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Gujarat National Law University, SILVASSA CAMPUS,

DNHDD (India)

LEGAL AND
CONSTITUTIONAL
HISTORY

TOPIC -
Comparative Analysis of Rule of Law
In India and UK.

Submitted To: -
Prof. Yagyaseni Bareth

Submitted By: -
Rohan verma
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TABLE OF CONTENT

Introduction
1. Abstract
2. Research questions
3. Scope of the study
4. Objective of the study
5. Significance of the study
Development of concept of rule of law in UK
1. The great charter: Magna carta
2. James the first and chief justice coke
3. Dicey’s concept of rule of law
4. Criticism
Rule of law in India and Indian Constitution
1. Human Rights Abuse
2. Maladministration
3. Indian judiciary and rule of law
4. Rule of law as unfolded by the Indian judiciary
Conclusion
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ABSTRACT
The concept of the Rule of Law has evolved over time, significantly shaped by historical
events in the United Kingdom and India. In the UK, it was influenced by the Magna Carta,
which marked a restriction on the king's power and introduced the idea that even the monarch
was bound by the law. Sir Edward Coke played a pivotal role in challenging the Stuart kings'
absolute authority and emphasizing the importance of the law over royal whims.

Albert V. Dicey's concept of the Rule of Law emphasized three principles: the absence of
discretionary power in government officials, protection of individuals from harm or property
deprivation unless through legal means, and recognition of individual rights based on
customs and traditions acknowledged by the courts. However, his formulation has faced
criticism in the modern context, particularly in cases involving wide discretionary authority
and government powers.

In India, despite having a comprehensive constitution and legal framework, there are
significant human rights abuses, including extrajudicial executions, torture, and violence by
security forces. Discrimination and violence against various marginalized groups persist, and
there is maladministration within public administrative entities. The rule of law is challenged
when politicians prioritize personal gain over public welfare, leading to a culture of
corruption and misuse of authority.

The Indian judiciary, particularly the Supreme Court, has played a crucial role in
safeguarding freedoms and preventing human rights violations. However, challenges to
judicial independence and legislative attempts to override court decisions have tested the
Rule of Law.

INTODUCTION

The concept of the rule of law is a cornerstone of modern democratic societies, embodying
the principles of fairness, justice, and accountability. It represents a critical evolution in the
way governments and societies are organized, providing a framework that aims to protect
individual rights and dignity.

The idea of the rule of law is not a recent development but rather an age-old ideal that dates
back to ancient civilizations. Its origins can be traced to philosophical discussions by thinkers
like Plato and Aristotle in ancient Greece. These philosophers argued that when a society is
governed by laws and not by the whims of individuals, it thrives and ensures the well-being
of its citizens.
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In the United Kingdom, Sir Edward Coke and later Professor Albert Venn Dicey played
pivotal roles in shaping the modern understanding of the rule of law. They advocated for the
primacy of the law over the authority of rulers, emphasizing that even the highest government
officials, including the king, must operate within the constraints of the law. Dicey, in
particular, stressed that wherever discretion exists, there is the potential for abuse of power.

Rule of law has deep historical roots in historical goods for example text like Upanishad.
These texts emphasized the supremacy of the law over monarchs who claimed divine
authority. In the context of democracy, the rule of law takes on a new dimension, where those
holding public power must be able to justify their actions legally and morally.

The rule of law is a dynamic and adaptable concept that doesn't lend itself to a single, exact
definition. However, there is widespread agreement on the fundamental values it represents.
The rule of law is often used to distinguish between governance based on laws and principles
and governance subject to the will of individuals. It upholds the values like freedom, equality,
non-discrimination etc.

The concept encompasses several key elements:

a) Abhorrence of Arbitrary Power: It ensures that every person in society, including

government officials, is subject to the law. No one can be punished for actions that were not
prohibited by law at the time they were committed.

b) Equality Before the Law: The law must be equal for all the individuals irrespective of their
caste, religion, wealth and power. Accused persons should be given fair trial and the
opportunity to defend themselves before impartial judges.

c) A Formal, Rational Court System: The legal system should be predictable, consistent, and
transparent, minimizing discretionary actions and fostering fairness.

d) Judicial Independence and Separation of Powers: The judiciary should be independent

from the legislative and executive branches, ensuring that judges can decide cases without
improper influences. Separation of powers helps prevent abuses of authority.

Despite its historical significance and continued relevance, the rule of law remains a complex
and debated concept. There is no single, universally accepted definition. Instead, scholars and
practitioners acknowledge a significant divergence in the interpretation and application of the
rule of law.

Some, like Friedrich von Hayek, emphasize the predictability and security offered by the rule
of law, as it ensures that government actions are bound by established rules. Others, like
Dicey, include the importance of individual rights as a key component of the rule of law.

In the modern democratic country, the rule of law is a system designed to protect individual
dignity and rights. It ensures that everyone, regardless of their position, is subject to the same
legal consequences for their actions. The rule of law demands adherence to established legal
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procedures and institutions, developed over time to protect individuals from the arbitrary
exercise of authority.

In essence, the rule of law is about treating those who are similarly situated equally. It doesn't
seek to make unequal individuals equal or reduce the equality of those who are already equal.
Instead, it provides a framework that promotes fairness, justice, and accountability within a
society, allowing individuals to enjoy the dignity and rights to which they are entitled.

RSEARCH QUESTIONS
1. Is there any comparison between the concept of rule of law in U.K and India.?
2. What are the similarities and dissimilarities of rule of law in Idia and U.K.?

SCOPE OF THE STUDY

o The scope of the study is limited to the analysis of the concept of rule of law in UK.
as well as India?

OBJECTIVE OF THE STUDY

o To know and understand the concept of rule of law.

o To do the comparative study of rule of law in India and UK.
o To understand similarities and dissimilarities of rule of law between U.K and India.

SIGNIFICANCE OF THE STUDY

o This study will give you a comprehensive and valuable knowledge about the meaning
and interpretation of law.
o The study also provides the objective, implantation of rule of law in India as well as
Indian constitution.
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DEVELOPMENT OF THE CONCEPT OF

RULE OF LAW IN UK

The concept of Rule of law in the UK has evolved gradually over time as a safeguard against
arbitrary authority. Its contemporary understanding is largely influenced by the historic
conflicts between English monarchs and their citizens, the power struggle between parliament
and Stuart kings, and the war between the British and American colonies.

The great charter: Magna carta

On, 1215, at the meadows of Runnymede, King John and his rebellious barons reached an
historic agreement known as the Magna Carta, a significant written document that marked the
first substantial restriction on the king's power. This charter aimed to limit the king to
principles of good governance as perceived by the barons and was essentially a negotiated
settlement resulting from the use of force.

Winston Churchill, in his "History of English-Speaking Peoples," eloquently speaks of the

legendary significance of the Magna Carta, describing it as an embodiment of English
liberties. The original Articles of the barons, are still preserved in the British Museum. Over
the following century, the charter was reissued 38 times, with some modifications but still
retaining its core characteristics.

Churchill emphasizes that, for the first time, the king himself was bound by the law, and this
principle was destined to endure across generations, even as the feudal context of 1215
became a distant memory. The Magna Carta stood as an enduring testament to the idea that
the crown's power was not absolute. In subsequent ages, when the state, intoxicated by its
own authority, attempted to trample upon the rights and liberties of its subjects, the Magna
Carta's doctrine was repeatedly invoked, and with consistent success. It symbolized a law
superior to the king, one that he, too, must obey. The reaffirmation of this supreme law,
expressed in a general charter, is the Magna Carta's great achievement, justifying the
reverence in which it has been held.

James the first and chief justice coke

Sir Edward Coke, the Lord Chief Justice of England, played a monumental role in challenging
the absolute authority of the Stuart kings. On a cold morning in Westminster Hall on November
13, 1608, King James I, asserting his divine right, sought to establish his absolute power, but
Parliament and the royal courts stood in his way.
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Under Chief Justice Coke's leadership, the courts began to meddle in matters of prerogative
powers, seizures, and detentions, issuing writs to review decisions of local courts. When King
James claimed the authority to personally decide any case, Chief Justice Coke boldly responded
that cases should be determined in a court of justice according to English law and customs, not
by royal whim. Coke emphasized that the law, not personal reason, should decide cases
affecting the lives, inheritances, and fortunes of subjects.

Despite King James's offense, Coke unwaveringly asserted that the king should be subject to
both God and the law. In 1616, when ordered not to hear a case questioning the king's
prerogative, Coke refused, resulting in his dismissal. Only after the Glorious Revolution and
the Act of Settlement in 1701 did parliamentary powers rise, and judicial independence was
firmly established.

Dicey’s concept of rule of law

Dicey's thesis was shaped by his observations of France, where he noticed that government
officials held significant discretionary powers. Disputes between government officials and
private individuals were not adjudicated in ordinary courts but by specialized administrative
courts, applying a unique set of laws. Dicey contended that this system contradicted the English
concept of the rule of law, which was seen as the foundation of English liberty. Consequently,
Dicey argued that there was no administrative law in England.

In England, the doctrine of the rule of law was applied practically. If someone was unjustly
arrested by the police, they could file a lawsuit for damages just as if the police were private
individuals. Key cases, such as Wilkes v. Wood and Entick v. Carrington, affirmed that
individuals could seek redress for wrongful actions, even if these actions were taken pursuant
to government orders.

Dicey's formulation of the rule of law comprised three fundamental principles:

Absence of discretionary power in government officials, ensuring that justice is based on

known principles and preventing arbitrary decisions.
Protection of individuals from bodily harm or property deprivation unless through legal means
before ordinary courts, without special privileges for officials or distinctions based on status.
The recognition that individual rights should derive from customs and traditions acknowledged
by the courts in administering justice.
Dicey's concept of the rule of law was an effective means of constraining administrative
authorities, emphasizing that the government must be subject to the law and not vice versa. It
promoted the principles of law supremacy, equality before the law, and the role of the judiciary
in safeguarding individual rights, regardless of whether these rights were enshrined in a written
constitution.

While Dicey criticized the French system of administrative tribunals, his concern was primarily
about the exercise of discretionary authority not governed by established rules. He
acknowledged the importance of discretion in both judicial and administrative decisions,
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emphasizing that discretion, when exercised within the framework of the law, was not
problematic. Dicey's core argument centred on the need for government actions to be governed
by legal principles, not arbitrary power. This understanding of the rule of law aimed to maintain
the primacy of regular law over arbitrary authority, ensuring that government discretion
remained within the boundaries set by the law.

Criticism
Dicey's first principle, emphasizing the supremacy of regular law over arbitrary power, has
faced significant challenges in the modern context. The proposition suggests that the rule of
law excludes wide discretionary authority granted to the government. In contemporary
governance, governments rely on numerous discretionary powers granted by statutes passed
by legislative bodies, which Dicey's formulation may seem to disapprove of. Additionally,
practical necessities have led to the granting of powers to bodies like the police for limited
detainment based on reasonable suspicion, which appears contrary to Dicey's notion of the
rule of law.

Dicey's second principle, stressing equal subjection to the ordinary law, has also faced
challenges. While public officials can be held liable before ordinary courts for crimes or torts,
it does not mean that public officials and private citizens have the same rights. Public
officials often possess more lawful power over citizens, and distinctions based on social,
economic, or professional factors can lead to disparities in how the law is applied.

Dicey's third principle, which favoured common law principles as the basis for citizens' rights
and liberties, has also evolved. Common law principles may be eroded by legislative actions
and may not ensure citizens' economic and social well-being. Moreover, in a modern context,
the declaration of individual rights and judicial procedures for their protection have gained
significance, alongside common law principles.

Critics have challenged Dicey's formulation, emphasizing that the rule of law should not be
confused with democracy, justice, equality, or human rights. The rule of law, according to
some, minimizes the harm to freedom and dignity caused by the law in pursuit of its
objectives, which may be laudable but require a balance of competing values. Dicey's
formulation, while fundamental, does not encompass all aspects of modern governance,
human rights, and social justice. Despite criticisms and challenges, the rule of law remains a
fundamental principle, but it is no longer seen as an all-encompassing solution. Instead, it is
part of a broader framework that includes various values and principles, each with its role and
limitations in shaping a just and equitable society.

RULE OF LAW IN INDIA

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India is a world largest democracy and it is highly praised for its commitment to the rule of law
and democratic freedoms, which are rare in the South Asian region. However, despite more
than six decades of democracy, the lives of the majority of Indians have not significantly
improved.

India possesses a written constitution and a comprehensive body of laws that cover various
subjects, along with rules, regulations, executive instructions, and conventions. Collectively,
these are referred to as "law," and their impact on the population is what constitutes the "Rule
of Law."

In many aspects, India exemplifies a modern nation-state, adhering to the principles of

democracy. Its constitution clearly outlines the three pillars of a nation-state: the legislature,
the executive, and the judiciary, each with distinct roles and responsibilities.

The Indian constitution enshrines fundamental rights that closely align with the Universal of
Human Rights, guaranteeing all Indian citizens a peaceful life as long as they adhere to the law.
These civil liberties take precedence over other laws, encompassing rights such as freedom of
speech, freedom of expression, freedom to make association, and equality before the law. They
are considered fundamental rights because they are essential human rights that every individual
is entitled to, ensuring their personal growth and development. The constitution includes
safeguards to prevent violations of these rights, making them justiciable rights that can be
enforced in a court of law. These rights serve as a safeguard against the government enacting
laws that infringe on fundamental rights and also protect women, children and minorities
community to exploit by someone.

On the surface, India boasts a well-established and comprehensive system for administering
justice, incorporating the finest elements of Anglo-Saxon jurisprudence into its legal
framework.

Human Rights Abuse

India is a country where the law and human rights seem to be respected, but there are many
cases of human rights violations. These violations happen despite the existence of many legal
protections. They are often caused by social conflicts, violent movements for independence,
and the government’s efforts to stop them, as well as the lack of proper training and methods
for the police. Some of the most serious human rights violations include killing, torturing, and
using too much force by security forces and separatist groups, as well as kidnapping and
demanding money by these groups, especially in areas like Kashmir and the northeastern states.
In India, there are also instances of torture, rape, and death of people in police custody, arresting
and detaining people without any reason, especially in Kashmir and the northeast. Many people
are still held under special security laws, which leads to long delays in criminal trials.
Furthermore, there is a lot of violence between different castes and communities, both by
society and by government agents and police, especially against women. Indigenous people
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also face discrimination and violence, and there is a lot of exploitation of workers who are
forced to work without pay or as children. In summary, the people of India have to deal with a
state system that has created a way of oppressing and repressing them. Repression is not only
about torture and killing by the police; it is also about bad governance and mismanagement. It
is not the Indian state itself that is directly responsible for crimes against humanity and human
rights violations; rather, it is the state’s agencies that abuse their power. Within Indian society,
there are many groups, such as Dalits, tribals, the poor, the helpless, the landless, and women,
who are socially or economically disadvantaged. They make up a large majority, and India’s
deep-rooted caste system still affects the country’s secular and democratic constitution. Despite
legal provisions, social and economic inequalities and discrimination continue, especially
against scheduled castes and other ethnic minorities. Police agencies often show biased
characteristics, with many human rights violations committed against Dalits. Women in India
are especially prone to discrimination, including rape by the police, and conviction rates for
such crimes are low. Rape by armed forces is also common in areas of insurgency. Another
form of common violation of civil rights of citizens is torture in custody, despite legal
protections. The police often get arbitrary power under the excuse of maintaining law and
order, which leads to the justification of human rights violations. These issues show a complex
and deep problem in India’s social and governmental structures that need a lot of attention and
reform.

Maladministration
The effectiveness of local government bodies in India is severely eroding the rule of law, as
numerous complaints are directly tied to the actions of public administrative organizations.
Administrative bodies consistently disregard the principles of good administration. Good
administration entails maintaining a high level of respect for citizens, ensuring transparent
access to all information held by authorities, bolstering oversight, particularly in municipal
governance, and eliminating political interference in public administration. The recent
enactment of a law guaranteeing the right to access public information is a step toward
achieving good governance. Nevertheless, the declining state of the rule of law in India reflects
the lack of trust the general public has in the country's law enforcement agencies. The
emergence of various social groups as symbols of ethnic or religious identity weakens the
pivotal role that the rule of law should play in our nation as an essential element of a liberal
democracy. The rule of law becomes secondary when politics is no longer seen as a means for
the public good but as a tool for personal gain. Over the past three decades, increased political
competition in India has often disregarded the rule of law, a trend that has intensified since the
1990s as most political parties, both regional and national, switch between governing and
opposition roles in different contexts. Indian government agencies have failed to uphold the
rule of law, ensure equality before the law, and provide equal protection under the law.
Regardless of whether the ruling party or the opposition holds state power, there has often been
a display of aggression and promotion of a violent political culture. This is evident from
credible reports of corruption, criminal activities, and self-interest among current politicians.
The end of Lalu Prasad Yadav's rule in Bihar was expected to usher in a new era of public
service. However, it was disheartening to witness newly elected Members of the Legislative
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Assembly from Chief Minister Nitish Kumar's Alliance behaving like criminals and petty
thieves. They forcefully entered government bungalows, resembling a dacoit raiding party, and
distributed the spoils among themselves. The situation was so distressing that even MLAs and
sitting ministers were not served non-bailable warrants by the courts, citing the person
concerned as "not available." Such audacity and disregard for the law raise questions about
whether we are truly governed by the rule of law. If politicians can flout the law with impunity,
it raises concerns about whether the rest of the affluent population will use their influence in a
similar manner. It is not surprising that so-called people's representatives remain indifferent to
the warnings of individuals like Mr. Somnath Chatterjee, the former Lok Sabha Speaker, who
observed that "large sections of the people are greatly worried about the nexus between crime
and politics as well as administration in the country." He lamented that "politics in the country
has, to a large extent, become criminalized and crime has become politicized." This suggests
that there may be little hope for the rule of law in India's future.

Indian judiciary and rule of law

India's commitment to the Rule of Law faced a significant setback with the enactment of the
Constitution 1st Amendment Act of 1951. This amendment introduced Articles 31A and 31B
into the Constitution, which were contested for potentially encroaching on the rights guaranteed
under Part III of the Constitution. Initially, the Supreme Court, in cases like Shankari Prasad
v. Union of India and Sajjan Singh v. State of Rajasthan, held that Parliament had the authority
to amend Part III of the Constitution under Article 368. They concluded that the term "law" in
Article 13 referred to legislative actions, not constitutional amendments, thus allowing for the
validity of a constitutional amendment that limited fundamental rights.

However, this position was later reversed by the Supreme Court in the Golak Nath v. State of
Punjab case, which declared that Parliament lacked the power to amend Part III of the
Constitution to curtail fundamental rights. Nevertheless, this wasn't the end of the story. The
Rule of Law encountered another challenge with the Constitution 24th Amendment Act of
1971, which introduced a new clause (4) in Article 13, stipulating that it would not apply to
any constitutional amendment made under Article 368.

The Constitution 24th Amendment Act faced fierce opposition in the landmark Kesavananda
Bharati v. State of Kerala case. In a majority decision, the Supreme Court overturned the
previous Golak Nath decision and affirmed that Parliament possessed significant amending
powers. However, this authority was not without limits, as it could not extend to dismantling
or undermining the fundamental features or structure of the Constitution. This decision upheld
the Rule of Law.

Nevertheless, following the delivery of the judgment in the Fundamental Rights case on April
24, 1973, Justice A.N. Ray was appointed as the Chief Justice of India, bypassing the tradition
of seniority. This move led to the resignation of three senior judges. Justice Ray had a history
of delivering dissenting judgments in favour of the government, which raised concerns about
judicial independence. During the period of the emergency declared in India, judges who
demonstrated independence in their decisions were transferred, the media was subjected to
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censorship, and orders were issued to prohibit the publication of judgments and court
proceedings, thereby presenting further challenges to the Rule of Law.

Rule of law as unfolded by the Indian judiciary

The Indian Supreme Court holds a unique and extensive jurisdiction, although it is not a
constitutional court. It primarily deals with issues related to the enforcement of fundamental
rights, and its judgments have a binding effect on all courts within India and its citizens and
state authorities. It also possesses the extraordinary power to ensure "complete justice," which
it has effectively employed over the past two decades. While legislative overruling of Supreme
Court decisions is infrequent, the 9th Schedule of the Constitution has been used to shield
certain laws from judicial review, even when they appear to violate fundamental rights. In a
recent case, the Supreme Court asserted its power to review the validity of such immunized
laws.

The early years saw conflicts between Parliament and the Court regarding the justiciability of
Directive Principles of State Policy (Directives). The Court initially held that the explicit non-
justiciability of Directives meant that fundamental rights would prevail. This led to numerous
constitutional amendments, generating debates over a "conservative" judiciary and a
"progressive" Parliament. As time passed, the Court adopted an interpretative style that favored
Directives, indirectly making them justiciable. Additionally, in its more activist role since the
1980s, the Court has translated some Directives into rights. For example, it declared free and
compulsory education for children aged 6-14 as a fundamental right. The Court's approach to
delegated legislation also evolved, with a focus on policing its performance and interrogating
its exercise. Moreover, the Court asserted its power to review the constitutionality of legislative
acts, often employing judicial techniques to avoid invalidation of laws while interpreting them
harmoniously.

Conclusion and suggestion

The analysis of the Rule of Law concept in the United Kingdom and India leads to the
conclusion that Dicey's idealistic vision is challenging to fully realize in a nation like India.
Dicey emphasized that justice should be delivered through established legal principles, not the
discretion of individuals, as discretion can lead to arbitrariness. The framers of the Indian
Constitution attempted to incorporate this concept, but their intentions seem to have been
thwarted.

Today, the need for the Rule of Law in India is evident, particularly to address deviations and
breaches of the community's prescribed code of conduct and legal standards. If it becomes
difficult to convict wrongdoers through legal means, victims or their relatives may resort to
extrajudicial methods, leading to a breakdown of criminal justice and societal chaos. Efforts
are crucial to reduce political and external interference in criminal investigations to uphold the
Rule of Law.
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In India, there's a paradox where democracy, theoretically supportive of the Rule of Law and
justice administration, often undermines it in practice. This must change. Traditionally,
democracy and the Rule of Law are considered close allies, and it's essential for well-
intentioned individuals to ensure their symbiotic relationship remains strong.

The Rule of Law is not just about formal legality; it embodies justice rooted in the supreme
value of human dignity and is upheld by institutions providing a framework for its realization.
Despite its imperfections, the Rule of Law encapsulates our best aspirations. It is essential for
maintaining order, preventing society's descent into chaos, and providing us with the
opportunity to reach our highest potential as a civilized society.

Bibliography

Books
1. . Pandey J N (2008). The Constitutional Law of India, Allahabad: Central Law Agency.

Journals
1. Mani, Rama. ‘Exploring the rule of law in theory and practice’, Civil War and
Rule of Law. PP 21-45.
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.
3. 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.
Web references
1. http://www.manupatra.com/

2. http://www.indlaw.com/
3. http://www1.worldbank.org/publicsector/legal/ruleoflaw2.htm
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