Policing the federation: The Supreme Court and judicial federalism in India

Wilfried Swenden (Lead Author), Rekha Saxena

Research output: Contribution to journalArticlepeer-review

Abstract

This article assesses the role of the Indian Supreme Court in policing the Indian federation. Drawing from the literatures on courts and comparative federalism, it tests three assumptions to evaluate the performance of the Supreme Court in this regard: the political supremacy, the judicial safeguard and the judicial doctrine assumption. Based on a qualitative assessment of 40 judgements related to President's Rule, Centre–State disputes on legislative competence, asymmetric federalism and shared rule arrangements, we find mixed evidence for the political supremacy and judicial safeguard assumptions. The political supremacy assumption holds, but only in relation to cases affecting President's Rule. However, there is no discernible pattern across the other cases. Overall, the judicial doctrine assumption (linked to principles of legal reasoning, legal doctrine and original intent) seems to inform the Supreme Court's jurisprudence on centre–state issues most often. Given that the Indian constitution is comparatively centralized, judgements that rely on judicial doctrine have mostly favoured the centre, thus constraining the extent to which the Supreme Court has operated as a safeguard of federalism and State autonomy.
Original languageEnglish
JournalTerritory, Politics, Governance
Early online date24 Feb 2021
DOIs
Publication statusE-pub ahead of print - 24 Feb 2021

Keywords

  • federalism
  • courts
  • Indian Supreme Court
  • judicial review
  • India
  • centre-state relations
  • intergovernmental relations

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