Constitution of India
Article 228A: Special provisions as to disposal of questions relating to constitutional validity of State laws
Part VI — The States (Chapter V — High Courts)
Clause (1)
WHAT IT SAID: No High Court shall have jurisdiction to declare any Central law to be constitutionally invalid. WHAT IT MEANT: High Courts were stripped of power to adjudicate on the validity of Central legislation — that power was given exclusively to the Supreme Court under Article 131A. KEY DOCTRINE: Bifurcation of Judicial Review — Central law validity reserved for Supreme Court, State law validity reserved for High Courts.
Clause (2)
WHAT IT SAID: Subject to Article 131A, the High Court may determine all questions relating to the constitutional validity of any State law. WHAT IT MEANT: High Courts retained power to decide validity of State laws only, but subject to the Supreme Court's overriding exclusive jurisdiction under Article 131A. KEY DOCTRINE: Residual State-Law Review — High Courts became confined reviewers of State legislation, subordinate to the Supreme Court's exclusive Central-law jurisdiction.
Clause (3)
WHAT IT SAID: The minimum number of judges who shall sit for determining constitutional validity of any State law shall be five; proviso — if the High Court has fewer than five judges, all judges may sit. WHAT IT MEANT: A supermajority bench requirement was imposed to make it harder for High Courts to strike down State laws, creating a procedural hurdle for judicial review. KEY DOCTRINE: Minimum Bench Requirement — Analogous to Article 144A (requiring 7-judge bench and two-thirds majority in the Supreme Court for Central law invalidity).
Constitutional Inspiration
SOURCE(S): 1. ORIGINAL INDIAN CONTRIBUTION — No foreign model was borrowed for Article 228A. This was a novel Emergency-era innovation designed to split judicial review between the Supreme Court and High Courts. INDIA'S SPECIFIC CONTEXT: 1. Swaran Singh Committee (1976) — Recommended curtailing judicial review powers to ensure parliamentary supremacy during the Emergency. 2. Bifurcation Model — Influenced by the desire to prevent High Courts from striking down Central laws (as had happened with land reform and nationalization legislation). 3. Minimum Bench Size — Inspired by a political aim to make it procedurally difficult for courts to declare laws unconstitutional, ensuring legislative dominance over judicial scrutiny. WHY FRAMERS FELT THIS WAS NEEDED: The Indira Gandhi government sought to immunize Central legislation from challenge in High Courts and impose procedural barriers on State-law review, consolidating executive-legislative dominance over the judiciary during the Emergency.
Constituent Assembly Debate
NOT APPLICABLE — ARTICLE 228A WAS NOT PART OF THE ORIGINAL CONSTITUTION. Article 228A was inserted by the 42nd Amendment Act, 1976, during the Internal Emergency. It was NOT debated in the Constituent Assembly (1946–1949). PARLIAMENTARY DEBATES: 1. The Constitution (42nd Amendment) Bill was introduced in Lok Sabha on 1 September 1976 by H.R. Gokhale, Minister of Law, Justice and Company Affairs. 2. Indira Gandhi stated on 27 October 1976 that the Bill was 'responsive to the aspirations of the people.' 3. The Bill was passed by Lok Sabha on 2 November 1976 and by Rajya Sabha on 11 November 1976. 4. President Fakhruddin Ali Ahmed gave assent on 18 December 1976. REPEAL DEBATE: 1. The Constitution (43rd Amendment) Bill was introduced in Lok Sabha on 16 December 1977 by Shanti Bhushan, Minister of Law. 2. The Janata Party government sought to restore the pre-Emergency position and omit Articles 31D, 32A, 131A, 144A, 226A, and 228A. 3. The Bill was ratified by more than half the State Legislatures as required under Article 368(2).
Landmark Judgments
LANDMARK JUDGMENTS: 1. Minerva Mills Ltd. v. Union of India (1980) — SC struck down Sections 4 and 55 of the 42nd Amendment as unconstitutional, reaffirming the basic structure doctrine and that judicial review cannot be excluded; Article 228A's repeal was consistent with this reasoning. 2. L. Chandra Kumar v. Union of India (1997) — SC held that judicial review under Articles 226/227 of High Courts and Article 32 of the Supreme Court is part of the basic structure; provisions like Article 228A that bifurcated or curtailed this power would be constitutionally suspect. 3. Kesavananda Bharati v. State of Kerala (1973) — SC established the basic structure doctrine; the 42nd Amendment (including Article 228A) was enacted partly to override this ruling. NOTE: There are no direct judgments interpreting Article 228A itself due to its brief existence (Feb 1977 – Apr 1978) and prompt repeal. NOTABLE DISSENTS: 1. Justice P.N. Bhagwati in Minerva Mills (1980) — Dissented on Section 4 (Article 31C amendment) but agreed that judicial review is an integral part of the constitutional system. SCHOLARS & JURISTS: 1. Nani Palkhivala — Described the 42nd Amendment as devastating to the Constitution; argued provisions like 228A fragmented and weakened the unified system of judicial review. 2. H.M. Seervai — Criticized the 42nd Amendment's curtailment of High Court jurisdiction as an assault on judicial independence and the rule of law. 3. Granville Austin — In 'Working a Democratic Constitution' analyzed the Swaran Singh Committee recommendations and the Emergency-era amendments as the most serious threat to India's constitutional democracy.