What are the restrictions on judges and senior government officials with respect to their employment when it comes to other posts within the government or in the private sphere?
The Constitution works on the principle of checks and balance between various organs.
The executive is accountable to the legislature.
An independent judiciary keeps a check on both these branches of the State.
There are also other independent bodies like the Election Commission, Public Service Commission, 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.
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.
There are no restrictions when it comes to joining political parties, contesting elections or being nominated to certain posts.
There are notable instances of persons who held independent constitutional posts and later went on to join politics or were nominated to various posts.
There have been two Supreme Court judges in 1967 and 1983, who resigned from their posts to contest the presidential and parliamentary elections from Assam, respectively.
Another Supreme Court judge joined a political party in Tamil Nadu and contested elections five years after his retirement in 1999.
A former Chief Election Commissioner became a Rajya Sabha member and Minister in 2004, three years after his retirement.
Recently, a retired Chief Justice of India was nominated to the Rajya Sabha in 2020 within four months of his retirement.
There have also been occasions where retired CAG and judges have been appointed as Governors of States.
Numerous bureaucrats have also joined political parties and contested elections after resigning from service or soon after their retirement.
Can a former judge join a political party and contest elections?
One of the essential features of a democracy is every citizen’s right to contest elections.
The Attorney General while providing his opinion against the 2012 recommendation of Election Commission had said that maintenance of independence and neutrality will be relevant during the period a person is in service.
There are rules at present which restrict a senior bureaucrat from joining a private job for at least one year after he or she retires from government service.
The Attorney General had opined that such restriction 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.
While the opinion of Attorney General is based on sound legal principle.
It is equally imperative to remember the famous judicial quote that ‘justice should not only be done but should also be seen to be done’.
This applies equally to judges, independent constitutional authorities and senior bureaucrats.
It is an indispensable trait while discharging their official functions.
Extending this principle even after they demit office will have a salutary effect.
This may be achieved by prescribing a cooling-off period of say at least two years for joining political parties or being nominated to political posts by the government.
This will instil confidence in the public at large and negate any allegation of quid pro quo.
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