On Judges and Bureaucrats Joining Politics

Context:

The recent resignations of a Calcutta High Court judge and a senior IPS officer in West Bengal, followed by their subsequent entry into political parties, have sparked widespread debate and concern. Questions have arisen regarding the ethical implications of constitutional authorities and government officials joining political parties upon leaving their positions. The issue highlights the delicate balance between the judiciary, law enforcement, and the political sphere, raising concerns about potential conflicts of interest and the integrity of public institutions.

Relevance:

GS II: Polity and Governance

Dimensions of the Article:

1. Existing Constitutional Restrictions
2. Restrictions on Gaining Political Posts
3. Various Recommendations and Cooling off Period

Existing Constitutional Restrictions:

Rationale – Principle of Checks and Balances:

• The Constitution of India is founded on the principle of checks and balances among its various organs.
• The executive branch is accountable to the legislature, and both are subject to oversight by an independent judiciary.
• Other independent bodies such as the Election Commission, Public Service Commission, and Comptroller and Auditor General (CAG) play vital roles in maintaining democratic integrity and governance.
• To safeguard the independence of these institutions, the Constitution provides for fixed tenures, financial autonomy, stringent removal procedures, and post-retirement restrictions.

Specific Constitutional Restrictions:

• Judges of Supreme Court and High Courts:
  • Judges of the Supreme Court are prohibited from practicing law before any court or authority in India after retiring from office.
  • Similar restrictions apply to judges of High Courts, except for appearances before the Supreme Court or other High Courts.
• Comptroller and Auditor General (CAG) and Public Service Commission Members:
  • The CAG and members of the Public Service Commission are barred from taking up any employment with the Central or State governments after demitting office.

Purpose of Restrictions:

• These restrictions aim to prevent conflicts of interest and favoritism towards the government during the tenure of these positions, with the intent of securing post-retirement benefits.

Restrictions on Gaining Political Posts:

• There are no explicit restrictions on individuals holding independent constitutional posts from joining political parties, contesting elections, or being nominated to certain political posts.
• Instances abound where individuals who previously held independent constitutional positions have transitioned into political roles or been nominated to political offices.

Examples:

• Two Supreme Court judges resigned from their posts in 1967 and 1983 to contest presidential and parliamentary elections, respectively, from Assam.
• Another Supreme Court judge joined a political party in Tamil Nadu and contested elections five years after retiring in 1999.
• A former Chief Election Commissioner became a member of the Rajya Sabha and a Minister in 2004, three years after retiring.
• Recently, a retired Chief Justice of India was nominated to the Rajya Sabha in 2020, merely four months after retirement.
• Retired CAGs and judges have also been appointed as Governors of States.
• Numerous bureaucrats have joined political parties and contested elections after resigning from service or shortly after retirement.

Various Recommendations and Cooling off Period:

• The Election Commission (EC) proposed in 2012 that the Union government implement a cooling-off period for senior bureaucrats after retirement before they could engage in political activities or contest elections.
• However, the government rejected this suggestion based on the Attorney General’s opinion, which argued that such a provision might not align with constitutional principles and democratic values.
• In May 2022, the Supreme Court dismissed a writ petition seeking legislative action to enact a law mandating a cooling-off period for retired bureaucrats before they enter politics. The court emphasized that the decision on this matter lies within the purview of the legislature.

Arguments Against the Cooling off Period:

• Fundamental to democracy is every citizen’s right to participate in elections.
• The Attorney General highlighted that maintaining independence and neutrality is pertinent during a person’s tenure in service.
• While there are existing rules preventing senior bureaucrats from taking up private employment immediately after retirement to avoid conflicts of interest, imposing similar restrictions on their participation in elections might not be justifiable under democratic principles.

-Source: The Hindu