Implications of the M.S. Gill precedent on statecraft

09 Apr 2008 Share on:

Read an article with the same title on Hindu by Harish Khare. Here is my opinion on the issue.

Should top bureaucrats, police chiefs, and judges be allowed to enter politics?

I keep circling back to a stubbornly democratic instinct: politics should not be a gated colony. If an adult citizen wants to contest elections and try to lead, it feels wrong to permanently disqualify them just because they once held a powerful constitutional or administrative office.

And yet, the worry that fuels the opposite view is not paranoia. It is incentives. If someone who is supposed to be neutral today can see a political “reward” waiting tomorrow, neutrality is put under pressure. Even when the person stays perfectly upright, the public can reasonably suspect a bargain, and institutions do not survive long on suspicion.

So I do not see this as “ban them” versus “let them in.”
I see it as keep the office clean while keeping democracy open.

Neutrality while serving is non negotiable

While someone is in service, especially at senior levels, they cannot wear a party jersey. India’s service rules explicitly push this: the All India Services (Conduct) Rules bar members from associating with political parties or participating in political activity while in service.¹
That is the right moral geometry. You cannot be the referee and audition for a team at the same time.

After retirement, a blanket ban feels anti democratic

Where I part ways with the “never allow them” camp is after retirement or resignation. A permanent ban shrinks democracy. We keep saying “more capable and educated people should enter politics,” and then we close the door on one class of people who have actually run the state’s machinery and understand how policy becomes reality.

This is also why I disagree with the idea that we only need “leaders and not experts.” Leadership is not the opposite of knowledge. Leadership is knowledge plus courage plus accountability under sunlight. If we block knowledgeable people from even attempting leadership, we do not get “pure leaders.” We get a smaller talent pool and louder theatre.

The real risk is the post retirement bargain, and the Constitution already recognizes it

India’s constitutional design already admits the danger of future rewards influencing present conduct, at least for some offices.

For the Comptroller and Auditor General, the Constitution explicitly says the CAG is not eligible for further office under the Government of India or a State after leaving office.²
For Public Service Commission leadership, Article 319 similarly restricts post tenure government employment for chairpersons and members, again to protect independence.³
In other words, the Constitution itself whispers the same fear: “Do your duty without looking over your shoulder for the next posting.”

So the system is not blind to this problem. It has simply applied the solution unevenly.

What courts have said: this is for the legislature, not judges

When petitions have asked courts to impose a mandatory “cooling off” period to stop civil servants from contesting elections immediately after retirement or resignation, the Supreme Court has essentially said this is a policy choice for the legislature.⁴
In April 2024, the Court refused to entertain a plea that sought implementation of the Election Commission’s earlier recommendations on a cooling off period, and allowed the petitioner to withdraw with liberty to approach the appropriate authority.⁵

So the law today does not create a universal “wait X years before politics” rule, even though the concern keeps resurfacing.

The Election Commission has raised the concern directly

The Election Commission has flagged this incentive issue for years. In 2012, reporting noted that the EC wrote to the government suggesting a “cooling off period” between leaving service and joining political parties, pointing to the need to preserve neutrality and public confidence.⁶
Later reporting also noted that the government rejected the EC’s suggestion for such a cooling off period, arguing it would not align with constitutional provisions.⁷

So the debate is not imaginary. It is recurring. It is unresolved.

Judges are a special case because legitimacy is fragile

For judges, this problem becomes sharper. The judiciary’s authority is made of trust, and trust bruises easily. If judges accept government posts immediately after retirement, or resign to contest elections, people will replay old judgments with suspicion, whether fair or not.

In 2025, CJI B R Gavai publicly warned that judges taking government posts after retirement or resigning to enter politics raises ethical concerns and can erode public trust.⁸
He also stated in open court that he and Justice Abhay S Oka would not accept post retirement assignments, a signal that even the optics are being treated as a serious institutional issue.⁹

This does not mean judges stop being citizens. It means judicial credibility is a public utility, not a personal asset, and the guardrails must be tighter.

My way out of the deadlock: allow entry, block the bargain

My position is not “stop them from entering politics.”
My position is “do not let the office become a job interview for politics.”

That means:

First, strict neutrality while in office (already the intent of service rules).¹
Second, if India wants a clean compromise, legislate a real cooling off period for the most sensitive posts, so today’s decisions cannot be traded for tomorrow’s ticket.⁴⁶
Third, hold judges to stricter norms than the executive services, because the judiciary’s legitimacy is uniquely vulnerable to perceived conflicts.⁸⁹

A legitimacy preference: earn the mandate, do not be placed

I also feel strongly that if former constitutional office bearers or senior officials enter politics, the healthiest route is to face voters and win, not to be quietly “placed” into prestige positions. Contesting Lok Sabha elections, even as an independent, is the harshest legitimacy test. If they have truly served the public well, the public can validate it at the ballot box.

That is how you keep the door open without turning neutrality into a commodity.

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