Laurence Claus (University of San Diego School of Law) has posted The Law of Constitutional Characterization (33 National Law School of India Review 476 (2021)) on SSRN. Here is the abstract:
Both the Supreme Court of the United States and the Supreme Court of India can recognize and protect unwritten constitutional rights without relying on controversially broad readings of their constitutions’ express rights. Each court has a clear constitutional mandate to create a law of constitutional characterization, and that affords a separate and distinct way to recognize and protect rights.
This invited contribution to the National Law School of India Review first considers the indispensable role of a law of constitutional characterization in implementing India’s constitutional scheme. The article then turns to comparative constitutional experience to illuminate ways in which India’s Supreme Court could expand India’s law of constitutional characterization, ways that directly protect rights and that complement the Court’s existing constitutional rights jurisprudence.
Recommended.