Article 228A

Article 228A of the Constitution of India was a provision that once dealt with certain judicial procedures related to the transfer and adjudication of cases by High Courts. It was later repealed as part of a comprehensive reform effort to simplify and streamline the constitutional and judicial framework of India. The repeal was enacted through the Constitution (Forty-third Amendment) Act, 1977, which sought to restore balance and efficiency in the functioning of the judiciary following the constitutional changes introduced during the Emergency period.

Historical Background and Context

Article 228A was inserted into the Constitution by the Constitution (Forty-second Amendment) Act, 1976, a major amendment passed during the Emergency (1975–1977). The Forty-second Amendment, often described as the “Mini-Constitution,” introduced several provisions that altered the balance of power between the executive, legislature, and judiciary.
The introduction of Article 228A was intended to provide a specific procedural mechanism related to the handling of cases involving constitutional questions. However, due to overlapping provisions with Article 228 (which already empowered High Courts to withdraw and decide such cases) and the controversial nature of the 42nd Amendment, Article 228A was deemed unnecessary and inconsistent with the larger principles of judicial independence and constitutional clarity.

Repeal of Article 228A

Article 228A was formally repealed by the Constitution (Forty-third Amendment) Act, 1977, which came into effect on 1 February 1977. The repeal was a part of post-Emergency legislative reforms introduced by the newly elected government to reverse the restrictive and centralising effects of the 42nd Amendment.
The amendment that repealed Article 228A also included a saving clause, ensuring that any cases pending before a High Court at the time of repeal would continue to be dealt with as though Article 228A had never been enacted. This ensured procedural continuity and prevented legal confusion.

Purpose and Intended Function of Article 228A

The original purpose of Article 228A was aligned with judicial mechanisms concerning the transfer and adjudication of cases involving constitutional questions. It was designed to:

• Allow certain cases involving substantial questions of law related to constitutional interpretation to be transferred to High Courts for authoritative determination.
• Strengthen the High Courts’ role in deciding significant constitutional matters rather than leaving such issues entirely to subordinate courts.
• Ensure a uniform interpretation of the Constitution by enabling High Courts to address complex legal and constitutional disputes.

However, since Article 228 already provided for such transfer and adjudication powers, Article 228A was soon recognised as redundant and superfluous.

Legislative Intent Behind the Repeal

The repeal of Article 228A was motivated by several key considerations:

• Redundancy of Provisions: Article 228A overlapped with Article 228, which already granted similar powers to the High Courts, leading to constitutional duplication.
• Simplification of Judicial Procedures: The removal of unnecessary provisions was aimed at making the Constitution more concise and the judicial process more efficient.
• Restoration of Judicial Balance: The Forty-third Amendment sought to reverse many provisions of the Forty-second Amendment, which were perceived as attempts to curb judicial autonomy and concentrate power within the executive.
• Legislative Clarity: The repeal helped clarify the scope of High Court jurisdiction and avoid interpretative conflicts in constitutional matters.

Related Constitutional Provisions

Even after the repeal of Article 228A, the constitutional powers of the High Courts remain comprehensively defined under the following articles:

• Article 226: Grants High Courts the power to issue writs for the enforcement of fundamental rights and for any other legal purpose.
• Article 227: Provides High Courts with supervisory powers over all courts and tribunals within their territorial jurisdiction.
• Article 228: Authorises High Courts to transfer cases involving substantial constitutional questions from subordinate courts for determination.

These provisions collectively ensure that High Courts continue to play a central role in constitutional interpretation and judicial review, rendering Article 228A unnecessary.

Judicial Perspective and Interpretative Context

There are no landmark Supreme Court judgments directly concerning Article 228A, primarily because of its brief existence and subsequent repeal. However, constitutional commentaries and judicial pronouncements discussing the Forty-second and Forty-third Amendments often refer to the repeal of Article 228A as an example of the restoration of judicial independence after the Emergency.
The Supreme Court, through decisions such as Minerva Mills Ltd. v. Union of India (1980) and L. Chandra Kumar v. Union of India (1997), reaffirmed the basic structure doctrine, under which judicial review and the independence of the judiciary are regarded as inviolable constitutional principles. These principles resonate with the rationale for repealing provisions like Article 228A, which could have potentially weakened judicial consistency.

Significance and Implications of the Repeal

The repeal of Article 228A carried substantial constitutional and institutional significance:

• Strengthening Judicial Independence: The repeal marked a return to a more balanced relationship between the judiciary and other organs of government.
• Streamlining the Judicial Framework: By removing a redundant provision, the Constitution became more coherent and operationally efficient.
• Clarifying High Court Jurisdiction: The repeal ensured that Articles 226, 227, and 228 collectively and comprehensively defined the High Courts’ powers, eliminating ambiguity.
• Promoting Federal Balance: It reaffirmed the federal judicial structure by allowing both High Courts and the Supreme Court to exercise constitutional review in their respective domains.

Historical and Legislative Importance of the Forty-third Amendment

The Forty-third Amendment Act, 1977, under which Article 228A was repealed, was one of the most important legislative measures in India’s constitutional history. It represented a restoration of democratic principles following the Emergency period, reinstating the independence of constitutional institutions.
Apart from repealing Article 228A, the amendment also:

• Restored the jurisdiction of the Supreme Court and High Courts curtailed by the Forty-second Amendment.
• Reinforced the principle of judicial review as a cornerstone of the Constitution.
• Emphasised the separation of powers among the executive, legislature, and judiciary.

Contemporary Relevance

Although Article 228A no longer forms part of the Constitution, its brief existence and repeal continue to hold interpretative value in understanding the evolution of India’s judicial system. It underscores the ongoing effort to balance efficiency, federalism, and judicial autonomy within the constitutional framework.In modern India, the High Courts’ constitutional jurisdiction—anchored in Articles 226, 227, and 228—remains one of the strongest mechanisms for ensuring the rule of law and protection of rights. The removal of Article 228A simplified this framework, affirming that clarity and judicial accessibility are essential for effective constitutional governance.