President's secretariat stonewalls info on ordinances extending tenures of ED and CBI directors

THE President’s Secretariat has refused to disclose information pertaining to the Central Vigilance Commission (Amendment) Ordinance, 2021 and the Delhi Special Police Establishment (Amendment) Ordinance, 2021, which extended the tenures of the Director, Enforcement Directorate (ED) and the Director, Central Bureau of Investigation (CBI), respectively, up to five years from the previous two years’ tenure. Both the ordinances have culminated into statutes in the recently concluded Winter Session of Parliament.
Anjali Bharadwaj, a prominent transparency activist, filed an application under the Right to Information(RTI) Act, 2005 on November 26 with the President’s Secretariat seeking 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, requiring the promulgation of the two ordinances. However, in its reply, the President’s Secretariat has denied the information claiming that “[t]he information as sought for cannot be provided as it includes Cabinet Note which is exempted from disclosure under Section 8(1)(i) of the RTI Act, 2005.”
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.
Bhardwaj says that 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 Central Public Information Officer (CPIO) considers to be exempt under section 8 of the RTI Act. In such cases, the PIO must disclose the non-exempt portions. She says she will be challenging the refusal by the CPIO with the First Appellate Authority of the President’s Secretariat.

Article 123(1) of the Constitution, which pertains to the power of the President to promulgate ordinances, states: “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”. Therefore, the President is required to make a decision regarding the circumstances rendering it necessary to take immediate action to promulgate an ordinance.

Bharadwaj says this information is 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. Subsequent to the Ordinance being promulgated on November 14, amending the CVC Act to allow for extension of tenure of the ED Director, on November 17, the government, through an Office Order, extended Mishra’s tenure as Director of Enforcement in the ED for a period of one year.

In September this year, the Supreme Court had refused to quash the union government’s order extending the tenure of Mishra as ED Director with retrospective effect, making it a three-year tenure against the initial two years, even though Mishra had attained superannuation in the interregnum, that is, before the expiry of two years. The Court had, however, clarified that Mishra would not be given any further extension beyond November 17 when he would be completing three years of tenure. This ruling came on a petition filed by the NGO Common Cause, challenging the extension order issued by the union government. The apex court had upheld the power of the Centre to extend the tenure of the ED director beyond superannuation of the incumbent, provided it is done in rare and exceptional cases for a short duration.

The Ordinance apparently had been issued to scuttle the hurdles created by the Supreme Court to deny any further extension to Mishra.
Click here to read the RTI application and the response thereto