MINI RESEARCH PAPER

ILS Law College, Pune

LL.M. 2022-24

Subject: Comparative Constitutional law

A Study of Rule of Law in India, U.S.A & U.K

Name of the Student: Darekar Gayatri Subhash

Roll No: - 759

Semester: II

Year – 1st

Submitted to

Prof. Pratik Sharma

ILS law college

Pune.

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 INDEX

Sr. HEADLINES Page

No No.

1. Chapter I:

Introduction 03

Scope and limitation 04

The objective of the study 04

Research question 05

Research Methodology 05

Literature Review 06

2. Chapter II:

Development of the concept of ‘Rule of law’ in U.K 08

3. Chapter III:

Rule of Law in India & in Indian Constitution. 13

4. Chapter IV:

Rule of Law in the United States. 17

5. Chapter V:

Comparative Analysis: 19

6. Conclusion and Suggestions 22

7. Bibliography 24

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MINI RESEARCH PROJECT

TITLE: A Study of Rule of Law in India, U.S.A & U.K

(CHAPTER-I)

1.1 INTRODUCTION

The concept of the rule of law is a cornerstone of democratic governance and ensures that no
one, regardless of their status or position, is above the law. The principle of the rule of law is
universal, but its interpretation and implementation vary widely across different countries. The
comparative study of the rule of law in different legal and political contexts can help to identify
the best practices and challenges in its implementation.

India, the USA, and the UK are three major democratic countries with different legal systems,
histories, and cultures. This research paper aims to conduct a comparative study of the rule of
law in these countries, with a focus on their legal and constitutional frameworks, judicial
systems, and law enforcement practices. The study seeks to analyze the similarities and
differences in the interpretation and implementation of the rule of law in these countries, and
assess their implications for democracy, human rights, and the rule of law.

There is a significant body of literature on the rule of law in these countries. Scholars have
explored various aspects of the rule of law in India, such as the independence of the judiciary,
the role of the executive in law enforcement, and the protection of human rights. In the case of
the USA, scholars have focused on the role of the Supreme Court in interpreting the
Constitution, the separation of powers, and the protection of civil liberties. In the UK, scholars
have studied the evolution of the common law, the development of the judiciary, and the
relationship between the executive and the judiciary.

While there is a wealth of literature on the rule of law in each of these countries, there has been
relatively little comparative analysis of the rule of law across them. This study seeks to
contribute to the literature by conducting a comparative analysis of the rule of law in India.

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1.2 SCOPE AND LIMITATIONS

An overview of the concept of rule of law and its significance in democratic societies. A
review of the existing literature on the rule of law in India, the USA, and the UK, including
legal and constitutional frameworks, judicial systems, and law enforcement. An analysis of
the similarities and differences in the interpretation and enforcement of the rule of law across
the three countries, including the role of courts, the executive, and the legislature. An
evaluation of the impact of the rule of law on democracy, human rights, and social justice in
India, the USA, and the UK. An examination of the main challenges facing the rule of law in
each country, such as corruption, political interference, and institutional weaknesses. An
identification of the best practices and successes of each country in upholding the rule of law,
and recommendations for their replication. An exploration of ways to overcome the
challenges facing each country in upholding the rule of law, such as legal reforms,
institutional strengthening, and civil society engagement. A consideration of the implications
of the findings for policy and practice, including the potential for international cooperation
and collaboration in promoting the rule of law and human rights.

1.3 RESEARCH OBECTIVES

The objectives of a comparative study of the rule of law in India, the USA, and the UK
may include:
1. To understand the legal and constitutional frameworks that underpin the rule of
law in each country.
2. To identify the commonalities and differences in the interpretation and
enforcement of the rule of law across these three countries.
3. To analyze the impact of the rule of law on democracy, human rights, and social
justice in India, the USA, and the UK.
4. To identify the main challenges facing the rule of law in each country and to
propose ways to overcome these challenges.
5. To learn from the best practices and successes of each country in upholding the
rule of law and to identify areas for improvement.

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 6. To contribute to the development of a better understanding of the rule of law and
its importance in democratic societies.
7. To enhance global cooperation and collaboration in promoting the rule of law
and human rights.

1.4 RESEARCH QUESTIONS

1. How does the rule of law differ between India, the USA, and the UK?
2. How do the courts in these countries interpret and enforce the rule of law?
3. How do the three countries compare in terms of their legal frameworks for protecting
individual rights and freedoms?
4. How has the rule of law evolved in these three countries over time, and what factors have
influenced its development?
5. How do the three countries compare in terms of their legal frameworks for protecting
Rule of Law, and what lessons can be learned from this comparative analysis?

1.5 RESEARCH METHODOLOGY

Regarding the nature of research questions, it is seen that doctrinal research would be better
approach to find the solution of this questions. Doctrinal research also known as tradition
research is basically library research. It is a scientific and systematic way to obtain a solution
to legal problem. Library research involve the critical analysis of available literature. It also
includes the study of case laws. Analysis of the judgement of high courts and supreme courts
are extremely essential in library research. From the critical evaluation of judgements one
can find why and how the judges have arrived at conclusion. The analysis of judgment and
research articles, also gives necessary clue which helps the researcher in arriving at the useful
solution to the research questions.
The research will also consult the newspapers, newsletters, magazines, AIR, SCR, SCC,
Journals, Book etc. The conclusions will be drawn by the researcher on that basis.

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1.6 LITERATURE REVIEW

Kesavananda Bharati v. State of Kerala1 In this case, some pieces of land of the petitioner
were coming under the Government’s acquired land. The question in this case was whether
the judiciary has the power to amend the Constitution. It was held that judiciary has the
power to amend the Constitution for the welfare of the people. It was held that rule of law is
the basic structure of the Constitution.

Indira Nehru Gandhi Vs. Raj Narain2 In this case, after Indira Gandhi Nehru won the
elections, it was found out that she won the elections by unfair means and therefore the High
Court of Allahabad held that she cannot contest in elections for six years. Soon after that
emergency was imposed in the nation. Constitutionality of Article 329A was in question. The
court held the Article 329A unconstitutional and held that Article 14 cannot be violated by
any person.

Dr. J. N. Pandey in his book “Constitutional Law of India” has discussed the three different
meaning of rule of law given by Professor Dicey i.e.

1. Absolute supremacy or predominance of regular law as opposed to the influence of

arbitrary power.
2. Equality before the law or the equal subjection of all classes to the ordinary law of the
land administered by the ordinary law courts
3. The general principle of constitution

Dr. Durga Das Basu in his book “Comparative Constitutional Law” has analyzed the
scope for judicial innovation is more limited India than the U.S.A. by reason of the patent
fact that the American Constitution is an archaic and concise instrument which had to be
amplified in order to meet the requirements of the myriads of changes brought about by
development in science and industry which could not possibly be envisaged in 1789. The
Indian Constitution, on the other hand, is roughly three decades old and is so elaborate
1
Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461
2
Indira Nehru Gandhi Vs. Raj Narain AIR 1975 SC 2299.

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 and precise in its language’ that the court cannot go far beyond literal interpretation
without violating its nature and arrangement as a legal instrument. Judges in India can
hardly afford to forget that there being no provision in the American Constitution
corresponding to Art. 367(1) of the Indian Constitution, the Judges there had a play in the
matter of constitutional interpretation, the like of which cannot be claimed in India, for
the patent fact that the Constitution itself directs that it should be interpreted according to
the rules of statutory interpretation except where ‘the context requires otherwise’.

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 (CHAPTER-II)

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.

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

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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.

There are number of elements of Rule of law which are as follows3:

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.
3
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

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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”.4
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 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”.

4
History of the English-Speaking Peoples, Vol. I

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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. wood 5 it was held that an action for damages
for trespass was maintainable even if the action complained of was taken in pursuance of
the order of the minister. In the leading case of Entick v. Carrington 6 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 trespass
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 principles7:
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:
5
Wilkes v. wood, 1763 19 St Tr 1153
6
Entick v. Carrington, 1765 19 St Tr 1030
7
Massey, I P (2008). Administrative law, Lucknow: Eastern Book Company.

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 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.

Criticism

Dacey’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.

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 (CHAPTER-III)

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

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against fundamental rights. Furthermore, they act as bulkwark against various forms of
exploitation which take place against women, children and minority communities 8

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 India 9 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 Rajasthan 10 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 Supreme Court in Golak
Nath v. State of Punjab11 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

8
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
9
Shankari Prasad v. Union of India, AIR 1951 SC 455 21.
10
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 8.
11
Golak Nath v. State of Punjab, AIR 1971 SC 1643.

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of law was trampled 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 Kerala 12. The Hon’ble
Supreme Court by majority overruled the decision given in Golak 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
Constitution13. 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 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.

12
Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461
13
Pandey J N (2008). The Constitutional Law of India, Allahabad: Central Law Agency

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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 Shukla 14 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 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 law15’

14
A D M Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.
15
Seervai H M (1993). Constitutional Law of India, Bombay: Tripathi Publishers.

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 (CHAPTER-IV)

Rule of Law in the United States

Rule of Law has been imbedded in the Constitution of United States. The Constitution is the
supreme law of land. Article IV16of the Constitution conforms that the Constitution is the
supreme law of the nation. All the laws that are to be made should be made according to the
Constitution and its provisions. No person, not even the President is above the Constitution. The
functioning of the Government is done with accordance of the Constitution and no action of the
Government shall violate it. The Constitution provides for equality among the society. It is
guaranteed under the Fourteenth Amendment. Every citizen is treated equally and is seen equally
by the eyes of law. Laws are to be made with fairness and without discrimination among the
people. The U.S. Constitution provides rights to its citizens for their protection and betterment.

The structure of Government of the United States also follows the principles of separation
powers, which is an extension of rule of law. The function of the legislative body (Congress) is
to make laws. The function of the executive body which includes the President, Cabinet, and
other agencies, is to enforce laws. The function of the judicial body which includes federal
courts, including the U.S. Supreme Court, is to interpret laws and resolve disputes. 17 The
Supreme Court of the United States was formed to be a watchdog of the Constitution so that it
can guard the law and point out violations of the law by the public office holders and other
members of the government.18

In the case of Marbury v. Madison,19 it was held that any law that violates the Constitution will
be struck down. This case established the provision of judicial review in the United States. In
Church of the Lukumi-Babalu Aye, Inc. v. City of Hialeah 20 it was held that the local laws were
violating the rights of the people under First Amendment. It was held that these clauses are in

16
U.S. CONST. amend. IV.
17
AMERICAN BAR ASSOCIATION, https://www.americanbar.org/groups/public_education/resources/rule-of
law/rule-of-law-in-american-life--a-long-and-intentional-tradition (last visited MAY 15, 2023)..
18
James McCellan, Rule of Law & US Constitutionalism, ONLINE LIBRARY OF LIBERTY,
https://oll.libertyfund.org/page/rule-of-law-us-constitutionalism .
19
Marbury v. Madison, 5 U.S. 137.
20
Church of the Lukumi-Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520 (1993)

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violation of the provisions of the Constitution and shall be struck down. In the case of Plyler v.
Doe21, it was held that denying education to the children of immigrants, who are not documented
is against the Fourteenth Amendment to the U.S Constitution. Therefore, it was held that this
practice violates the Constitution and should be brought down. In the case of Brown v. Board of
Education22, it was held that segregating children on the basis of race was against the Fourteenth
Amendment to the U.S Constitution. The court ruled that this practice violated the equal
protection clause and this segregation should not be permitted.

(CHAPTER-V)

21
Plyler v. Doe 457 U.S. 202 (1982)
22
Brown v. Board of Education 347 U.S. 483 (1954)

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Comparative Analysis

The rule of law is a fundamental principle that ensures fairness, accountability, and justice in any
society. While India, the United States, and the United Kingdom are democratic countries with a
strong emphasis on the rule of law, there are differences in their legal systems and practices.
Here's a comparison of the rule of law in these countries and some lessons India could learn from
the other two:

India:

India has a written constitution and an independent judiciary. However, there are some
challenges in upholding the rule of law consistently throughout the country. These challenges
include a backlog of cases, delays in the judicial process, corruption, and inadequate access to
justice, particularly for marginalized communities. Additionally, there have been instances of
executive interference in the judiciary, which can undermine the independence of the legal
system.

Lessons for India:

a. Strengthen Judicial Infrastructure: India can learn from the U.S. and the U.K. in
terms of building a robust judicial infrastructure, including adequate courtrooms,
judges, and support staff to address the backlog of cases and reduce delays.
b. Enhance Access to Justice: India should focus on providing better access to
justice, particularly for marginalized communities, by improving legal aid
programs, increasing the availability of affordable legal services, and promoting
alternative dispute resolution mechanisms.

United States:

The United States has a strong tradition of the rule of law, with a well-established legal system
and an independent judiciary. However, it also faces challenges, such as racial disparities in the
criminal justice system, issues with police accountability, and a complex and lengthy legal

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process. There is an ongoing debate about the influence of money in politics and its potential
impact on the impartiality of the legal system.

Lessons for India:

a. Address Racial Disparities: India can learn from the U.S.'s experience in
addressing racial disparities within the criminal justice system. By actively
working to reduce discrimination and biases, India can promote equal treatment
and fairness in its legal system.
b. Enhance Police Accountability: India can adopt measures from the U.S. to
improve police accountability, such as implementing body cameras, establishing
independent oversight mechanisms, and promoting community policing.

United Kingdom:

The United Kingdom has a long-standing legal tradition and a well-respected judiciary. Its legal
system is based on common law principles and emphasizes the protection of individual rights.
However, concerns have been raised about potential erosion of civil liberties, particularly in light
of counterterrorism measures and surveillance practices.

Lessons for India:

a. Safeguard Civil Liberties: India can learn from the U.K.'s experience in
maintaining a balance between security concerns and safeguarding civil liberties.
It is essential to ensure that any measures taken in the name of security are
proportionate, necessary, and respect individual rights and privacy.
b. Promote Legal Education: India can adopt the U.K.'s approach to legal education,
which emphasizes practical training, critical thinking, and professional ethics.
Strengthening legal education can help produce a skilled and ethical legal
profession.

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In summary, India can learn from the United States and the United Kingdom in areas such as
strengthening judicial infrastructure, enhancing access to justice, addressing racial disparities,
promoting police accountability, safeguarding civil liberties, and improving legal education. By
incorporating these lessons, India can further strengthen its rule of law and ensure justice and
fairness for all its citizens.

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 (CHAPTER-VI)

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.

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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’.

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1.7 SELECT BIBLIOGRAPHY

Primary Sources:
a. Constitution of India
b. Constitution of U.S.A

Secondary Sources

Books:

a. D.D. Basu, “Comparative Constitutional Law”

b. Dr. J.N Pandey’s “Constitutional Law of India”

References:

a. Kesavananda Bharati v. State of Kerala

b. Hussainara Khatoon V. State of Bihar
c. Sunil Batra V. Delhi Administration
d. People’s Union for Democratic Rights V. Union of India,
e. Bandhua Mukti Morcha V. Union of India,
f. Rudal Shah V. State of Bihar

Web Sources:

1. JSTOR- HTTP;//WWW.JSTOR.ORG
2. SCC ONLINE-HTTP//WWW.SCCONLINE.COM
3. http://www.manupatra.com/
4. http://www.indlaw.com/
5. http://www1.worldbank.org/publicsector/legal/ruleoflaw2.htm
6. http://socialsciences.scielo.org/
7. http://www.scconline.com

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