of the State of Madhya Pradesh to the extent it seeks to exclude the SPE from the purview of the Act of 2005... is liable to be set aside as being bad in law as it provides for matters not enumerated under Section 7 of the Act of 1947... and is, thus, excessive in nature.
Para 22
States the operative ruling that the exemption notification is ultra vires Section 24(4) and is struck down to the extent it covers the SPE.
The Verdict
Relief Granted
The appeal was dismissed and the High Court's direction to supply the information sought by Mishra under his application dated 01.07.2020 was upheld. The State's attempt to shield the SPE from RTI scrutiny through the 25.08.2011 Notification was rejected, the Notification being struck down to the extent it excluded the SPE. The Court preserved the Notification's operation only with respect to the State Bureau of Investigation of Economic Offences, which was not in issue before it.
Directions Issued
- The High Court's judgment dated 20.12.2021 in W.P. No. 1575 of 2021 directing the SPE to supply the information sought by Mishra was maintained
- The Notification dated 25.08.2011 issued by the GAD, to the extent it sought to exclude the SPE from the applicability of the RTI Act, 2005, was struck down as ultra vires Section 24(4)
- It was clarified that the Court had not examined the applicability of the Notification vis-a-vis the State Bureau of Investigation of Economic Offences, and the Notification would continue to operate to that extent
- Pending interlocutory applications were disposed of
Key Legal Principles Established
The Section 8(1)(h) exemption under the RTI Act applies only where disclosure would impede an ongoing investigation, apprehension or prosecution — once the investigation is complete and a charge-sheet is filed, the exemption ceases to apply to information about the sanction or prosecution process.
An anti-corruption investigating agency that works under the Lokayukt is not an "intelligence and security" organisation within the meaning of Section 24(4) of the RTI Act.
The organisations exempt under Section 24 of the RTI Act are those genuinely concerned with intelligence and national security (such as the ED, CRPF, BSF, CISF and NIA), not bodies whose jurisdiction is limited to investigating corruption and economic offences.
A State Government may exempt only "intelligence and security" organisations from the RTI Act under Section 24(4); a notification exempting a body that does not answer that description is ultra vires the parent provision.
Subordinate legislation does not enjoy the same immunity as a statute and can be struck down if it fails to conform to, or exceeds the limits of authority conferred by, the enabling statute.
A court may examine the validity of subordinate legislation even in the absence of a specific challenge in the pleadings, provided the concerned authority is granted full opportunity to justify it.
The Lokayukt is a statutory anti-corruption ombudsman dealing with allegations of corruption, misconduct and malfeasance by public servants — its character does not transform its police wing into an intelligence or security body.
Even where a notification is partly invalid, the Court may strike it down only to the extent it is bad in law and preserve its operation regarding bodies not before the Court.
Key Takeaways
What different people should know from this case
- Anti-corruption agencies and the Lokayukt's investigating police cannot refuse all RTI requests by claiming to be secret "intelligence and security" organisations.
- If you are an accused public servant and the investigation against you is already over, you can seek information under the RTI Act about how the sanction for your prosecution was granted.
- The RTI exemption for information that would "impede investigation" only applies while the investigation is ongoing — it cannot be used to hide information after a charge-sheet is filed.
- A State Government cannot quietly notify a corruption-fighting agency as exempt from the RTI Act; such a notification can be challenged and struck down by the courts.
- The right to information is meant to bring transparency to government action, and corruption investigations are exactly the kind of matter the law wants kept open to scrutiny.
- If a public information officer wrongly denies you information citing an exemption that does not apply, you can pursue appeals up to the High Court and Supreme Court.
Legal Framework
Applicable laws and provisions
Constitutional Provisions
Article 226
Constitution of India
“Power of High Courts to issue directions, orders or writs for the enforcement of fundamental rights and for any other purpose.”
Relevance: The Court relied on the line of authority (including Bihar Rajya Dafadar Chaukidar Panchayat) recognising that constitutional courts, as sentinels on the qui vive, possess a plenary power to test and declare subordinate legislation invalid, exercisable sparingly and with due care.
Article 207 / Seventh Schedule, List II (Entries 1 and 2)
Constitution of India
“Provisions concerning the introduction of Bills and the legislative competence of State Legislatures over public order and police.”
Relevance: The State invoked Entries 1 and 2 of List II to justify the competence of the State Legislature to enact the Lokayukt Act, 1981 — competence that the Court did not doubt, but which did not save the exemption Notification from being ultra vires Section 24(4) of the RTI Act.
Statutory Provisions
Section 24(4)
Right to Information Act, 2005
“Nothing contained in this Act shall apply to such intelligence and security organisations, being organisations established by the State Government, as that Government may, from time to time, by notification in the Official Gazette, specify; provided that information pertaining to allegations of corruption and human rights violations shall not be excluded.”
Relevance: The central provision. The Court held that only genuine "intelligence and security" organisations may be exempted under this sub-section, and that the SPE — an anti-corruption investigating agency — does not qualify, rendering the exemption Notification ultra vires.
Section 8(1)(h)
Right to Information Act, 2005
“Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen information which would impede the process of investigation or apprehension or prosecution of offenders.”
Relevance: The provision the SPE relied upon to deny disclosure. The Court held it could not apply because the investigation against Mishra was complete and the information sought (about the sanction process) would not impede any investigation.
Sections 2(1) and 3
Madhya Pradesh Special Police Establishment Act, 1947
“Section 2(1) empowers the State Government to constitute a special police force; Section 3 empowers the State Government to specify, by notification, the offences or classes of offences to be investigated by the Special Police Establishment.”
Relevance: The Court examined the notifications issued under Section 3 (culminating in the Notification dated 03.05.2001) and found that the SPE's jurisdiction is confined to offences under the Prevention of Corruption Act, 1988 and Sections 409, 420 and Chapter XVIII of the Penal Code, none of which concern intelligence or security.
Whole Act
Prevention of Corruption Act, 1988
“An Act to consolidate and amend the law relating to the prevention of corruption and for matters connected therewith, providing for the investigation and prosecution of corruption offences committed by public servants.”
Relevance: The offence registered against Mishra and the core subject-matter of the SPE's jurisdiction. The Court emphasised that the SPE exists to prevent corruption involving public servants, not to perform intelligence or security functions.
Sections 2(b) and 7
Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam, 1981
“Section 2(b) defines "allegation" against a public servant (abuse of position, corrupt motives, guilt of corruption, or disproportionate assets); Section 7 specifies the matters that may be enquired into by the Lokayukt or Up-Lokayukt on a complaint or other information.”
Relevance: The Court relied on the limited jurisdiction conferred on the Lokayukt — confined to allegations of corruption against public servants — to conclude that the SPE assisting it cannot be an "intelligence and security" organisation.
Related Cases & Precedents
Bihar Rajya Dafadar Chaukidar Panchayat (Magadh Division) v. State of Bihar & Ors.
followedSLP(C) No. 18983 of 2023, decided 02.04.2025
Recent decision recognising that constitutional courts possess a plenary power to suo motu declare a subordinate legislation invalid where it is manifestly contrary to a fundamental right, to be exercised sparingly and after granting the State an opportunity to defend it — relied upon to justify examining the Notification's validity.
Bharathidasan University & Anr. v. All India Council for Technical Education & Ors.
followed2001 INSC 454
Held that a regulation that travels beyond the authority conferred by the parent statute is void and unenforceable, and that courts must ignore subordinate legislation made outside the confines of its enabling power even absent a specific prayer to strike it down.
Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India & Ors.
followed1984 INSC 231
A three-Judge Bench held that subordinate legislation does not carry the same immunity as a statute and may be questioned on the grounds applicable to plenary legislation, as well as on the ground that it does not conform to the statute under which it is made.
State of Tamil Nadu & Anr. v. P. Krishnamurthy & Ors.
followed2006 INSC 177
Set out the grounds on which subordinate legislation can be challenged, including lack of legislative competence, violation of fundamental rights, failure to conform to the enabling Act or exceeding its limits, repugnancy, and manifest arbitrariness.
Union of India & Ors. v. Manjurani Routray & Ors.
distinguished2023 INSC 787
Held that specific pleadings raising a challenge are ordinarily necessary before a Rule is declared ultra vires — distinguished here because the Notification was relied upon by the appellant itself and the State was granted full opportunity to defend it.
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