Article 226A

Article 226A of the Constitution of India was a short-lived constitutional provision that sought to restrict the powers of High Courts in matters concerning the constitutional validity of Central laws. It was introduced during the period of the Emergency to centralise judicial review and curtail the jurisdiction of the High Courts under Article 226. The article was later repealed to restore the High Courts’ authority and reinforce the principle of judicial review as an essential feature of the Constitution.

Historical Background and Introduction

Article 226A was inserted by the Constitution (Forty-second Amendment) Act, 1976, enacted during the Emergency (1975–1977). The amendment was part of a series of constitutional changes introduced to enhance the powers of the executive and Parliament while reducing the independence of the judiciary.
The provision aimed to limit the jurisdiction of the High Courts by preventing them from entertaining petitions challenging the constitutional validity of Central laws. During this period, the central government sought to reduce judicial interference in legislative and executive actions, especially those concerning national legislation.

Key Provisions of Article 226A

The core of Article 226A stated that:

• High Courts could not consider or rule on the constitutional validity of any Central law while exercising jurisdiction under Article 226.
• The exclusive power of judicial review over Central laws was vested in the Supreme Court of India.
• The provision did not affect the High Courts’ powers to issue writs in other matters within their jurisdiction.

Effectively, Article 226A curtailed one of the essential powers of the High Courts — the power to conduct judicial review of Central legislation — which had been an integral aspect of India’s federal and constitutional design since 1950.

Impact on Judicial Review

The introduction of Article 226A substantially altered the balance of judicial powers between the Supreme Court and the High Courts. It restricted access to justice for citizens who wished to challenge the constitutionality of Central laws at the regional level.
Before its introduction, individuals could approach either the Supreme Court or the High Court to question the validity of any law — Central or State — that violated fundamental rights or constitutional provisions. Article 226A effectively removed this dual remedy, forcing petitioners to approach only the Supreme Court for such challenges.
This limitation was viewed as an attempt to weaken the role of the High Courts and concentrate judicial power at the central level, thereby diminishing the accessibility and federal nature of India’s judicial system.

Repeal by the Forty-third Amendment Act, 1977

Article 226A was repealed by the Constitution (Forty-third Amendment) Act, 1977, following the end of the Emergency. The repeal was part of a broader effort to restore democratic balance, reinforce judicial independence, and revive constitutional safeguards that had been eroded during the Emergency years.
The Forty-third Amendment reinstated the High Courts’ original powers under Article 226, allowing them once again to:

• Entertain petitions challenging the constitutional validity of Central laws;
• Exercise judicial review over executive and legislative actions;
• Protect fundamental rights and ensure constitutional compliance at both Central and State levels.

This repeal restored the federal balance between the Supreme Court and the High Courts, reaffirming the principle that both tiers of the judiciary have vital and complementary roles in upholding the rule of law.

Context and Constitutional Significance

The introduction and subsequent repeal of Article 226A reflected the dynamic tension between the legislature and the judiciary in India’s constitutional history. Its brief existence during the Emergency symbolised an attempt to limit the scope of judicial intervention, while its removal signified the nation’s return to constitutional normalcy and democratic accountability.
The repeal reaffirmed several constitutional principles:

• Judicial review is a basic feature of the Constitution, as affirmed in later judgments such as Minerva Mills Ltd. v. Union of India (1980) and L. Chandra Kumar v. Union of India (1997).
• The High Courts are not merely subordinate judicial bodies but independent constitutional authorities entrusted with the responsibility of safeguarding rights and ensuring legality in governance.
• Centralisation of judicial power is inconsistent with the federal spirit and the access to justice envisioned by the Constitution.

Judicial Interpretation and Criticism

Due to its short duration and limited application, no major judicial pronouncements directly interpreted Article 226A. However, its insertion and repeal attracted substantial criticism from jurists, legal scholars, and the judiciary.
Critics argued that the provision:

• Undermined the separation of powers by subordinating the judiciary to executive will;
• Contradicted the principle of equality before law by restricting citizens’ access to High Courts;
• Weakened federalism by concentrating all constitutional review of Central laws in the Supreme Court.

The judiciary, following its restoration to full authority, consistently reaffirmed its stance that judicial review forms the core of the Constitution’s basic structure, and any attempt to curtail it would be unconstitutional.

Broader Implications and Aftermath

The repeal of Article 226A had far-reaching implications for India’s constitutional democracy:

• It restored citizens’ right to challenge Central laws in their respective High Courts, making justice more accessible.
• It strengthened the system of checks and balances, ensuring that both Parliament and the executive remain accountable to judicial scrutiny.
• It reaffirmed the independence of the judiciary and its vital role in protecting constitutional governance.

By reinstating the High Courts’ power of judicial review, the 1977 amendment underscored India’s commitment to constitutional supremacy, ensuring that neither legislative authority nor executive power could operate beyond the limits of the Constitution.

Significance in Contemporary Constitutional Framework

Although Article 226A no longer exists, its historical episode serves as a powerful reminder of the fragility of judicial independence under political pressures. The period of its enforcement highlighted the risks of curbing judicial review and restricting the decentralised judicial system envisaged by the Constitution.
Today, the High Courts’ restored jurisdiction under Article 226 remains one of the strongest safeguards of democracy and the rule of law in India. The experience of Article 226A and its repeal continues to inform constitutional debates on the limits of parliamentary power, the protection of fundamental rights, and the vital necessity of an independent judiciary.