Ritwika Sharma (O.P. Jindal Global University) & Mayuri Gupta (Vidhi Centre for Legal Policy; Gujarat National Law University) have posted When Labels Matter: Federalism, Basic Structure Doctrine, and the Indian Supreme Court on SSRN. Here is the abstract:
The Constitution of India is variously described as “federal” or “quasi-federal,” the latter description being a proverbial albatross around the Constitution’s neck. Since the early 1960s, the Indian Supreme Court has repeatedly tested the limits of legislation, especially parliamentary laws and how they sit alongside constitutional provisions concerning Union-state relations. While it might appear to be a harmless label, the Constitution’s characterization as “quasi- federal” has often led the Supreme Court to authorize increased centralization of governmental power. Simultaneously, with the birth of the “basic structure doctrine” in 1973, its subsequent development and the inclusion of federalism in the basic structure, the Supreme Court has been more mindful of which central incursions into states’ power pass muster. This article assesses how the basic structure doctrine has been used to propose a federalism-furthering interpretation of the Constitution. It suggests that certain contemporary federal issues could be resolved by the application of the basic structure doctrine to the interpretation of relevant constitutional provisions. The article distances itself from certain thoughts on the combined use of the basic structure doctrine as well as more recent jurisprudence around Indian federalism which can be deftly used to curb over-centralization and further states’ autonomy.