The debate on implementing a ‘cooling off’ period for the bureaucrats to enter political foray after demitting office had started after the Election Commission gave this suggestion to the Central Government in 2012. A new debate has also started to include the judges of the High Court and the Supreme Court in this category, i.e., to wait and complete a ‘cooling off’ period before joining any political party to contest elections in the country. All this is aimed to ensure political neutrality of the bureaucrats and the judges.
The person who took up the issue in Jharkhand High Court in 2015 through a PIL immediately after the Government did not show any commitment to the proposal of the Election Commission, and later at Supreme Court, has written a letter to President Draupdi Murmu to give her opinion and suggestion on this matter, as appropriate, to the new government that will come to power after the general election of 2024.
The Supreme Court while disposing of the PIL in May 2022, had mentioned that ‘there can be no doubt that law may be enacted, laying down the norms and qualifications for contesting specific elections. It is, however, for the appropriate Legislature to frame the law.’ The Supreme Court while dismissing the PIL had mentioned that,’ there can be no doubt that civil servants should maintain the highest ethical standards of integrity and honesty; political neutrality; fairness and impartiality in the discharge of duties, courtesy, accountability and transparency. Integrity, impartiality, neutrality, transparency and honesty are non-negotiable. Ethical standards necessarily have to be enforced and stringent action taken against the concerned officer whenever there is any breach of ethical standards as laid down in the All India Services (Conduct) Rules, 1968.’
However, The apex Court had maintained that it cannot interfere in law making and direct the Legislature in a mandamaus writ to enforce a law on this subject and held that whether there should be any “Cooling off Period” for civil servants to contest elections or not is best left to the concerned Legislature. The judgement on the PIL mentioned: ‘It is not for this Court to decide whether or not there should be any rules/guidelines for a bureaucrat to contest elections. It is for the appropriate authorities to take a decision in this matter.’
From the reading of the judgement of the Apex Court in this PIL it becomes clear that the Court refrained from issuing any direction to the government because it maintained that it should be left to the legislature to frame any rule/law in this regard, and it that it should be left to the appropriate authorities to frame any law in this regard.
The appropriate authorities in this regard are the Union Ministry of Personnel, Public Grievances and Pensions, Union Ministry of Law and Justice and the Election Commission of India that can initiate a process for making a law in this regard.
The Election Commission of India has already given a proposal to the Union Ministry of Personnel, Public Grievances and Pensions way back in 2012, and the Union Ministry of Law had expressed some reservations which could not be overruled by the Government’s decision making powers in this regard although the EC had pursued the issue for a period of two years approximately, and had written multiple letters to the government to consider its proposal on ‘cooling off’ period for the bureaucrats. And, when the Apex Court has specifically mentioned that only appropriate authorities can take a decision in this regard then any desirable rule or law can see the light of the day only when the Union Government takes up the issue afresh and comes out to frame any rule or law in this regard. This proposition becomes valid only when the President opines to consider the Union Government to frame a rule or law in this regard considering the urgency of the issue. Moreover, the original proposal given by the EC to impose a cooling off period before contesting elections related only to bureaucrats. In the light of recent debates to include the Judges of the High Courts and Supreme Courts to observe a ‘cooling off period’ before joining a political party and entering election foray the urgency is felt more, and the President may appropriately opine and indicate a need in this regard to the government that comes to power at the centre after the general elections of 2024. On its part the Election Commission can also send a fresh proposal to the government including this time cooling off period for the judges as well in the new proposal.
For ensuring the political neutrality of the highly placed personnel, both in the executive/bureaucracy and judiciary political neutrality, honesty and integrity are essential elements to make the common man believe that the authorities are functioning in non-partisan manner. It is very commonly said that ‘justice not only should be dispensed but it must also appear in the eyes of the common people that it is being dispensed that way. A cooling off period for the bureaucrats and judges is need of the hour to achieve this end.
Vivek Krishna, who is working for the last twenty years for electoral and administrative reforms through his efforts is determined to take the issue to it’s natural conclusion. He hopes that like minded persons in political circles will espouse this cause as many senior party leaders across all political parties and political ideologies have expressed their concern in this regard, and one day an appropriate rule/law will be made relating to cooling off period to ensure and strengthen political neutrality of the bureaucrats and the judges. He is very hopeful of the President taking a call in this regard looking at the importance and urgency of the matter.
The writer is an activist and a practising Advocate in Jharkhand High Court. Views are personal.
