New Delhi: The Rashtrapati Bhavan (President’s Secretariat) has denied information on what prompted the recent ordinances through which tenures of the chiefs of Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) were extended.
In response to a Right to Information (RTI) query filed by activist Anjali Bhardwaj, Rashtrapati Bhavan said, “The information as sought for cannot be provided as it includes Cabinet Note which is exempted from disclosure under Section 8(1Xi) of the RTI Act, 2005.”
Bhardwaj had filed the RTI application on November 26, just 12 days after two ordinances – The Central Vigilance Commission (Amendment) Ordinance 2021 and The Delhi Special Police Establishment (Amendment) Ordinance 2021 – were promulgated by the President. These Ordinances enabled the extension of the tenures of the CBI and ED directors for one year at a time for a total tenure not exceeding five years.
In her RTI application, Bhardwaj had said, “As per Article 123(1) of the Constitution of India ‘if at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinance as the circumstances appear to him to require’.”
As such, she had asked for “a copy of all the records, material, information and facts relied on by the President regarding the circumstances rendering it necessary to take immediate action” for the promulgation of the Ordinances.
Also read: Move to Allow Extension of CBI, ED Tenures Seen as Attack on Independence of Probe Agencies
In its response to the query on December 20, the CPIO (central public information officer) in the President Secretariat stated that the information cannot be provided as it includes a cabinet note which is exempted from disclosure under Section 8 (1Xi) of the RTI Act, 2005.”
Extension of ED director
Reacting to the development, Bhardwaj said that the information sought by her was “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 S.K. Mishra before his term came to an end on November 18, 2021″.
Subsequent to the Ordinance being promulgated on November 14, 2021 – amending the CVC Act to allow for the extension of tenure of the ED Director – she said the government had three days later, on November 17, extended the tenure of Mishra as director of enforcement in the Enforcement Directorate for a period of one year through an Office Order.
This was in defiance of a recent Supreme Court ruling in which it had stated that Mishra should not be granted any further extension.
Making a mention of this, Bhardwaj said, “It is pertinent to note that the Ordinance and the subsequent orders were brought in after the Supreme Court in a recent judgment (in W.P.(C) No. 1374 of 2020 Common Cause Vs. Union of India & Ors.) had held that the incumbent ED Director (Mr. SK Mishra) should not be granted any further extension.”
‘Appealing against non-disclosure of information’
As for the non-disclosure of information, Bhardwaj said it would be challenged in an appeal.
“Section 8(1)(i) of the RTI Act exempts 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 November 14, 2021,” she explained.
Furthermore, she said, “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 [Public Information Officer] considers to be exempt under Section 8. In such cases, the PIO must disclose the non-exempt portions.”