Judges and civil servants: A post-retirement job remains a grey area

A striking similarity in statements made by Justice Sanjiv Khanna, just before he recently retired as chief justice of India, and his successor, Justice B R Gavai, is their emphasis on abjuring post-retirement assignments. It is unclear whether these suo motu positions were oblique criticisms of past chief justices, such as Justice Khanna’s predecessor Justice D Y Chandrachud’s defence of judges accepting post-retirement jobs in tribunals and similar institutions. Either way, both judges must be applauded for seeking to uphold a principle against a practice that may often raise ethical questions. 

There are two elements to the issue: Accepting government posts after retiring from government service and joining private firms. There is, of course, nothing inherently wrong in government servants accepting post-retirement jobs in either sector. Many have served with distinction in post-retirement official roles and on corporate boards. Still, the issue involves some measure of principled judgement. For government servants, the question of policy decisions or judicial pronouncements being influenced by the prospect of a post-retirement official job is a reality that cannot be ignored. There are rules for those serving in central civil services and in all-India services. Officials have to undergo a “cooling-off period” of one year before they can join a private commercial enterprise. Until December 2015, the gap was two years.

  For government posts, there is no cooling-off period. Yet, the Union government under different political regimes has either waived or altered the rules to suit the occasion. For instance in 2007, when the United Progressive Alliance was in power, Ashok Jha, after he retired as Union finance secretary, was granted exemption from this rule so that he could accept the office of president of Hyundai India before completing the cooling-off period. In 2018, under the National Democratic Alliance, then foreign secretary S Jaishankar (now India’s foreign minister) was granted a waiver just three months after he retired in January that year to join Tata Sons as president, global corporate affairs. In 2014, the government issued an ordinance to alter specific rules of the Telecom  Regulatory Authority of India, which prohibited retiring chairpersons from future employment in state governments or the central, to accommodate Nripendra Misra’s appointment as Prime Minister Narendra Modi’s principal secretary.  

  There is an additional grey area involving government servants who either resign from service or take voluntary retirement. They too are subject to a mandatory “cooling-off” period of one year but there are tricky issues that remain unaddressed. Among them is conflict of interest between the post the officer held in the last three years of service and the interests and work of the organisation the officer joins. This dichotomy arose in 2022, for instance, when Archana Goyal Gulati, who had worked in the Competition Commission of India (CCI), took voluntary retirement and joined Google as chief of public policy after serving the cooling-off period. Ms Gulati was in the CCI when it ordered an investigation into Alphabet Inc, Google’s parent, for allegations of abuse of dominance. The other lacuna concerns government servants who join political parties after retirement.  There are no rules to prevent this. The Supreme Court stated that it was up to the legislature to consider such a law. Given the growing number of former government servants in Parliament, this law is unlikely to materialise anytime soon.