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Equality And Rule Of Law: A Comparative Analysis Of India And Usa. (By Johny Kumar)
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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 in vain.
Today, we need the rule of
law for punishing deviations and lapses from the code of conduct and standards
of behavior 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 minimize 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.
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’.[1]
The comparison of these
two approaches to equality yields a number of intriguing modules. First,
promoting either of these approaches to equality to the exclusion of all others
is not a good idea. The vocabulary of Marxism best expresses a totally
collectivist, results-oriented push for substantive equality, which, in fact,
contradicts the intrinsically uneven traits of persons, harms individual
liberty, and even proves ineffective at removing true inequalities. The Indian
system emphasises the importance of achieving substantive equality while
simultaneously safeguarding individual liberties and rights. Early America had
a totally individualist view to equality of opportunity, and this formalistic
approach still exists to some extent now. It refutes the idea that those born
into a social hierarchy have substantially different chances, and it defends
existing inequalities by mentioning the constitution's legal equality for all
people.
Second, each of these
approaches yields significantly distinct legal principles, which might be
summarised as an effects-based approach to promoting equality on the one hand,
or a formalistic purpose of ensuring antidiscrimination on the other. Each of
these criteria has its own set of drawbacks. The Indian approach, at least in
theory, focuses realising the goal of a society free of unfair disparity, while
the Western approach is primarily concerned with the effects of past
discrimination and ongoing social stratification of castes. However, the
hostility that such Indian-style schemes have engendered reflects the shared
values of individual rights and merit that have kept such programmes from being
adopted in the United States. The upper-class protests in India mirror a sense
among the country's youth that they are disadvantaged, with some experiencing a
clear lack of opportunity. It's debatable whether their impressions are
accurate, but the clashing ideologies make it difficult for Indian leaders and
voters to reconcile their interests.
Article Information
Equality And Rule Of Law: A Comparative Analysis Of India And Usa. (By Johny Kumar)
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- Journal IJLRA
- ISSN 2582-6433
- Published 2022/04/21
About Journal
International Journal for Legal Research and Analysis
- AbbreviationIJLRA
- ISSN2582-6433
- AccessOpen Access
- LicenseCC 4.0
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