1

O.P. Jindal Global University

Jindal Global Law School
End-Term Examination
(Legal Research Methodology)
Question 1:

You are an Assistant Professor at the OP Jindal Global Law School. The Executive Dean of
the Law School has asked you to develop a comparative research project involving the
concept of due process as embodied in US Constitutional Law and in India’s Constitutional
Law. As a first step, he wants you to write a report explaining the fundamentals of
comparative research and how it can be employed in this research project.

In other words, you are NOT to write in detail about how due process operates in the two
legal systems, rather your focus should be on how the comparative method can be utilized to
understand the nitty-gritty of the due process in the two legal systems.

INTRODUCTION
Research is a process which helps in the pursuit of knowledge and to understand it by using
search strategies to find the important and relevant information or to test a hypothesis. In the
case of legal research, it is a systematic finding of law on a specific identifies topic, or an
inquiry into a particular area of law with a view with advancing knowledge as well as
understanding that area of law. Legal research helps in pointing out the ambiguities and
weakness of the existing laws. Through this we can critically examine the law to get
coherence, consistency, stability and to understand the underlying policy so that social
reforms can be suggested for its development.
There are different types of legal research such as doctrinal research, reform-oriented
research, theoretical research, conventional texts and articles, law reforms research,
comparative research etc.
Comparative legal research involves a comparison of legal doctrines, statutes, or case laws
between different jurisdictions. It is useful in evaluating, developing, and amending the
existing law. In simple words it can be stated that comparative legal research is a method for
the study of laws in different countries by comparing it with each other. “Thus, German, and
French lawyers use terms like ‘rechtsver-gleichung’ and ‘droit compare’ which means law
compare and thus seems to be more appropriate for the subject.” 1 We cannot compare the law
between the jurisdictions in a mechanical manner, without considering of different contexts.
This method is very useful because it helps in understanding the system of one’s own country
and another country. Through this method we can understand the similarities and differences
1
https://blog.ipleaders.in/importance-of-comparative-legal-studies/#:~:text=Comparative%20law%20is%20a
%20method,by%20countries%20and%20compares%20them.
 2

of the structure of law between the countries. We can analyse the same subject or concept in
several numerous ways. By analysing the pros and cons of legal mechanisms helps in
reaching a middle ground for the smooth functioning of better laws.
A comparative study is a kind of method that analyses phenomena and then put them together
to find the points of differentiation and similarity. 2It can be used for the study of human
science, pursuing two goals, description and classification, seems particularly productive.
Comparative legal research plays a vital role in the area of legal education as it helps law
students and the professional in the field of legal field. The main goal of the comparative
legal research is to unify the laws of different countries on an international level. The choice
of what countries or legal systems are to be compared will depend greatly upon the aims of
the comparative research.3 “Anyone who wishes to undertake comparative legal research
between two jurisdictions or different states would quickly realise that differences in national
culture, local traditions, power structures, belief in state institutions, and differences in the
degree of civil society development are some of the difficult challenges that need to be
addressed.”4
IMPORTANCE OF COMPARATIVE STUDY
The primary goal of the comparative study is to get a better understanding of a particular
historical-empirical item by means of comparison. Comparing that item with other items can
serve a heuristic purpose by identifying aspects and facets that would otherwise be missed or
neglected. 5 Through comparison we will be able to analyze the similarities and differences
with other subjects which helps in understanding the topic on a deeper level.
Comparative research is still mainly about comparing national legal systems, even if
different forms of globalization, such as Europeanization, and an increasing recognition of
non-state law, such as customary law, religious law or unofficial law-making by international
companies are challenging the very concept of ‘legal system’. 6In the nineteenth century,
associations and journals were founded on ‘comparative legislation’. At that time, there was a
focus on comparing rules in different societies. Later, more attention was paid to judicial
decisions and the way legal problems were solved in practice.7
It is a systematic exposition of the rules, institutions and procedures which is very much
prevalent in one or more legal systems or their sub-systems with a comparative evaluation
after objective estimation of their similarities and differences and their implications. It can be
in the form of doctrinal or non-doctrinal, theoretical, or fundamental, historical, or
contemporary, qualitative or quantitative.

HISTORY AND DEVELOPMENT OF COMPARATIVE LEGAL RESEARCH

2
Mokhtarianpour, Majid. (2016). Islamic Model of Iranian Pattern Development Process Model. The Pattern of
Islamic Development of Iran, 4 (8), 9-30.
3
Eugene Clark, "Comparative Research in Corporate Law," Canberra Law Review 3, no. 1 (May 1996): 62-79
4
Onireti, Ayoade. "Reflections on Conducting Comparative Legal Research." International Journal of
Comparative Law and Legal Philosophy, vol. 4, no. 1, January 2022, pp. 109-110. Hein Online.
5
Miri, Seyed Mojtaba & Dehdashti Shahrokh, Zohreh. (2019). A Short Introduction to Comparative Research.
6
https://www.bjutijdschriften.nl/tijdschrift/lawandmethod/2015/12/RENM-D-14-00001
7
Ibid
 3

The origin of the comparative legal research became prominent during the early Middle Ages
where, scholars like John Fortescue engaged in extensive comparison of the French and
English legal systems. Jean Bodin projected the idea of supremacy of commonwealth upon
other systems by extensive comparison.8 Montesquieu’s fundamental work on the law and
power was mainly done by following the comparative studies. With the ups and downs, CLR
continued its tradition in various parts of Europe.
In the 19th century, comparative study flourished in the areas of the trade law on trade and
industry prevalent in various countries such as Germany, Switzerland, and Austria. Later, in
the 20th century Max Planck Institute of comparative law became a hub of comparative study
in the fields of public law and commercial law. With the efforts of harmonization of law of
sales under United Nations Commission on International Trade Law (UNCITRAL) and
Hague-Visby rules and increased application of conflicts of law, CLR attained great
significance.
Legal research grown with me comparative study in India after the enactment of Indian Penal
Code. eloped.47 Making of Constitution provided a grand opportunity for comparative
research both at the drafting and discussion stage. Relating to core values, institutions,
models and control mechanisms or power equations in the Constitution the influence of other
leading Constitutions of the world was kept open. 9 With the help of foreign precedents and
comparative constitutional literature there was subsequent constitutional development
through judicial decisions and academic research. Comparative study of domestic and
international legal systems in the field of environmental law, business and trade law,
consumer protection and corporate law has greatly contributed towards the concretization and
refinement of public policies.
Intellectual law and information technology law got developed by extensively borrowing
from international agreement and conventions as in other countries. Without comparing the
international agreements and conventions of other countries we will not be able to develop
the above-stated laws.
In number of landmark judgments of the Supreme Court relating to equality, expressional
freedom, business, property right, right to life and personal liberty, death penalty, right to
privacy, religious freedom, and minority rights one can find reference to foreign judgments
during interpretation of constitution and laws.10

AIMS AND PURPOSES

8
Jansen, "Comparative Law and Comparative Knowledge" in Mathias Reimann and Reinhard Zimmerman, The
Oxford Handbook of Comparative Law (Oxford University) Press, Oxford, 2006, ,2nd edition, pp 15
9
P Isbwaru Bhat, COMPARATIVE METHOD OF LEGAL RESEARCH: NATURE, PROCESS AND POTENTIALITY,
JOURNAL OF THE INDIAN LAW INSTITUTE VOLUME 57 APRIL-JUNE 2015 NUMBER 2, pp 155
10
State of West Bengal v. Anwar Ali Sarkar; AIR 1952 SC75; State of West Bengal v Subodh Gopal Bose, AIR 1954
SC 92; Saghir Ahmad v. State of UP, 1954 SC 728, Kharak Singh v. State of UP, AIR 1963 SC 1295; Govind v. State
of MP (1975) 2 SCC 148
 4

There are several aims and purposes for the comparative legal research method. The main
aims and purposes are stated as follows:
Firstly, it provides clarification of the perspectives, the conditions, and alternatives for all
communities for securing and enhancing democratic values. 11 It helps us in understanding
universally the idea of justice is perceived and how mora assumptions, cultural traditions etc.
are similar and different in many parts of the world. With the increased use of comparative
legal research, legal education gets strengthened which enriches the supply of solutions.
Secondly, it promotes critical understanding of one's own legal system by pooling a variety of
experiences and best contemporary wisdom. Both the empirical study and CLR have strong
links with the legal doctrine and establish mutual relation within themselves 12 Comparative
legal research is also used as an important useful tool for Law commissions and courts in
their problem solving function. In legal research for law reform, comparative study is the
most common component of multimodal research.13
Thirdly, it brings world peace by promoting the understating between different communities
and nations so that world tension can be reduced. “Duce world's tension. Comparative law
must resolve the accidental and divisive differences in the laws of people at similar stages of
cultural and economic development, and reduce the number of divergences in law,
attributable not to the political, moral or social qualities of different nations but to historical
accident or temporary or contingent circumstances.”14
Fourthly, unification of laws can also be done by using comparative legal research on
different nations. legal systems. With the emergence of TRIPS, TRIMS and GATS under
WTO formulation of legal policies presupposes the study of the approaches of other legal
systems on vital aspects of trade and commercial law. In the Indian context, the policy of
uniform civil code (UCC) contemplated in the Constitution can be worked out on the basis of
extensive comparative study of diverse personal laws and customs. However, unification of
law at the cost of identity of individual component discourses including the debate on UCC.15
Fifthly, comparative legal research is the main tool for the domestic courts in applying
foreign law or foreign judgments. "The process of rule finding can function properly only if
the judge is ready to look for both similarity and difference without giving priority to
either.”16
Finally comparative legal research helps in making choice between the legal systems. The
regulatory governing property, environment, tax, investment, and the procedural laws of
different legal systems are often compared before invoking the jurisdiction of the most
convenient system or before launching a new venture.

11
Myers S. McDougal, "The Comparative Study of Law for Policy Purposes" 1 Am. J. Comp. L 34 (1952)
12
R Legrand, Le droit compares (Presses Universistaires de France, Paris, 3rd edition, 2009)
13
. M. Baxi, "Legal research and Law Reform" in S.K. Verma and Afzal Wani(eds.), Legal Research and
Methodology (Indian Law Institute, New Delhi, 2nd edition,2001)
14
E. Lambert and J.H. Wigmore, "An International Congress of comparative law “23 Illinois L Rev.
15
Supra note 9 at 3
16
Grehard Dannemann, "Comparative Law: Study of Similarities or Differences?" in Reiman and Zimmerman,
The Oxford Handbook of Comparative Law (Oxford University) Press, Oxford, 2006, ,2nd edition
 5

Once the researcher decides that he should go for comparative legal research because of the
need to survey diversity of experiences in relation to felt difficulty in a chosen field, he shall
plan his research very carefully. This section explains various steps of CLR, but it does not
suggest rigid sequential order as the spontaneity of circumstances call for flexibility.
SCOPE AND POTENTIALITY
There are three types of diversities in which comparative legal research thrives. The first one
may lie within the country. Federalism produces diverse legal systems at the level of
federating units and hence provides vast scope for comparison. Through multicultures
diversity also gets produced. There is not only religion based personal laws like Hindu Law,
Muslim law, Christian law, there are other laws within these where different schools and local
variations owing to distinct customs and usages. On the top of it laws relating to welfare of
tribal communities are also diversely developed. A rich field for CLR emerges even within
the country.
The second type of diversity comes through the approaches amidst various countries, whether
free democratic nations or otherwise, gives scope for comparative legal research. Through the
comparison between the constitutional laws of the different countries which will help in the
development of the values, institutions, precepts and provisions, control mechanisms and
their functioning, and at last in judicial and other constitutional practice. Comparative legal
research thrives in diverse traditions like common law, civil law etc.
The second type of diversity comes from the comparison between the experiences and
positions of domestic legal systems and the international standards and benchmarks set by
international law. Mostly the comparison will be done regarding human rights, gender justice,
development, promotion of social harmony and peace, resolution of international conflicts,
norms of international trade, and protection of environment comparison of the domestic
position with the international standards could be made. The significant growth of the World
Trade Organization (WTO) law and international human right law was due to the potential
use of comparative legal research.
TYPES OF RESEARCH QUESTIONS AND APPROPRIATE STATISTICAL
ANALYSES
There are mainly four types of questions that differ in the degree of sophistication in regard to
explanatory ambitions and have different requirements in terms of quality and quantity of
cases. They are as follows:
1. Descriptive comparisons
Majority of the research questions are descriptive in nature and seek to describe the
occurrences of certain phenomena and how these occurrences vary between cases. 17
For example, comparison can be done between the cases of different countries. It also
involves comparisons regarding the presence of issue framing and game framing in
various newspapers. In some instances, especially those with a mid-range number of
cases, one might be interested in a more systematic grouping of cases, for example, to
identify two or more clusters of countries that are highly similar. In those instances,

17
https://www.researchgate.net/publication/336278925_A_Short_Introduction_to_Comparative_Research
 6

techniques such as multidimensional scaling, correspondence analysis, or cluster

analysis may be warranted.
2. Basic Explanatory Analysis
This type of comparative legal research is a basic explanatory one. for example,
studies how political system characteristics the level of conflict framing in national
outlets during the 2009 European Parliamentary election campaign. In such instances,
multivariate analyses, such as regression analysis, can be applied. 18 To use this
technique multiple number of cases and sufficient data is essential for analysis. In
certain instances, the data will be not available. In these situations, we can use two
solutions such as to introduce an additional longitudinal component to the design or to
rely on the comparative logic of QCA, and its extension of fuzzy sets.19
3. Comparison of Relation
This type of research involves investigating in different contexts the relationship
between an independent and a dependent variable. Here one will rely on the set of
regression analyses, one for each single country. Interaction is a way of getting data
but if the interaction is not significant it will affect the research in a bad way.
4. Comparative Explanatory
This type of research is mainly focuses on the elaborating the concept by comparing it
with other countries. For example, in a study, they investigate the
the effect of exposure to conflict framing on turnout for the 2009 European
parliamentary elections campaign. This relationship is positioned at the individual
level wherein the individuals are nested within the various EU member states.
THE METHOD AND STEPS OF COMPARATIVE LEGAL RESEARCH
Once the researcher decides that he should go for CLR because of the need to survey
diversity of experiences in relation to felt difficulty in a chosen field, he shall plan his CLR
carefully. The first step to state the problem. As Geoffrey Samuel writes, "the researcher who
is embarking on comparative work must first be very clear about his or her research question,
for it is this question that will largely determine what might be called the model and
programme to be adopted.”20 The researcher should be clear about what he wants to compare
and he should streamline the subsequent steps which is to define the basis of comparison,
select the comparative elements or legal systems, and fine tune the comparative legal research
process by looking to the systems and contexts and going beyond the texts.
The second step is It is in relation to element T', the tertium comparationis, that similarity or
difference is searched in the course of comparative study.21 The sub themes of T' may touch
upon impact of imposition of colonial rule, competence of indigenous law or efficacy of
control mechanisms.
The third step is to emphasis on comparing it with each other. Find similarities or differences
according to the researcher’s choice. Comparatist aims at drawing lessons from the
approaches of different jurisdictions to the same or similar problems. There is a general belief
18
Ibid
19
Esser, F., & Vliegenthart, R. (2017). Comparative research methods. The International Encyclopaedia of
Communication Research Methods,pp 1-22.
20
Geoffrey Samuel, "Comparative Law and its Methodology" in Dawn Watkins and Mandy Burton (eds.),
Research Methods in Law 101 (Routlege, London, 2013).
21
Supra note 8 at 3
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that the problems of life are met with same or similar solutions of law as law is regulator of
social factors in any of jurisdictions and legal issues are similar. The presumption that
practical results are similar (presumption similitudinis) in relation to similar social facts
motivated the comparative lawyers like Gutteridge to start with search for minimum
similarity in order to avoid illusionary or absurd comparison. 22 Comparative legal research
can be used to identify the diversity of law and give prominence to differences or oppositions
for contrasting in course of comparison. Macro comparison and comparison of social
atmospheres bring forth the differences even though the legal text might be the same or
similar.
The next step is the selection of laws, countries or legal systems for comparison, which is a
crucial step for comparative legal research. While presence of minimum similarity avoids
absurdity in comparison, prevalence of differences avoids monotony and repetition. Hence,
the choice should accommodate diversity of features amidst systems having at least some
common traits or dealing with same or similar problem. The fundamental thing to find out
through legal research is the differences which are good points. The main usage of the
comparative legal research is that it can be treated as a study guide for the selection of
jurisdictions for comparison. When the purpose is to know the comparative advantages and
disadvantages of different systems and bring reforms in home-law in their light, the choice of
comparative elements shall reflect relevant diversities. The selection of comparative elements
should come from proper perception of similarities and differences. and differences.
Preliminary study of their history and social, economic, and cultural factors related to the
legal realms which enables such selection.
The fifth step is to link the comparison with the function of legal system which widens the
dimensions of comparative legal research as it brings sociological discourse into action. It
sorts to functional comparison for the purpose of law reform and unification of divergent
laws. In simpler words it can be said that in this step it focuses on the effects rather than its
rules and not on doctrines or structural arguments, but on events. 23Further, it combines factual
approach with the theory that its objects must be understood in the light of their functional
relation to society. Functionalist comparison helps in understanding the legal order by
critiquing foreign law and by giving a cultural perspective.
Then there is structural method through which we will be able to determine the similarity and
difference between the structure of law. It focuses on the internal structure of the legal system
and its core part. Here the structure of the legal system will be analysed and compared to
determine the difference between the implementation of the law. This method helps in
understanding the difference between how the legal systems have understood the same
problems in different manners.24
Analytical method focuses on analysing the meaning of different aspects of the law. It
analyses how the same concept can be understood in numerous ways. Right, liberty, cheating,
defamation, etc. are the legal terms which comes under the legal references. These terms will
be having the same meaning, but it will be analysed or interpreted in a different manner. This

22
K. Zweigert and H. Kotz, Introduction to Comparative Law (Oxford: Clarendon Press, 3rd edn., 1998); Pp 40
23
Ralf Michaels, "The Functional Method of Comparative Law" in Reimann Zimmerm, The Oxford Handbook of
Comparative Law (Oxford University) Press, Oxford, 2006, ,2nd edition, pp 342
24
Supra note 2 at 2
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method helps in comparing and understanding the use and interpretation terms which might
be similar in core nature but are used differently.25
The final step of a comparative study should consist of some generalized statement. Usually,
such a statement will formulate a suggestion for improvement, or it would demonstrate the
general applicability of the study.26
MACRO AND MICRO COMPARISON
Macro comparison deals with the study the study of legal families or engagement in grand
systems debate. Civil law, common law, religion-based law etc. comes under the legal family.
It helps in bring out differences or similarities depending upon affinity or non-affinity of the
systems to legal family. Background, predominant characteristic, distinctive legal institutions,
kinds of sources and ideology are the five factors which are central to the legal family. The
aim to realize human rights and the working of democratic structure may provide factors of
similarities. Ignoring of these factors will ultimately weakens comparative legal research
method.
Micro comparison is the comparison of specific rules to resolve a particular problem. This
type basically focuses on the smaller units. The focus may be on positive laws; on specific
legal doctrine or precedent; on legal institution, or on description. While hard lines of
distinction between macro-comparison and micro-comparison do not practically exist, their
mutually complementary character shall be perceived.

LIMITATIONS OF COMPARATIVE LEGAL RESEARCH

There are several limitations and constraints for comparative legal research. They are as
follows:
1. Lack of understanding or inadequate knowledge about the social, cultural, historical,
and other factors that influence the legal system is a serious handicap in comparison.
If the comparison is not correct or if the macro-comparison is ineffective then it will
affect the quality of the research in a very bad manner. The solution to this problem is
to be more systematic, meticulous and study deeper.
2. Language is a barrier in comparative legal research. If the language in which the
knowledge system of law was developed abroad then the comparer might not be
familiar with the language. Language barrier is a serious issue in the matter of access
to foreign law. Translation also may not provide a full solution.
3. Culture specific experiences cannot be generalized as universally valid. The approach
on the part of legislators and judges that "we are servants of our own peoples, sworn
to apply our law, and not some international priests to impose upon our free and
independent citizens supra-national values that contradict them" 27 speaks about the
love for autochthony.

25
Ibid
26
https://comparelex.org/category/introduction-to-comparative-law/
27
Antonin Scalia, "Commentary" 40 St Louis University LJ 1122 (1999)
 9

4. Choice of improper paradigm or wrong premise for comparison defeats the efficacy of
study. In contrast, coherence in analysis by scanning the relevant legal regimes
rescues the research.
5. Mere engagement in juxtaposition statement or placement of comparative materials
fails to provide satisfactory analytical pay. 28 off. Mark Tushnet warns: "indeed,
enumeration of provisions and summaries of court decisions may sometimes obscure
more than they illuminate. Scholarship in comparative constitutional law is perhaps
too often insufficiently sensitive to national differences that generate differences in
domestic constitutional law."29 The warning holds good in other spheres of
comparative legal research method.
6. There will be difficulties in getting data, primary and secondary resources. Although
information technology has partly solved the problem, the issue still persists. Some
information will be wrong, so the authenticity of the information will be always in
doubt. In practice, the strong intellectual tradition of CLR is lacking; dull and dry
juxtaposition of the legal regulation of one system with that of another with little or
no critical analysis does not serve purpose.

ISSUE
How comparative legal research method can be used to analyze, contrast, and draw
meaningful insights from the due process frameworks in between the US Constitutional law
and India’s Constitutional law?
Comparative legal research method can be used to analyze, contrast, and draw meaningful
insights from the due process frameworks in between the US Constitutional law and India’s
Constitutional law by understanding the fundamentals, principles, and the ways of approach
of the research method as well as the significance of the due process of constitutional law in
both the legal systems. As this research method helps in understanding the strengths and
weaknesses and complexities of each legal system by comparing it with each other, through
this way we will be able to understand the due process of law and how it can be applied in
different circumstances or situations.
Comparative legal research method itself helps us in knowing that under the American
Constitution, for instance, safeguards for individual liberty are provided by the 'Due process
clause ' and other provisions of the Bill of Rights whereas the Indian Constitution however,
its founders, without being dogmatic about any particular formula or phraseology, have
achieved the same objective in a different way.30

COMPARATIVE STUDY OF THE DUE PROCESS BETWEEN THE US

CONSTITUTIONAL LAW AND IN INDIA’S CONSTITUTIONAL LAW
28
Supra note 9 at 3
29
Mark Tushnet, "Comparative Constitutional Law" in Reimann and Zimmerman
30
K. K. Nigam, DUE PROCESS OF LAW: A COMPARATIVE STUDY OF PROCEDURAL GUARANTEES AGAINST
EPRIVATION OF PERSONAL LIBERTY IN THE UNITED STATES AND INDIA, Journal of the Indian Law Institute
Vol. 4, No. 1 (Jan.-Mar. 1962), pp. 99
 10

“The US Constitution’s Fifth Amendment adamantly commands that no person may be

“deprived of life, liberty or property without due process of law” by any act of the federal
government. Then, the Fourteenth Amendment, ratified in 1868, steps up to use exactly the
same phrase, called the Due Process Clause, to extend the same requirement to the state
governments.”31 This makes sure that fair process is followed in legal proceedings and
protects the fundamental rights from government infringement. Here both procedural and
substantive due process of law is being followed.
Historically the expression “due process of law” is derived from on ‘per legen terrae ',
meaning, law of the land, used in the Magna Carta of England, 1215, chapter 39, which
promised that " no freeman shall be arrested or imprisoned or disseized, or outlawed or exiled
or in any way molested; nor will we proceed against him, unless by the lawful judgment of
the land.
In India at the time of the framing of its new Constitution it was advocated that the due
process clause, similar to that found in the American Constitution, be implanted in the Indian
Constitution. In Indian Constitution the due process is embodied in Article 21 32 which states
the fundamental right to life and personal liberty. It was meant to include ‘any’ sort of
procedure, laid down in a law enacted by the Indian legislature. 33 In A.K. Gopalan v. State of
Madras34 reflecting on the intentions of the Constitution makers, held that “procedure
established by law” only meant that a procedure had to be set by law enacted by a
Legislature. However, three decades later, in Maneka Gandhi v. Union of India35, the
Supreme Court rejected its earlier interpretation and held that the procedure contemplated
under Article 2136 is a just and fair procedure, and not an arbitrary procedure. Because of this
decision ‘the procedure of law’ became ‘the due process of law’.
Comparative legal research helps in understanding how due process is applied in the US and
Indian Constitutional law and its differences and similar elements. By comparing it with
different scholarly writings, legislative materials, judicial decisions and relevant case laws,
the researchers will get an understanding about its history as well as the evolution and the
current state of due process in each legal system. Many other factors such as the information
on their cultures and politics and their developments can be known through this research
method.
One approach to comparative legal research is to focus on specific aspects of due process,
such as the right to a fair trial, protection against arbitrary government action, and the scope
of fundamental rights. Through the comparison the researchers will be able to highlight the
area of convergence and divergence in the understanding and implementation of due process.
This type of comparative analysis can provide valuable insights into how different legal
systems address similar fundamental legal principles and challenges. Above all it also
provides practical implications on the due process and the protections stated in the US and
Indian Constitutional law.
31
Raushan, Comparative Analysis of Due Process of Law: USA & India, International Journal of Humanities and
Social Science Invention, Volume 10 Issue 4 Ser. II, pp 51
32
Indian Constitution Act,1950
33
Ibid
34
AIR 1950 SC 27
35
AIR 1978 SC 597
36
Supra note at 7
 11

ANALYSIS
Comparative legal research is the best legal research that can be applied for this particular
project. Here through comparing US Constitutional law and Indian Constitutional law, law
students will be able to understand the similarities and differences as well as the impact of the
due process in each legal system. With thorough comparative research many reforms can also
be suggested for the better functioning of the legal systems. There are several case laws that
helps the researchers in understanding the due process in both legal systems such as:
The turning point of substantive due process rights jurisprudence came in the form of Maneka
Gandhi v. Union of India37, the first case that dealt with personal liberty in the post-
Emergency period. It was the beginning of an era of judicial populism which can be
explained by a variety of factors ranging from attempts to mend the reputation of the Court,
atone for the Jabalpur decision, and to legitimize judicial power.
In the case Brown v. Board of Education,38 it is impossible to mention the victories of the
Civil Rights Movement without pointing to Brown v. Board of Education. Following the
Court’s ruling in 1896 of Plessy v. Ferguson, segregation of public schools based solely on
race was allowed by states if the facilities were “equal.” Brown overturned that decision.
Regardless of the “equality” of facilities, the Court ruled that separate is inherently unequal.
Thus, public school segregation based on race was found in violation of the 14th
Amendment’s Equal Protection Clause.
In the case Strobie v. California39 where a lawyer was denied permission to see the arrested
person shortly after his arrest, but where the arrested person had not yet requested a counsel
to represent him, the Court held there was no denial of due process of law.
For the complete study of the availability of procedural guarantees in the Indian Constitution
comparable to those available under the American Constitution under the Due Process clause
one should refer to these other Articles of the Indian Constitution and the cases relevant to it.
Hence with all the information given above it is very clear that through the comparison
between both the legal systems helps the students in understanding more and gaining
knowledge about the due process in different countries.
There are several dilemmas that a researcher has to face while doing comparative legal
research. One of the primary challenges is the difficulty in ensuring the comparability
between different legal systems. As the concepts and ways have different meaning and
interpretations across jurisdictions Researchers get easily lost when embarking on
comparative legal research.

37
Supra note 35 at 10.
38
May 17, 1954; Records of the Supreme Court of the United States; Record Group 267; National Archives.
39
343 U.S. 181 (1952
 12

CONCLUSION
The above stated facts provide a comprehensive understanding of the comparative research
methodology and its application in analyzing due process in US and Indian Constitutional
Law. It explores the fundamentals of due process, discusses various approaches and methods
for comparative analysis, and emphasizes the importance of contextualizing the research
within legal, social, and cultural frameworks. The report highlights the potential benefits and
challenges of employing the comparative research method in this research project, paving the
way for further exploration and analysis in the field of comparative legal studies.
Human experiences of specific problems or issues in different contexts and countries can be
better appreciated and evaluated when they are compared. It further helps the researcher to
conduct effective research for better knowledge of principles in law. It is concluded that
comparative legal research enables the researcher to deal with a particular concept in a better
way as compared to other methods of legal research. Comparative legal research is an
important and often indispensable element of most historical legal studies. For comparative
research to be of value, it is necessary not only to select and obtain the right comparative
material but also to explore the context, i.e., the set of factors accompanying the development
of legal norms and their interpretation.
Comparative legal research provides valuable tools for legal research as it widely spreads the
canvas of community experience. Understanding of the basic insights under different
schemes fills the gap of knowledge. Through the use of comparative legal research method,
the danger of reducing comparative legal research method into a juxtaposition statement with
superficial contrasting can be avoided. It can be concluded by stating that globalization and
universal human rights principles demand an augmented role for systematic comparative
legal research.
 13

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