Officers and Politicians

By Anil Swarup

WHEN a serving officer of the Enforcement Directorate who had been pretty active in enforcing the writ (read the will) of the government took voluntary retirement and joined politics to contest elections, I tweeted, “Joining any political party is a democratic right but a civil servant resigning to join a political party raises ethical issues. Shouldn’t there be a ‘cooling’ period prescribed as in case of joining any private entity.” This tweet caught the fancy of a large number of people, some of whom raised some more questions relating to this vexed issue of civil servants joining politics. It is difficult to debate such issues on Twitter or even to provide an explanation but the issue is a serious one that is impacting the functioning of the bureaucracy, more so in the recent past.

At the outset it needs to be clarified that there is nothing illegal about an officer joining politics after quitting his job. It is, indeed, his legal right to do so. What we are discussing here is the impact of such decisions on governance and the ethical aspect of such a move.

Let us look at the levels/stages at which civil servants can possibly join politics or indulge in political activities or both:

• Joining politics while in service or indulging in political activities.
• Aligning with a political party while in service though not formally joining it.
• Taking voluntary retirement before the due date and joining politics.
• Joining politics immediately after retirement.

The first option of joining politics while in service goes contrary to Rule 5 of the Central Services Conduct Rules, 1964, that lays down that : 

(1) No Government servant shall be a member of, or be otherwise associated with, any political party or any organisation which takes part in politics nor shall he take part in, subscribe in aid of, or assist in any other manner, any political movement or activity. (2) It shall be the duty of every Government servant to endeavour to prevent any member of his family from taking part in, subscribing in aid of, or assisting in any other manner any movement or activity which is, or tends directly or indirectly to be, subversive of the Government as by law established and where a Government servant is unable to prevent a member of his family from taking part in, or subscribing in aid of , or assisting in any other  manner, any such movement or activity, he shall make a report to that effect to the Government. (3) If any question arises whether a party is a political party or whether any organisation takes part in politics or whether any movement or activity falls within the scope of sub-rule (2), the decision of the Government thereon shall be final. (4) No Government servant shall canvass or otherwise interfere with, or use his influence in connection with or take part in an election to any legislature or local authority.

Similar provisions exist for the All-India Services as well as the State Civil Services. Hence, action can be initiated against an officer if he joins a political party and/or is found indulging in political activities. There are hardly any instances available.

The second option of aligning with a political party is also contrary to the Conduct Rules but there is a huge grey area. It is difficult to conclusively prove such an alignment and that perhaps is the reason why a number of officers align with a particular party but are not “discovered”. It is more prevalent in states like Tamil Nadu and Uttar Pradesh where political lines are clearly drawn. Such alignments impact the officers concerned as well as governance. The officer appears to “benefit” when the government he is aligned with is in power but suffers when it is not in power. In fact, there are instances when such officers have been hounded by the “other” political alignment when it comes to power. The biggest damage, however, occurs to governance. One of the necessary attributes of a civil servant is objectivity in approach while assisting in formulation of a policy or its implementation. The allegiance of the officer has to be to the Constitution and the laws and rules made thereunder and to nobody else. A large number of officers who adhere to the constitutional provisions benefit in the long run even though in the short run they suffer by way of frequent transfers or, on occasion, even suspension or initiation of departmental proceedings. There is perhaps an equal number of officers who go for short-term benefits and don’t perform their duties under the law as they follow the ideology or practices of a political party. Their decisions are not based on objective assessment of the ground reality but coloured by the “demands” of the political party in power. Thus, you have situations like Hathras where the district magistrate and the superintendent of police allowed (some say facilitated) hasty night-time cremation of a girl who was allegedly raped. Similarly, in the case of rioting at Jawaharlal Nehru University a couple of years ago wherein a large number of students were injured, the police looked the other way to please their political bosses. In all such cases it would be difficult to prove political alignment (even if the government of the day was interested in doing so though in the instances mentioned, the government was apparently driving such misdemeanour). All such instances impact the credibility of the governing machinery. Hence, such latent alignments are not good for governance.

The third option of joining politics after voluntary retirement is perfectly legal. The key question to be considered is whether such a step impacts governance and whether it is ethically above board.

Why would a political party give a ticket to a civil servant who opts for voluntary retirement even though he still has years to go before superannuation? It would be only on account of the “services” rendered while in service. This clearly implies that the officer was doing the bidding of a particular party and not doing what he was supposed to as an officer. The case of the Enforcement Directorate officer falls in this category. Similarly, another police officer who was in a senior position also resigned and contested the state elections recently. The problem here is not a legal but an ethical one and the damage it does to the bureaucratic ethos. The signal here is that you do the bidding of a political party beyond the call of duty and get “rewarded”. The commitment being encouraged here is not to principles of good governance but to the political dispensation.

This logic applies also to the fourth option when the officers join a political party immediately after retirement. The lure of post-retirement “reward” impacts decision-making while in service.

The recent trend of political “rewards” for civil servants is a dangerous one. It extends to those occupying constitutional posts as well and, in this sense, it is much worse. Ironically, these rewards have gone on to impact the judiciary as well. How else do you explain a sitting Supreme Court judge holding a press conference against the incumbent Chief Justice of the Supreme Court and, instead of being hauled up for contempt of court like any other citizen of the country, is made the Chief Justice himself when the occasion arises? He then attends to some sensitive cases. There is also a sexual harassment complaint against him. Quite intriguingly, there is a compromise in the case even though it is difficult to fathom how a compromise can take place in such a situation. If the complainant had made a false complaint against a person occupying such an august position, strict action should have been taken against her. However, if the complaint was justified, action should have been taken against the judge. Despite such credentials, the concerned judge was “rewarded” with a nomination to the Rajya Sabha after he had done what was “expected” of him.

It is difficult to imagine how an Election Commissioner can conduct elections in an objective manner if he has his eye on benefits accruing from joining a political party on completion of his tenure. Yet, we had an instance of a Chief Election Commissioner not only joining a political party on completion of his tenure but also going on to become a minister in the government. In another instance, the government amended the concerned legislation to “enable” an officer to occupy a crucial position as the extant provisions prohibited “re-engagement” of those who had occupied posts such as his.

 

COOLING-OFF PERIOD

The situation is becoming increasingly serious and, unfortunately, there are no easy solutions for the simple reason that there is nothing illegal about what is happening now. And, as the beneficiaries are those who matter, it is difficult to address issues that are ethical in nature even though they impact governance.

According to the existing dispensation, there is a cooling (waiting) period of a year before a retiring civil servant can take up a job in the private sector. This is primarily to prevent him from favouring any private entity while in service and then benefitting immediately after retirement. This hasn’t really served the purpose entirely as a year is too short a period for the favour to be forgotten. However, it does delay the inevitable. For joining a political party, even this token cooling period is not provided for. Civil servants who want to seek political “rewards” for favours bestowed upon a political party while in harness can get them almost immediately after retirement or even after voluntary retirement.

So, what is the way forward? As mentioned earlier, there are no easy solutions but a beginning (even if not perfect) needs to be made by way of introducing the following provisions:

Provide for a cooling period of two years after retirement for a civil servant to join a political party. He may still work for a political party but will not be an immediate beneficiary of the favours rendered while in service. If private sector engagement post-retirement has to be kept at bay for a year (this also needs to be increased to two years), why shouldn’t formal political engagement be treated as “sensitive”?

There is an old saying that justice should not only be done but should be seen to be done. Accordingly, those occupying constitutional positions like judges, election commissioners and so on should be barred from formal political affiliations and “benefits”.

There needs to be public debate on the issue to create an environment to dissuade officers in sensitive positions from joining politics as well as to evolve mechanisms to prevent such an occurrence amongst those holding responsible positions where objectivity in decision-making is key.

Apart from political rewards, there are non-political post-retirement awards as well. The late Arun Jaitley was at his eloquent best when he said in Parliament, “The desire of a post-retirement job influences pre-retirement judgements.” The statement was made in the context of judicial officers. It is perhaps equally relevant in the context of civil servants.

A large number of civil servants opt for post-retirement jobs in government itself. Most would have already worked in government for three decades or more. Yet, they still prefer government assignments.

This raises a number of questions, some of which are ethical in nature: Should a government servant, post-retirement, ‘apply’ for a job in government? Should a government servant, post-retirement, accept an assignment in government? Should a civil servant ‘apply’ for such assignments after having held a top assignment like secretary to the government? Will it not affect his conduct, attitude, objectivity and performance if he has a post-retirement carrot dangling before him?

Having seen the functioning of the government from very close quarters, I have no doubt that in a number of cases it does. There is indeed a plethora of post-retirement jobs on offer. The incentive of a post-retirement job distorts the conduct of a senior civil servant. He starts toeing the line of those who can help him obtain a post-retirement assignment in government. It prevents officers from airing their views freely and frankly in the interest of their organization under the apprehension that their personal interests could be adversely affected. Their lack of objectivity (in some cases collusion) results in enormous loss to the organization, though they benefit personally and climb the bureaucratic ladder, reach the top and even end up getting post-retirement assignments.

There have been some cases where even such civil servants as have enjoyed a reasonably sound reputation begin to change as they approach superannuation. Every government is only too willing and happy to reward those that play ball. The signal to other civil servants is clear: Toe the line and get rewarded. On a number of occasions, these rewards are bestowed irrespective of the experience or competence of the officer concerned. These are rewards for services rendered, not very different from a bakshish.

However, bureaucratic talent can’t be allowed to be wasted. It needs to be harnessed post-retirement. There is a large number of civil servants who deserve to be and are indeed engaged by the government post-retirement. Only the methodology of post-retirement engagement needs to undergo a change. An institution like the Union Public Service Commission (UPSC) can be tasked with shortlisting candidates for post-retirement assignments. The officer will then not feel beholden to the government for the assignment. It will virtually eliminate a quid pro quo attitude, which is currently the order of the day.