Research Paper on Comparative Analysis of Rule of Law in UK & India

“Comparative Analysis

of

Rule of Law in India & UK”

Electronic copy available at: http://ssrn.com/abstract=1533265

Research Paper on Comparative Analysis of Rule of Law in UK & India

INDEX

CHAPTER-1
 Introduction of Topic
 Nature and Scope of the Study
 Objectives of the study
 Hypothesis
 Significance of the study
 Research Methodology

CHAPTER-2
 Concept of Rule of law in UK

CHAPTER-3
 Concept of Rule of law in India

CHAPTER-4
 Conclusion & Suggestions

BIBLIOGRAPHY

 Books

 Journals

 Reports

 Web References

 Case Laws

Electronic copy available at: http://ssrn.com/abstract=1533265

Research Paper on Comparative Analysis of Rule of Law in UK & India

CHAPTER-1
Research Paper on Comparative Analysis of Rule of Law in UK & India

Introduction

Rule of law is the supreme manifestation of human civilization and culture and is
a new ‘lingua franca’ of global moral thought. It is an eternal value of constitutionalism
and inherent attribute of democracy and good governance.

The term ‘Rule of law’ is derived from the French phrase ‘la principe de legalite’
which means the ‘principal of legality’. It refers to ‘a government based on principles of
law and not of men’. In other words, the concept of ‘la Principe de legalite’ is opposed to
arbitrary powers.

It is a legal principle, of general application, which is sanctioned by the

recognition of authorities, and usually expressed in the form of a maxim or logical
proposition called a "Rule," because in doubtful or unforeseen cases it is a guide or norm
for their decision. The Rule of law, sometimes called "the supremacy of law", provides
that decisions should be made by the application of known principles or laws without the
intervention of discretion in their application1.

The concept of Rule of law is of old origin. It is an ancient ideal, and was
discussed by Ancient Greek philosophers such as Plato and Aristotle around 350 BC.
Plato wrote: “Where the law is subject to some other authority and has none of its own,
the collapse of the state, in my view, is not far off; but if law is the master of the
government and the government is its slave, then the situation is full of promise and men
enjoy all the blessings that the gods shower on a state”. Likewise, Aristotle also endorsed
the concept of Rule of law by writing that "law should govern and those in power should
be servants of the laws.”

In UK, Sir Edward coke is said to be the originator of this concept, when he said
that the king must be under the god and law and thus vindicated the supremacy of law
over the pretensions of the executives. Later, Prof. Albert Venn Dicey developed this
concept. He was an individualist. He wrote about the concept of rule of law at the end of

1 Black's Law Dictionary (1979).

Research Paper on Comparative Analysis of Rule of Law in UK & India

the golden Victorian era of laissez faire in England. That was the reason why Dicey’s
concept of the rule of law contemplated the absence of wide powers in the hands of
governmental officials. According to him, wherever there is discretion, there is room for
arbitrariness.

In India, the concept of Rule of law can be traced to Upanishad. It provides that
the law is the king of kings. It is more powerful and rigid than the kings. There is nothing
higher than law. By its powers the weak shall prevail over the strong and justice shall
triumph. Thus, in monarchy, the concept of law developed to control the exercise of
arbitrary powers of the monarchs who claimed divine powers to rule. In democracy, the
concept has assumed different dimension and means that the holders of public powers
must be able to justify publicly that the exercise of power is legally valid and socially
just.

The Rule of law is viable and dynamic concept and like many other concepts, is
not capable of any exact definition. This, however, does not mean that there is no
agreement on the basic values which it represents. The term of Rule of law is used in
contradistinction to rule of man and rule according to law. Even in the most autocratic
forms of government there is some law according to which the powers of the government
are exercised but it does not mean that there is Rule of law. Therefore, the Rule of law
means that the law rules, which is based on the principles of freedom, equality, non-
discrimination, fraternity, accountability and non arbitrariness and is certain, regular and
predictable, using the word law in the sense of ‘Jus’ and ‘lex’ both. In this sense, rule of
law is an ideal. It is modern name for Natural law. In ancient times, man has always
appealed to something higher than which is his own creation. In Jurisprudence, Romans
called it ‘jus naturale.’ Mediaevalists called it the ‘law of god’. Hobbes, Locke, Rousseau
called it a ‘social contract’ or natural law and the modern man calls it ‘Rule of law’.
Research Paper on Comparative Analysis of Rule of Law in UK & India

There are number of elements of Rule of law which are as follows2:

a) Abhorrence of arbitrary power:
Every person in society is governed by law, including governmental officials and
law-enforcement officials. The court can apply the doctrine of ultra vires equally to every
government agency and official for acts that are outside the authority conferred by law.
Also, a person can only be punished for a breach of an existing law or regulation, and
never for breach of a law not existing at the time doing something.

b) Equality before the law

Courts must apply laws equally to all people regardless of their race, class wealth,
religion, etc. Every accused person should be entitled to a fair trial, to be informed of the
allegations against have an opportunity to rebut the charge against him, to have an
opportunity to rebut the charge against him and to have his conduct assessed by impartial
judges.

c) A formal, rational court system

Formality and rationality describe a system with much predictability and little
discretion, a system with regular, open and stable procedure. The advantage of such a
system is that its behavior is consistent and objectively verifiable.

d) Judicial independence and separation of powers

The judiciary should be independent of the legislative and executive, and every
judge should be free to decide matters before him without any improper influences,
inducements or pressures. The power of a government should be spit into three are
adequate checks and balances to minimize the possibility of the abuse of power. All state
functionaries must at all times act in accordance with the law and no act of state should
be autocratic, oppressive, capricious or against the law.

2
Pendse, M L., Citizens Rights and Democracy in India, Citizen’s Rights and Rule of Law: Problems and
prospects, Essays in Memory of Justice J C Shah. PP 95-110.
Research Paper on Comparative Analysis of Rule of Law in UK & India

Defining the Rule of Law: Mapping Divergence

The concept of rule of law is practically as old as philosophical itself. From

Aristotle, who saw the Rule of law as superior to the rule of man, to contemporaries like
Ronald Dworkin and Judith Shklar, it has been debated through the years. Yet the
concept of rule of law remains a conundrum.

Despite its frequent use for centuries and notwithstanding over fifteen years of
experience in this newly redefined venture, practitioners and theorists alike avow that
there is single template and no fixed meaning for the rule of law. Renowned legal
scholars concur on the impression and vagueness of the term, despite its frequent use3.
The definition of rule of law is at once confused and contested. However, scholars have
acknowledged, in different ways, that there is not just confusion, but also a significant
divergence between schools of thought on the definition and content of rule of law.

The concept of Rule of Law is restricted to its historical genesis as a means of

protection from the arbitrariness of ‘Rule of man’ and from the abuse of power by the
state. Friedrich von Hayek defines the concept as ‘Stripped of all its technicalities’; this
means that government in all its actions is bound by rules fixed and announced
beforehand- rules which make it possible to foresee with fair certainty how the authority
will use its coercive powers in given circumstance, and to plan one’s own individual
affairs on the basis of that knowledge4. For Hayek, the predictability offered by the rule
of law, even if oppressive, brings with it security; unpredictability and arbitrariness, in his
view, produce insecurity and hamper individual freedom. The Rechtsstaat or etat de droit
(State of law) that developed in continental Europe in the 19th century could be seen as an
extreme form of minimalist Rule of law. However, its excessive administrative control
and consequent in equities led prominent legal scholars like Albert Venn Dicey, Michael
Oakeshott and Hayek himself to dismiss it as expression of the rule of law5. They would

3
Mathew Stephenson, “The Rule of law as a goal of Development policy”
http://www1.worldbank.org/publicsector/legal/ruleoflaw2.htm
4
Friedrich von Hayek (1994). The Road to serfdom, Chicago: University of Chicago Press.
5
Flathman Richard (1994). ‘Liberalism and the suspect Enterprise of political Institutionalism: the case of
the Rule of Law’, The Rule of Law: Nomos XXXVI, New York: New York University Press.
Research Paper on Comparative Analysis of Rule of Law in UK & India

see rule of law as an umbrella encompassing structural, procedural, as well as substantive

elements. Dicey captures threefold dimensions of the rule of law in his depiction. The
rule of law has three meanings. It means in the first place the absolute supremacy or
predominance of regular law as opposed to the influence of arbitrary power. In the
second place, it means equality before law and third the laws of the constitution are the
consequence of the rights of individuals.

Dicey defined the Rule of law as, “….with us every official, from Prime Minister
down to constable or collector of taxes, is under the same responsibility for every act
done without legal justification as any other citizen…..6”

The rule of law, recognized and declared by the Privy Council, was uniformly
administered and accepted by courts in India as the law of the land prior to the coming
into force of the constitution namely, “that the executive cannot act to the prejudice of
person without the authority of law.” This principle was clothed in constitutional armour
when the right to life was guaranteed by Art 21 of the constitution. The international
Commission of Jurists, which enjoys Consultative status with the United Nations, has
been attempting, with considerable success, to give material content to the rule of law, an
expression also used in the universal declaration of Human rights. One of the
International Commission of Jurist’s most notable achievements was the Declaration of
Delhi, 19597.

It is difficult to design a precise definition of the expression ‘Rule of Law’ in the

modern democratic state. Rule of Law is a principle of general evolution in democratic
societies, and is not the individual product of any state or society. It is intended to achieve
its true destiny by the methods which suit the sprit and ethos of its history. Rule of law
may be broadly described as ‘a system of government devised to ensure the dignity of the
individual and administered by men imbued with the zealous belief that the laws are
intended to protect the rights, privileges and dignity of the individual- combination of
6
Sachar, Rajinder (2008). ‘Indian Democracy and the rule of law’, Citizen’s Rights and Rule of Law:
Problems and prospects, Essays in Memory of Justice J C Shah. PP 111-120
7
Mani, Rama (2009). ‘Exploring the rule of law in theory and practice’, Civil War and Rule of Law. PP 21-
45
Research Paper on Comparative Analysis of Rule of Law in UK & India

ideals concerning the purpose of organized society, and of practical experience, in terms
of legal institutions, procedures and traditions by which these ideals may be translated
into action’. It means that law of the land is supreme. It signifies that everyone should be
equal before law, that is, no matter who you are, whether a governmental official or a
peasant, you will be subject to the same consequences if you have breached the law. It
demands adherence to the procedures and the institutions which, experience and tradition
in different nations, with diverse political structures and economic backgrounds have
adopted as essential to protect the individual from the arbitrary exercise of authority and
to enable him to enjoy the dignity of man.

Rule of law does not seek to make those who are unequal equal, or to reduce the
equality of those who are equal. Shorn of other complexities the rule of law requires that
in the exercise of its governmental and quasi-governmental functions those who are equal
will be treated equally. Equality as a foundation of democracy does not envisage equality
between unequal; it contemplates equality between those who are similarly
circumstanced.
Research Paper on Comparative Analysis of Rule of Law in UK & India

Scope
The Scope of the study is limited to the Analysis of the Concept of Rule of Law in
India as well as UK.

Hypothesis

1. That Dicey’s Concept of Rule of Law was included into the Indian legal system at
the time of incorporation of the Constitution of India.
2. That Dicey’s Rule of Law still prevalent for good governance
3. That Dicey’s Concept of Rule of Law lacked in consistency.

Aim & Objective of the study

1. To understand the concept of Rule of Law Conceptually.

2. To undertake the comparative analysis between concept of Rule of law in India as
well as UK
3. To Evaluate the Similarities and dissimilarities of concept of Rule of law between
the India & UK.
4. To highlight the present position of Rule of Law in Modern India & Indian
Constitution.

Significance of the Study

The research work further assumes its importance when the. The study reveals
that some facts are attacking at the existence and worth of these legislations as law must
keep its pace with the objective and it should prove its worth through proper application.

In the upshot of aforesaid discussion, it is hoped that the study would provide
valuable and comprehensive information regarding meaning and interpretation of Rule of
law. It would also provide sufficient insight into the object, implementation of Rule of
law in India as well as in Indian Constitution
Research Paper on Comparative Analysis of Rule of Law in UK & India

Research Methodology

The quality and value of research depends upon the proper and particular
methodology adopted for the completion of research work. Looking at the vastness of the
research topic historical, doctrinal and empirical legal research methodology has been
adopted. To make an authenticated study of the research topic ‘Comparative Analysis of
Rule of law in India & UK’ enormous amount of study material is required. The relevant
information and data necessary for its completion has been gathered from both primary as
well as secondary sources available in the books, journals, periodicals, research articles
and proceedings of the seminars, conferences, websites, etc.

Keeping in view the need of present research, various cases filed in the Supreme
Court, which moulded the concept of Rule of law, the judgments therein have also been
used as a source of information.
Research Paper on Comparative Analysis of Rule of Law in UK & India

CHAPTER-2
Research Paper on Comparative Analysis of Rule of Law in UK & India

Development of the concept of ‘Rule of law’ in UK

The Rule of law, in UK, was developed over the centuries as a brake on arbitrary
power. The modern concept of Rule of law owes much to the great battles between the
English kings and their subjects, the struggle for supremacy between parliament and
Stuart kings, and finally the war between the British Empire and its American Colonies.

The Great Charter: Magna Carta

On June 15, 1215 in the meadows of Runnymede, King John and his rebellious
barons agreed to the great charter known as Magna Carta. The great charter was the first
significant written instrument limiting the power of the king and confining him to what
the barons regarded as good governance. These promises were a bargain between the
king and the feudal lords dictated by the force of arms.

Winston Churchill, in his History of English Speaking peoples, writes about the
glorious legend of the charter of an Englishman’s liberties. “The original Articles of the
barons on which Magna Carta is bases exist today in the British Museum. In the next
hundred years it was reissued 38 times, at first with a few substantial alterations but
retaining its original Characteristics”.8

He concludes, “Now for the first time the king himself is bound by the law. The
root principle was destined to survive across the generations and raise paramount long
after the feudal background of 1215 had faded in the past. The charter became in the
process of time an enduring witness that the power of the crown was not absolute…. And
when in subsequent ages the state swollen with its own authority, has attempted to ride
roughshod over the rights and liberties of the subject it is to this doctrine that appeal has
again and again been made, and never, as yet, without success…..There is a law which is
above the king and which even he must not break. This reaffirmation of a supreme law

8
History of the English Speaking Peoples, Vol. II
Research Paper on Comparative Analysis of Rule of Law in UK & India

and its expression in a general charter is a great work of Magna Carta; and this alone
justifies the respect in which men have held it”.

James the first and chief Justice Coke

The role of Sir Edward Coke, Lord Chief Justice of England in the fight against
the absolute power of Stuart kings, is epic in its dimensions. It was a cold wintry morning
at Westminster Hall on November 13, 1608. James I was bent on establishing his
absolute power claiming the divine right of the king. Parliament and the royal courts of
Justice stood in his way.

Under the leadership of Chief Justice Coke the Courts had started interfering in
the matter of prerogative powers, seizures and detentions and were issuing writs to
review the decisions of local feudal and ecclesiastical courts. On this historic day, King
James claimed that, “Since the Judges was but his delegates he could take any case he
chose, remove it from the jurisdiction of the courts and decide it in his royal person.” To
this chief Justice coke answered, “In the presence and with the clear consent of all the
judges……that the king in his own cannot adjudicate any case……but that it ought to be
determined and adjudicated in some court of justice, According to law and customs of
England”. To this king James replied, “That he thought that the law was founded upon
reason, and that he and others had reason as well as the judges.” Then he followed the
stirring and courageous reply of Coke which sends a thrill of pride in every lawyer and
every judge even after so many years. He said, “ it was god who had endowed His
Majesty with excellence science and great endowments of nature; but His majesty was
not learned in the laws of his realm of England and causes which concern the life or
inheritance or goods or fortunes of his subjects are not to be decided by natural reason but
by the artificial reason and judgment of law, which law is an act which requires long
study and experience, before that a man can attain to the cognizance of it that the law was
the golden metwand and measure to try the causes of the subjects”. James was greatly
offended and said, “This means that I shall be under the law which is treason to affirm”.
Research Paper on Comparative Analysis of Rule of Law in UK & India

To which the Coke replied, “that Bracton said that the king should not be under man but
should be under God and law (Quod rex et lege).

In 1616 James I sent a Royal Order issued by Sir Francis Bacon as Attorney
General to coke and his fellow judged not to proceed with the hearing of an action
because the king’s prerogative was in question. The judges demurred, but when
summoned by the king the other judges humbled themselves and promised to do as the
king desired but chief Justice Coke alone stood firm and replied, “that when the case
should be he would do that should be fit for a judge to do.” As a result Coke was
dismissed from his position as Chief Justice of the King’s Bench. It was only after the
Glorious Revolution and Act of Settlement (1701) that parliamentary powers became
ascendant and the independence of the judges’ tenure was firmly secured9.

Dicey’s Concept of Rule of Law

Dicey developed the contents of his thesis by peeping from a foggy England into
a sunny France. In France, Dicey observed that the government officials exercised wide
discretionary powers and if there was any dispute between a government official and
private individual it was tried not by an ordinary court but by a special administrative
court. The law applicable in that case was not ordinary law but a special law developed
by the administrative court. From this Dicey concluded that this system spelt the negation
of the concept of rule of law which is secret of Englishman’s liberty. Therefore, dicey
concluded that there was no administrative law in England.

In England, the doctrine of rule of law was applied in concrete cases. If a man is
wrongfully arrested by the police, he can file a suit for damages against them as if the
police were private individuals. In Wilkes v. wood10 it was held that an action for
damages for trespass was maintainable even if the action complained of was taken in

9
Divan Anil (2008). Citizen’s Rights and the Rule of Law, Citizen’s Rights and Rule of Law: Problems
and prospects, Essays in Memory of Justice J C Shah. PP 5-29.
10
Wilkes v. wood, 1763 19 St Tr 1153
Research Paper on Comparative Analysis of Rule of Law in UK & India

pursuance of the order of the minister. In the leading case of Entick v. Carrington11 a
publisher’s house was ransacked by the king’s messengers sent by the secretary of state.
In an action for trespass, 300 were awarded to the publisher as damages. In the same
matter, if a man’s land is compulsorily acquired under a illegal order, he can bring an
action for trepass against any person who tries to disturb his possession or attempts to
execute the said order.

Dicey’s formulation of the concept of Rule of law, which according to him forms
the basis of the English constitutional law, contains three principles12:

1. Absence of discretionary power in the hands of the governmental officials. By

this Dicey implies that justice must be done through known principles. Discretion
implies absence of rules, hence in every exercise of discretion there is room for
arbitrariness.
2. No person should be made to suffer in body or deprived of his property except for
a breach of law established in the ordinary legal manner before the ordinary
courts of land. In this sense, the rule of law implies:
a) Absence of special privileges for a government official or any other person
b) All the persons irrespective of status must be subjected to the ordinary courts of
the land.
c) Everyone should be governed by the law passed by the ordinary legislative organs
of the state.
3. The rights of the people must flow from the customs and traditions of the people
recognized by the courts in the administration of justice.

Dicey’s thesis has its own advantage and merits. The doctrine of rule of law
proved to be effective and powerful weapon in keeping administrative authorities within
their limits. It served as a touchstone to test all administrative actions. The broad

11
Entick v. Carrington, 1765 19 St Tr 1030
12
Massey, I P (2008). Administrative law, Lucknow: Eastern Book Company.
Research Paper on Comparative Analysis of Rule of Law in UK & India

principle of rule of law was accepted by almost all legal systems as a constitutional
safeguard.

The first principle (Supremacy of law) recognizes a cardinal rule of democracy

that every government must be subject to law and not law subject to the government. It
rightly opposed arbitrary and unfettered discretion to the governmental authorities, which
has tendency to interfere with rights of citizens.

The second principle (equality of law) is equally important in a system wedded to

democratic polity. It is based on the well known maxim “however high you may be, law
is above you” and “all are equal before the law”

The third principle puts emphasis on the role of judiciary in enforcing individual
rights and personal freedoms irrespective of their inclusion in a written constitution.
Dicey feared that mere declaration of such rights in any statute would be futile if they
could not be enforced. He was right when he said that a statute can be amended and
fundamental rights can be abrogated. We have witnessed such a situation during
emergency in 1975 and realized that in absence of strong and powerful judiciary, written
constitution is meaningless.

Dicey never spoke of equality under the rule of law as rigid. He was not blind to
inequalities glaring inequalities in the British legal system, not to the contradictions
involved in the supremacy of the parliament and the guarantees of equality of all classes
to the ordinary law administered by the courts. His dislike of the French system of
administrative tribunals was the most vulnerable in his enunciation. Dicey’s antagonism
was based on his supposition that law meant fixed rules, and administration involved
exercise of discretion not controlled or guided by rules. His dislike of exercise of
discretionary authority, if literally understood, may appear illogical, for in every decision,
judicial or administrative, there is vast field of discretion. Administration of justice is not
a mechanical process inexorably leading to a set result from a given set of facts. It
involves a large area of discretion. It would be a perversion of true quality of justice to
Research Paper on Comparative Analysis of Rule of Law in UK & India

attribute to the adjudicator or judge of a mechanical approach. There is again no reason to

suppose that an administrative authority exercising power vested by law does not do
justice merely because have has discretion in formulating his line of action13.

Dicey contrasted law with administrative action and discretion, and asserted that
Rule of law means absolute supremacy or predominance of regular law as opposed to the
influence of arbitrary power, the existence of arbitrariness, of prerogative or of wide
discretionary authority of the government. Even in those days discretion as they exercised
it now. But what Dicey probably criticized was exercise of discretionary powers not
supported by law. He was not wrong in asserting that in Britain the court was not
powerless to grant relief, in respect of affairs and disputes in which the government and
its servants were concerned, but in France the administrative tribunal alone could grant
relief.

Criticism

Dicey’s first principle (supremacy of regular law as opposed to the influence of

arbitrary power) has been seriously challenged, due to the proposition that the rule of law
excludes even wide discretionary authority by the government. The modern government
depends on many discretionary powers granted to the executive by the large numbers of
statutes annually passed by parliament or other legislature. It seems that Dicey’s
formulation may be interpreted to disapprove of the thousands of regulations in our
society made through the discretion of delegated authorities. This first principle also
contradicts the fact that, as a matter of necessary efficiency, many present day statutes
allow police the power to detain people for a short period of time due only to a
reasonable suspicion. Ivor Jennings has also pointed out that arbitrary power may be
increased in national emergencies, such as war. This was reflected in the drastic powers
given to the English government by the Defense of the Realm Act in 1914.

13
Shah JC (2008). ‘The Rule of law and the Indian Constitution’, Citizen’s Rights and Rule of Law:
Problems and prospects, Essays in Memory of Justice J C Shah. PP 139-200.
Research Paper on Comparative Analysis of Rule of Law in UK & India

Dicey’s second meaning stresses the equal subjection of all persons to the
ordinary law. What a constitutional guarantee of equality before law may achieve is to
enable legislation to be invalidated which discriminates between citizens on grounds that
are considered irrelevant, unacceptable or offensive. These views of Dicey long impeded
the proper understanding of administrative law, but today the need for such law in a
democracy cannot be denied. Administrative courts as they may exist protect the
individual against unlawful acts by public bodies.

Dicey’s second principle (equality before the ordinary law of the land) may also
be challenged in today’s law. Although it is true that public officials who commit crimes
or torts are liable before the ordinary courts (except for circumstances of non-
justiciability, such as in The Church of Scientology v Woodward,14 it is not true that those
public officials and private citizens have the same rights, and are thus equal. “A tax
investigator, for example, has powers which the taxpayer does not possess”. Furthermore,
members of the police force may be able to exercise considerably more lawful power
over members of society than the average citizen lawfully could.

The principle of equality before the law has raised significant problems for the
rule of law. It would be unjust if the law failed to account for social difference and
disadvantage, and simply presumed that everyone was equal and should be treated
equally. This led Hayek to attempt to adapt the rule of law in a manner that Joseph Raz
thought created “exaggerated expectations” for it15. Hayek stated: “The requirement that
the rules of true law be general does not mean that sometimes special rules may not apply
to different classes of people if they refer to properties that only some people possess...
Such distinctions will not be arbitrary; will not subject one group to the will of others, if
they are equally recognized as justified by those inside and those outside the group”. This
statement lead Raz to allege it was a guarantee of freedom and a “slippery slope leading
to the identification of the rule of law with the rule of good law”.

14 Church of Scientology v Woodward, (1983) 57 ALJR 42

15 Joseph Raz, 'The Rule of Law and its Virtue', 1977, 93 The Law Quarterly Review, 195, 209
Research Paper on Comparative Analysis of Rule of Law in UK & India

Dicey’s third meaning of the rule of law expressed a strong preference for the
principles of common law declared by the judges as the basis of the citizens’ rights and
liberties. Dicey had in mind the fundamental political freedoms- freedom of the person,
freedom of speech, freedom of association. Today it is difficult to share Dicey’s faith in
common law as the primary legal means of protecting the citizen’s liberties against the
state. First, fundamental liberties at common law may be eroded by Parliament and thus
acquire a residual character. Secondly, the common law does not assure the citizen’s
economic and social well-being. Third, while it remains essential that legal remedies are
effective, there is value in a declaration of the individual’s basic rights and in creating
judicial procedures for protecting those rights. Diceyan theory may be further criticised
due to his perception of the “sovereignty of Parliament and the supremacy of the rule of
(ordinary) law”. Keith Mason has pointed out that Australian parliaments may be
supreme, but they are not sovereign. “The rule of law affirms parliament’s supremacy
while at the same time denying it sovereignty over the Constitution.” Criticisms of
Diceyan theory have lead to different formulations of the rule of law; but Dicey’s
formulation still reflects some of the fundamental principles of the rule of law. In
following his formulation some commentators prefer the narrow term ‘government under
law’ rather than ‘rule of law’. However some commentators prefer to formulate the rule
of law, not as an actual rule of law in itself, but as a “statement of constitutional and
juridical principle, a juristic reserve, an idea of a profound legality superior, and possibly
anterior, to positive law. It is not easy to define with precision, because in part it
manifests itself more as an absence than a presence, rather like those other great
negatives, peace and freedom”.

F.A. Hayek has provided a clear and concise formulation of the rule of law:
“Stripped of all technicalities this means that government in all its actions is bound by
rules fixed and announced beforehand - rules which make it possible to foresee with fair
certainty how the authority will use its coercive powers in given circumstances, and to
plan one’s individual affairs on the basis of this knowledge.”
Research Paper on Comparative Analysis of Rule of Law in UK & India

Broader views on the rule of law, such as the judgment of Brennan, Deane, and
Dawson JJ in Chu Kheng Lim v Minister for Immigration16, will also recognize the
inherent relationship between ‘government under law’ and the separation of powers
doctrine. If Dicey’s formulation were a strict standard, then it would be quite easy to
point out a number of circumstances in which that standard has been departed from by
states. It can be noted that Raz has not limited himself to Diceyan theory in his criticisms
of the rule of law. Raz argues that the rule of law “is not to be confused with democracy,
justice, equality (before the law or otherwise), human rights of any kind or respect for
persons or for the dignity of man”17

Rather than hopelessly trying to make excuses as to why the rule of law has not
always prevailed in English law, Raz stated: “Since the rule of law is just one of the
virtues the law should possess, it is to be expected that it possesses no more than prima
facie force. It has always to be balanced against competing claims of other values”. Raz
considers the rule of law to be a negative value that is “merely designed to minimise the
harm to freedom and dignity which the law may cause in its pursuit of its goals however
laudable these may be”. The rule of law has been limited in its fulfillment of
constitutionalist promises. However, in assessing whether the rule of law has fulfilled its
constitutionalist promises it must be repeated: “The rule of law sustains much more than
constitutionalism”. Constitutionalist promises involve the limiting and supporting of state
power. Before criticising the effect of the rule of law it must be noted that values of
equality and human rights, as discussed by Dicey and Hayek, are not always directly
constitutionalist promises. However this is not to say that constitutionalist promises, such
as the restriction of arbitrary power, have not indirectly assisted these values.

The rule of law’s intended protection against the use of arbitrary power, and the
principle that law must be supreme, is, however, a constitutionalist promise. Furthermore,
it is fair to say that the principle that government officials should be equally subject to the
law is a constitutionalist promise, in that it fulfils a purpose of restraining state power.

16 Chu Kheng Lim v Minister for Immigration, (1992) 176 CLR 1

17 Joseph Raz, 'The Rule of Law and its Virtue', 1977, 93 The Law Quarterly Review, 195, 209
Research Paper on Comparative Analysis of Rule of Law in UK & India

The concept of “rule of law” per se says nothing of the “justness” of the laws
themselves, but simply how the legal system upholds the law. As a consequence of this, a
very undemocratic nation or one without respect for human rights can exist with or
without a “rule of law”, a situation which many argue is applicable to several modern
dictatorships. However, the “rule of law” is considered a prerequisite for democracy, and
as such, has served as a common basis for human rights discourse between countries such
as the People’s Republic of China and the West.

The rule of law is an ancient ideal first posited by Aristotle as a system of rules
inherent in the natural order. It continues to be important as a normative ideal, even as
legal scholars struggle to define it. The concept of impartial rule of law is found in the
Chinese political philosophy of Legalism, but the totalitarian nature of the regime that
this produced had a profound effect on Chinese political thought which at least
rhetorically emphasized personal moral relations over impersonal legal ones. Although
Chinese emperors were not subject to law, in practice they found it necessary to act
according to regular procedures for reasons of statecraft. In the Anglo-American legal
tradition rule of law has been seen as a guard against despotism and as enforcing
limitations on the power of the government. In the People’s Republic of China the
discourse around rule of law centers on the notion that laws ultimately enhance the power
of the state and the nation, which is why the Chinese government adopts the principle of
rule by law rather than rule of law.

There has been numerous criticism of the concept of rule of law. One is that by
focusing on the procedures used to create the law, one loses sight of the content and
consequences of those laws. Another, which has been advised by critical theorists, is that
the concept of rule of law is merely a method by which the ruling classes can justify their
rule, because they are in charge of determining which laws get passed or not (in other
words, they argue that the rule of law is in reality the rule of those people who have the
power to make or change laws). Yet another criticism focuses on the emphasis that rule
of law places on the prevention of arbitrary action, while giving legitimacy to all actions
performed “according to the law”, even when most people would oppose those actions.
Research Paper on Comparative Analysis of Rule of Law in UK & India

As evidence to support these objections, the following example is often given: if an

authoritarian government commences legal action against a political dissident, that action
may not be arbitrary or made by personal whim, and it may be made exactly according to
the law, but it may still be objectionable.
Research Paper on Comparative Analysis of Rule of Law in UK & India

CHAPTER-3
Research Paper on Comparative Analysis of Rule of Law in UK & India

Rule of Law in India & in Indian Constitution

India has been hailed as the world’s largest and most vibrant democracy. The
world is full of praise for the rule of law and democratic freedoms which, in South Asia,
are enjoyed only by those living in India. More than Sixty Years of Democracy have,
however, failed to improve the lives of the masses in India.

India has a written constitution; a body of laws, subordinate to the constitution,

dealing with various subjects; rules and regulations, executive instructions &
Conventions. All these may be broadly termed as ‘law’ and their operation to subject
population is the ‘Rule of Law.’

India is, in many senses, a typical example of a modern nation state. It contains
within itself most of that which commends a state to the universal body politic. It has
managed to stay within the definition of democratic. It has an elaborate, written
constitution clearly delineating the three pillars of the modern nation state viz. the
legislature, the executive and the judiciary, and demarcating their respective roles.

The fundamental rights embodied in the Indian constitution in terms virtually

identical term to the universal declaration of human rights act as guarantee that all Indian
citizens can and will lead their lives in peace as long as they obey the law. These civil
liberties take precedence over any other law of the land. They include individual rights
common to most liberal democracies, such as equality before the law, freedom of speech
and expression, freedom of association and peaceful assembly, freedom of religion, and
right to constitutional remedies, such as Habeas Corpus, for the protection of civil rights.
These rights are fundamental rights because they are certain basic human rights which
every human being has the right to enjoy for a balanced and harmonious growth of his or
her personality. These rights are guaranteed in the constitution of India and help in the
growth and development of responsible citizens. The constitution provides for safeguards
against any violation of these rights. These safeguards can be enforced in a court of law,
hence they are justiciable rights. They check the government from making laws that go
Research Paper on Comparative Analysis of Rule of Law in UK & India

against fundamental rights. Furthermore, they act as bulkwark against various forms of
exploitation which take place against women, children and minority communities18.

On paper, India also has a fairly elaborate and developed system of justice
administration. The best and the most liberal strands of Anglo-Saxon jurisprudence have
been interwoven into the foundations of our legal system.

Human Rights Abuse

At first sight, it seems that the rule of law and the respect for human rights and
human dignity prevail but there exists significant human rights abuses, despite the
extensive constitutional and statutory safeguards. Many of these abuses are generated by
intense social tensions, violent secessionist movements and the authorities’ attempts to
repress them, and deficient police methods and training. Serious human rights abuses
include extra-judicial executions and other political killings, torture, and excessive use of
force by security forces and separatists militants, as well as kidnapping and extortion by
militants, especially in Kashmir and north east India; torture, rape, and deaths of suspects
in police custody through out India; arbitrary arrest and incommunicado detention in
Kashmir and in the north-east; Continued detention through out the country of thousands
arrested under special security legislation; long delays in criminal trials; widespread
inter-caste and inter-communal violence, both societal and by the police and other agents
of government, against women; discrimination and violence against indigenous people;
and widespread exploitation of indentured, bonded, and child Labour.

In India, people are confronted with a state apparatus that has perfected a system
of repression and Oppression. Repression is not just a matter of custodial torture and
extra judicial murder. Mis-governance or mal governance is repression too. The Indian
state per se is not responsible for crimes against humanity and for violation of human
rights; rather the instrumentalities of the state abuse the authority vested in them.

18
Pendse, M L., Citizens Rights and Democracy in India, Citizen’s Rights and Rule of Law: Problems and
prospects, Essays in Memory of Justice J C Shah. PP 95-110.
Research Paper on Comparative Analysis of Rule of Law in UK & India

In India, there are various groups of people who are socially or economically
disadvantaged such as Dalits, the tribals, the abjectly poor, the abysmally helpless and
ignorant, the landless, the women, and all those who are or are forced to become marginal
to the mainstream. They compromise an overwhelming majority.

India’s caste system continues to cast its shadow over the country’s secular and
democratic constitution. Although Art 17 of the Constitution of India abolishes the
practice of untouchablity, and Art 14 & 15 calls for equality and the prohibition of any
form of discrimination respectively, widespread social and economic inequalities and
discriminations plague Indian society and are in fact are constantly on the rise. Social
Discrimination is rife in India and it increasingly takes the form of police and state abuse
towards scheduled castes, as well as other ethnic minorities. Discriminatory attributes are
rife amongst law enforcement officials; the Indian police force is known for its
communalism and political affiliations. Large scale violations of human rights
perpetrated on Dalits involve burning of homes and fields, murder, torture and beating of
women, molestation, rape, and custodial death.

Women are particularly vulnerable to the discrimination in India. Custodial rape

is not unusual and the conviction rate for this type of crimes remains close to zoo. Rape
committed by the armed forces is also common in areas of insurgency, such as north-east
India, where this offence is usually perpetuated during combating operations carried out
in search of terrorists.

Custodial torture is another example of the widespread violation of civil rights of

citizens. It happens in spite of Art 22 of the Constitution of India, which provides for the
protection against arbitrary arrest and detention. The Hon’ble Supreme Court of India has
time and again held that the dignity of individuals should be maintained at all times,
including when they are in a state custody, and that an individual never loses his
fundamental rights which continue to inhere in him even when he is in judicial custody.
The Hon’ble Supreme Court held that the right to life (Art 21) includes the right not to be
tortured or humiliated. The apex Court had laid down guidelines to be followed in cases
Research Paper on Comparative Analysis of Rule of Law in UK & India

of detention and judicial custody; this includes an obligation on the part of the state to
ensure that there is no infringement of the indefeasible rights of a citizen to life, except in
accordance with law, while the citizen is in its custody. In spite of this, one gets to hear
almost everyday about cases of custodial deaths. This is so because the state confers
arbitrary power to the police under the pretext of maintaining law and order, and in so
doing, legitimizes human rights violations. The Indian police today are also agents of
social prejudice and bias.

Maladministration

Unsatisfactory functioning of municipal administrative organs also impacts very

negatively on the rule of law. It is not surprising, therefore, that an overwhelming number
of complaints are directly related to the work of public administrative bodies.
Administrative organs still do not apply principles of good administration. Good
administration is based on a high level of courtesy to be shown to citizens, free access to
all information in the possession of the authorities, strengthening of supervision,
especially of municipal systems of government, de-politicization of the public
administration, etc. the recent enactment of a law guaranteeing a right to public
information is step towards good governance.

The rule of law in India has deteriorated sharply, and this demonstrates how little
the general public can trust the law enforcement agencies in the country. The emergence
of various sections of society as symbols of ethnic or religious assertion and identity
corrodes the pre-eminent position that the rule of law as an essential ingredient of liberal
democracy should have in our country.

The rule of law goes out of window when politics is not treated as an instrument
for public welfare but as an instrument for private gain. Indeed, during the past three
decades, the increasing competitiveness in Indian politics has trampled upon the rule of
law time and again. This trend has intensified since the 1990’s, because most parties,
both regional and national, are playing the dual role of ruling and opposition parties in
Research Paper on Comparative Analysis of Rule of Law in UK & India

one context or the other. The Indian state and its agencies fail to practice the rule of law
and to ensure equality before the law and equal protection of laws to criticize, and to
uphold and protect the rights of the citizens because the state power (the opposition
included) demonstrated naked aggression and promotes a violent political culture. This is
becoming clear when we read credible but true stories of corruption, criminality and self-
gain amongst our present politicians.

The end of Lau Prasad Yadav’s misrule in Bihar was greeted with hope that a new
era of public service may begin. But it was disgusting and demoralizing to find the newly
elected MLAs of Chief Minister Nitish Kumar’s Alliance behaving like goons and small
time thieves by breaking into government bungalows like a dacoit raiding party
disturbing spoils amongst themselves. The situation was so depressing that MLAs and
even sitting minister in state were not served with a non-bailable warrant by the courts on
the specious ground that the person concerned was ‘not available’. Such effrontery and
disregard for the law may well justify some one to ask whether we are governed by the
rule of law. Because if politicians can disregard the law with impunity, why would the
rest of moneyed people not use their clout?

Is it any wonder that so called people’s representatives continue to be indifferent

even to the exhortation of Mr. Somnath Chatterjee, the former Lok Sabha Speaker, who,
while delivering the Bhimsen Sachar Memorial Lecture said, “Large Sections of the
people are greatly worried about the nexus between crime and politics as well
administration in the country. I am Saddened to observe that politics in the country has to
a large extent, become criminalized and crime has become politicized19.” It implies that
there is hardly an optimistic future for the Rule of law.

Indian politicians unfortunately focus on the routine, though not necessarily

efficient, application of the law but do not stress the necessity of subordination of the
government (and the political class) to it. In their view, the law exists not to limit the state

19
Sachar, Rajinder., Indian Democracy and the Rule of law, Citizen’s Rights and Rule of Law: Problems
and prospects, Essays in Memory of Justice J C Shah. PP 111-120.
Research Paper on Comparative Analysis of Rule of Law in UK & India

characterized as ‘rule by law’ rather than ‘rule of law’, this narrow conception is proving
ruinous to Indian Democracy.

Indian Judiciary & Rule of Law

The Hon’ble Supreme Court and the various High Courts through Judicial
activism and public interest litigation, other bodies such as the National Human Rights
Commission and State Human rights Commissions and various non-governmental
organizations have made significant contributions towards protecting freedoms and
preventing human rights violations and abuses, thereby ensuring that the Rule of Law and
respect for citizens’ rights do not remain only on paper but are incorporated in practice
too.

With the Constitution 1st Amendment Act, 1951, the status of Rule of law in India
was shocked. The question which came up for consideration in Shankari Prasad v. Union
of India20 was whether the fundamental rights can be amended under Art 368. The first
Amendment Act, 1951 inserted Art 31 A and Art 31 B in the Constitution of India and it
was challenges on the ground that it violated or abridges the right conferred under Part III
of the Constitution. The Hon’ble Supreme Court held that Parliament has the power to
amend Part III of the Constitution under Art 368 as under Art 13 law means any
legislative action and not a constitutional amendment. Therefore, a constitutional
amendment would be valid if abridges any of the fundamental rights. Again, the question
came up for consideration in Sajjan Singh v. State of Rajasthan21 in which the Hon’ble
Supreme Court approved the majority judgment in Shankari Prasad case and held that
amendment of the Constitution means amendment of all provisions of the Constitution.
Hon’ble Chief Justice Gajendragadkar held that if the framers of the constitution intended
to exclude fundamental rights from the scope of the amending power they would have
made a clear provision in that behalf. Both these cases were overruled by the Hon’ble

20
Shankari Prasad v. Union of India, AIR 1951 SC 455
21
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
Research Paper on Comparative Analysis of Rule of Law in UK & India

Supreme Court in Golk Nath v. State of Punjab22 and held that Parliament have no power
to amend the Part III of the Constitution so as to take away or abridges the fundamental
rights and thus, at the end the Rule of law was sub served by the Judiciary from abridging
away. But this was not the end. The Rule of law was trumpled down with the
Constitution 24th Amendment Act, 1971. Parliament by the way of 24th Amendment
inserted a new clause (4) in Art 13 which provides that ‘nothing in this Article shall apply
to any amendment of this constitution made under Art 368’. It substituted the heading of
Art 368 from ‘procedure for amendment of Constitution’ to ‘Power of Parliament to
amend Constitution and Procedure thereof’. The 24th Amendment not only restored the
amending power of the parliament but also extended its scope by adding the words “to
amend by way of the addition or variation or repeal any provision of this constitution in
accordance with the procedure laid down in the Article”.

The Constitution 24th Amendment Act, 1971 was challenged in the popular &
most controversial case of His Holiness Keshavanand Bharti v. State of Kerala23. The
Hon’ble Supreme Court by majority overruled the decision given in Glok Nath’s case and
held that parliament has wide powers of amending the constitution and it extends to all
the Articles, but the amending power is not unlimited and does not include the power to
destroy or abrogate the basic feature or framework of the constitution. There are implied
limitations on the power of amendment under Art 368. Within these limits Parliament can
amend every Article of the Constitution24. Thus, Rule of law prevailed. Justice H R
Khanna played a vital role in preserving the Rule of law although he concurred with the
majority decision.

Assault on Judicial Independence

As soon as the Fundamental rights case’s Judgment was delivered on 24th April
1973, Mr. Justice A N Ray, who was fourth in seniority amongst Supreme Court judges,
was appointed chief Justice of India, bypassing the long-established convention based on

22
Glok Nath v. State of Punjab, AIR 1971 SC 1643
23
Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461
24
Pandey J N (2008). The Constitutional Law of India, Allahabad: Central Law Agency.
Research Paper on Comparative Analysis of Rule of Law in UK & India

seniority for appointment to this office. The three superseded judges, Justices J M Shelat,
K S Hegde and A N Grover, promptly resigned. Justice Ray had given dissenting
judgments in favor of the Government in most landmark cases, including the Bank
Nationalization case and Privy Purses case. After the Proclamation of the internal
emergency, independent-minded High Court judges were transferred, the press was
censored and muzzled, and orders were passed prohibiting publication of judgments and
court proceedings.

Habeas Corpus case: A Black Mark on Rule of Law

The widespread detentions of political leaders and prominent citizens led to a

spate of Habeas Corpus Petition seeking the invalidation of detention orders, in courts all
over India. Nine High Courts took the correct view that, notwithstanding the suspension
of fundamental rights under Art 14, 19, 21 & 22, the petitions were maintainable. The
High Courts judicially reviewed detentions orders inter alia on the grounds of ultra vires,
breach of statutory provisions, mala fide or other illegalities.

The Supreme Court in A D M Jabalpur v. Shivkant Shukla25 by majority 4:1 over

turned the verdicts of these High Courts and held that neither detainees nor anyone on
their behalf had right to move the courts for habeas corpus in view of the suspension of
fundamental rights. This decision even excluded challenges to detention orders on the
Act or was mala fide i.e. not passed by an authorized person or issued against a wrong
person. The majority consisted of Chief Justice A N Ray, Justice M H Beg, Y V
Chandrachud and P N Bhagwati – the lone dissenter was Justice H R Khanna.

Strong Comments were made against the majority judgments and the role of
Justice H R Khanna was appreciated and applauded all over the world. Mr. V M
Tarkunde, an eminent lawyer and editor of The Radical Humanist, characterized the
majority judgments as “Judicial Suicide”. H M Servai, a leading Commentator on
Constitutional Law and former Advocate General of Bombay wrote: The Four judgments

25
A D M Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207
Research Paper on Comparative Analysis of Rule of Law in UK & India

delivered in the darkest hour of India’s history independence, and they made that
darkness complete…Ordinary men and women could understand Satan saying, ‘evil be
thou my good’, but they were bewildered and perplexed to be told by four learned judges
of the Supreme Court that in substance the founding fathers had written into the
emergency provisions of our constitution ‘lawlessness be thou our law26’.

The Supreme Court reached its finest hour in the unforgettable dissent of Justice
H R Khanna. He refused to bow down to the powers that be and immortalized the great
spirit of the judiciary and the rule of law in his stinging dissent, observing: It has been
argued that suspending the right of a Person to move any court for enforcement of right to
life and personal liberty is done under a constitutional provision and therefore it cannot
be said that the resulting situation would be the absence of the rule of law. This argument,
in my opinion, cannot stand close scrutiny for it tries to equate illusion of the rule of law
with the reality of rule of law27. In his autobiography, Justice Khanna recounts that he
told to his Younger sister Santosh, “I have prepared a judgment which is going to cost me
the chief Justiceship of India28”. That came to be true and Khanna was Superseded b
Justice Beg during Emergency. He thereupon resigned.

But any research on Rule of law is incomplete without a reference to the editorial
in the New York Times which appeared on April 30, 1976, shortly after Habeas Corpus
case. The Paper wrote: if India ever finds its way back to the freedom and democracy that
were proud hallmarks of its first 18 years as an independent nation, someone will surely
erect a monument to Justice H R Khanna of the Supreme Court. It was Mr. Justice
Khanna who spoke out fearlessly and eloquently for freedom this week in dissenting
from the court’s decision upholding the right of PM Indira Gandhi’s Government to
imprison political opponents at will and without court hearings. Indian democrats are
likely to remember only in infamy the four judges who obediently over turned the
decisions of a half dozen lower courts scattered across India which had ruled in defiance
of the government…..But they will long cherish the lonely judge who said, in words

26
Seervai H M (1993). Constitutional Law of India, Bombay: Tripathi Publishers.
27
A D M Jabalpur v Shivkant Shukla, AIR 1976 SC 1207 para 171
28
Khanna H R (1987). Neither Roses nor Thorns, Lucknow: Eastern Book Company.
Research Paper on Comparative Analysis of Rule of Law in UK & India

reminiscent of other enduring declarations for freedoms: “….The Principle that no one
shall be deprived of his life and liberty without the authority of law is rooted in the
consideration that life and liberty are precious possessions” ….The submission of an
independent judiciary to absolute government is virtually the last step in the destruction
of a democratic society; and the Indian Supreme Court’s decision appears close to utter
surrender.

How the emergency came to an end and Indira Gandhi was defeated at the polls is
another story. Neither Chief Justice Ray nor Chief Justice Beg were able to live down
their judgments. Justice Chandrachud and Justice Bhagwati both became the Chief
Justice of India after the Emergency was withdrawn on the basis of seniority but they
never commanded the respect, affection and reverence which Justice Khanna
Commanded. Justice Khanna was in the Mould of Chief Justice Coke who could
withstand “the frowns of power” and the refused to be “Craven and cringing”.

Rule of Law as unfolded by the Indian Judiciary

The Indian Supreme Court is a forum with unparalleled vast general jurisdiction.
It is not a constitutional court, though much of its business relates to issues concerning
the enforcement of fundamental rights. The law laid down by the Court is declared to be
binding on all courts throughout the territory of India and by necessary implication upon
citizens and state actors. Further, not merely all authorities of the state are obligated to
aid the enforcement of the apex judicial decisions but also the Court is empowered to do
“complete justice”, an incredible reservoir of plenary judicial power, which it has used
amply in the past two decades. Legislative overruling of apex judicial decisions occurs
but infrequently; however, an extraordinary device called the 9th Schedule has been
invoked since the adoption of the Constitution to immunize statutes placed in it from the
virus of judicial review, even when ex facie the legislations inscribed therein remain
fundamental rights violative. In a recent decision, the Supreme Court has assumed
powers of constitutional superintendence over the validity of laws thus immunized.
Research Paper on Comparative Analysis of Rule of Law in UK & India

In the early years, the Court took the view that although the Directives cast a
“paramount” duty of observance in the making of law and policy, their explicit non-
justiciability meant that the rights provisions overrode the Directives. This generated high
–intensity conflict between Parliament and the Court, resulting in a spate of constitutional
amendments. In the process, much constitutional heat and dust has also been generated,
in the main over a “conservative” judiciary that seemed to frustrate a “progressive”
Parliament committed to agrarian reforms and redistribution leading to Court “packing”
Indian – style29.

Over time, two kinds of adjudicative responses developed. First, the Supreme
Courts began to deploy the Directives as a technology of constitutional interpretation,
favouring an interpretative style that fostered, rather than frustrated, the Directives. This
“indirect” justiciability has contributed a good deal towards fructification of the
substantive/ “thick” versions of the Indian Rule of Law. Second, in its more activist
incarnation since the eighties, the Court has begun to translate some Directives into
rights. Perhaps, a most crucial example of this is the judicial insistence that the Directive
prescribing free and compulsory education for young persons in the age group 6-14 is a
fundamental right30. The Court here generated a constitutional amendment enshrining this
right as an integral aspect of Article 21 rights, to life and liberty.

Simultaneously with the adoption of the Constitution, Indian Justices strove to

erect fences and boundaries to the power of delegated legislation (processes by which the
executive power actually legislates.) They conceded this power but with a significant
accompanying caveat: the rule-making power of the administration ought not to usurp the
legislative function of enunciation of policy, accompanied by prescriptive sanctions. Thus
came into being the “administrative law explosion”, where Justices did not so much
invalidate delegated legislation but vigorously policed its performance. The executive
may make rules that bind; but courts made it their business to interrogate, and even

29 S. P. Sathe (2002), Judicial Activism in India, Delhi: Oxford University Press. And U. Baxi (1980). The
Indian Supreme Court and Politics, New Delhi: Eastern Book Company.
30 C. Raj Kumar, “International Human Right Perspective on the Right to Education: Integration of
Human Rights and Human Development in the Indian Constitution” in 12 Tulane International and
Comparative Law PP 237
Research Paper on Comparative Analysis of Rule of Law in UK & India

invalidate, specific exercises of administrative rule-making. A stunning array of judicial

techniques over the review of administrative action has been evolved.

Justices asserted judicial review power over the constitutionality of legislative

performances. Laws that transgressed fundamental rights or the federal principle and
detail activated the “essence” of judicial review power. Whenever possible the Supreme
Court sought to avoid invalidation of laws; it adopted the (standard repertoire of “reading
down the statutory scope and intendments so as to avoid conflict and by recourse to the
peculiar judicial doctrine of ‘harmonious construction”). But when necessary, enacted
laws were declared constitutionally null and void. And even when resuscitated by
legislative reaffirmation, they were resubjected to the judicial gauntlet of strict scrutiny.
The instances of judicial invalidation of statutes far exceed in number and range the
experience of judicial review in the Global North.
Research Paper on Comparative Analysis of Rule of Law in UK & India

CHAPTER-4
Research Paper on Comparative Analysis of Rule of Law in UK & India

Conclusion & Suggestion

With the above analysis of the concept in UK as well as in India it can be

concluded that the Dicey’s Concept of Rule of Law is idealist in Nature which is quite
impossible to implement in the nation like India. According to Dicey’s theory justice
must be done through known principles of law and not by principles of men. He believes
that where there is discretion there is always a room for arbitrariness. Our framers of the
constitution while incorporating the parent act tried to involve the concept into the
Constitution of India but the intention with which our framers incorporated the concept
have gone invain.

Today, we need the rule of law for punishing deviations and lapses from the code
of conduct and standards of behaviour which the community speaking through its
representatives has prescribed as the law of the land. Once an impression comes to
prevail that it is difficult to secure the conviction of the actual culprits in a court of law,
the victims of the offence or their close relatives, would look to extra-legal methods to
settle scores with the culprits. Such a situation would necessarily be a precursor to
collapse of administration of criminal justice and result in a state of chaos and anarchy.
Every effort has, therefore, to be made to eliminate or in any case minimise political and
other extraneous interference in the investigation of the crimes. Unless we can do that,
the rule of law for which we have such ideological affinity would suffer grievous casualty
and be subjected to severe strain.

Today in India, the strange phenomenon and paradox is that while on ideological
plain democracy is supposed to strengthen the rule of law and the administration of
criminal justice, in actual practice, the electoral process which is an integral part of
democracy is undermining the rule of law and due administration of criminal justice. This
must be put to an end. The traditional concept in all civilized liberal nations is that
democracy and rule of law are close allies of each other. It has to be the effort of all well-
meaning persons to ensure that their kinship is not weakened and that each of them
continues to lend strength to the other.
Research Paper on Comparative Analysis of Rule of Law in UK & India

The concept of rule of law does not merely mean formal legality which assures
regularity and consistency in the achievement and enforcement of democratic order, but
justice based on the recognition and full acceptance of the supreme value of the human
personality and guaranteed by institutions providing a framework for its fullest
expression.

Despite its inconsistencies, its crudities, its delays and its weaknesses, Rule of
Law still embodies so much of the results of that disposition as we can collectively
impose. Without it one cannot live; only with it one can insure the future which by right
is ours. The best of man's hopes are enmeshed in its process; when it fails they must fail;
the measure in which it can reconcile our passions, our wills, our conflicts, is the measure
of our opportunity to find ourselves. Man may be a little lower than the angels, he has not
yet shaken off the brute and the brute within is apt to break loose on occasions. To curb
and control that brute and to prevent the degeneration of society into a state of tooth and
claw, what is required is the ‘Rule of Law’.
Research Paper on Comparative Analysis of Rule of Law in UK & India

Bibliography
Books:

1. Massey I P (2008). Administrative law, Lucknow: Eastern Book Company.

2. Takwani CK (2008). Lectures on Administartive law, Lucknow: Eastern book
Company.
3. Venkat Iyer (2008). Citizen’s Rights and Rule of Law: Problems and prospects,
Essays in Memory of Justice J C Shah, Nagpur: Lexis Nexis Butter Worths,
Wadhwa.
4. Agnes Hurwitz & Reyko Huang (2009). Civil War and Rule of Law, USA: Lynne
Rienner Publishers, Inc.
5. Friedrich von Hayek (1994). The Road to serfdom, Chicago: University of
Chicago Press.
6. Dyzenhaus David (1999). Recrafting the Rule of Law: The Limits of Legal Order,
USA: Hart Publishing oxford.
7. Flathman Richard (1994). Liberalism and the suspect Enterprise of political
Institutionalism: The case of the Rule of Law, New York: New York University
Press.
8. Seervai H M (1993). Constitutional Law of India, Bombay: Tripathi Publishers.
9. Khanna H R (1987). Neither Roses nor Thorns, Lucknow: Eastern Book
Company.
10. Pandey J N (2008). The Constitutional Law of India, Allahabad: Central Law
Agency.
11. Dicey A V (1985). An Introduction to the Study of the law of constitution, New
Delhi: Universal Law Publishing Co Pvt. Ltd
12. Sathe S. P. (2002). Judicial Activism in India, New Delhi: Oxford University
Press.
13. Baxi U. (1980). The Indian Supreme Court and Politics, Lucknow: Eastern Book
Company.
Research Paper on Comparative Analysis of Rule of Law in UK & India

Journals:

1. Pendse, M L. Citizens Rights and Democracy in India, Citizen’s Rights and Rule
of Law: Problems and prospects, Essays in Memory of Justice J C Shah. PP 95-
110.
2. Sachar, Rajinder. Indian Democracy and the Rule of law, Citizen’s Rights and
Rule of Law: Problems and prospects, Essays in Memory of Justice J C Shah. PP
111-120.
3. Mathew Stephenson, “The Rule of law as a goal of Development policy”
http://www1.worldbank.org/publicsector/legal/ruleoflaw2.htm
4. Mani, Rama. ‘Exploring the rule of law in theory and practice’, Civil War and
Rule of Law. PP 21-45
5. Shah JC. ‘The Rule of law and the Indian Constitution’, Citizen’s Rights and Rule
of Law: Problems and prospects, Essays in Memory of Justice J C Shah. PP 139-
200.
6. Divan Anil. Citizen’s Rights and the Rule of Law, Citizen’s Rights and Rule of
Law: Problems and prospects, Essays in Memory of Justice J C Shah. PP 5-29.
7. Jethi Mishita. A Modern day critique of the rule of law, http://www.indlaw.com/
8. Baxi Upendra. Rule of law in India,
http://socialsciences.scielo.org/pdf/s_sur/v3nse/scs a01.pdf
9. Kumar C. Raj. International Human Right Perspective on the Right to Education:
Integration of Human Rights and Human Development in the Indian Constitution
in Tulane International and Comparative Law. Vol-12, PP 237
10. Joseph Raz. The Rule of Law and its Virtue, The Law Quarterly Review, PP 195-
209
11. Khanna H R. ‘Rule of Law & democracy-friends or foes?’
http://www.scconline.com/
12. Khanna H R. ‘Rule of Law’, http://www.scconline.com/
Research Paper on Comparative Analysis of Rule of Law in UK & India

Web references:

1. http://www.manupatra.com/
2. http://www.indlaw.com/
3. http://www1.worldbank.org/publicsector/legal/ruleoflaw2.htm
4. http://socialsciences.scielo.org/
5. http://www.scconline.com/

Case laws:

1. Shankari Prasad v. Union of India, AIR 1951 SC 455

2. Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
3. Glok Nath v. State of Punjab, AIR 1971 SC 1643
4. Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461
5. A D M Jabalpur v Shivkant Shukla, AIR 1976 SC 1207
6. Church of Scientology v Woodward, (1983) 57 ALJR 42
7. Chu Kheng Lim v Minister for Immigration, (1992) 176 CLR 1
8. Wilkes v. wood, 1763 19 St Tr 1153
9. Entick v. Carrington, 1765 19 St Tr 1030