bureaucrats, judges have a 'cooling-off period' before entering politics

bureaucrats, judges have a 'cooling-off period' before entering politics

Bureaucrats joining political parties at election time is now pretty much the considered norm. After almost a lifetime spent in the civil services, the temptation of staying in the power game is one itch too many.

But why blame civil servants alone when they now have constitutional authorities for company? Governors getting back to active politics is regarded as a bit of a rarity even in these troubled times, but then if judges can join active public life with gay abandon, the glass ceiling has truly been shattered.

On April 12, Punjab IAS officer Parampal Kaur Sidhu announced her decision to join the BJP, despite objections raised by the state government.

A week earlier, Vijay Kumar, an ex-director general of police (DGP), UP, joined the BJP, two months after superannuating from office on January 31. The highlight of his eight-month tenure was a circular accompanied with a copy of ‘panchang’ – a lunisolar calendar that uses standard Hindu timekeeping units and displays important dates and periods.

In late March, two former officers of the Karnataka cadre — IAS officer Sasikanth Senthil and IPS officer K Annamalai — joined the Congress and the BJP respectively and made their Lok Sabha debuts in Tamil Nadu.

Around the same time, Bengal IPS officer Bharti Ghosh, at loggerheads with chief minister Mamata Banerjee, formally joined the BJP.

Former Calcutta HC judge Abhijit Gangopadhay who joined the BJP on March 7.

Last month, India’s former ambassador to the US Taranjit Singh Sandhu entered the BJP ranks. Since his retirement in January, Sandhu has reached out to a cross-section of society in his hometown, Amritsar, and is now the party candidate from the site of the holiest Sikh shrine.

While the history of bureaucrats joining public life is legion – former civil servants helm five Union ministries and act as deputies in four others – in the Modi government, the return of former governors into active politics is a new theme.

Tamilisai Soundararajan served as Governor of Telangana with additional charge as Lt Governor of Puducherry before resigning to fight from the South Chennai constituency in the Lok Sabha elections.

Earlier, Baby Rani Maurya, currently a minister in the UP government, served as seventh governor of Uttarakhand from August 2018 to September 2021, when she resigned two years before completing her term.

The pièce de resistance, however, came from West Bengal when a serving Calcutta High Court judge, Abhijit Gangopadhyay, quit a few months before he was to superannuate and joined the BJP. While in office, he became a household name in West Bengal because of a series of rulings in high-profile cases that rocked the Trinamool government, gaining him the reputation of being the only man who could paint the state government into an uncomfortable corner.

In 2020, when former Chief Justice of India Ranjan Gogoi was nominated to the Rajya Sabha, it had raised serious questions of impropriety about independent constitutional authorities and other senior government officials joining political parties after demitting office.

Critics of the BJP government have long alleged that the inclusion of constitutional authorities in the party is aimed at changing the Constitution of India itself. After the Indian Constitution came into being, the RSS’s unofficial mouthpiece Organiser wrote,

In our Constitution, there is no mention of that unique constitutional development in ancient Bharat. To this day his laws as enunciated in the Manusmriti excite the admiration of the world and elicit spontaneous obedience and conformity. But to our constitutional pundits that means nothing.

Former Calcutta HC judge Abhijit Gangopadhay who joined the BJP on March 7.

With government hiring down to a trickle, are caste-based reservations redundant and illusive?

This is a good time to raise the relevant questions then. The Constitution of India works on the principle of checks and balances between various organs. The executive is accountable to the legislature. An independent judiciary keeps a check on both these branches of the state.

To negate the possibility of post-retirement ambitions influencing judicial pronouncement of judges at the doorstep of retirement, former Chief Justice of India (CJI) R M Lodha, during his tenure in 2015, mooted a radical proposal to insulate soon-to-retire judges from the lure of coveted post-retirement jobs.

The panel's recommendations were very clear:

Before a judge retires, the government should ask him whether he wants to be a pensioner or continue to draw his existing salary.

Once he opts for pension, he should not have any engagement or post under the government.

Once a judge opted for full salary, that name should be put in a panel.

When a vacancy arises, appoint the man in consultation with the CJI, with the government’s consultation.

The checks and balances on the government come in the form of several independent bodies like the Election Commission, Public Service Commission and Comptroller and Auditor General (CAG) who are required to perform their constitutional duties without any interference from the government.

The independence of these institutions is ensured through guaranteeing fixed tenure, financial independence, stringent removal procedure and restrictions after demitting office.

Technically speaking, a judge of a Supreme Court after ceasing to hold office cannot appear as a lawyer before any court or authority in India. A judge of a High Court has similar restrictions except for appearance before the Supreme Court or other High Courts.

The CAG and the chairman/members of the Public Service Commission cannot take up any other employment with central or state governments after demitting office. These restrictions are laid down to avoid favouritism, during the period of holding such positions, towards the government in power with an intent of securing any post-retirement benefit.

Likewise - before the flow of officials joining up one or the other political party became a torrent – traditionally, bureaucrats serve a cooling off period after they retire and before they can join a private firm.

As per rules for the all-India services, officials undergo a cooling-off period for a year. The employee is prohibited from securing commercial employment before completion of one year from the date of retirement without the approval of the central government.

Rule 9 of the CCS (Pension) Rules states that "if a pensioner who, immediately before his retirement, was a member of Central Service Group 'A' wishes to accept any commercial employment before the expiry of one year from the date of his retirement, he shall obtain the previous sanction of the government to such acceptance."

Non-compliance with these rules can lead to the government declaring that the employee shall not be entitled to the whole or such part of the pension and for such period as may be specified.

But in May 2022, the Supreme Court dismissed a writ petition to impose restrictions to prevent civil servants from contesting elections immediately after retirement or resignation from service, by imposing a cooling-off period.

Whether there should be any cooling-off period for civil servants to contest elections is best left to the legislature, the apex court bench observed.

It would be instructive to remember that such questions involving constitutional propriety come up from time to time. In February 2023, the appointment of S Abdul Nazeer, former judge of the Supreme Court, as the Governor of Andhra Pradesh and the reshuffling of governors in some states seemed to raise the question of cooling off period for government officials once again. So, what was found to be so objectionable about the appointment of Justice Nazeer within 40 days of his retirement from the top court?

Critics said that Justice Nazeer was involved in several cases that were of importance to the current Union government, including the Ayodhya title suit and he also headed the bench that upheld the Centre's demonetisation policy of November 2016 and was also part of a constitution bench that held no further restriction can be added to the right to free speech under Article 19(1)(a) of the Constitution.

Although, there is no provision in law restricting a retired top court judge from holding the post of a governor and it is not the first time that a former judge of the Supreme Court has been appointed to the post, it was a question of timing. This was the first time that a former Supreme Court judge has been appointed as a governor so soon after retirement - even sooner by a few months than Justice P Sathasivam's appointment as Governor of Kerala in 2014.

A longer cooling-off period could have helped avoid unnecessary criticism.

So, when does a government allow or turn down such requests from pensioners? The CCS (Pension) Rules specify several factors for the government to consider while granting or refusing permission, which include whether a “no-objection” for the proposed employment has been obtained from the cadre controlling authority and from the office where the officer retired; Whether the officer has been privy to sensitive or strategic information in the last three years of service that is directly related to the work of the organization he proposes to join and main whether there is conflict of interest between the policies of the office he has held in the last three years and the interests/work of this organization.

Typically, in the government, the discretionary powers are far too many. For instance, there is no rule to stop government servants from joining politics after retirement.

In 2013, the Election Commission had written to the Department of Personnel and Training (DoPT) and Ministry of Law, suggesting a cooling-off period for bureaucrats joining politics after retirement, but it was rejected.

The Legislative Department of the Ministry of Law advised that any such restriction may not stand the test of valid classification under Article 14 of the Constitution, and the DoPT told the EC that its suggestions might not be appropriate and feasible.

Given the recent shenanigans and twists and turns, clearly there is the need for government officials to show high calibre professionalism by properly following guidelines for the cooling-off period.

Without exception, government organizations need to formulate uniform rules or guidelines to make the cooling-off period mandatory for all retired officers besides requiring them to seek prior nod for accepting private employment during this period.

Some experts hold the view that the government needs to tweak the applicable service and conduct rules so that appropriate action can be initiated in case of violation of this cooling-off period.

It would be helpful to study the recommendations of the various committees and commissions. The Law Commission has consistently maintained that government officials accepting commercial employment was undesirable. It had felt that this could affect independence.