Special Police Establishmentv.Kamta Prasad Mishra & Ors

Legal Analysis : Special Police Establishment v. Kamta Prasad Mishra & Ors

Citation: 2026 INSC 644

Court: Supreme Court of India

Bench: A Division Bench comprising Justice J.K. Maheshwari & Justice Atul S. Chandurkar

Date of Decision: June 15, 2026

Nature of Judgment: Criminal Appeal No. 3743 of 2024 against the judgment and order dated 20.12.2021 passed by the High Court of Madhya Pradesh, Principal Bench at Jabalpur in Writ Petition No. 1575 of 2021.

Synopsis of the Judgment

The first respondent (accused in a corruption case under the Prevention of Corruption Act, 1988) sought information under the Right to Information Act, 2005 regarding the decision-making process for grant of sanction for his prosecution and the response of the Lokayukt to his queries. The Special Police Establishment (SPE) denied the information, relying on Section 8(1)(h) of the RTI Act (information impeding investigation) and a Notification dated 25.08.2011 issued by the State Government under Section 24(4) of the RTI Act, which purported to exempt the SPE from the application of the RTI Act. The State Information Commission upheld the denial, but the High Court directed supply of the information. The Supreme Court upheld the High Court, holding that the SPE cannot be termed an "intelligence and security organisation" under Section 24(4) of the RTI Act, as its jurisdiction is limited to investigating offences under the Prevention of Corruption Act, 1988 and certain provisions of the Indian Penal Code. The Court struck down the Notification dated 25.08.2011 to the extent it sought to exclude the SPE from the RTI Act, while clarifying that the Notification would continue to operate for the State Bureau of Investigation of Economic Offences. The Court also discussed the power of constitutional courts to examine the validity of subordinate legislation suo motu in rare and exceptional cases.

1. Basic Information of the Judgment

Case Title: Special Police Establishment v. Kamta Prasad Mishra & Ors.

Citation: 2026 INSC 644

Criminal Appeal No.: 3743 of 2024

Bench: Division Bench (Justice J.K. Maheshwari & Justice Atul S. Chandurkar)

Date of Decision: June 15, 2026

Court: Supreme Court of India (Criminal Appellate Jurisdiction)

Impugned Order: Judgment dated 20.12.2021 passed by the High Court of Madhya Pradesh, Principal Bench at Jabalpur in Writ Petition No. 1575 of 2021, directing the SPE to supply the information sought by the first respondent.

2. Legal Framework

Major Laws and Provisions Involved

Right to Information Act, 2005 – Section 2(f) (definition of information), Section 3 (right to information), Section 6 (request for information), Section 7 (disposal of request), Section 8(1)(h) (exemption from disclosure of information which would impede investigation or prosecution of offenders), Section 24(1) (Act not to apply to intelligence and security organisations specified in Second Schedule – Central Government), Section 24(4) (State Government may by notification specify intelligence and security organisations established by it to which the Act does not apply), Section 24(5) (notification to be laid before State Legislature).

Prevention of Corruption Act, 1988 – Offences investigated by SPE.

Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam, 1981 – Section 2(b) (definition of "allegation"), Section 7 (matters that may be enquired into by Lokayukt or Up-Lokayukt), Section 13 (police agency at disposal of Lokayukt).

Madhya Pradesh Special Police Establishment Act, 1947 – Section 2(1) (constitution of SPE), Section 3 (State Government to specify offences to be investigated by SPE).

Indian Penal Code, 1860 – Sections 409, 420 and Chapter XVIII (offences investigated by SPE).

Constitution of India, 1950 – Article 226 (writ jurisdiction of High Courts), Article 141 (law declared by Supreme Court binding).

Key Precedents Cited and Applied

Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India (1985) 1 SCC 641 – A piece of subordinate legislation does not carry the same degree of immunity as a statute; it can be questioned on the ground that it does not conform to the parent statute or exceeds the limits of authority conferred.

State of Tamil Nadu v. P. Krishnamurthy (2016) 11 SCC 126 – Subordinate legislation can be challenged on grounds including lack of legislative competence, violation of fundamental rights, failure to conform to enabling Act, manifest arbitrariness.

Bihar Rajya Dafadar Chaudikar Panchayat (Magadh Division) v. State of Bihar (2023) – Constitutional courts have the power to suo motu declare subordinate legislation invalid in rare and exceptional cases when patent unconstitutionality is manifest.

Bharathidasan University v. All India Council for Technical Education (2001) 8 SCC 676 – Absence of specific prayer to strike down subordinate legislation does not deter the court from testing its validity; courts can ignore regulations that are patently inconsistent with parent statute.

Union of India v. Manjurani Routray (2023) – Specific pleadings raising challenge to vires of rules are generally necessary; otherwise, the other side has no opportunity to justify validity.

Dr. Nutan Thakur v. State of U.P. (Allahabad High Court) – Notification seeking to exclude Lokayukt agency from RTI Act was held illegal as Lokayukt is not concerned with issues of intelligence and security.

3. Relevant Facts

The first respondent (Kamta Prasad Mishra) while serving as Town Inspector, Police Station Madhav Nagar, Katni, was implicated by the Special Police Establishment (SPE), Bhopal, Madhya Pradesh under the Prevention of Corruption Act, 1988 in a trap case. An FIR was registered on 11.04.2017. The Home Department of the State Government granted sanction for his prosecution on 20.05.2020.

The first respondent desired information about the decision-making process in the grant of sanction. He filed an application dated 01.07.2020 under Section 6(1) of the RTI Act, 2005 seeking such information. The request for supply of information was turned down. The matter reached the State Information Commission, which rejected the appeal on 16.12.2020, holding that the first respondent was not entitled to the information in view of Section 8(1)(h) of the RTI Act.

The first respondent then approached the High Court of Madhya Pradesh. The Division Bench found that the investigation in the criminal proceedings was complete, and therefore the information could not be denied under Section 8(1)(h). The High Court directed the SPE to supply the information sought.

The SPE appealed to the Supreme Court, arguing that by virtue of Notification dated 25.08.2011 issued by the General Administration Department of the State of Madhya Pradesh under Section 24(4) of the RTI Act, the provisions of the RTI Act did not apply to the SPE. Alternatively, it was argued that Section 8(1)(h) exempted disclosure as it would impede the process of investigation.

The first respondent supported the High Court's order, contending that the investigation was complete and the information sought (manner of grant of sanction and communications exchanged) would not impede any ongoing process.

During the hearing before the Supreme Court, the applicability of the Notification dated 25.08.2011 was debated. The Court, prima facie, doubted whether the SPE could be treated as an "intelligence and security organisation" under Section 24(4). The State Government was given an opportunity to justify the Notification. The Advocate General for the State of Madhya Pradesh was heard, and written submissions were filed.

4. Issues

Issue No. 1: Whether the SPE, as constituted under the Madhya Pradesh Special Police Establishment Act, 1947, is an "intelligence and security organisation" for the purposes of Section 24(4) of the Right to Information Act, 2005, thereby entitling it to exemption from the application of the RTI Act by virtue of the Notification dated 25.08.2011.

Issue No. 2: Whether the Notification dated 25.08.2011 issued by the State Government under Section 24(4) of the RTI Act, seeking to exclude the SPE from the purview of the RTI Act, is intra vires the parent legislation or whether it exceeds the authority conferred by Section 24(4).

Issue No. 3: Whether the High Court could entertain the challenge to the denial of information in the absence of a specific challenge to the Notification dated 25.08.2011, and whether the Supreme Court could examine the validity of the Notification suo motu.

Issue No. 4: Whether the information sought by the first respondent (regarding the process of grant of sanction and the response of the Lokayukt) was exempted from disclosure under Section 8(1)(h) of the RTI Act on the ground that it would impede the process of investigation or prosecution.

5. Ratio Decidendi

A. Subordinate legislation does not carry the same immunity as a statute; it can be challenged on the ground of non-conformity with the parent enactment, and constitutional courts can examine its validity suo motu in rare and exceptional cases

The Court held that while specific pleadings challenging subordinate legislation are generally necessary, the absence of such pleadings does not deter the court from testing its validity when a pure question of interpretation arises. Citing Indian Express Newspapers and Bihar Rajya Dafadar, the Court held that a piece of subordinate legislation can be questioned on the ground that it does not conform to the statute under which it is made or exceeds the limits of authority conferred by the enabling Act. The power to suo motu declare subordinate legislation invalid exists but must be exercised sparingly and with due care. In the present case, sufficient opportunity was granted to the State Government to justify the Notification, and therefore the Court proceeded to examine its validity. (Paras 8-12)

B. An "intelligence and security organisation" under Section 24(4) of the RTI Act must be empowered to deal with matters of intelligence and security; the SPE, whose jurisdiction is limited to investigating corruption and related offences under the Penal Code, does not qualify

The Court examined the Second Schedule to the RTI Act, which lists intelligence and security organisations of the Central Government (e.g., Directorate of Enforcement, Central Reserve Police Force, Border Security Force, National Investigation Agency). These organisations are specifically concerned with intelligence and security. The Court then analysed the Madhya Pradesh Lokayukt Evam Up-Lokayukt Adhiniyam, 1981, the Madhya Pradesh Special Police Establishment Act, 1947, and the Notifications issued thereunder. It found that the SPE has been conferred jurisdiction only to investigate offences punishable under the Prevention of Corruption Act, 1988, and offences under Sections 409, 420 and Chapter XVIII of the Indian Penal Code (criminal breach of trust, cheating, and offences relating to documents and property marks) when committed by public servants. The SPE assists the Lokayukt, whose function is to enquire into allegations of corruption against public servants. Neither the Lokayukt nor the SPE has any jurisdiction over matters of "intelligence" or "security". The principle of institutional parity cited by the State was rejected. (Paras 13-21)

C. The Notification dated 25.08.2011 is excessive and does not conform to Section 24(4) of the RTI Act; it is struck down insofar as it applies to the SPE

The Court held that the Notification dated 25.08.2011 issued by the General Administration Department of the State of Madhya Pradesh, to the extent it seeks to exclude the SPE from the purview of the RTI Act, is bad in law. The SPE not being an intelligence and security organisation, the State Government had no authority under Section 24(4) to issue such a notification. The notification provides for a matter beyond the parent legislation and is therefore ultra vires. However, the Court clarified that it had not examined the applicability of the notification vis-à-vis the State Bureau of Investigation of Economic Offences, and therefore the notification would continue to operate to that extent. (Paras 22)

D. Section 8(1)(h) of the RTI Act does not apply when the investigation is complete and the information sought does not impede any ongoing process

The High Court had found that the investigation was complete. The SPE did not seriously dispute this finding before the Supreme Court. The information sought by the first respondent pertained to the decision-making process for grant of sanction and the response of the Lokayukt – matters that do not impede investigation or prosecution. Therefore, the High Court was justified in directing supply of the information. (Paras 2-4, 22)

6. New Legal Principles Established / Reiterated

First, the Court reiterates that subordinate legislation does not enjoy the same degree of immunity as plenary legislation. It can be challenged not only on the grounds applicable to statutes (lack of legislative competence, violation of fundamental rights) but also on the ground that it fails to conform to the parent statute or exceeds the authority conferred by the enabling Act. This is a well-settled principle, reaffirmed in this judgment.

Second, the Court clarifies that the power of constitutional courts to examine the validity of subordinate legislation is not strictly dependent on a specific prayer or pleadings challenging the same. In rare and exceptional cases where the patent unconstitutionality or invalidity of a subordinate legislation is manifest and the court is seized of a connected issue, the court may suo motu examine its validity after granting full opportunity to the State to defend it. The decision in Manjurani Routray (requiring specific pleadings) was distinguished on the ground that in that case the High Court had declared a rule ultra vires without any challenge or opportunity to the other side, whereas in the present case the Court granted full opportunity to the State Government.

Third, the Court establishes the test for determining whether an organisation qualifies as an "intelligence and security organisation" under Section 24(4) of the RTI Act. Such an organisation must be empowered to deal with matters of intelligence and security. Organisations whose jurisdiction is limited to investigating corruption and economic offences (without any security or intelligence dimension) do not qualify, even if they are investigative bodies.

Fourth, the Court distinguishes between "investigative agencies" and "intelligence and security organisations". While all intelligence and security organisations may have investigative functions, not all investigative agencies are intelligence and security organisations. The nature of the offences investigated (corruption, cheating, breach of trust) and the absence of any role in national security or intelligence gathering are determinative.

Fifth, the Court reaffirms the principle that Section 8(1)(h) of the RTI Act (exemption for information impeding investigation) applies only while the investigation is ongoing. Once the investigation is complete and a charge-sheet is filed, the exemption may cease to apply, especially when the information sought relates to procedural matters (like grant of sanction) rather than sensitive investigative material.

7. Court's Examination and Analysis of Concepts

The Court first examined the factual background: the first respondent was implicated in a trap case under the Prevention of Corruption Act, 1988; sanction for prosecution was granted on 20.05.2020; he sought information about the decision-making process; the SPE denied it; the State Information Commission rejected his appeal; the High Court directed supply of information.

The Court then addressed the preliminary issue of whether it could examine the validity of the Notification dated 25.08.2011 in the absence of a specific challenge. It noted that the appellant had relied on the Notification to argue that the RTI Act did not apply to the SPE. The Court observed that a pure question of interpretation arose – whether the SPE could be termed an "intelligence and security organisation" under Section 24(4). The Court granted the State Government full opportunity to justify the Notification. Relying on Indian Express Newspapers and Bharathidasan University, the Court held that subordinate legislation can be examined even without a specific challenge, especially when the issue is one of conformity with the parent statute. The Court distinguished Manjurani Routray on the ground that there the challenge was decided without giving an opportunity to the rule-making authority.

The Court then analysed the statutory scheme of the RTI Act. Section 24(1) exempts intelligence and security organisations specified in the Second Schedule (Central Government organisations). Section 24(4) empowers State Governments to similarly exempt intelligence and security organisations established by them. The Court examined the Second Schedule and noted that the organisations listed (ED, CRPF, BSF, CISF, NIA, etc.) are all concerned with intelligence and security at the national level.

The Court then turned to the Madhya Pradesh Lokayukt Act, 1981. The Statement of Objects and Reasons indicated that the Act was enacted to investigate allegations of corruption against high-ranking public servants. Section 2(b) defined "allegation" in relation to corruption, abuse of position, or possession of disproportionate assets. Section 7 specified the matters that could be enquired into by the Lokayukt. The official website of the Lokayukt Organisation described it as an instrument to prevent/check corruption, replacing the Vigilance Commission. The Court also referred to Section 63 of the Lokpal and Lokayuktas Act, 2013, which describes the Lokayukta as a body to deal with complaints relating to corruption.

The Court then examined the Madhya Pradesh Special Police Establishment Act, 1947 and the Notifications issued thereunder. The SPE was constituted on 01.11.1959. The Notification dated 03.05.2001 (the operative notification) specified that the SPE would investigate offences under the Prevention of Corruption Act, 1988, and offences under Sections 409, 420 and Chapter XVIII of the Indian Penal Code when committed by public servants and affecting the interests of the Government or a local authority or statutory corporation. The Court noted that Chapter XVIII of the Penal Code deals with offences relating to documents and property marks – not matters of national security or intelligence.

The Court concluded that the SPE's jurisdiction is limited. It cannot investigate any offence related to intelligence or security. It assists the Lokayukt, whose function is limited to corruption enquiries. Therefore, the SPE cannot be termed an "intelligence and security organisation". The Notification dated 25.08.2011, to the extent it exempts the SPE, is excessive and does not conform to Section 24(4). The Court struck it down, while clarifying that the Notification would continue to apply to the State Bureau of Investigation of Economic Offences (which was not examined).

The Court also noted that the High Court had correctly held that Section 8(1)(h) did not apply because the investigation was complete.

8. Critical Analysis

Strengths: The judgment is a significant contribution to RTI jurisprudence. It correctly interprets the scope of Section 24(4) of the RTI Act, preventing its misuse by State Governments to exempt routine investigative agencies under the guise of "intelligence and security". The Court's careful analysis of the Second Schedule (Central organisations) and the comparison with the SPE's limited jurisdiction is persuasive. The judgment reinforces the principle that exemptions from transparency laws must be narrowly construed and strictly confined to the purposes for which they are granted.

The Court's handling of the suo motu examination of the Notification is procedurally sound. The Court did not strike down the Notification without giving the State an opportunity to defend it. The State was heard extensively, and written submissions were filed. The Court distinguished Manjurani Routray on the facts, clarifying that the principle requiring specific pleadings is not absolute when the court is examining a pure question of law and has given full opportunity. This nuance is important for future cases.

The judgment also correctly applies the principle that Section 8(1)(h) ceases to apply once investigation is complete. The SPE did not seriously contest this finding.

Potential concerns: The judgment strikes down the Notification only "to the extent it seeks to exclude the SPE". However, the Notification also exempted the "State Bureau of Investigation of Economic Offences". The Court declined to examine the applicability to that organisation, leaving the notification partially operative. This may lead to further litigation regarding the nature of that organisation. The Court could have laid down a test or remanded that aspect for examination.

Another concern: The Court held that the SPE is not an intelligence and security organisation, but it did not examine whether the Lokayukt (or the SPE) could claim exemption under other provisions of the RTI Act (e.g., Section 8(1)(g) – endangerment of life or physical safety of informers). The Notification dated 25.08.2011 had also cited the risk to informers. The Court did not address this, focusing only on Section 24(4). The first respondent sought information about the process of grant of sanction and the response of the Lokayukt – not informer identity. So the point may be moot, but the judgment could have clarified that other exemptions remain available.

The judgment also does not discuss the first proviso to Section 24(4), which states that "information pertaining to the allegations of corruption and human rights violations shall not be excluded". Even if the SPE were an intelligence and security organisation, information about corruption (which is precisely what the first respondent sought) would not be exempt. This provides an alternative basis for the decision. The Court did not rely on this proviso, but it could have strengthened the reasoning.

Practical impact: This judgment will be cited in all cases where State Governments attempt to exempt their investigative agencies from the RTI Act by issuing notifications under Section 24(4). Courts will now rigorously examine whether the organisation truly qualifies as an "intelligence and security organisation". Routine police departments, vigilance bureaus, and anti-corruption bureaus are unlikely to qualify. The judgment also encourages transparency in the grant of sanction for prosecution, holding that once investigation is complete, the accused is entitled to know the process of sanction.

The judgment also reinforces the power of constitutional courts to examine subordinate legislation even in the absence of a specific challenge, provided the parties are given an opportunity. This will be useful in public interest litigation where subordinate legislation is patently invalid but has not been formally challenged.

9. Final Outcome

The Criminal Appeal was dismissed.

The judgment of the High Court of Madhya Pradesh dated 20.12.2021 in Writ Petition No. 1575 of 2021 was maintained.

The Notification dated 25.08.2011 issued by the General Administration Department of the State of Madhya Pradesh, to the extent it seeks to exclude the Special Police Establishment (SPE) from the applicability of the provisions of the Right to Information Act, 2005, was struck down as being bad in law.

The Court clarified that it had not examined the applicability of the said Notification vis-à-vis the State Bureau of Investigation of Economic Offences, and therefore the Notification shall continue to operate to that extent.

The SPE was directed to supply the information sought by the first respondent in accordance with the High Court's direction (the High Court had already directed supply within 30 days; the Supreme Court did not modify this).

Pending interlocutory applications were disposed of.

10. Practical Application

First, for a citizen seeking information from a State investigative agency, this judgment clarifies that the agency cannot claim blanket exemption under Section 24(4) of the RTI Act unless it is demonstrably an "intelligence and security organisation". Routine police departments, anti-corruption bureaus, and vigilance establishments – even those with the name "Special Police Establishment" – are unlikely to qualify. The test is whether the organisation's jurisdiction includes matters of national security or intelligence gathering, not merely investigation of corruption or economic offences.

Second, for an accused person in a corruption case, once the investigation is complete and a charge-sheet is filed, the accused is entitled to seek information about the process of grant of sanction under the RTI Act. Section 8(1)(h) (exemption for information impeding investigation) does not apply after the investigation is concluded. The accused can seek details of the sanctioning authority's decision-making process, communications, and the response of the Lokayukt.

Third, for a State Government considering issuing a notification under Section 24(4) of the RTI Act, this judgment requires a careful assessment of whether the organisation truly performs intelligence or security functions. The organisation must be analogous to the Central Government organisations listed in the Second Schedule (ED, CRPF, BSF, NIA, etc.). An organisation that only investigates corruption under the Prevention of Corruption Act and cheating/breach of trust under the IPC does not qualify. The Notification will be struck down as ultra vires if it goes beyond the parent legislation.

Fourth, for a legal practitioner challenging a State notification exempting an agency from the RTI Act, it is not strictly necessary to have a specific prayer striking down the notification if the issue arises in the context of a denial of information. The court may examine the validity of the notification suo motu if it is patently invalid and the State is given an opportunity to defend it. The practitioner should, however, raise the issue of the notification's validity clearly in the pleadings to avoid procedural objections.

Fifth, for courts adjudicating such matters, this judgment provides guidance on the power to examine subordinate legislation without a formal challenge. The court must first determine whether a pure question of interpretation arises. If the subordinate legislation is patently inconsistent with the parent statute, the court may examine its validity. However, the court must grant the rule-making authority (the State) full opportunity to justify the legislation. The judgment distinguishes Manjurani Routray, which required specific pleadings, on the ground that in that case the other side had no opportunity. Therefore, opportunity to be heard is the key.

Sixth, for the SPE and similar agencies, this judgment means that they are fully subject to the RTI Act, except for specific exemptions under Section 8 (e.g., trade secrets, cabinet papers, privacy, etc.). They cannot claim a blanket exemption. They must appoint Public Information Officers and respond to RTI applications. However, information that would reveal the identity of informers (Section 8(1)(g)) or that would impede ongoing investigation (Section 8(1)(h)) may still be exempt, but the agency must justify the exemption on a case-by-case basis.

11. Court Lines

Line 1 (Subordinate legislation can be questioned on ground of non-conformity – Para 12, quoting Indian Express Newspapers):

"A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute."

Line 2 (Suo motu examination of subordinate legislation – Para 8, quoting Bihar Rajya Dafadar):

"Though exercise of powers, suo motu, in an appropriate case in exercise of jurisdiction under Article 226 of the Constitution cannot be doubted, it is indubitable that such power has to be exercised sparingly and with due care, caution and circumspection. We are minded and do hold that, a writ court, when its finds its conscience to be pricked in a rare and very exceptional case by the patent unconstitutionality of a subordinate legislation connected with the issue it is seized of, may, upon grant of full opportunity to the State to defend the subordinate legislation and after hearing it, grant a declaration as to unconstitutionality and/or invalidity of such legislation."

Line 3 (SPE not an intelligence and security organisation – Para 20):

"Considering the nature of offences covered by the aforesaid provisions, the jurisdiction of the SPE is clearly limited. This is for the reason that under the Act of 1981, the Lokayukt has been conferred a limited jurisdiction to enquire into an 'allegation' as defined by Section 2(b) when made against a public servant. It is, thus, clear that insofar as issues of 'intelligence' and 'security' are concerned, neither the Lokayukt nor the Up-Lokayukt under the Act of 1981 has been conferred jurisdiction to make any enquiry."

Line 4 (Analogy with Central organisations in Second Schedule – Para 15):

"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. The submission on behalf of the State of Madhya Pradesh that the principle of institutional parity was considered while issuing the Notification dated 25.08.2011 therefore cannot be accepted."

Line 5 (Notification struck down – Para 22):

"Thus, having considered the entire matter, we are of the considered opinion that 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 in view of Section 24(4) thereof 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. The SPE having been conferred jurisdiction only to investigate offences punishable under the Act of 1988, Sections 409, 420 and Chapter XVIII of the Penal Code, it cannot be termed to be an 'intelligence and security' organisation for the purposes of Section 24(4) of the Act of 2005."

Line 6 (Distinction from Manjurani Routray – Para 10):

"We are conscious of the fact that in Union of India and others vs. Manjurani Routray and others, this Court has held that before any provision of law is struck down or any Rule is declared as ultra vires, specific pleadings raising a challenge and seeking of such relief is necessary. ... In the present case, it is true that there is no specific challenge raised by the first respondent to the Notification dated 25.08.2011. However, while assailing the order passed by the High Court, the Notification dated 25.08.2011 has been relied upon by the appellant to urge that the information sought by the first respondent could not be supplied to him ... The issue of applicability as well as validity of the Notification dated 25.08.2011 having arisen, due opportunity was granted to the State Government to justify the same."

12. Legal Strategy Insight

For a citizen seeking information from a State investigative agency under RTI:

First, do not accept a blanket claim that the agency is exempt from the RTI Act. Scrutinise the notification under which the agency claims exemption. If the notification is issued under Section 24(4) of the RTI Act, examine whether the agency truly performs "intelligence and security" functions. If the agency investigates only corruption, cheating, or breach of trust (without any national security dimension), argue that the notification is ultra vires. Cite this judgment for the proposition that routine investigative agencies do not qualify as intelligence and security organisations.

Second, if the agency claims exemption under Section 8(1)(h) (information impeding investigation), ask whether the investigation is ongoing. If a charge-sheet has been filed, argue that the investigation is complete and the exemption no longer applies. Information about the grant of sanction (the decision-making process, communications with the Lokayukt) is not likely to impede any ongoing proceeding.

Third, if the State Information Commission or the agency denies information, file a writ petition before the High Court. The High Court can examine the validity of the notification even if it has not been formally challenged, provided the State is given an opportunity. The Supreme Court has upheld this approach.

For a State Government considering issuing a notification under Section 24(4):

Carefully assess whether the organisation truly performs "intelligence and security" functions. The organisation must be analogous to the Central organisations listed in the Second Schedule – those concerned with national security, border security, internal security, or intelligence gathering. An agency that only investigates corruption under the Prevention of Corruption Act, 1988 or economic offences under the IPC will not qualify. The notification is likely to be struck down. If the State nonetheless issues such a notification, it must be prepared to justify it in court with evidence of the organisation's intelligence and security functions.

For an accused person in a corruption case:

After the charge-sheet is filed, file an RTI application seeking information about the grant of sanction – the date of the sanction order, the authority that granted it, the materials considered, and any communication from the Lokayukt. This information is crucial for challenging the validity of the sanction in the trial. The judgment supports the disclosure of such information. If the agency denies it, approach the High Court.

For a court adjudicating the validity of a State notification under Section 24(4):

First, determine whether the organisation qualifies as an "intelligence and security organisation". Compare its functions with the Central organisations in the Second Schedule. If the organisation investigates only corruption and economic offences, hold that it does not qualify. Second, if the notification is patently invalid, the court may examine its validity even without a specific challenge, but must grant the State full opportunity to defend it. Third, if the notification is struck down, clarify whether it applies to other organisations mentioned in the same notification (as the Court did for the State Bureau of Investigation of Economic Offences). Fourth, note that even if the organisation were exempt under Section 24(4), the first proviso excludes information pertaining to allegations of corruption – so that information would still be disclosable.

For an appellate authority or Information Commission dealing with a denial of information by the SPE:

Follow the ratio of this judgment. The SPE is not exempt from the RTI Act under Section 24(4) because it is not an intelligence and security organisation. The Notification dated 25.08.2011 has been struck down. Therefore, the SPE must respond to RTI applications. The only exemptions available are those under Section 8 of the RTI Act, which must be applied on a case-by-case basis. The agency cannot claim a blanket exemption. If the information sought relates to the grant of sanction and the investigation is complete, Section 8(1)(h) does not apply. Direct the SPE to supply the information.