1

COMPARATIVE STUDY
OF
RULE OF LAW
By:-

GARIMA YADAV
L.L.M 1ST YEAR (1st Semester)
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ACKNOWLEDGEMENT

Few words of gratitude never mean less...

At the completion of this assignment, I would like to extend my heartfelt gratitude to my mentor
Mr. KOUSHIK BAGCHI for not only his guidance but giving me the liberty to dwell into
the depth of the topic which has been extremely beneficial as it has opened a new vista of
knowledge and reasoning.

I would also like to express my indebtedness towards the Almighty, my parents, friends, our
enriched Library and its helpful faculty.

--GARIMA YADAV
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CONTENTS

HISTORICAL BACKGROUND……………………………………….....4

RULE OF LAW………………………………………………………….....5

MEANING OF RULE OF LAW…………………………………………..5

U.S STATE DEPARTMENT DEFINATION…………………………….6

RULE OF LAW IN UNITED KINGDOM ………………………...……..8

RULE OF LAW IN INDIA……………………………………………....10

INTERPRETATION OF RULE OF LAW

UNDER CONSTITUTION PROVISION……………………………….11

CONCLUSION AND SUGGESTIONS…………………………………14

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A COMPARATIVE STUDY OF RULE OF LAW

HISTORICAL BACKGROUND:-

The notion of the "rule of law" stems from many traditions and continents and is intertwined
with the evolution of the history of law itself. The Code of Hammourabi, promulgated by the
King of Babylon around 1760 BC, is one of the first examples of the codification of law,
presented to the public and applying to the acts the ruler. In the Arab world, a rich tradition of
Islamic law embraced the motion of the supremacy of law. Core principles of holding
government authority to account and placing the wishes of the populace before the rulers, can be
found amid the main moral and philosophical traditions across the Asian continent, including in
Confucianism. In the Anglo- American context, the Magna Carta of 1215 was a seminal
document, emphasizing the importance of the independence of the judiciary and process as
fundamental characteristics of rule of law. In continental Europe notions of rule of law focused
on the nature of the State, particularly on the role of constitutionalism.1

Aristotle said more than two thousand years ago, “The rule of law is better than that of any
individual”. Rule of law has been championed by Roman jurists, medieval natural law thinkers,
Enlightenment philosophers such Hobbes, Locke, Rousseau, Montesquieu in their theory of
social contracts and the American founders; German philosophers Kant, Hegel and in this
century such ideologically diverse figures as Hayek, Rawls, Scalia, Jiang Zemin and Lee Kuan
Yew.

1
http://www.unrol.org/article.aspx?article_id=3
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RULE OF LAW:-
Rule of law is one of the pillars of the modern world, and widely considered necessary for
sustained economic development for the implementation of democracy and the protection of
human rights. It has however emerged in western liberal democracies, and some people question
how far it is likely to take root fully in the different cultural, economic and political context of
Asia.2

In democracies, the use of arbitrary power is considered as asthma to the rule of law.
Fundamentally, constitutional limits on power, a key feature of democracy, requires adherence to
the rule of law. Thus, the rule of law could be defined as the subjugation of state power to a
country's constitution and laws, established or adopted through popular consent. This is the
meaning of the commonly cited phrase "a government of laws, not of men", made famous by
John Adams, the second president of the United States.3 Under such a system, law should be
supreme to the capricious authority of any individual. The rule of law is the supreme check on
political power used against people's rights. Without the regulation of State power by a system of
laws, procedures and courts, democracy could not survive. Although the rule of law protects the
majority from arbitrary power and tyranny, it also has a necessary function to protect the
minority both from the arbitrary power and the tyranny of the majority.4

MEANING OF RULE OF LAW:-

The term Rule of Law is derived from the French phrase to la principe de legalite (the principle
of legality) which refers to a government based on principles of law and not of men. It also
means that power should be exercised within the statutory ambit and purported exercise of
exercise of it would not just be ultra virus, but in a true sense of term arbitrary.5 Lord Chief

2
Upendra Baxi, ‘Rule of Law in India’ published in Asian Discourses of Rule of Law.
3
The article ‘A Necessary Accompaniment for Democracy’.
4
Ibid.
5
Chhavi, Rule of law: A reflection upon we the people and beyond www.legalserviceindia.com/article/l459-Rule-
of-law.html.
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Justice Coke quoting Bracton said the case of Proclamations,6 “the king himself ought not to be
subject to man, but subject to god and the law, because the law makes him King”.7

The rule of also law, also called supremacy of law, means that the law is above everyone and it
applies to everyone. Rule of law is a general legal maxim according to which decisions should be
made by applying known principles or laws, without the intervention of discretion in their
application.8 This maxim is intended to be a safeguard against arbitrary governance. The word
'arbitrary' (from the Latin "arbiter") signifies a judgment made at the discretion of the arbiter,
rather than according to the rule of law.9

U.S. State Department Definition- For much of human history, rulers and law were
synonymous- law was simply the will of the ruler. A first step away from such tyranny was the
notion of rule by law, including the notion that even a ruler is under the law and should rule by
virtue of legal means. Democracies went further by establishing the rule of law. Although no
society or government system is problem-free, rule of law protects fundamental political, social,
and economic rights and remind us that tyranny and lawlessness are not the only alternatives.

Rule of law means that no individual, president or private citizen, stands above law, Democratic
governments exercise authority by way of law and are themselves subject to law's constraints.

Laws should express the will of the people not the whims of kings, dictators, military officials,
religious leaders, or self-appointed political parties.

Citizens in democracies are willing to obey the laws of their society then, because they are
submitting to their own rules and regulations. Justice is best achieved when the laws are
established by people who must them.

 Under the rule of law, a system of strong, independent courts should have the power and
authority, resources, and the prestige hold government officials, even top leaders,
accountable to the nation’s laws and regulations.

6
(1610) 77 ER 1352.
7
http://www.ourcivilisation.com/cooray/btof/chap180.htm
8
Black's Law Dictionary, Fifth Edition, 1979, page. 1196.
9
Curtis, Thomas, ‘The London Encyclopedia’, page, 565 (1829).
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 For this reason, judges should be well trained, professional independent, and impartial.
To serve their necessary role in the legal political system, judges must be committed to
the principles democracy.
 The law of democracy may have many sources, written constitutions, statutes and
regulations, religious Regardless of origin the law should enshrine certain provisions to
protect freedoms of citizens.
 Under the requirement of equal protection under the law, the law may not be uniquely
applicable to any single individual or groun
 Citizens must be secure from arbitrary arrest and unreasonable their homes or the seizure
of their personal property.
 Citizens charged with crimes are entitled to a speedy and public trial, along with the
opportunity to confront and question their accusers. If convicted, they may not be
subjected to cruel or unusual punishment.
 Citizens cannot be forced to testify against themselves. This principle protects citizens
from coercion, abuse, or torture and greatly reduces the temptation of police to employ
such measures.

The adoption and practice of basic principles of the rule of law are barometers for any
democracy. Apparent contradictions in principle of practice do not negate the rule of law's
overall importance. The awful consequences of the breakdown of the rule of law in dictatorship
as recounted above make its importance self-evident. In democratic societies, deviations from the
principles of the rule of law, such slavery and systematic discrimination in the United States, or
the unequal treatment of women historically, serve as powerful arguments for the fulfillment of
those principles. Thus, while there is no set definition of the rule of law encompassing all its
practices, there is a basic realm of common principles. The scholar Rachel Kleinfold Belton,
identifies five elements of rule of law:-

1. A government bound by and ruled by law.

2. Equality before the law.
3. The establishment of law and order.
4. The efficient application of justice.
5. The protection of human rights.
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RULE OF LAW IN UNITED KINGDOM:-

Recent attempts to formalize its meaning have drawn on this rich history of diverse
understanding. The modern conception of rule of law has developed as a concept distinct from
“rule of man”, involving a system of governance based on non-arbitrary rules as opposed to one
based on the power and whim of an absolute ruler. The concept of rule of law is deeply linked to
the principle of justice, involving an ideal of accountability and on the Rule of Law and fairness
in the protection and vindication of rights and the prevention and punishment of wrongs. The
rule of law is fundamental to the western democratic order. The rule of law is the “supreme of
regular power as opposed to arbitrary power”. The phrase can be traced back to the 17th century,
and it was popularized in the 19th century by British jurist A.V Dicey.10 Rule of law implies that
every citizen is subject to the law. It stands in contrast to the idea that the ruler is above the law,
for example by divine right.

The rule of law, as Dicey has explained,"11 is comprised of three basic tenets which are
guaranteed to an individual in a legal system. Reflective of the nature and precincts of the legal
system, the presence of these tenets determine whether a given legal system is inbuilt with an
inherent protection for its subjects and thus whether the governance is based upon the rule of
law. In the context of the British legal system, Dicey in his treaties describes the Rule of law' as
under:

First, no man is punishable or can be lawfully made to suffer in body or goods except for a
distinct breach of law established in ordinary legal manner before the ordinary court of the land.
In this sense the rule law is contrasted with every system of government based on the exercise by
persons in authority of wide. Arbitrary, or discretionary powers of constraint, the rationale being,
wherever there is a discretion there is room for arbitrariness, and that in a republic no less than
under a monarchy discretionary authority on part of the government must mean insecurity for
legal freedom on the part of its subjects.

Second, no man is above the law, but (what is a different thing) that here every man, whatever be
his rank condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of

10
http://en.wikipedia.org/wiki/Rule_of_law.
11
http://legalperspectives.blogspot.in/2010/03/rule-of-law-dicey-revisited.html.
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ordinary tribunals. The idea of legal equality, or of the universal subjection of all classes to one
administered by the ordinary courts, has been pushed to its utmost limits.

Third, We may say that the constitution is pervaded by the rule of law on the ground that the
general principle of the constitution (as for example the right to personal liberty, or the right to
personal liberty, or the right of public hearing) are with us the result of judicial decisions
determining the rights of private persons in particular cases brought before the courts.12

Having stated so, Dicey further went on to summarize the principles governing the rule of law as
“It means, in the first place, the absolute supremacy or predominance of regular law as opposed
to the influence of arbitrary power and excludes the existence of arbitrariness, of prerogative, or
even of even of wide discretionary authority on the part of the government. Englishmen are ruled
by the law and by the law alone; a man may with us be punished for breach of law, but he can be
punished for nothing else.13

It means, again, equality before the law, or the equal subjection of all classes to the ordinary law
of the land administered by the ordinary law courts the “rule of law” in this sense excludes the
idea of any exemption of officials or others from the duty of obedience to the law which governs
other citizens from the jurisdiction of the ordinary tribunals there can be nothing really
corresponding to the ‘administrative law’ or the administrative tribunal of France. The notions
which lie at the bottom of the ‘administrative law’ known to foreign countries is, that affairs or
disputes in which the government or its servants are concerned are beyond the sphere of the civil
courts and must be dealt with by special and more or less official bodies. This idea unknown to
the law of England, and indeed is fundamentally inconsistent with our traditions and customs.

The ‘rule of law’, lastly, may be used as a formula for expressing the fact that with us the law of
the constitution, the rules which in foreign countries naturally form part of a constitutional code,
are not the source but the consequence of the rights of the individuals, as defined and enforced
by the courts; that, in short, the principles of private law have with us been by the action of the
courts and the Parliament so extended as to determine position of the Crown and of its servants;
thus the constitution is the result of the ordinary law of land.14

12
Ibid.
13
Supra note 15.
14
Id.
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RULE OF LAW IN INDIA:-

The Indian Constitution by and large seeks to promote Rule of Law through many of its
provisions. Parliament and State Legislatures are democratically elected on the basis of adult
suffrage. The Constitution makes sufficient provisions guaranteeing independence of judiciary.
Judicial review has been in his guaranteed through several constitutional provisions, Prof M.P
Jain15 book “Constitutional Law of India” said that there are two derivatives of rule of law in the
modern democracies i.e. individual liberties and judicial review. Apart from these two, other
widely recognized touchstone of rule of law independence of judiciary. Before proceeding
further it will be pertinent to have a look in brief how the Supreme Court recognizes the law in
Indian Constitution.

In M/S Motilal Padampat Sugar Mills Co Ltd V. State of UP & Others,16 this court held that
rule of law means, no one, however high or low is above the law. Everyone is subject to the
lawfully and completely as any others and the Government is no exception. In Bidi Supply Co.
V. Union of India & Others17 the Court further observed: “…that the constitution is not for the
exclusive benefits of Governments and states...it also exists for the common man for the poor
and the humble…for the ‘butcher, the baker and the candlestick maker’… lays down for this land
‘a rule of law’ as understood free democracies of the world”.

In Democratic Rights V. Union of India,18 the Supreme Court observed that "The Rule of law
does not mean that the protection of the law must be made available only to a fortunate few or
that the law should be allowed to be. prostituted by the vested interests for protecting and
upholding the status quo and under the guise of enforcement of their civil and political rights.
Constitution Bench in Sub-committee on Judicial Accountability V. Union of India and
others,19 went on to say that rule of law is a basic feature of the Constitution which permeates
the whole of the constitutional fabric and is an integral part of the constitutional structure.
Independence of the judiciary is an essential attribute of rule of law.

15
M.P. Jain, “Constitutional Law of India”, Central Law Agency, 2007.
16
AIR 1979 SC 621.
17
AIR 1956 SC 479.
18
(1982) 3 SCC 235.
19
(1991) 4 SCC 669.
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INTERPRETATION OF RULE OF LAW UNDER CONSTITUTIONAL

PROVISION:-

Part III of the Constitution guarantees to the People India basic fundament rights. These rights
have been guaranteed against the state and its instrumentalities. To make the fundamental rights
enforceable, various powers have been conferred upon the Indian judiciary, under Article 32
(Supreme Court) Article 226 and 227 (High Court).

Over the last several years, the courts have been unfolding the vast potentialities of Article 14 as
a restraint on the legislative power of the legislature as well as administrative power of the
administration. Article 14 runs as follows: “The state shall not deny to any person equality before
the law or the equal protection of law within the territory of India”. Two concepts are involved in
Article 14 i.e. ‘equality before the law’ and the ‘equal protection of the laws’. The first is
equivalent to the second corollary to Dicey an concept of the Rule of law and is negative concept
which ensures that there is no special privilege in favour of any one, that all are equally subject
to the ordinary law of the land and that no person, whatever be his rank or condition, is above the
law.

In Supreme Court Advocates-on-Record Association and another V. Union of India,20 the

Supreme Court said that it has to be borne in mind that the principle of non-arbitrariness which is
an essential attribute of the rule of law is all pervasive throughout the Constitution and an adjunct
of this principle of the absence of absolute power in one individual in any sphere of
constitutional activity.

The rule of law envisages the area of discretion to be the minimum requiring only the application
of known principles or guidelines to ensure non-arbitrariness, but to that limited extent,
discretion is a pragmatic need.21 Rule of law does not mean rule according to statutory law pure
and simple, because such a law may it be harsh, inequitable, discriminatory or unjust, Rule of
law connotes some higher kind of law which is reasonable, just and non-discriminatory. Rule of
law today envisages not arbitrary power but controlled power.

20
(1993) 4 SCC 441.
21
Ibid Para. 58.
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In E.P. Royappa v. State of Tamil nadu,22 the Court observed that equality is a dynamic concept
with many aspects and dimensions and it cannot be "cribbed cabined and confined" within
traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to
arbitrariness. In fact equality and arbitrariness are sworn enemies: one belongs to the rule of law
in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is
arbitrary it is implicit in it that unequal both according to political logic and constitutional
therefore violative of Article l4.

The Supreme Court in Kumari Shrilekha Vidyarthi Etc. V. State of U.P. and Others,23 said
that arbitrariness is the every negation of the rule of law. Satisfaction of this basic test in every
State action is sine qua non to its validity and in this respect. The State cannot claim comparison
with a private individual even in the field of contract. In Nandini Sundar v State of
Chhattisgarh,24 the Supreme Court took note of the composite policy of the Union of India and
State of Chhattisgarh in employing the young tribal people as Special Police Officer (SPO) to act
in counter insurgency activities. The Supreme Court observed: The primordial value is that it is
the responsibility of every organ of the State to function within the four corners of constitutional
responsibility. That is the ultimate rule of law. The Court accordingly ordered the government to
disassociate the young tribal people from the post of the SPO to retrieve the firearms of any type
provided to them to perform the duty.

In Mohd Hussain @ Julfikar Ali V. State (Govt. of NCT) Delhi,25 involved the issue of
providing the representation by a lawyer to defend the accused (accused in 1997 Delhi Bomb
Blast Case). No legal representative was made available either by the trial court or high Court.
The Supreme Court held the conviction and sentence passed on the accused to be vitiated and
observed: “The principles of rule of law and due process are closely linked with human rights
protection. Such right can be protected effectively when a citizen has recourse to the courts of
law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the
truth has to be fair to all concerned.”26

22
1974 SCC (4) 3.
23
1991 AIR 537, 1990 SCR Suppl (1) 625.
24
W.P. (Civil) No. 250 of 2007, Supreme Court of India, Order of January 18,2011
25
2012 SC (1) SCALE 145.
26
Ibid Para. 36.
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In Imtiyaz Ahmad v. State of Uttar Pradesh,27 wherein the issue of passing orders of staying
the investigation in criminal cases the High Courts in the exercise of its inherent powers under
section 48 of the Code of Criminal Procedure, 1973 was involved, the Supreme Court in Para 35
observed that: “The present case discloses the need to reiterate that ‘Access to Justice’ is vital for
the Rule of Law, which by implication includes the right of access to an Independent Judiciary it
is submitted that the stay of investigation or trial for significant period of time runs counter to the
principle of Rule of Law, wherein the rights and aspirations of citizens are intertwined with
expeditions conclusion of matters. It is further submitted that delay in conclusion of criminal
matters signifies a restriction on the right of access to justice itself thus amounting to a violation
of the citizens' rights under the Constitution in particular under Article 21”.

Mehmood Nayyar Azam V. State of Chhattisgarh,28 involved the humiliation of the appellant
in police custody who was working as a whistle blower against the corrupt high officials and
politicians of the state involved in coal scam. The Court, while awarding 5 lacs rupee as
compensation to the victim to be recovered by the State Government from erring officials,
observed that there is no shadow of doubt that any treatment meted to an accused while he is in
custody which causes humiliation and mental trauma corrodes the concept of human dignity. The
majesty of law protects the dignity of a citizen in a society governed by law. It cannot be
forgotten that the Welfare State is governed by of law which is paramount. Similarly the
Supreme Court in Hardeep Singh v. State of Madhya Pradesh29 awarded to the victim 2 lakh
rupees as compensation who was handcuffed by the police without any valid reason.

27
(2012) 2 SCC 688.
28
2012 8 SCC 1: AIR 2012 SC 2573.
29
(2012) 1 SSC 748.
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CONCLUSION AND SUGGESTIONS:-

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.
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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’.30

30
http://www.legalserviceindia.com/article/l457-Rule-of-Law-in-India-&-UK.html
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