Comparative Constitutionalism And The Rule Of Law - India And The UK Perspective
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COMPARATIVE CONSTITUTIONALISM AND THE RULE
OF LAW: INDIA AND THE UK PERSPECTIVE
Shobha, LL.M., University Institute of Legal Studies, Chandigarh University
ABSTRACT
The fundamental principles that subordinate democratic governance, legitimacy, and restraining state power are constitutionalism and the Rule of Law. The study will be conducting a comparative constitutional examination of India and the United Kingdom, the purpose of which is to explore the conceptualisation, institutionalisation, and perpetuation of these doctrines in the constitutional provisions of both jurisdictions. Using a comparative and doctrinal approach to law, the research critically examines the constitutional clauses, judicial decisions and literature materials to clarify the historical development and current practice of these principles. In the Indian setting, constitutionalism is inculcated in a written and a supreme Constitution that entraps the separation of powers, judicial review and the safeguarding of fundamental rights.
In comparison the constitutional order of the United Kingdom, and in being unwritten and largely based on conventions, parliamentary sovereignty and the common law, demonstrates a more imprecise but equally principled observance of the Rule of Law. The paper highlights the critical role played by the judiciary in both systems through the comparative perspective as the ultimate guarantor of constitutional morality and legality. Regardless of the structural differences, there is a convergent interest between the two countries in accountability, justice and the rule of law over arbitrary authority. The study finally concludes by indicating the relevancy that continues to exist in comparative constitutionalism in strengthening democratic resilience and good governance.
Keywords: Rule of Law, Parliamentary Sovereignty, Constitutionalism, Constitutional Supremacy, Separation of Powers, Legal Accountability.
1 INTRODUCTION
1.1 Background
and Significance of Constitutionalism and the Rule of Law.
The two principles that form the foundation of the modern democratic states are constitutionalism and the Rule of Law. Constitutionalism is a political-legal philosophy, which attempts to limit governmental authority by constitutional means, thus providing the view that the exercise of governmental power should be determined by some legal norm, as opposed to arbitrary decision-making. 1 The Rule of Law on the other hand represents the philosophy that law is paramount and that all people, the ruler and the citizen, are subject to the law. 2Taken together, the doctrines preserve the liberty, equality and justice, and they are barriers against authoritarianism and oppression of the state power. 3 These principles have developed in different constitutional arrangements in both India and the United Kingdom with historical, political and social contexts.
India is a post-colonial democracy that is governed by a written and supreme Constitution; the United Kingdom is governed by the constitutional order of conventions, precedents and parliamentary sovereignty. 4Although these are structural differences, the Rule of Law is supported by the two systems as an inseparable component of constitutional government. 5
1.2 Objectives
of the Study The main aim of the paper is to make a comparative study of constitutionalism and the rule of law in India and the United Kingdom. The paper seeks to: - Study the theoretical and historical principles of both dogmas; - Examine their constitutional manifestations in both jurisdiction; - Review the position of the judiciary in supporting constitutionalism and legality; and - Find convergences and divergences between the two systems to come up with general lessons 1 A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan, 1959) 187.
2 Lon L. Fuller, The Morality of Law (Yale University Press, 1964) 33.
3 M.P. Jain, Indian Constitutional Law (8th edn, LexisNexis, 2018) 52.
4 S.A. de Smith, Constitutional and Administrative Law (Penguin Books, 1971) 21.
5 H.W.R. Wade and C.F. Forsyth, Administrative Law (11th edn, Oxford University Press, 2014) 10.
on democratic governing.6
1.3 Hypothesis
The research questions are the following ones: - What is the conceptualisation and contextualisation of constitutionalism and the Rule of Law in the Indian and the United Kingdom contexts through the legal systems? - How does judicial interpretation help in protecting these principles? - How far do structural variations, e.g. written and unwritten constitutions, influence their working practice?7 In spite of their various constitutional provisions, both the United Kingdom and India follow a common agenda of the Rule of Law and constitutionalism that keeps strengthening the upper hand of the law and safeguards the fundamental rights of their respective democracies.8
1.4 Comparative Study Methodology and Delectables.
The study follows a comparative and doctrinal legal approach, mostly using constitutional clauses, statutes, and judicial ruling, and legal commentaries. The comparative model is based on the example of India and the United Kingdom as a typical representative of the written and unwritten constitutional systems. The constitutional and judicial aspects of the Rule of Law are the only constitutional and judicial and not the administrative and international law aspects are covered in the scope of the study.9
2. CONCEPTUAL FRAMEWORK
2.1 What is Constitutionalism and How it has Developed
In its basic meaning, constitutionalism refers to the fact that the command over the state is based on and limited by an instrument of fundamental law. It does not simply describe the 6 Upendra Baxi, “Rule of Law in India: Theory and Practice” (1980) 22 Journal of the Indian Law Institute 211.
7 Sudhir Krishnaswamy, Democracy and Constitutionalism in India (Oxford University Press, 2009) 67.
8 Justice P.N. Bhagwati, “Judicial Activism and Constitutional Interpretation in India” (1982) 26 Journal of the Indian Law Institute 1.
9 Aharon Barak, The Judge in a Democracy (Princeton University Press, 2006) 39.
presence of a written constitution, but the dedication to its inner ethos, which aims to curb the arbitrary power and protect individual liberties. It was based on classical theories of limited government expressed in Greek and Roman philosophy to the constitutional experiments of seventeenth and eighteenth century Europe especially the Magna Carta of 1215, the English Bill of Rights of 1689, the works of John Locke and Montesquieu. 10 In modern constitutional democracies, constitutionalism represents the adherence to the following values the separation of powers, checks and balances, the rule of the law, and the defense of the primary rights. It subjects the government to the obligation of acting within the confines of the constitution and also be answerable to the citizens.
Democratic participation, judicial independence, and protection of human rights became additional components of constitutionalism which was further evolved in the 20 th century. 11
2.2 Theoretical Underpinnings of the Rule of Law.
The Rule of Law is a principle which is part of the framework of democratic jurisprudence and which states that law should be the guiding principle of a state and not the whims of the individuals. The traditional presentation of this doctrine is generally credited to A. V. Dicey, who singled out three main principles as absolute supremacy of law, equality before the law, and the paramount role of legal spirit as enforced by ordinary courts. However, the idea is not new to Dicey and it can be linked to the concluding statement of Aristotle saying that the law must rule and that those who govern must be servants of the laws. 12 The meaning of the Rule of law was further elaborated by modern theorists like Lon Fuller and Joseph Raz who include the concept of procedural fairness, certainty of the law, and transparency in governance.
13Among the principles of the inner morality of law that Fuller developed are clarity, consistency, and generality, whereas Raz focused on the significance of institutional mechanisms that provide accountability and predictability. The Rule of Law is closely related to human rights and constitutional supremacy because in the constitutional context, the Rule of Law represents formal and substantive justice. 14 10 John Locke, Two Treatises of Government (Cambridge University Press, 1988) 198; Montesquieu, The Spirit of the Laws (Cambridge University Press, 1989) 150.
11 S.A. de Smith, Constitutional and Administrative Law (Penguin Books, 1971) 24.
12 A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan, 1959) 193.
13 Lon L. Fuller, The Morality of Law (Yale University Press, 1964) 39.
14 Joseph Raz, “The Rule of Law and Its Virtue” (1977) 93 Law Quarterly Review 195.
2.3 Correlation between Constitutionalism and the Rule of Law.
The Rule of Law and constitutionalism are inseparable concepts that are used together to enforce legitimacy and accountability in governance. Whereas constitutionalism gives the structural guidelines on how state power should be restricted, the Rule of Law ensures that state power is exercised within the confines of the law. Constitutionalism entrenches the Rule of Law by placing legal checks and process protection in the constitutional order. As a matter of fact, constitutionalism would fail without the Rule of Law as a constitution without enforcement systems cannot deter arbitrariness. On the other hand, the Rule of Law needs to be constitutionally supported so that it is above the political authority. With the merging of the two doctrines, there emerges a legal-political order where power is not only legal but just and accountable as well.
2.4 Contemporary Interpretations and Problems
In the modern world, constitutionalism and the Rule of Law are grappling with new challenges that are brought about by globalisation, populism, executive overreach, and digital governance. The challenge of testing constitutional values in most democracies is through the growing political centralisation and by undermining institutional checks and balances. Political influences and lack of trust often compromise the independence of judiciary as one of the major pillars of the two doctrines. 15 Moreover, the growth of emergency authorities, national security laws and spying systems have increased concerns that constitutional assurances are being watered down. Digital age has also brought about new aspects of constitutionalism such as matters of data confidentiality, accountability of the algorithms, and information flow across borders.
Nevertheless, despite these obstacles, constitutionalism and the Rule of Law are still developing, following the requirements of contemporary governmental practices without losing their main role the restriction of power and the safeguarding of rights. 16 15 S. P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (Oxford University Press,
2002) 45.
16 Aharon Barak, The Judge in a Democracy (Princeton University Press, 2006) 92.
3. CONSTITUTIONALISM AND THE RULE OF LAW IN INDIA
3.1 Historical Background
Indian constitutionalism and the Rule Of Law have indisputably deep roots in the customs of the colonial period and the gradual evolution of constitutionalism under the British rule. The British rule brought about with it the concept of a limited polity through legislative business including the Regulating Act of 1773, the Charter Acts and the Government of India Act, 1935 which became the structural precursor of the Indian Constitution. 17 After the attainment of independence in 1947, the architects of the Constitution tried to determine a system that combined parliamentary democracy and constitutional supremacy thus making sure that the exercise of power would not override the constitutional mandate. 18 Dr. B. R. Ambedkar led the Constituent Assembly, which envisioned a constitutional order which would be based on justice, liberty, equality and fraternity.
19The constitutional texts of the principles of limited government, autonomy of the judiciary and the Rule of Law were carefully incorporated in the constitution to preclude any chances of rekindling arbitrary or dictatorial rule. 20
3.2 Foundation on the Constitution.
The constitutionalism and the Rule of Law are clearly reflected in the Indian Constitution. India is declared a sovereign, socialist, secular and a democratic republic in the Preamble, which is committed to justice, liberty, equality and fraternity. Part III of the Fundamental Rights makes 21the state subject to substantive limitations on its power thus ensuring that administration is limited within the law. Articles like 13, 14, 19, 21, and 32 hold the central roles in this respect. Article 13 states that any law, which conflicts with the basic rights, shall not stand and the Constitution shall prevail over a legislative will. The principle of equality before the law and equal protection of the laws is enshrined in Article 14 and it represents a direct expression of
17 M.P. Jain, Indian Constitutional Law, 8th edn., LexisNexis, 2018, p. 12.
18 Granville Austin, The Indian Constitution
Cornerstone of a Nation, Oxford University Press, 1999, p. 45.
19 Constituent Assembly Debates, Vol. XI, 25 November 1949, p. 975.
20 Upendra Baxi, “The Rule of Law in India
Theory and Practice”, (1980) 21 Indian Journal of Political Science 341.
21 The Constitution of India, Preamble.
22 Ibid., Part III, Articles 13, 14, 19, 21, and 32.
the Rule of Law.23 Articles 19 and 21 protect civil liberties and individual rights, and Article
32 grants the right to individuals to have their rights enforced in court by the Supreme Court,
which makes judicial review one of the foundations of constitutionalism. 24 This framework is complemented by the Directive Principles of State Policy (Part Part IV) that defines the aim of governance guiding the action of the state to social and economic justice to ensure that the Rule of Law covers both the procedural and the substantive jurisprudence. 25
3.3 The Role of the Judiciary
The Indian judiciary is seen as the supreme protector of constitutionalism and the Rule of Law. The Supreme Court and the High Courts have made sure that the governmental power is checked by the constitutional principles through the formation of an emerging field of jurisprudence. In Kesavananda Bharati v. The Supreme Court developed in the case of State of Kerala (1973) 26the doctrine of Basic Structure which states that the power of Parliament to make an amendment under Article 368 of the Constitution does not apply in case of an amendment of the basic structure of the Constitution, to which the Rule of Law, judicial review, and separation of powers belong. This decision established constitutional hegemony on legislative and executive initiatives. In Indira Nehru Gandhi v.
The Court reiterated in 1975 that the free and fair elections and the Rule of Law were a part of the basic structure of the Constitution (Raj Narain, 1975)27. In Maneka Gandhi v. In Union of India (1978),28 the Court extended the interpretation of Article 21, and determined that the procedure enacted by law should be reasonable, fair, and just, which entails the incorporation of a substantive due process in Indian constitutionalism. Later cases- I. R. Coelho v. State of Tamil Nadu (2007) 29and K. S. Puttaswamy v. Union of India (2017)-30 even helped to strengthen the idea that constitutionalism requires state intervention 23 A. V. Dicey, Introduction to the Study of the Law of the Constitution, 10th edn. , Macmillan, 1959, p. 202.
24 L. Chandra Kumar v. Union of India, (1997) 3 SCC 261.
25 The Constitution of India, Part IV, Articles 36–51.
26 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
27 Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1.
28 Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
29 I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1.
30 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
within the limits of legality, responsibility, and respect to the individual dignity.
3.4 The Indian Constitutionalism and the rule of law challenges
The constitutionalism in India is facing various challenges, despite the strong constitutional protection. The executive monopoly and the political interference in the granting of judicial offices, as well as the long reimbursement of court proceedings, exceed the institutional balance as projected by the Constitution. 31The Rule of Law has at times been subjugated by corruption, populism politics and the common use of emergency powers. In addition, the widespread use of the delegated legislations and the skyrocketing power of the executive in policymaking blur the lines of responsibility. 32 With the emergence of digital surveillance and state security policies, this has also created frictions between the rights of individuals and the state.
Despite all these challenges, the judicial system in India is strong and the active intervention of civil society still preserves the spirit of constitutionalism. The changing jurisprudence of the basic rights, especially those in the fields of privacy, gender equality, and environmental protection, is indicative of a dynamic perception of the Rule of Law as both a moral and legal ideal that changes according to changing social actualities. 33
4. CONSTITUTIONALISM AND THE RULE OF LAW IN THE UNITED KINGDOM
4.1 Historical Foundations Magna Carta, Bill of Rights (1689) and Constitutional
Conventions Constitutionalism in the United Kingdom can be traced to the incremental transformation of absolute monarchy rule into a parliamentary democratic system that is constrained by the law.34 The Magna Carta of 1215 was an important step that limited the arbitrary power of the Crown and became the fundamental principle of the stable subordination of the monarch to the law. This document saw the beginning of constitutional government as it claimed that individual rights were greater than State.35
31 Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1.
32 P.P. Craig, “Delegated Legislation and the Rule of Law”, (2003) Public Law 467.
33 Vishaka v. State of Rajasthan, (1997) 6 SCC 241; M.C. Mehta v. Union of India, (1987) 1 SCC 395.
34 A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed., Macmillan, 1959) 110–112.
35 Magna Carta, 1215, Clause 39.
Later constitutional gains, including the Petition of Right (1628)36 and the Bill of Rights (1689), 37further limited any prerogative of the monarchy, establishing that the king could not suspend laws, levy taxes or stand an army without the approval of parliament. As the history progressed, a web of unspoken rules and conventional ways of doing things was developed which has become the bedrock of the British constitutional order. 38 Unlike the majority of the contemporary democracies, the United Kingdom lacks a unified written constitution. Rather, it works under a blend of laws, the common law and constitutional conventions.
39 The conventions, which include collective ministerial responsibility, the impartiality of the monarch, and the responsibility of ministers to Parliament are some of the binding but unwritten rules that guarantee that the political system is stable and legitimate. All these historical achievements led to a constitutional order that was based on legality, limited government, as well as respect of the Rule of Law. 40
4.2 The Sovereignty of Parliament and its Development.
It is often said that the major tenet of the British Constitution is parliamentary sovereignty. It believes that Parliament is the highest law making body and has the power to make or to cancel any law. An Act of Parliament cannot be rejected or defeated by any other organ, even the courts. This notion that is traditionally absolute is the manifestation of the dominance of elected officials and the democratic nature of the legal system. 41 This principle has however changed significantly in the modern age. The parliamentary supremacy was temporarily limited by the membership of the United Kingdom in the European Union in 1973-2020, whereby the European law had precedence over domestic legislation. This was a time of a significant change of absolute sovereignty into a paradigm of shared constitutional power.42
36 Petition of Right, 1628, 3 Car. 1 c. 1.
37 Bill of Rights, 1689, 1 Will. & Mar. c. 2.
38 Ivor Jennings, The Law and the Constitution (5th ed., University of London Press, 1959) 136.
39 A.V. Dicey, “The Sovereignty of Parliament” (1885) Law Quarterly Review 36.
40 Jeffrey Goldsworthy, The Sovereignty of Parliament
History and Philosophy (Oxford University Press, 1999) 45.
41 R (Jackson) v. Attorney General [2005] UKHL 56, [2006] 1 AC 262.
42 Alison L. Young, “The Human Rights Act and the Development of Constitutional Principles” (2011) 127 Law Quarterly Review 31.
On the same note, the devolution of Scotland, Wales and Northern Ireland brought about another dimension of complexity. Although Parliament is still legally sovereign, the devolved legislatures are enjoying a great sense of autonomy, and the constitutional modes are more pluralistic and flexible. Since the Brexit, the technical legislative sovereignty of Parliament has been restored, but is still constrained in practice by international commitments, human rights norms, political responsibility and the like. As a result, parliamentary sovereignty has transformed into a non-concrete legal tenet into a politically moderate notion of constitutional governance. 43
4.3 The Rule of law and the Doctrine of A.V. Dicey.
A. V. Dicey, who came up with three key elements, formulated the British conception of the Rule of Law classically. 44First, the complete subordination of ordinary law to arbitrary authority; second, the equality of men before the law; and third, the pre-eminence of the spirit of law which is inspired by the decisions of the judicial courts. This doctrine means that not even the government is above the law and that all the actions of the State have to be explained by the legal authority. It also stresses that the rights and liberties are safeguarded not only by the constitutional declaring but by the normal courts in terms of the practice of the common law principles. It follows that the Rule of Law is not only a procedural but also a substantive protection of the British constitutional system.
45 Although the principle of parliamentary sovereignty is still the principle of prime organisation, the Rule of Law states that the executive power is limited to the law. 46 Courts by judicial review have effectively created principles of fairness, reasonableness, and proportionality so that an unwarranted administrative action is checked. This way, the judiciary acts as the protector of legality that keeps the government answerable to law. 47
4.4 The Role of the Judiciary
The judiciary plays a central role in ensuring that there is a balance between the powers of the
43 Tom Bingham, The Rule of Law (Allen Lane, 2010) 8–12.
44 A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed., Macmillan, 1959) 110–113. 45 T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, 2001) 23.
46 Wade & Forsyth, Administrative Law (11th ed., Oxford University Press, 2014) 17–20.
47 Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 (HL).
parliament and the constitutional accountability in the United Kingdom. 48Even though the courts have no authority to strike down primary legislation, they have a wide scope of powers of interpretation and scrutiny in the actions of the executive. The common law has developed over centuries due to judicial precedents to become an effective tool of enforcement of the constitutional norms. 49 The independence of the judiciary was enhanced in 2009 when the Supreme Court of the United Kingdom was established which separated the judicial arm and the legislative section of House of Lords. The case law of the day has revealed that the judiciary is ready to exercise its constitutional power in dealing with the separation of powers.
To take a specific example, the judiciary has explained that the executive actions should be based on the legal authority and that the prerogative powers are subject to the judicial review. 50 The courts have upheld once again in major constitutional litigation, including over whether or not the executive can exceed the limits of its powers in the Brexit process, that the government remains answerable to Parliament and the exercise of prerogative powers is not permitted to come at the cost of statutory or constitutional demands. These have been developments of a contemporary reassertion of the Rule of Law and judicial responsibility in the context of parliamentary democracy.
4.5 The Brexit Effect and the Human Rights Act, 1998.
The Human Rights Act 1998 was a landmark step in human rights legislation within the constitution of the United Kingdom as the European Convention of Human Rights became an entity enshrined in the domestic law of the country.51 This was a legislated tool which allowed one to claim the basic rights in front of court within the country and required the state to act according to these rights. Even though the Act ensures the sovereignty of the legislature by not allowing courts to invalidate a legislature, they are empowered to give a so-called declaration of incompatibility in case a statute contradicts human-right principles.52
48 R (on the application of Daly) v. Secretary of State for the Home Department [2001] 2 AC 532.
49 R (Jackson) v. Attorney General [2005] UKHL 56, [2006] 1 AC 262.
50 Alison L. Young, Parliamentary Sovereignty and the Human Rights Act (Hart Publishing, 2009) 54.
51 Human Rights Act, 1998 (UK).
52 European Convention on Human Rights, 1950.
The Human Rights Act has therefore served as a middle ground between parliamentary supremacy and constitutionalism thus asserting legal protection of civil and political rights. However, the Brexit process has revived the discussion of the position of rights protection in the post-EU environment. The abolition of the Court of Justice of the European Union jurisdiction and the future prospects of substituting the Human Rights Act with a British Bill of Rights have contributed to the increased fear of the rights guarantee deactivation and diminished judicial checks and balances.53 Therefore, Brexit has revealed the implicit strains between the traditional formula of parliamentary sovereignty and current demands of constitutionality, accountability and rightsbased governance.
4.6 Contemporary Challenges
The constitutional order in the United Kingdom is facing some modern issues which challenge the balance between sovereignty, legality, and accountability. One huge issue is the increase in the executive authority in general, especially in the utilization of prerogative authority in foreign policy, national security and the implementation of laws. 54Although these prerogatives have a historical foundation, they are often beyond the direct observation of the parliament hence transparency and democratic stewardship. 55 The controversy about judicial review is also another example of an increasing conflict between political and legal constitutionalism. Critics believe that judiciary has become over activist in the review of governmental decisions whilst others believe that judiciary intervention is necessary to maintain the Rule of Law.
This struggle with the constitution is further supported by the fact that every now and then the government comes with proposals to streamline the judicial review or to restrict the powers of the courts. 56 Further, the lack of a written constitution makes the UK system very dependent on conventions and political morality. When the political environment undergoes an unstable period or populism, these conventions can be undermined and the balance of constitutionalism can be 53 Francesca Klug, Values for a Godless Age: The Story of the United Kingdom’s New Bill of Rights (Penguin Books, 2000) 45.
54 Alison L. Young, Democratic Dialogue and the Constitution (Oxford University Press, 2017) 63–65.
55 R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5, [2018] AC 61.
56 Colin Turpin & Adam Tomkins, British Government and the Constitution
Text and Materials (8th ed., Cambridge University Press, 2011) 212–215. broken. The historical development of human-rights protection, 57devolution and the issue of a post-Brexit governance are also all reasons that the way constitutional principles work in practice should be re-evaluated. Despite these pressures, the British system has proven to be very adaptive. Its adherence to traditions, judicial innovation, and culture of constitutional restraint has still given it a democratic nature. The permanence of the Rule of Law and the responsibility of the state authority is the most important principles of the constitutional identity in the UK.58 5.
COMPARATIVE
ANALYSIS
INDIA AND THE UK
5.1 Structural Comparison
Written and Unwritten Constitution.
The most evident structural difference is the shape of the constitution. India has one written and codified Constitution which proclaims constitutional supremacy and provides elaborate provisions, procedures and remedies. 59 This written document provides concrete normative standards and an entrenched procedure of amendments. In contrast, the United Kingdom does not have any codified constitutional text, and its constitutional order forms an accumulation of laws, principles of common law, royal prerogatives, and conventions. 60 Practical repercussion: The Indian written constitution offers clear enforceable rules granting courts the authority to strike against conflicting laws and guard the rights.
The uncodified system of the UK depends less on political institutions, common law developed by the judiciary, and constitutional conventions to be enforced, which brings about elasticity but also on the political restraint and established norms. 61
5.2 Separation of Powers and Checks and Balances.
The systems are also known to appreciate the separation of functions between the legislature, executive and judiciary, with the difference between the balance and mechanisms. The Constitution of India institutionalises separation by using particular constitutional principles, 57 Richard Bellamy, “Political Constitutionalism and the Human Rights Act” (2011) 9 International Journal of Constitutional Law 86.
58 Stephen Tierney, “Constitutional Unwrittenness and Brexit” (2020) 83 Modern Law Review 525.
59 The Constitution of India, 1950.
60 A.V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed., Macmillan, 1959) 39.
61 Hilaire Barnett, Constitutional and Administrative Law (14th ed., Routledge, 2023) 47.
constitutional review and institutional design62 (e.g. independent Supreme Court, federal structure). The Indian system entrenches the judicial review as a form of express redress to the legislative or executive extravagance.63 The UK is constitutionally monarchical in Parliament, and the executive is subject to, and derived out of, it. Control to the executive is therefore mainly possible via the parliamentary scrutiny, political accountability and judicial oversight of the administrative action. The UK has over time however grown to come up with strong administrative-law provisions which serve in place of executive restraint especially by the judiciary and statutory provisions.
5.3 Judicial Independence/ Judicial Activism.
They both assert judicial independence though their roles as institutions are different. The judiciary in India have been a vigorous protector of the constitutional values of expansion, enforcement of rights, formulation of doctrines (as in the case of basic structure) and stepping in when institutions have failed. This activism has transformed the judiciary into a key player in constitutional governance which at times has brought criticism concerning the limits of the role. 64 Courts in the UK used to be more conservative and emphasized on law and not policy. Nevertheless, judicial activism has risen in the area of administrative and constitutional cases (especially those relating to Brexit) and demonstrates judicial willingness to question prerogative powers and establish a legal checkpoint on the executive.
Therefore, although the courts in India have been more demanding historically, the UK judicial system has become more intrusive in cases where there is a threat of legal restriction on the executive powers. 65
5.4 Implementation of basic / Human Rights.
The rights architecture in India is entrenched in the Constitution, which is Part 3 and supported by the statutory remedies of the named rights architecture including the writ jurisdiction of Article 32. The operation of the Supreme Court in terms of broad judicial jurisprudence, in
62 M.P. Jain, Indian Constitutional Law (8th ed., LexisNexis, 2023) 55.
63 Colin Turpin & Adam Tomkins, British Government and the Constitution (8th ed. , Cambridge University Press, 2011) 78. 64 S. P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits (2nd ed. , Oxford University Press, 2002) 98. 65 Jeffrey Jowell & Dawn Oliver (eds. ), The Changing Constitution (9th ed. , Oxford University Press, 2019) 33. relation to rights, i. e. , rights to due process, to privacy, and to environmental rights, depicts a strong judicial custodianship. However, the practical implementation is often full of hurdles due to institutional capacity constraints, process delays, and deep rooted political resistance. The protection of rights in the United Kingdom is achieved by a statutory framework the prominent element of which is the Human Rights Act of 1998, supplemented by the principles of common-law and international commitments.
66The HRA also established domestic remedies and a right-compatibility test to be applied to the operation of the public bodies, thus increasing the role of the judicial system in the adjudication in comparison with the previous practice. But the lack of a supremacy clause in the constitution implies that the ultimate determinant in domestic law would be Parliament and the effectiveness of rights protection would hence depend on political will, statutory drafting and judicial interpretation. 67
5.5 Parliamentary Sovereignty and Constitutional Supremacy.
India incorporates a constitutional supremacy doctrine: the Constitution is the highest legal tool, and any Act which is not in compliance with it is invalid. It is empowered by the judiciary to implement this supremacy over the parliament and the executive. Contrary to this, the historic parliamentary sovereignty doctrine in the United Kingdom considers Parliament to be the highest law maker. However, this doctrine has been tamed by a combination of developments such as the previous EU membership, enactment of human rights laws, and the process of devolution which have placed strict statutory limits. Even the restoration of formal parliamentary primacy post Brexit has not eliminated the fact that political, international and rights based restraint still limits legislative action.68
5.6 Effect of Globalisation and the Human Rights Jurisprudence.
Transnational legal currents have greatly influenced both of the jurisdictions. Every country is guided by world human-right principles, comparative law, and international law in influencing judicial decision-making and law writing. The Indian courts have regularly been referring to the comparative constitutional jurisprudence and international human-rights standards to expand the scope of rights protection. The UK implements international human-rights norms
66 The Constitution of India, Part III, Arts. 12–35.
67 R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5.
68 Paul Craig, UK, EU and Global Administrative Law
Foundations and Challenges (Oxford University Press,
2016) 89.
into its domestic law via the Human Rights Act, but in the past via EU membership; despite Brexit global norms and international law continue to play a significant role in influencing domestic law and policy-making process. Globalisation has also brought new governance issues, both in relation to cybersecurity, data protection, and trans-national migration, which require constitutional changes in both of the systems.69
5.7 Lessons and Convergences
Irrespective of structural differences, there are some conspicuous convergences and lessons: Common Determination to Legal Responsibility: The final goal of both systems is to make government accountable before the law- either by one of them being clearly set in the constitution or by the formulations and agreements, which have been honed by judicial decisions. Judiciary as a developing Arbiter: Both the jurisdictions have the courts as the key arbiter of the boundaries of power; although the modalities of operation are different, the functional role of ensuring the constitutional order has strong overlaps in application. 70 Flexibility vs. Certainty Trade-off: Both the United Kingdom and India provide flexibility and evolutionary change respectively by conventions and statutes respectively; the textual certainty and enforceability respectively.
Both have trade-offs in that flexibility can be a source of instability in times of crisis, and rigidity can be a barrier to a fast reform. Learning by Each Other: The Indian constitutional doctrine has shown how a written constitution can be dynamically interpreted to respond to social demands, and the United Kingdom model has shown how political constitutionalism and conventions can be empirically adjusted to provide firm governance without such a written constitution. Global Norms as Convergent Forces: The systems have been driven by transnational humanrights jurisprudence, comparative precedents and international obligations towards a higher level of protection of rights and procedures. 69 Jeffrey Jowell and Dawn Oliver (eds. ), The Changing Constitution (9th ed. , Oxford University Press, 2019) 97.
70 Upendra Baxi, The Future of Human Rights (3rd ed., Oxford University Press, 2013) 77.
5.8 Implication to Democratic Governance.
The juxtaposition of the two models highlights how the constitutional design is in itself not the determining factor but the combination of the institutional culture, political commitment, and judicial practice. Strong constitutionalism and a strong Rule of Law must be based not only on proper texts or doctrines but also on strong institutions, an independent judiciary, a lively civil society, and a political culture of respect to the legal limits.71
6. CRITICAL EVALUATION AND
FINDINGS
6.1 Comparative Effectiveness of Constitutional Safeguards.
Both the United Kingdom and India have devised different but functionally similar systems of protecting constitutionalism and the rule of law. In India, explicit institutional protections, which lie in fundamental rights, judicial review, separation of powers, and federalism, are provided by the statutory constitution, and comprise a legal constitutionalism system. However, the empirical effectiveness of such protections often depends on institutional independence of the judiciary, effectiveness of the administration and the willingness of the political establishment to respect the constitutional values. Sustained executive pre-eminence, abuse of emergency authority and cases of judicial over reachedness all highlight an inefficiency of implementation and not design.
72 On the other hand, the United Kingdom, which has an uncodified constitution, uses political constitutionalism, which is characterized by a series of conventions, parliamentary accountability, and judicial doctrines as they develop. This model has great strength due to its flexibility and adaptability. But this plastics makes it susceptible to corruption by the political maneuvers of the majority in parliament especially when the checks which guard institutions are compromised by majorities. The Brexit process demonstrated that, even though the UK has strong safeguards, which are politically healthy, they are not as formally inflexible as a codified constitution would be. 73 Therefore, India is an example of formal constitutional protection and the UK of functional resilience in the form of political culture and convention. The two models however find
71 Lord Bingham, The Rule of Law (Allen Lane, 2010) 41.
72 M.P. Jain, Indian Constitutional Law (8th edn., LexisNexis 2018) 64.
73 Alison Young, Democratic Dialogue and the Constitution (Oxford University Press 2017) 153.
themselves strained when the spirit of constitutional restraint is destroyed by political will.
6.2 Judiciary as the Guardian of Constitutionalism.
The courts in the two jurisdictions are the main upholders of constitutionalism, although in different modalities. Indian judiciary has established itself as a counter majoritarian institution by extending the limits of the rights and strengthening constitutional supremacy. The doctrine of basic structure and substantive due process has been solidified with landmark cases like Kesavananda Bharati, Maneka Gandhi and Puttaswamy that depict a proactive judicial activism on social justice and liberty. However, this judicial activism has raised concerns over the judiciary system encroaching the legislative and executive branches resulting in the creation of apprehension about judicial supremacy and not independence.
74 The judiciary in the UK historically suppressed by parliamentary sovereignty has increasingly developed a more aggressive constitutionalist role, especially since the Human Rights Act
1998. The judicial review has also been extended to include proportionality, reasonableness
and rights compliance. Cases such as R (Miller) v. Prime Minister (2019) reflected on how the judiciary has been ready to check the executive excesses. But there is in it a long-standing deference to political sovereignty which is shown by its practice of not overturning acts of parliament.75 Comparatively, India is an example of juridical constitutionalism, where courts actively determine the nature of governance, as compared to the UK, which is the example of dialogic constitutionalism, where courts are in institutional dialogue with the political decisions without necessarily dictating them.76
6.3. Tensions between Democratic Will and Constitutional Limitations.
The fundamental constitutional paradox of either of the two systems lies in the fact that there is a conflict between constitutional restraint and democratic majoritarianism. The constitution of India was created to check the majoritarian urges with rights that are well embedded and an
74 P.P. Craig, Administrative Law (Sweet & Maxwell 2016) 88.
75 Mark Elliott and Robert Thomas, Public Law (3rd edn., Oxford University Press 2017) 165.
76 Sujit Choudhry, Migration of Constitutional Ideas (Cambridge University Press 2006) 220.
independent judiciary. However, popularism in politics and dominance of the executive often push these limits. Institutional voids are occasionally addressed by judicial interventions that should not be viewed as anti-democratic in cases where they contravene your intent to legislate. 77 Constitutionalism in the UK, in a situation where the concept of parliamentary sovereignty allows limitless lawmaking powers, relies on restraint and custom to prevent a tyranny of the majority. The Brexit debacle revealed that the principle of democratic mandate may come into conflict with the constitutional principles, and one may wonder whether the political decisions are sufficiently checked by the rule of law. Both systems, thus, emphasize how thin the margin between mass sovereignty and constitutional constraints is.
Maintaining such a balance does not rely as much on the language of the law, but rather on political morality, institutional integrity and civil vigilance.
6.4 Striking a Balance between Liberty, Accountability, and Governance.
The two countries, India and the UK, pursue the same goals of seeking to reconcile individual freedom, state responsibility, and effective governance but they do this using institutional designs that are not similar. In India, the liberty provided by the constitution is written and enforceable. Nonetheless, accountability mechanisms (especially on executive transparency, administrative reform and judicial discipline) are not equally implemented. The issue of over-centralization of power and bureaucracy tend to undermine governance and practical achievement of liberty. 78 Liberty in UK is upheld by the rule of law tradition, procedural fairness and progressive rights jurisdiction. This is brought about by accountability through parliamentary control, ministerial accountability as well as politically accountable executive.
The flexibility of the system allows quick adaptation, however, it also leaves the civil liberties vulnerable in situations where political agreement is waning, as in the case of counter-terrorism and immigration laws. 79 Both systems show that the optimal balance between freedom and politics must depend on
77 Upendra Baxi, The Indian Supreme Court and Politics (Eastern Book Company 1980) 203.
78 N. Jayapalan, Indian Administration (Atlantic Publishers 2001) 95.
79 David Feldman, “Civil Liberties and Human Rights in England and Wales” (1993) 52 CLJ 240.
constant judicial check, proactive civil society and institutional openness. Constitutionalism cannot be upheld by either legal design or tradition without such democratic reinforcements.
6.5 Synthesis of Findings
Formal and functional safeguards: India has written constitutionalism which provides clarity in the text, but has many more safeguards which are enforced by courts; the UK has an unwritten constitutionalism which allows flexibility, but depends on political culture. Judicial Roles: The Indian judicial system is a system with an activist constitutional protector; the UK judicial system is one of a reserved but strict arbiter. 80 Democracy vs. Legality: The two systems deal with the same issue of trying to reconcile the popular will with the rule of law and is an example that democratic legitimacy should not be exempted in having constitutional boundaries. Dynamic Constitutionalism: Dynamic constitutionalism can be found in every country: in India, through judicial inventiveness and the growth of rights; and in the UK, through the adaptation of conventions and statutory innovations.
81 Learning Objective: Constitutionalism does not only succeed by design of its institutions but it is constitutional ethos, the culture of legality, restraint and respect of human rights that breathes life into government. 82
7 CONCLUSION
AND SUGGESTIONS
7.1 Overview of the Major Comparative Insights.
The comparative analysis of constitutionalism and Rule of Law in India and the United Kingdom explains two different but convergent constitutional paradigms that have developed in different historical and political contexts. India has a written and supreme Constitution according to which it is governed, which therefore guarantees a formalised and codified system of governance; the United Kingdom is governed by an unwritten constitutional order basing it
80 Bruce Ackerman, We the People
Transformations (Harvard University Press 1998) 70.
81 Mark Tushnet, Weak Courts, Strong Rights (Princeton University Press 2008) 156.
82 S.P. Sathe, Judicial Activism in India (2nd edn., Oxford University Press 2002) 347.
on conventions, precedents and parliamentary sovereignty. Although these structural differences exist, the two jurisdictions are bound by a desire to uphold the Rule of Law, judicial independence and safeguard of individual freedoms. The Indian model that is based on constitutional supremacy provides a strict though rights based model where the judicial review is exercised as a constitutional protection against unchecked state action. The model in the UK which is based on the sovereignty of the parliament is based on accounts of politics, convention, and development of judicial doctrines that serve to ensure that the result of the process is both legal and fair. It has been the role of judicial interpretation in both countries. The Indian courts by its doctrine like the basic structure and substantive due process have stretched constitutionalism to a textual limit.
The UK judicial system, especially since the introduction of the Human Rights Act in 1998, has established a strong rights jurisprudence that facilitates the balance of the domestic law with the international human-rights standards. Simply put, both systems serve to show the fact that constitutionalism is not just a structural design or arrangement, but rather a moral/philosophical dedication to restricting power and ensuring justice. They have had experience to confirm that constitutional resilience is not only a factor of the text of the law but also of institutional integrity, judicial courage and societal vigilance.
7.2 Proposals on the Strengthening of Rule of Law and Constitutionalism.
Constitutional Norm Codification and Clarity. The United Kingdom can look at partial codifying or consolidating the core constitutional principles so as to promote greater clarity, transparency and consistency, especially in those areas that relate to executive powers and the rights of the citizens. Enhancing Judicial Independence. In both jurisdictions, systems need to be strengthened to ensure that the appointment and tenure of the judiciary and administrative independence are not affected by politics, thus providing an effective and unbiased judiciary.
Improving Accountability Mechanisms. Transparency can be improved by the introduction of stronger institutions of oversight, including independent ethics commission, parliamentary committee and citizen grievance bureau, to reduce the abuse of executive powers. Fostering Constitutional Literacy and Civil Society. The civic education and discourse must include the values of the Constitution. An increased consciousness of the citizens about their rights and responsibilities is an essential element to maintain constitutional democracy. Incorporating the Human Rights Jurisprudence. The two systems are to carry on harmonizing the national law and the international humanrights standards. In India, it also requires better implementation schemes; the post-Brexit reforms in the UK must uphold the human-rights protections, even though the country will be leaving the EU schemes.
Embracing Technology to ensure Judicial effectiveness. In a bid to ensure that Rule of Law is applied in practice, both countries need to streamline the administration of the courts by means of digitalisation, open case management, and open judgments so as to minimise delays in the procedure. Protecting the Constitutional Morality. The judicial and policy-makers should see to it that the governance is not based on political expediency or populism, but rather adhere to constitutional morality of justice, equality and liberty.
7.3 Implication of Future Research.
The study leaves some gaps on ways in which future studies can be conducted on comparative constitutional studies. First, it is possible to analyze the way in which new global issues, including digital surveillance, artificial intelligence, and transnational governance influence the functioning of constitutionalism and the Rule of Law. Second, the comparative analysis can be further applied to other common-law countries including Canada, Australia and South Africa, to determine the emerging global patterns of constitutional jurisprudence. Third, additional empirical data on the public trust towards judicial institutions, access to justice and constitutional accountability may shed more light on the functioning of constitutionalism in practice.
Finally, constitutionalism and the Rule of Law is an ongoing and dynamic process that requires careful adjustment to new social, political and technological reality. Both the United Kingdom and India demonstrate that it is not just the form of a constitution that is strong but it is the long-term dedication of institutions and its citizens to embody the principles of justice, liberty, and equality.
BIBLIOGRAPHY
Books • A. V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed. , Macmillan, 1959). • B. Shiva Rao (ed. ), The Framing of India’s Constitution: A Study (Indian Institute of Public Administration, 1968). • H. M. Seervai, Constitutional Law of India (4th ed. , Universal Law Publishing, 2013). • Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford University Press, 1966). • D. D. Basu, Introduction to the Constitution of India (24th ed. , LexisNexis, 2020). • Sir Ivor Jennings, The Law and the Constitution (5th ed. , University of London Press, 1959). • Wade & Forsyth, Administrative Law (11th ed. , Oxford University Press, 2014). • Jeffrey Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford University Press, 1999). • T. R. S.
Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, 2001). • Upendra Baxi, The Indian Supreme Court and Politics (Eastern Book Company, 1980). Case Laws India • Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225. • Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1. • Maneka Gandhi v. Union of India, (1978) 1 SCC 248. • I. R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1. • K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
A.D.M. Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521. • Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625. United Kingdom • Entick v. Carrington (1765) 19 St Tr 1029. • R v. Secretary of State for the Home Department, ex parte Daly [2001] 2 AC 532. • R (Jackson) v. Attorney General [2005] UKHL 56. • R (Miller) v. Secretary of State for Exiting the European Union [2017] UKSC 5. • R (Miller) v. Prime Minister [2019] UKSC 41. • Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 (GCHQ Case). • A v. Secretary of State for the Home Department [2004] UKHL 56. Statutory and Constitutional Sources • The Constitution of India, 1950. • The Government of India Act, 1935. • The Human Rights Act, 1998 (UK). • The Magna Carta, 1215. • The Bill of Rights, 1689 (UK). • The European Communities Act, 1972 (UK). • The Regulating Act, 1773 (India).