28TH CONSTITUTIONAL AMENDMENT OF INDIA

The Indian Constitution is a revered document encompassing the rules and regulations which govern the Union of India. The lengthiest constitution in the world, it came into existence after India gained independence. With the passage of time, the need to bring an alteration to certain rules inculcated in the constitution was felt, which naturally led to the amendment of the constitution and alteration and repealing of those laws which were no more in consistency with the ideals of the Republic of India. Out of all these amendments, one such amendment is the 28th constitutional amendment. The thirty-first amendment bill of 1972 was enacted as the Twenty-Eighth Amendment Act of India in the year 1972.

This particular amendment of the constitution is recognized for bringing an end to the exclusive privileges and services which were offered to the officers appointed as Indian Civil Servants and granted the Parliament the authority to establish and decide all the conditions pertaining to their service.

Before the establishment of the Union Public Service commission and systematized determination of the cadres, posting and other criteria which relates to the services of civil servants, India had Indian Civil Service which was initially known as the Imperial Civil Service, a system established by the Britishers. The members who were a part of this system were tasked with the responsibility of handling and managing all the governmental matters and the people which were a part of the Presidencies under British rule in India. The topmost position of the Indian Civil Service was headed by the Secretary of State for India, who was a member of the British Cabinet. Therefore, it would not be incorrect to state that the contemporary and the modernized civil services system of India is a descendant of the old British system.

Up until the year 1972, the Indian Constitution contained Article 314 which served as a scheme for the protection and safeguard for the officers of civil services who existed at that time. It protected officers of various services. Article 314 was notorious for guaranteeing to all those individuals who had been appointed by the Secretary of State in India or the Secretary of State in Council, which were subordinate to the Crown before the existence of the Constitution of India, the exact same conditions of their civil service after the Constitution of India became effective with respect to salaries, postings, leaves and remuneration. Article 314 also stated that the procedures in relation to disciplinary issues and other issues which affected their service would not be changed and that the rules would remain the same.

However, the Constitution had an eminent role to play in regulating India and streamlining it according to the acceptable social norms which were in accordance with the dynamic social order and the continuously changing social fabric of the country. In contrast to this, the civil services officers represented and were a part of an organization which was still running on the basis of stagnant rules from the British era and who were enjoying the privileges owing to the inflexible conditions they were subjected to as a part of their job. Their way of working and the privileges granted to them turned to be highly conflicting with the needs of the Indian society and the system of governance.

As a result, the amendment of the Constitution was deemed necessary and article 314 was repealed. In its place. Article 312A was included under Chapter 1, part XIV of the Constitution. This article granted the Parliament the power to either change or completely revoke the conditions of services of the officers.

Article 312A states:

(1) Parliament may by law—

  • vary or revoke, whether prospectively or retrospectively, the conditions of services as respects remuneration, leave and pension and the rights as respects disciplinary matters of persons who, having been appointed by the Secretary of State or Secretary of State in Council to a civil service of the Crown in India before the commencement of this Constitution, continue on and after the commencement of the Constitution (Twenty-eighth Amendment) Act, 1972, to serve under the Government of India or of a State in any service or post;

Sub-Clause(b) of the Article also states that the Parliament is empowered to either change or revoke the conditions of the services of the individuals who were appointed as officers, had retired or had ceased to be in the civil services before the Constitution of India became effective with respect to the pension schemes or the rules regulating their pension. However, Sub-Clause(b) also lays down that if an individual in question has previously occupied or is currently occupying the position of Chief Justice or other Judge of the Supreme Court or a High Court, the Comptroller and Auditor-General of India, the Chairman or other member of the Union or a State Public Service Commission or the Chief Election Commissioner, then the Parliament is not entitled to either change or revoke the conditions of his service which might act as a disadvantage to him after he has been appointed to that position unless those conditions apply to him due to his being appointed to that particular post/position by the Secretary of State or Secretary of State in Council to a civil service of the Crown in India.

Article 314 also provides that the Supreme Court shall fail to have jurisdiction and shall not hear any matter or a dispute which relates to any agreement or a provision mentioned in clause(1) of the Article and has been executed by any individual. The Court cannot hear a dispute which has arisen as a result of any letter of appointment to civil services or for the continuation of his services under the Government of the Dominion of India or a Province and has been issued to any individual. The Supreme Court shall also fail to have any jurisdiction with regards to any dispute  which has arisen owing to any obligation, liability or any right which was granted under the originally enacted Article 314 of the Indian Constitution.

Sources/References:

  1. https://legislative.gov.in/constitution-twenty-eighth-amendment-act-1972 : 28th Amendment
  2. https://indianconstitution.guru/constitution-of-india/part-14/article-312/: Article 312

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

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The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

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In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories.

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