By Jalaj Tokas
Published On: December 30, 2021 at 15:30 IST
Jonathan Sacksonce famously said that, “True freedom requires the rule of law and justice, and a judicial system in which the rights of some are not secured by the denial of rights to others.”
The notion of the rule of law is a fundamental component of a welfare state, and as such, it must be efficiently implemented in every country. The need for an egalitarian society is reflected in the ideals of Rule of Law. They promote wealth, the implementation of human rights, and a dignified life for all.
The notion ingrained in the Rule of Law that executives must act in accordance with the law rather than by their own diktat or fiat is a central element of the common law system. All of the executive authorities originate from the basic principles, which do not presuppose any inherent powers for the executives that flow and ooze out of the law. This idea is extremely important in all democratic countries.
This paper examines how the Rule of Law is applied in India, the United Kingdom, and the United States. The application of the Rule of Law in government, constitution, and the judicial process are all examined. Separation of powers is also a component of the Rule of Law notion. This article also contains a comparison of how legislation is applied in the three countries.
What is meant by Rule of Law?
The ultimate manifestation of human civilization and culture is the Rule of Law, which has become a new “lingua franca” of universal moral thought. It is an inalienable quality of democracy and good administration and an everlasting virtue of constitutionalism.
The word “Rule of Law” originates from the French expression “la Principe de Legalite,” which translates to “legality principle.” It refers to “a government established on the rule of law rather than the rule of men.” To put it another way, ‘la Principe de Legalite’ is an anti-arbitrary authority concept.
It is a legal concept with broad application that is sanctioned by authorities’ acknowledgment and which is generally represented in the form of a maxim or logical statement known as a “Rule”, since it serves as a guide or guideline for their judgement in uncertain or unanticipated situations.
The Rule of Law, which is sometimes also known as “the supremacy of law”, states that judgments should be determined based on well-established principles or laws, without the use of discretion in their implementation.
Rule of Law means that the law governs, and that it is certain, regular, and predictable, based on the principles of liberty, equality, non-discrimination, solidarity, integrity, and non-arbitrariness.
In a democracy, the notion has taken on a new meaning, implying that those who wield public authority must be able to demonstrate publicly that their actions are lawful and socially just. The Rule of Law is a realistic and dynamic idea that, like many others, defies precise definition. This does not, however, imply that there is no consensus on the fundamental principles it symbolizes.
Tracing its Origin
The notion of the rule of law has a long history. It’s an old ideal that Ancient Greek philosophers like Plato and Aristotle debated circa 350 BC.
“Where the law is subservient to another authority and has no power of its own, the state is on the verge of collapsing,” Plato wrote, “however if law is the master of the government and the government is its slave, the situation is full of promise, and mankind enjoys all the gifts that the Gods bestow on a state.”
Similarly, Aristotle backed the Rule of Law notion, stating, “Law should reign, and those in authority should be servants of it.”
The notion of rule of law may be traced back to the Upanishads in India. It declares the law to be the king of kings. It is stronger and more rigid than the kings. Nothing is more fundamental than the rule of law. The weak will triumph against the powerful as a result of its abilities, and justice will triumph. As a result, the notion of law originated in monarchy to regulate the exercise of arbitrary powers by rulers who claimed divine authority to rule.
Sir Edward Coke, the pioneer of this doctrine in the United Kingdom, is credited with establishing the supremacy of law over executive pretensions when he stated that the monarch must be subject to God and Law. Prof. Albert Venn Dicey later developed this idea. At the conclusion of England’s golden Victorian age of laissez-faire, he wrote about the notion of rule of law.
Dicey’s Theory of Rule of Law
A.V. Dicey refined the Rule of Law idea in his work “Introduction to the Law of Constitution (1885).” According to Dicey, the Rule of Law states that no one is punished or may be legitimately made to suffer in body or goods until there is a clear violation of the law, and that no one is above the law. As a result, the term “Rule of Law” refers to the supremacy of law over government. Dicey’s Theory of Rule of Law consists of three principle tenets:
- Supremacy of Law
Dicey felt that the Rule of Law entails ultimate legal supremacy. No one is obligated to observe the law, regardless of their status as an ordinary man or a government official. No one should be punished unless they have violated the law and the claimed violation has been proven in a regular court through the proper procedure.
- Equality before Law
It refers to all citizens of all classes being subjected to the regular courts’ administration of the law of the nation. No one is above the law, and everyone is treated equally in the eyes of the law, regardless of their social status in life.
- The predominance of Legal Spirit
The spirit of justice is referred to as the legal spirit. This notion promotes the idea that law should be based on justice rather than the other way around. He was opposed to the country’s written constitution including rights such as personal liberty, freedom, and others.
Rule of Law in India
Since ancient times, India has been a staunch advocate of the rule of law. Dharma’s dominion was established by Dharma Shastras or Neeti Shastras, and even the King was subject to Dharma’s control.
Because of the influence of its implementation in England, India adopted the Rule of Law. The requirements of the rule of law are enshrined in India’s Constitution, which is the Grundnorm of the country. The Constitution is the state’s highest power, and no one has authority over it.
India has a written constitution, as well as a body of laws that are subservient to it and deal with numerous issues, such as rules and regulations, executive orders, and conventions. All of them can be grouped together as ‘law,’ and their application to the general public is known as the ‘Rule of Law.’
Liberty, justice, equality, and fraternity are some of the elements in the Constitution’s preamble that embody the principles of the rule of law. The Indian Constitution has provisions concerning the independence of the legislation, executive and judiciary.
Parliament, as well as the state legislatures, are democratically elected. The Constitution also includes mechanisms for judicial review. In India, the court has played a critical role in the establishment of the rule of law. The following are some examples of how important this is:
In this case, some of the petitioner’s property was acquired by the government. In this case, the issue was whether the judiciary had the authority to change the Constitution. It was decided that the judiciary has the authority to amend the Constitution for the people’s benefit. The underlying framework of the Constitution, it was determined, is the rule of law.
- Article 14 cannot be violated – Indira Nehru Gandhi Vs Raj Narain[ii]
Once it was discovered that Indira Gandhi Nehru had won the elections by illegitimate methods, the High Court of Allahabad ruled that she would be barred from contesting elections for the next six years. Soon after, the country was placed in a state of emergency. Article 329A’s constitutionality was questioned. The court ruled that Article 329A was invalid and that Article 14 could not be infringed upon.
- Article 21 retains substantive power even in an Emergency – ADM Jabalpur Vs Shivkant Shukla[iii]
In this case, fundamental rights were forcibly removed owing to the declaration of emergency. Articles 14, 21, and 22 were the ones in question. The question was whether just Article 21 protects people’s lives and freedoms. According to the court, only Article 21 guarantees life and liberty. It went on to say that while Article 21 loses procedural power when an emergency is declared, it retains substantive power.
- No person shall be deprived of the right under Article 21- Maneka Gandhi Vs Union of India[iv]
Under this dispute, the petitioner’s passport was confiscated in the public interest. The petitioner then filed a complaint in court, raising concerns about the relationship between Articles 14, 21, and 19. The Supreme Court expanded the reach of Article 21 by declaring that no one shall be denied the said right. Procedures must also fulfil the criteria set out in the preceding three articles in order to be considered legitimate.
As a result of the foregoing information, it is indisputably determined that, due to the dynamism inherent in the notion itself, the principle of Rule of Law has evolved rapidly since its inception. This trend may well be attributed to a number of legislations passed by parliament as well as a number of court decisions.
Despite all of the transformation that the notion has undergone, when examined in the context of India, Rule of Law does exist, but it cannot be considered to be observed in the strictest sense. Following a specific law becomes subject to public convenience, and people adhere to such law only if it is consistent with their perceptions of good and wrong and their beliefs.
Rule of Law in UK
When King John adopted the magnificent document known as Magna Carta in 1215, the principles of the rule of law were formed. This was one of the most important written texts since it curtailed the king’s authority and obliged him to observe the law for the first time. It was demonstrated that even the crown’s authority was not absolute, and that a monarch is not above the law and must obey it. It confirmed the rule of law’s supremacy.
United Kingdom is one of the countries that has implemented the rule of law in its administration. Although it lacks a written documented constitution, yet the notion of the rule of law, legislature, and judiciary is ingrained in its unwritten constitution. Therefore, in the United Kingdom, the Rule of Law has evolved over time.
In the United Kingdom, Rule of Law has evolved over generations as a check on arbitrary power. The epic fights between English monarchs and their subjects, the struggle for power between parliament and Stuart kings, and eventually the war between the British Empire and its American colonies shaped the modern notion of rule of law in U.K and elsewhere.
The concept of the rule of law has taken a long time to originate and mature. It has even evolved in the United Kingdom to block unfettered and unconstrained authority. The rule of law in today’s civilised society necessitates a protracted conflict between the monarch and the people, as well as a battle for supremacy between parliament and the king.
Rule of Law in USA
Certainty, coherence, and continuity, which are key elements of the Rule of Law and justice, are said to be three hallmarks of a robust constitutional republic.
In contrast to previous kinds of arbitrary, unclear, and inconsistent government, the American Rule of Law was created to work with clarity, consistency, and continuity. It is vital to recognize the link and consistency between the American Declaration of Independence and the United States Constitution in order to properly administer the American Rule of Law.
The United States’ government is structured on the ideas of separation of powers, which is an extension of the rule of law. The legislative body (Congress) is responsible for enacting legislation. The executive branch, which comprises the President, Cabinet, and other agencies, is responsible for enforcing laws.
The judicial system, which includes federal courts and the United States Supreme Court, is responsible for interpreting laws and resolving disputes. The Supreme Court of the United States was established to serve as a watchdog over the Constitution, guarding the law and pointing out transgressions by public officials and other government officials.
The Bill of Rights establishes the limitations on what the government may and cannot do to its citizens. States also have their own Bill of Rights. These civil liberties are still important parts of the Rule of Law because they set legal boundaries on government activity and preserve what the founders considered to be fundamental rights of Americans.
The rule of law is an important idea for society’s well-being. India, the United Kingdom, and the United States have written or unwritten constitutions that include the rule of law. Separation of powers is a notion that all three countries adhere to. Although it is not strictly followed, the method allows for some flexibility. For the general benefit and justice, the judiciary has also incorporated the notion of rule of law into its processes.
Because the legislature in the United Kingdom is the sovereign authority to make laws, it can be difficult to implement the spirit of the rule of law because laws can sometimes lead to biasness, whereas in India, sovereignty is vested in the Constitution, and every law is derived from it, so there is less chance of bias.
Although the United Kingdom does not have a formal constitution, the notion of the rule of law is ingrained in its administration. The Indian Constitution does not have a section explicitly expressing the rule of law, although several of its provisions reflect the notion. Article IV of the United States Constitution reflects the rule of law, stating that the Constitution is the supreme law of the nation.
The Rule of Law was implemented in the United Kingdom to prevent arbitrariness and limit the King’s absolute powers, as well as to improve society. The Rule of Law was implemented in India for the benefit of the state and to enhance the country’s democratic values. The rule of law was also established in the United States for the benefit of the state and to reduce inconsistencies in governance.
It is popularly believed that if Rule of Law is not present in a nation, then anarchy reigns.
Despite its irregularities, crudities, inefficiencies, and vulnerabilities, Rule of Law nevertheless represents as much of that disposition’s outcomes as we can collectively impose. It is impossible to survive without it, and it is only with it that we can ensure the future that is rightfully ours. The finest of man’s expectations are entwined in its process; when it fails, they must fail; the extent to which it can reconcile our desires, wills, and conflicts is the extent to which it can find us. Man may be a notch below the angels, but he has yet to shake off the beast, and the brute within is prone to erupt on occasion.
The ‘Rule of Law’ is essential to restrain and regulate that monster, as well as to prevent society from devolving into a state of tooth and claw.
ABOUT THE AUTHOR
Jalaj Tokas is a second Year Law student pursuing B.A.LLB from University School of Law and Legal Studies, GGSIPU, New Delhi. He is a life-long learner is self driven towards his ambitions. He strongly believes that expectations are premeditated disappointments and strives not just to be successful but more importantly to be of value.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
- COMPARATIVE STUDY OF RULE OF LAW IN INDIA AND UK
- “Comparative Analysis of Rule of Law in India & UK
- Rule of Law in India – An Analysis
- Constitutional principle-Doctrine of Rule of law-Comparative Analysis
[i] Kesavananda Bharati Vs State of Kerala AIR 1973 SC 1461.
[ii] Indira Nehru Gandhi Vs Raj Narain AIR 1975 SC 2299.
[iii] ADM Jabalpur Vs Shivkant Shukla (1976) 2 SCC 521.
[iv] Maneka Gandhi Vs Union of India, 1978 AIR 597, 1978 SCR (2) 621.