The Constitution of India
Article 228
Transfer of certain cases to High Court
If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may —
(a) either dispose of the case itself, or
(b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.
Why this exists
The Constitution's framers wanted difficult constitutional questions to be settled by senior courts with the expertise and authority to interpret the Constitution properly, rather than leaving such weighty questions to lower, subordinate courts. Article 228 ensures consistency and correctness in constitutional interpretation by letting the High Court step in and either resolve the whole matter or clarify the constitutional point before the case returns to the trial court.
How courts read it
Courts have generally held that withdrawal under Article 228 is not automatic or a matter of right for litigants; it depends on the High Court's own satisfaction that a genuine and substantial constitutional question exists and that its resolution is necessary for deciding the case. Courts have cautioned against routine invocation of this power, reserving it for real, non-frivolous constitutional questions rather than minor or settled points of law.
Common misconceptions
- Myth: Any party can force the High Court to take over their case by claiming it involves the Constitution.
Fact: The High Court itself decides, based on its own satisfaction, whether the constitutional question is genuinely substantial and necessary — it's not an automatic right for litigants. - Myth: Article 228 lets the High Court permanently take over all subordinate court cases involving any law.
Fact: It applies narrowly — only cases involving a real, substantial constitutional interpretation question, not ordinary legal disputes.