President's Secretariat denies info on ordinances extending tenure of CBI, ED directors

The President's Secretariat has denied information regarding the circumstances that necessitated the promulgation of two controversial ordinances to extend tenures of directors of CBI and Enforcement Directorate up to three years, citing that Cabinet Note is exempt from disclosure under Right to Information Act.

Transparency activist Anjali Bhardwaj had sought "all the records, material, information and facts relied on by the President regarding the circumstances rendering it necessary" to take the immediate action to promulgate the two ordinances.

The government had promulgated two ordinances -- The Central Vigilance Commission (Amendment) Ordinance 2021 and The Delhi Special Police Establishment (Amendment) Ordinance 2021 -- on November 14, a fortnight before the commencement of Winter Session of Parliament, with Opposition claiming that it was meant to give extension to ED director Sanjay Mishra who was otherwise superannuating from the post.

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In response, Under Secretary Usha Shashidharan said, "the information as sought cannot be provided as it includes Cabinet note which is exempted from disclosure under Section 8(1)(i) of the RTI Act, 2005."

Responding to the denial of information, Bhardwaj said that the information sought are "especially relevant and of public interest" as it "appears the ordinance regarding the amendment to the CVC Act was brought in to allow for extending the tenure of the incumbent ED director Mishra before his term came to an end on November 18".

Subsequent to the ordinance, she said the government through an office order on November 17, a day before his term was ending, extended the tenure of Mishra for a period of one year.

She also referred to a Supreme Court order in September this year which had held that Mishra should not be granted any further extension, and the ordinance and the subsequent orders were brought in after the apex court’s order.

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Disclosing that the non-disclosure of information is being challenged in an appeal, Bhardwaj said Section 8(1)(i) of the RTI Act provides exemption for the disclosure of cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers, till such time that the matter is under consideration and is not complete, or over.

"However, the information was sought after the matter of the ordinances was complete as the Ordinances were promulgated and published in the Official Gazette and also came into effect on 14 November, 2021. Further in any case, there is no provision under the RTI Act for denying access to records merely because it may include some portion which the PIO considers to be exempt under section 8. In such cases, the PIO must disclose the non-exempt portions," she said.

During the Winter Session, the government got two Bills passed during the Winter Session providing for a fixed tenure of two years and a maximum of three extensions of one year each to those serving in the post of directors of CBI and ED.

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