Issues with Judges and Bureaucrats Joining Politics- Explained Pointwise

The Contentious issue of Judges and Bureaucrats joining politics has hit the headlines again. Recent case of a Calcutta High Court judge and a senior IPS officer in West Bengal resigning from their posts and joining political parties, has raised questions of propriety about independent constitutional authorities like Judges and bureaucrats.

What are the Constitutional restrictions preventing post retirement benefits?

The Indian constitution has laid down certain restrictions on the employment of various constitutional posts after demitting office. These constitutional restrictions have 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.

Constitutional Restrictions on Post-Retirement Benefits

However, there are no restrictions when it comes to joining political parties, contesting elections or being nominated to certain posts.

What are the cases of Judges and Bureaucrats Joining Politics?

There are several notable instances of persons who held independent constitutional posts and later went on to join politics or were nominated to various posts.

Numerous bureaucrats have also joined political parties and contested elections after resigning from service or soon after their retirement. For ex- Mani Shankar Aiyar (IFS), Asim Arun (IPS), Rajeshwar Singh (IRS).

What are the issues with Judges and Bureaucrats Joining Politics?

1. Breach of oath- Third Schedule of the Constitution requires a constitutional authority (like judges, CAG) to swear that he/she will perform his duties without fear or favour, affection or ill-will. Joining political parties for electoral office raises questions over impartiality and propriety.

2. Undermines independence of Constitutional Positions- Independence of Constitutional authorities is of paramount importance for preserving the sanctity of constitution. For ex- Fears of politically biased judgement and actions in return for favours from political executives.

4. Dichotomy in application of ‘Cooling-off Period’- CCS Rules ([Rule 10 (1)] for Central Service Group ‘A’) prescribe a ‘cooling off’ period for senior bureaucrats before joining a private job after retirement. However, the lack of ‘cooling-off‘ period before joining politics, points to an inherent dichotomy.

4. Violation Of Bangalore Principles of Judicial Conduct (2002)- The declaration enlists certain judicial values including independence, impartiality, integrity and propriety. Post-retirement, joining of political parties is a violation of Bangalore principles of Judicial Conduct.

5. Breach of public trust- The Supreme Court in All India Judges’ Association v. Union of India (1991) and C. Ravichandran Iyer v. Justice A.M. Bhattacharjee (1995) held that post-retirement benefits enjoyed by the judges is a breach of public trust.

What are the recommendations and judgements?

EC Recommendation- Election Commission in 2012 recommended to the Union government to provide for a cooling-off period for top bureaucrats after their retirement before they could join political parties and contest elections.

Government rejected the EC recommendation based on AG’s opinion- Attorney General had opined that ‘cooling-off’ period for commercial employment is based on intelligible differentia to avoid conflicts of interest. However, such a restriction against officials contesting polls may not be a valid classification and would not be in harmony with democratic principles in the Constitution.

SC Observations- The Supreme Court had dismissed a writ petition in May 2022 that sought a direction from the top court to the legislature to frame a law imposing a cooling-off period for retired bureaucrats before joining politics. The court observed that it is for the legislature to determine whether a cooling-off period is required for bureaucrats before they join politics after retirement.

What should be the way Forward?

It is imperative to remember the famous judicial quote that ‘justice should not only be done but should also be seen to be done’. Extending this principle for post-retirement benefits of constitutional authorities will have a salutary effect. Following steps will demonstrate the application of principle of Justice–

a. Legislation prescribing a two year ‘Cooling off Period’- As recommended by the SC, the Parliament by law must prescribe a cooling-off period of at least two years for joining political parties or being nominated to political posts by the government.

b. Increasing the retirement age of Judges- Increasing the age of retirement from 60 to 70 would guard against the risk of conflicts of interest arising in relation to post-retirement employment for a judge.

c. Prescribing conditions for appointment in tribunals- The conditions like  constitutional matters or PILs heard, number of years of practice, research expertise, number of years that the judge has served on a bench that decided matters of similar nature, must be placed before deciding post-retirement appointments.

4. Self-regulation on part of people occupying constitutional positions- Self-regulation would be the guiding light for people occupying constitutional positions. For ex- Retired Justices Chelameswar and Kurian Joseph and Former CJIs Kapadia, Lodha and Thakur, denial of post-retirement plunge in politics or nomination to political posts.