A recommendation of the Election Commission (EC) for a “cooling off period” to bar top bureaucrats from joining politics or contesting polls immediately on exit from service has been rejected by the government which feels such a step will not be in harmony with the constitutional provisions.
The government’s decision is based on the opinion of Attorney General Goolam E. Vahanvati and the Ministry of Law and Justice.
The EC, early last year, had written to the Department of Personnel and Training (DoPT) and Law Ministry after it got concerned over a number of “senior civil servants” jumping into the electoral fray and hence asked the government to bring in a “cooling off period” clause between leaving the government job and joining a political party by these officials.
It had then suggested that amendments in service rules of IAS, IPS and other class ‘A’ services officials to enable this protocol.
While in his opinion, the AG said “that any such restriction (against officials joining politics or contesting polls) whether by way of services rules or by way of an amendment of the Election laws may not stand the test of valid classification under Article 14 of the Constitution of India”, the Legislative department of the ministry said this “would not be in harmony of the provisions of the Constitution.”
Based on these legal advices, the DoPT which is the nodal authority for regulating services rules of All-India service officials, told the EC recently that its suggestions in this regard “may not be appropriate and feasible.”
The AG, in his opinion, said “that the maintenance of such independence and neutrality will be relevant during such period as the person is in service. The provisions which require that a government servant shall not accept commercial employment before expiry of one year of his ceasing to be a government employee is based on valid and intelligible differentia for protecting the interest of government.
“This is because the government servant may have dealt with matters pertaining to a commercial establishment. In such a case cooling off period is required and justified.
“However, as far as contesting elections are concerned, the preamble shows that the fact that India is a democratic Republic and this is a fundamental and basic feature of the Constitution. The Constitution provides for disqualification from membership.
“Holding an office of profit is a disqualification. The emphasis is on the word ‘holding’,” the AG was quoted as saying in the reply sent to the EC by the DoPT.
“Subject to that and subject to the other disqualifications, the learned AG of India is of the view that the right to contest for election as flowing out of citizenship and such a right cannot be curtailed unless there is a constitutional basis for doing so,” the DoPT communicated to the EC recently.
While there are rules at present which restrict a civil servant from joining a private job for at least an year after he or she retires or resigns from the government service, there are no rules regarding joining political parties or active politics.
The Commission had asked the DoPT to suggest a “suitable” cooling off period for these officials so that they remain impartial during their tenure as civil servants and take decisions with integrity while they serve.
The Commission, according to its last year letter, was concerned in this regard as it found “many instances where civil servants including police officials” have joined political parties in their respective states just after retiring or have put in their papers to join the battle at the hustings.