Constitution of India
Article 228: Transfer of certain cases to High Court
Part VI — The States (Chapter V — The High Courts in the States)
Article 228 — Main body with clauses (a) and (b)
WHAT IT SAYS: 1. If a High Court is satisfied that a case in a subordinate court involves a SUBSTANTIAL QUESTION OF LAW as to the INTERPRETATION OF THE CONSTITUTION, and that determination is NECESSARY for disposal of the case — 2. The High Court SHALL WITHDRAW the case. 3. It MAY then do one of two things: (a) Dispose of the entire case itself, OR (b) Determine only the constitutional question and RETURN the case to the subordinate court with its judgment, which the subordinate court must follow. WHAT IT MEANS: 1. This is a MANDATORY power — once the HC is 'satisfied', withdrawal is obligatory ('shall'), not discretionary. 2. But the HC has DISCRETION on how to handle it post-withdrawal — try itself or remand. 3. Applies to BOTH civil and criminal cases. 4. The question must relate to CONSTITUTIONAL INTERPRETATION — not ordinary statutory questions. 5. The subordinate court is BOUND to dispose of the remanded case in conformity with the HC's judgment. KEY DOCTRINE: 1. Doctrine of Constitutional Supremacy in Interpretation — only higher courts should settle constitutional questions. 2. Distinct from Art. 226 (writs) and Art. 227 (superintendence) — Art. 228 is a NARROW jurisdiction limited strictly to constitutional questions.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Section 228 (Transfer of certain cases to High Court for trial) Original provision: If a High Court was satisfied that a case in an inferior court involved the validity of any Federal or Provincial Act, it SHALL transfer the case to itself. What India kept: The mandatory nature of withdrawal when constitutional questions arise. 2. Section 113 of the Civil Procedure Code (pre-existing Indian law) Original provision: Allowed courts to refer questions about vires of an Act to the High Court. What India kept: The concept of referring constitutional questions upward. INDIA'S SPECIFIC ADAPTATIONS: 1. Broadened scope to 'interpretation of the Constitution' — not limited to validity of Acts alone, unlike S. 228 of the 1935 Act which covered only validity of Federal/Provincial Acts. 2. Added the option to RETURN the case after deciding the constitutional question (clause b) — the 1935 Act required full trial by the HC. This was added during CAD on Ambedkar's amendment to reduce HC burden. 3. Removed the restriction that only the Advocate-General could apply — under Art. 228, ANY party or the HC suo motu can trigger withdrawal.
Constituent Assembly Debate
DEBATED ON: 7 June 1949 and 8 June 1949 (CAD Volume VIII) DRAFT ARTICLE: 204 KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Bombay) — Moved a complete substitution of Draft Art. 204 to give the HC TWO OPTIONS: (a) dispose of the case itself, or (b) decide only the constitutional question and return the case to the subordinate court. 2. Prof. K.T. Shah — Proposed substituting 'shall' with 'may' to make withdrawal discretionary, not mandatory. 3. Dr. Bakshi Tek Chand — Opposed Prof. Shah's amendment; argued 'shall' is essential to make it OBLIGATORY on the HC to withdraw constitutional questions from subordinate courts. 4. Shri H.V. Kamath (C.P. & Berar) — Expressed concern that the article would increase litigation costs and delays; questioned the need for compulsory trial of ALL withdrawn cases. MAJOR DISAGREEMENTS: 1. 'Shall' vs. 'May' — Prof. Shah wanted discretion; Dr. Bakshi Tek Chand argued discretion would make the article pointless since CPC S.24 and CrPC S.526 already gave discretionary transfer power. 2. Full trial vs. Partial remand — Original draft required HC to dispose of the ENTIRE case; a member suggested the option to decide only the constitutional question and return the case. FINAL OUTCOME: Ambedkar's substitution amendment was accepted — giving the HC dual options (dispose or remand) while retaining 'shall' for mandatory withdrawal. Adopted on 8 June 1949. AMBEDKAR'S KEY QUOTE: Ambedkar reserved his detailed remarks but moved the substitution to give the HC flexibility, noting he wanted to avoid 'holding up article after article because of certain minor defects'.
Landmark Judgments
LANDMARK JUDGMENTS: 1. Yusuf Abdul Aziz v. State of Bombay (1954 AIR 321) — First major use of Art. 228; the Bombay HC withdrew the case to determine whether S. 497 IPC violated Arts. 14 & 15; SC upheld S. 497's validity on appeal under Art. 132(1). 2. Ranadeb Choudhuri v. Land Acquisition Judge, 24-Parganas (1971, Calcutta HC) — Distinguished Art. 228 from S. 113 CPC; held Art. 228 is a constitutional provision dealing ONLY with interpretation of the Constitution, unlike S. 113 which deals with statutory questions. 3. State of Bihar v. A.F.A. Hamid (1954, Patna HC) — Held that Art. 228 read with Art. 147 covers interpretation of the Government of India Act, 1935 as part of constitutional interpretation; clarified the scope of 'substantial question of law'. 4. Budhan Choudhry v. State of Bihar (1955 AIR 191) — SC examined constitutionality of S. 30 CrPC after the matter arose from a constitutional question in a subordinate court; reinforced the importance of higher courts deciding constitutional validity issues. NOTABLE DISSENTS: 1. No widely reported dissents specifically on Art. 228 interpretation. SCHOLARS & JURISTS: 1. D.D. Basu — Art. 228 is a SPECIAL jurisdiction distinct from Arts. 226 and 227; it is narrower in scope as it can ONLY be invoked for constitutional interpretation, not general law. 2. M.P. Jain — Art. 228 ensures uniformity in constitutional interpretation by channeling such questions to the High Court, preventing conflicting rulings by subordinate courts.