CENTRE FOR ACADEMIC LEGAL RESEARCH | JOURNAL OF APPLICABLE LAW

&JURISPRUDENCE

Volume 1 | Issue 1

“Rule of Law in India, UK and USA- A Comparative Study”

By: Ananya Jain (Christ {Deemed to be University})

The following research/scholar work is under Centre for Study of Contemporary Legal Issues. The
copyrightover this material is held by CALR as per the CALR Policy 2020.
 Abstract

Rule of law refers to the concept where no individual or person is above the law. India, United
States of America and the United Kingdom follow the principles of rule of law. This paper
contains a comparative study between the application of rule of law in these three nations. I
have taken into consideration the application of rule of law in India, United States and United
Kingdom. It also contains the application of rule of law in the governance of the three nations.
The principles of rule of law stand against arbitrariness and are embedded in the constitution-
written and unwritten. It was originated by Sir Edward coke and was further developed by A.V
Dicey. This paper further includes the provisions of rule of law in the Constitution of the
nations. I believe that the judiciary of the three nations has played an important role in
developing the concept of rule of law. This concept has been constantly upheld by the judiciary.
I claim, that it has been crucial in the development of the judiciary and the society of all the
three nations, but there is a need of more efficient application of rule of law in the judicial
process. Furthermore, this paper also discusses about the separation of power in the three
nations. I consider that regardless, the provisions of separation of powers have been constituted
in the framework of administration of these three nations, they are not been followed strictly.
Still, flexibility prevails in the application of separation of powers in these nations. The concept
of rule of law is an essential part of a welfare state and hence, shall be applied in every country
effectively. The principles of rule of law reflect the demand for an equitable society. They bring
with themselves prosperity, execution of human rights and dignified lives for all.
1.1 INTRODUCTION

Rule of law means that law is supreme. The term rule of law is derived from the French term
‘La Principe de Legalite’, which means principle of legality. According to rule of law, the
government has to govern by the principles of law. No person or state shall be governed by
arbitrary powers of man. Rule of law stands against the concept of arbitrariness.

Rule of law was introduced by Sir Edward coke. He was the Chief justice in James I’s reign
and he was the originator of the concept of rule of law. He was the first to introduce something
that was above the king. He stated that God and law must stay above the king.

It was further developed by A.V Dicey, through his book ‘Law and the Constitution’. This
book was published in 1885. This book also talks about democracy, people’s right and
separation of powers among other things. 1

1.1.1 Research Objectives

1. Determine the application of rule of law in India, United Kingdom and United States
2. Formulate a comparative study on the application of rule of law in the three nations.
1.1.2 Scope of Study

This paper includes analysis of application of rule of law in India, United Kingdom and the
United States. The analysis includes the application of rule of law in the governance,
constitution and the judicial process. Separation of power is also an extension of the concept
of rule of law. This paper also includes a comparative study of the application of law in the
three nations.

1.2 Three components of Rule of Law

Rule of law has three components according to Dicey. These components are:

1. Supremacy of Law: Supremacy of law means that no person shall stand above the law.
Law is applied to each and every man. Punishment is to be given to the person who
breaks the law. It stands against arbitrariness.
2. Equality before law: No person shall be treated differently in the eyes of law and no
person is above the law. So, every person shall be equally subjected to law. Equality
before law states that same and equal law will be applied to everyone.

1
C.K TAKWANI, LECTURES ON ADMINISTRATIVE LAW 20, (EBC 2019).
 3. The predominance of legal spirit: This means that law should be according to justice
that is to be delivered. Dicey stated that constitution is not a source for the rights of the
individual but rather is a result of these rights. He said that these rights should be
provided by the judiciary.

1.3 World Justice Project Rule of Law Index

World Justice Project (WJP) is an international civil society that provides data on the
application of rule of law in the world.

Denmark, Norway, and Finland were the countries with the highest rule of law scores according
to the WJP Rule of Law Index rankings in 2020. Countries have shown to slowly decline rather
than improve the rule of law score, for the third year running. There has been a continuous
decline. DR Congo, Cambodia, and Venezuela were the countries that had the lowest overall
rule of law scores. They have remained unchanged from 2019.2

1.4 Rule of Law in India

Rule of law had its roots in India, since the ancient times. The rule of Dharma prevailed in the
form of Dharma Shastras or Neeti Shastras and even the King was under the Rule of Dharma.3

India included Rule of Law, by the influence of its application in England. The provisions of
rule of law are embedded in the Constitution of India, which is the Grundnorm of the country.
The Constitution is the Supreme power of the state and no person is above the supreme power.

Article 13(1) provides that any law that is formulated and goes against the provisions of the
Constitution will be held void. 4

Justice, liberty, fraternity and equality are some provisions that are provided in the preamble
of the Constitution that reflects the provisions of rule of law.

Article 21 provides for the right to life that includes the right to live a dignified life, which is
a provision of rule of law.5

2
WORLD JUSTICE PROJECT, https://www.worldjusticeproject.org/rule-of-law-index/ (last visited July 07,
2021).
3
KRISHAN KESHAV, ADMINISTRATIVE LAW 19 (Singhal Law Publishing 2019).
4
INDIA CONST. art. 13 cl. (1).
5
INDIA CONST. art. 21.
Part III of the Constitution includes the provisions of rule of law and provides guarantee
towards protection of fundamental rights.

Article 14 provides for equality before the eyes of law. It states that every person is equal in
the eyes of law. 6

To make fundamental rights enforceable, the Constitution provides Article 32, 7Article 226
8
and Article 2279.

Constitution of India contains provisions that regarding independence of judiciary, executive

and legislature. Parliament and all state legislatures are elected by democratic process. The
provisions of judicial review are also provided by the constitution. 10

The judiciary has played an important role in development of rule of law in India. Some of the
cases that reflect this importance are as follows:

1. ADM Jabalpur v. Shivkant Shukla11: In this case, due to the imposition of emergency,
fundamentals rights were taken away. They were Article 14, 21 and 22. The issue raised
was whether only Article 21 protects life and liberty of people. The court held that only
Article 21 does not protects life and liberty. It further held that Art. 21 loses procedural
power during imposition of emergency, but still has a substantive power.
2. Indira Nehru Gandhi Vs. Raj Narain12: In this case, after Indira Gandhi Nehru won the
elections, it was found out that she won the elections by unfair means and therefore the
High Court of Allahabad held that she cannot contest in elections for six years. Soon
after that emergency was imposed in the nation. Constitutionality of Article 329A was
in question. The court held the Article 329A unconstitutional and held that Article 14
cannot be violated by any person.
3. Maneka Gandhi v. Union of India, 197813: In this case, petitioner’s passport was seized
in the interest of general public. The petitioner then filed case in the court and the link
between Article 14, 21 and 19 was in question. The SC widened the scope of Article

6
INDIA CONST. art. 14.
7
INDIA CONST. art. 32.
8
INDIA CONST. art. 226.
9
INDIA CONST. art. 227.
10
KRISHAN KESHAV, ADMINISTRATIVE LAW 20 (Singhal Law Publishing 2019).
11
ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC 521.
12
Indira Nehru Gandhi Vs. Raj Narain AIR 1975 SC 2299.
13
Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621.
 21 and said no person shall be deprived of the said right. Also, procedures have to meet
the criterion fixed by the above three articles, to be held valid.
4. Kesavananda Bharati v. State of Kerala14: In this case, some pieces of land of the
petitioner were coming under the Government’s acquired land. The question in this case
was whether the judiciary has the power to amend the Constitution. It was held that
judiciary has the power to amend the Constitution for the welfare of the people. It was
held that rule of law is the basic structure of the Constitution.

Other important decisions have been taken by the judiciary, by considering rule of law. In
the case of Hussainara Khatoon V. State of Bihar15, the concept of speedy trial was held.
In the case of Sunil Batra V. Delhi Administration16, the concept of freedom from tortures
of jails was held. In People’s Union for Democratic Rights V. Union of India,17 the concept
of minimum wages was held. The concept of rehabilitation of bonded labourers was held
in the case of Bandhua Mukti Morcha V. Union of India18. The concept of compensation of
unlawful detention was held in the case of Rudal Shah V. State of Bihar.19

1.5 Rule of Law in United Kingdom

United Kingdom is one of the countries that has adopted rule of law in its governance. It does
not have a written constitution, but the concept of rule of law, legislation and judiciary is
embedded in its unwritten constitution. Rule of law has gradually developed in the United
Kingdom.

In United Kingdom, when laws are made for a purpose then that purpose must be carried on.
If someone violates those laws, then he should be punished for the same. The principle of
equality is also carried on due to the application of rule of law. Every person is equal in the
eyes of law. They are subjected to equal and just treatment. AV Dicey, who first outlined the
rule of law and parliamentary sovereignty, believed that equality before the law was extremely
important and that officials should be dealt with by the same court as the ordinary citizen,
demonstrating to the general masses that the government was not being unjustly lenient on an

14
Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461.
15
Hussainara Khatoon V. State of Bihar, AIR 1979 SC 1360.
16
Sunil Batra V. Delhi Administration, AIR 1982 SC 1473.
17
People’s Union for Democratic Rights V. Union of India, AIR 1982 SC 1473.
18
Bandhua Mukti Morcha V. Union of India, AIR 1984 SC 802.
19
Rudal Shah V. State of Bihar, AIR 1983 SC 1086.
official. 20 All laws must be passed with fairness and justice. The provisions also state that no
person can be held or punished for the crimes that they have not committed. Therefore, no
person can be mistreated in the name of law. Rule of law was effective to check the powers of
the administrative authorities. It kept the administrative actions in limit.21

In the case of Wilkes v. wood22, it was held that the accused will be held liable for trespass and
will be liable to pay for damages, even if the order was from a minister. In the case of Entick
v. Carrington23, the victim was granted compensation for trespass, even though the trespassing
and ransacking was due to the King’s order. The fundamental right of a person was upheld. In
the case of R v Rimmington 24, it was held that no person should be held liable for something
that he/she did not commit. In the case of Sharma v Brown-Antoine 25, it was held that criminal
law should be applied to all individuals. No one should be exempted from this law.

1.6 Rule of Law in the United States

Rule of Law has been imbedded in the Constitution of United States. The Constitution is the
26
supreme law of land. Article IV of the Constitution conforms that the Constitution is the
supreme law of the nation. All the laws that are to be made should be made according to the
Constitution and its provisions. No person, not even the President is above the Constitution.
The functioning of the Government is done with accordance of the Constitution and no action
of the Government shall violate it. The Constitution provides for equality among the society.
It is guaranteed under the Fourteenth Amendment. Every citizen is treated equally and is seen
equally by the eyes of law. Laws are to be made with fairness and without discrimination
among the people. The U.S. Constitution provides rights to its citizens for their protection and
betterment.

The structure of Government of the United States also follows the principles of separation
powers, which is an extension of rule of law. The function of the legislative body (Congress)
is to make laws. The function of the executive body which includes the President, Cabinet, and
other agencies, is to enforce laws. The function of the judicial body which includes federal

20
Nicola Laver, The rule of law in the UK, INBRIEF (July 07, 2021), https://www.inbrief.co.uk/legal-system/the-
rule-of-law/.
21
Varsha, Rule of India &UK, LEGAL SERVICE INDIA (July 07, 2021),
http://www.legalserviceindia.com/article/l457-Rule-of-Law-in-India-&-UK.html.
22
Wilkes v. wood, 1763 19 St Tr 1153.
23
Entick v. Carrington, 1765 19 St Tr 1030.
24
R v Rimmington, [2006] 1 Cr App R 17, [2006] 2 All ER 257.
25
Sharma v Brown-Antoine, [2006] UKPC 57; [2007] 1 WLR 780 (TT).
26
U.S. CONST. amend. IV.
courts, including the U.S. Supreme Court, is to interpret laws and resolve disputes.27 The
Supreme Court of the United States was formed to be a watchdog of the Constitution so that it
can guard the law and point out violations of the law by the public office holders and other
members of the government.28

In the case of Marbury v. Madison,29 it was held that any law that violates the Constitution will
be struck down. This case established the provision of judicial review in the United States. In
Church of the Lukumi-Babalu Aye, Inc. v. City of Hialeah, 30it was held that the local laws were
violating the rights of the people under First Amendment. It was held that these clauses are in
violation of the provisions of the Constitution and shall be struck down. In the case of Plyler
v. Doe31, it was held that denying education to the children of immigrants, who are not
documented is against the Fourteenth Amendment to the U.S Constitution. Therefore, it was
held that this practice violates the Constitution and should be brought down. In the case of
Brown v. Board of Education32 , it was held that segregating children on the basis of race was
against the Fourteenth Amendment to the U.S Constitution. The court ruled that this practice
violated the equal protection clause and this segregation should not be permitted.

1.7 Comparative Analysis

United Kingdom does not have a written constitution, but the concept of rule of law is
embedded in the working of its governance. In India, the Constitution does not have a provision
directly stating rule of law, but many provisions of the Constitution reflect the concept of rule
of law. In the Constitution of U.S., Article IV reflect rule of law that states that the Constitution
is the Supreme Power of the land.

The concept of separation of powers is provided in the Constitution of India. The executive,
the legislature and the judiciary enjoy separate powers. But, in practice, the application of
separation of powers is not rigid. In Unites States, there is strict system of separation of powers
between the three bodies of the Govt. But in reality, interference in working between the
different bodies does take place, therefore the rule of separation of powers is flexible. In the

27
AMERICAN BAR ASSOCIATION, https://www.americanbar.org/groups/public_education/resources/rule-of-
law/rule-of-law-in-american-life--a-long-and-intentional-tradition/ (last visited July 07, 2021).
28
James McCellan, Rule of Law & US Constitutionalism, ONLINE LIBRARY OF LIBERTY,
https://oll.libertyfund.org/page/rule-of-law-us-constitutionalism.
29
Marbury v. Madison, 5 U.S. 137.
30
Church of the Lukumi-Babalu Aye, Inc. v. City of Hialeah 508 U.S. 520 (1993).
31
Plyler v. Doe 457 U.S. 202 (1982).
32
Brown v. Board of Education 347 U.S. 483 (1954).
United Kingdom as well, separation of powers is not applicable strictly. The parliament can
interfere in the working of the judiciary.

Certain provisions of rule of law like equality, fraternity, liberty and justice are embedded in
the Constitution and governance of India, United States and United Kingdom. In India, the
Preamble contains these provisions. In the United States, the constitution contains these
provisions. The judiciary has also played an important in developing the concept of rule of law
in India, U.K. and U.S.

Rule of law in U.K was applied to curb the arbitrariness and restrict the unlimited powers of
the King and for the advancement of the society. In India, rule of law was applied for the
welfare of the state and to strengthen the democratic principles of the state. In the United States
as well, the rule of law was adopted for the betterment of the state and to curb inconsistency in
the governance.

1.8 Analysis

Rule of law is a necessary concept for the welfare of the societies. India, United Kingdom and
United States have adopted rule of law into their constitutions- written or unwritten. All the
three nations follow the concept of separation of powers. It is not being followed strictly, but
there is flexibility in the system. The judiciary has also incorporated the concept of rule of law
in its proceedings, for the public good and justice.

1.9 Conclusion

The framers of the constitution of India and USA, understood the importance of the rule of law
in a democratic setup and therefore, added the provisions of rule of law in their respective
constitutions. United Kingdom, also has adopted the rule of law in its governance. The judicial
system of all the three nations addresses rule of law and has passed many landmark judgements
considering the provisions of rule of law. All these three nations practice separation of powers
as well.

1.10 Suggestions

All nations shall make laws and policies with regards to the constitution, keeping in mind the
welfare of the people and the state. The judiciary shall efficiently apply the concept of rule of
law in imparting justice to the people, to secure fairness in the society. The nations should try
to separate powers between the judiciary, executive and the legislature.
Bibliography (Researcher/Scholar Index)

 INDIA CONST. art. 13 cl. (1).

 INDIA CONST. art. 21.
 INDIA CONST. art. 14.
 INDIA CONST. art. 32.
 INDIA CONST. art. 226.
 INDIA CONST. art. 227.
 U.S. CONST. amend. IV.

 C.K TAKWANI, LECTURES ON ADMINISTRATIVE LAW, (EBC 2019).

 KRISHAN KESHAV, ADMINISTRATIVE LAW, (Singhal Law Publishing 2019).
 ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521.
 Indira Nehru Gandhi Vs. Raj Narain, AIR 1975 SC 2299.
 Maneka Gandhi v. Union of India, 1978 AIR 597, 1978 SCR (2) 621.
 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.
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 Wilkes v. wood, 1763 19 St Tr 1153.
 Entick v. Carrington, 1765 19 St Tr 1030.
 R v Rimmington, [2006] 1 Cr App R 17, [2006] 2 All ER 257.
 Sharma v Brown-Antoine, [2006] UKPC 57; [2007] 1 WLR 780 (TT).
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 Church of the Lukumi-Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).
 Plyler v. Doe, 457 U.S. 202 (1982).
 Brown v. Board of Education, 347 U.S. 483 (1954).
 WORLD JUSTICE PROJECT, https://www.worldjusticeproject.org/rule-of-law-index/ (last visited July
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 Nicola Laver, The rule of law in the UK, INBRIEF (July 07, 2021), https://www.inbrief.co.uk/legal-
system/the-rule-of-law/.
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http://www.legalserviceindia.com/article/l457-Rule-of-Law-in-India-&-UK.html.
 AMERICAN BAR ASSOCIATION,
https://www.americanbar.org/groups/public_education/resources/rule-of-law/rule-of-law-in-american-
life--a-long-and-intentional-tradition/ (last visited July 07, 2021).
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https://oll.libertyfund.org/page/rule-of-law-us-constitutionalism.