Article 228

Article 228 of the Constitution of India empowers the High Courts to transfer certain cases from subordinate courts when those cases involve substantial questions of law relating to the interpretation of the Constitution. This provision serves to uphold the authority of High Courts as constitutional guardians and ensures consistency in the interpretation of constitutional principles across the judicial hierarchy.

Historical Background and Constitutional Context

The inclusion of Article 228 in the Constitution draws from the British principle of judicial hierarchy and the colonial-era system under the Government of India Act, 1935, which allowed superior courts to oversee matters involving significant legal questions. The framers of the Indian Constitution recognised the need for a mechanism that would prevent subordinate courts from rendering inconsistent interpretations of the Constitution.
By empowering High Courts to withdraw such cases, Article 228 ensures that complex constitutional issues are resolved by courts with higher judicial expertise and authority. This provision reflects the framers’ intent to preserve the uniformity, coherence, and supremacy of constitutional law throughout the country.

Key Provisions and Operation of Article 228

Article 228 provides that if a High Court is satisfied that a case pending in a subordinate court involves a substantial question of law as to the interpretation of the Constitution, it may:

1. Withdraw the case from the subordinate court; and
2. Either decide the entire case itself, or
3. Determine only the constitutional question, and then return the case to the subordinate court with its judgment on that issue, directing it to dispose of the case in conformity with the High Court’s decision.

This mechanism ensures that constitutional interpretation remains consistent and authoritative while allowing subordinate courts to proceed with other non-constitutional aspects of the case.

Substantial Question of Law

The term “substantial question of law” holds central importance under Article 228. A substantial question of law refers to a significant or essential legal issue that has broad constitutional implications or that requires authoritative interpretation of constitutional provisions.
Characteristics of a substantial question of law include:

• It must pertain to the interpretation or scope of a constitutional provision.
• It should have general importance affecting legal rights or public interest beyond the individual case.
• It must not be settled by previous judicial precedent or must involve a new or debatable constitutional issue.

In State of West Bengal v. Anwar Ali Sarkar (1952), the Supreme Court elaborated on what constitutes a substantial question of law, observing that such a question must be essential to the decision of the case and have significant legal or constitutional relevance.

Judicial Precedents and Interpretations

Several judgments have shaped the interpretation and scope of Article 228:

• K.K. Verma v. Union of India (1954): The Supreme Court clarified that the power under Article 228 is discretionary and should be exercised by High Courts only when necessary to maintain constitutional uniformity and avoid conflicting interpretations.
• Keshavananda Bharati v. State of Kerala (1973): Although primarily known for establishing the Basic Structure Doctrine, this case reinforced the principle that constitutional interpretation must be consistent and grounded in the supremacy of the Constitution — a philosophy that underlies Article 228.
• Minerva Mills Ltd. v. Union of India (1980): The judgment reaffirmed the judiciary’s role in reviewing constitutional amendments and laws, highlighting the broader significance of judicial oversight over constitutional questions.

These rulings collectively underline that High Courts, while exercising powers under Article 228, act as guardians of constitutional coherence.

Procedure for Transfer under Article 228

The procedure for invoking Article 228 involves specific steps and judicial satisfaction:

1. Identification of a Constitutional Question: A subordinate court must either itself recognise that a substantial constitutional question arises or the matter must be brought to the notice of the High Court.
2. High Court’s Satisfaction: The High Court must be satisfied that the case indeed involves a substantial question of law concerning the interpretation of the Constitution.
3. Withdrawal of the Case: Upon satisfaction, the High Court issues an order withdrawing the case from the subordinate court.
4. Disposal of the Case: The High Court may:
   • Dispose of the entire case on merits; or
   • Decide only the constitutional issue and remit the case back to the subordinate court for final disposal in accordance with its judgment.

The subordinate court, upon receiving the case back, is bound by the decision of the High Court on the constitutional question.

Relationship with Articles 226 and 227

Article 228 functions in harmony with Articles 226 and 227:

• Article 226 empowers High Courts to issue writs for the enforcement of fundamental and legal rights.
• Article 227 grants High Courts the power of superintendence over all courts and tribunals within their jurisdiction.
• Article 228, meanwhile, gives High Courts specific authority to withdraw and decide cases involving constitutional interpretation.

Together, these provisions ensure a comprehensive supervisory and constitutional role for High Courts within their respective jurisdictions.

Impact on Subordinate Courts

The operation of Article 228 has a significant impact on the functioning of subordinate courts:

• It prevents inconsistent or erroneous interpretations of the Constitution by lower courts.
• It promotes judicial discipline and coherence in the application of constitutional principles.
• It reinforces the hierarchical nature of judicial authority, ensuring that complex constitutional issues are addressed at higher levels of judicial expertise.

When a case is remanded after the High Court’s decision on the constitutional issue, the subordinate court is bound to follow that interpretation, thereby maintaining uniformity in judicial outcomes.

Limitations on the Exercise of Power

While Article 228 grants wide powers, its exercise is subject to certain limitations:

• The High Court must first be satisfied that the case involves a genuine and substantial constitutional question.
• The provision does not apply to cases involving trivial or procedural questions of law.
• The power is discretionary rather than obligatory; the High Court is not bound to withdraw every case involving constitutional issues.
• The provision must not be used to interfere unnecessarily in the regular functioning of subordinate courts.

Judicial pronouncements have consistently held that Article 228 should be exercised cautiously and sparingly, only in cases where constitutional interpretation is unavoidable for resolving the dispute.

Significance of Article 228

Article 228 plays a crucial role in India’s federal and constitutional framework by:

• Ensuring that constitutional questions are decided authoritatively by higher courts.
• Promoting uniformity and consistency in constitutional interpretation across the judiciary.
• Reinforcing the High Courts’ role as constitutional custodians within the states.
• Upholding the supremacy of the Constitution and preserving the coherence of India’s constitutional jurisprudence.

Through this provision, the framers ensured that constitutional matters, which are often complex and sensitive, are handled by judges with higher expertise and constitutional responsibility.