New Delhi, Jun 15 In a significant judgment, the Supreme Court held on Monday that Madhya Pradesh's Special Police Establishment (SPE), an investigating wing of the state Lokayukta, is not an "intelligence" and "security" organisation to be exempted from the purview of the Right to Information (RTI) Act.
A bench of Justices J K Maheshwari and A S Chandurkar set aside an August 25, 2011, notification of the state government that had sought to exclude the SPE from the purview of the RTI Act for being "bad in law" and "excessive in nature".
"The statutory scheme under which the SPE stands constituted, coupled with the jurisdiction conferred on the Lokayukta or the Up-Lokayukta, clearly indicates that the SPE cannot be termed to be an 'intelligence and security' organisation when it assists the Lokayukta or the Up-Lokayukta in matters specified by section 7 of the Act of 1981," the bench said.
Section 7 of the Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam, 1981, specifies the matters that may be enquired into by the Lokayukta or the Up-Lokayukta.
The top court said insofar as issues of "intelligence" and "security" are concerned, neither the Lokayukta nor the Up-Lokayukta under the 1981 Act has been conferred with the jurisdiction to make an inquiry.
It said the various notifications issued by the state government from time to time are limited to offences punishable under the Prevention of Corruption Act, sections 409 (criminal breach of trust), 420 (cheating) and other offences under the Indian Penal Code (IPC) involving public servants.
The bench, which examined several statutory provisions, said though section 24(4) of the RTI Act, 2005, states that the statute would apply to such "intelligence and security organisations" established by the state government as notified, the SPE, though set up by the state government, is not empowered to investigate any offences or classes of offences related to "intelligence" and "security".
"The sphere of operation of the SPE constituted under the Act of 1947 would be governed and guided only by matters that may be enquired into by the Lokayukta or the Up-Lokayukta under section 7 of the Act of 1981. The jurisdiction, in that sense, is limited to an allegation in relation to a public servant in the context of the PC Act of 1988," it said.
Setting aside the 2011 notification issued by the General Administration Department (GAD) of Madhya Pradesh for excluding the SPE from the purview of the RTI Act, the bench said it does not conform to section 24(4) of the Act and is, thus, "excessive in nature".
"Thus, while maintaining the judgment of the high court dated December 20, 2021, in WP..., the notification dated August 25, 2011, issued by the GAD seeking to exclude the SPE from the applicability of the provisions of the Act of 2005 is struck down.
"It is clarified that we have not examined the applicability of the said notification vis-a-vis the state bureau of investigation for economic offences and therefore, the said notification shall continue to operate to that extent," it clarified.
The bench passed the verdict in the case of Kamta Prashad Mishra, who, while serving as the town inspector at the Madhav Nagar police station in Katni, came to be implicated by the SPE, Bhopal, in a trap case.
An FIR was registered on April 11, 2017, and the state home department granted the sanction for Mishra's prosecution on May 20, 2020.
Mishra desired information with regard to the decision-making process in the grant of the sanction and thus, moved an application dated July 1, 2020, under section 6(1) of the RTI Act, which was denied and the proceedings reached the State Information Commission (SIC).
The SIC also refused his request for the information and the matter reached the high court.
The high court directed that the information be provided to Mishra. Aggrieved by the order, the SPE moved the Supreme Court, contending that the high court erred in directing it to supply the information sought by Mishra.
It said in view of the provisions of section 8(1)(h) of the RTI Act, the SPE is exempted from disclosing the information sought by Mishra inasmuch as that information is likely to impede the process of investigation of the criminal proceedings that have been initiated against him.
The top court, in its findings, said the exercise of suo-motu (on its own) jurisdiction by the court in examining the validity of a subordinate piece of legislation has been the subject matter of consideration in various decisions.
It said the absence of a prayer seeking a declaration of invalidity of a piece of subordinate legislation by itself would not deter the court from testing its validity. "Such an issue can be examined but after granting opportunity to the concerned authority to justify its validity," the bench said, adding that it is well settled that a piece of subordinate legislation does not carry the same degree of immunity that is enjoyed by a statute passed by a competent legislature.
