Document Type

Article

Disciplines

International Law

Abstract

The Indian Constitution is the largest written constitution in the world and contains extensive detail regarding the relationships between states and the center. However, debates persist regarding whether India is a federal democracy at all and whether the states require protection from encroachment by the federal government. In the seminal 1994 case S.R. Bommai v. Union of India, the Indian Supreme Court held that federalism was part of the "Basic Structure" of the Constitution. However, the Indian Supreme Court has been an inconsistent guardian of federalism over time. The Supreme Court is uniquely poised to enforce federalism guardrails because of its expansive jurisdiction, strong independence, and because other bodies like the Rajya Sabha andInter-State Council are not up to the task. The Court must do more to protect state interests given the critical role offederalism in fostering a vibrant democracy in post-Independence India, with state lines reflecting distinct ethnic, linguistic, and religious traditions. This article argues for a more robust focus on state interests in two of the most important areas offederalism jurisprudence: invocations of regional emergencies and disputes over legislative competencies. First, per Article 356 of the Constitution, the federal government can dissolve a state legislature through a process known as "President's Rule". Coupled with the legislature's plenary power to add and subtract states per Article 3, an expansive use of regional emergencies is a grave threat to Indian federalism. Second, Schedule Seven of the Constitution explicitly lists competencies as either State, Federal, or Concurrent. However, an overly rigid and pro-center application of these lists will lead to a whittling down ofstate powers because both residual powers and concurrent powers lie with the federal government in case of conflict.

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