This article on ‘Rule of Law Comparative Analysis: India, the US, and the UK’ is written by an intern at Legal Upanishad.
The article emphasizes the comparative analysis of the rule of law as determined by the US, India, and the UK. The content highlights the application of the rule of law in these nations and how the judiciary of the US, India, and UK have contributed to their development.
The Rule of Law is a comprehensive theory upon which the supreme laws of the US, India, and the UK are based. For the welfare of an equitable state, every individual shall hold equal status in society and shall be provided with their basic human rights. The Rule of Law considers the same and contributes to establishing equity and harmony amongst individuals and the states.
WHAT IS THE RULE OF LAW?
The term “Rule of Law” originates from the French expression “Le Principe De Legalite”, which denotes that a good government is based upon the principle of legality and not men. It contributes to forming a cardinal and uniform form of governance by establishing that no individual is superior to and above the law. It eliminates the existence of arbitrariness in the state and further provides freedom and human rights to individuals to enjoy a prosperous life.
ORIGIN OF RULE OF LAW
The rule of law had its origin from the time of famous Greek philosophers like Cicero, Aristotle and Plato. Aristotle was the first Greekian philosopher to introduce the rule of law to the world as a system of principles that is based upon the natural order. It was followed by England for the first time in 1215 when Magna Carta was signed by King John.
This signing of the Magna Carta established the rule of law in England. However, it created conflict between the monarchy and parliament for having a superior status. Ultimately, the parliament was favored with a supreme position, the regulation of the nation’s dropped into the hands of the law, and it became superior to control the entire regulatory affairs. After being recognized by England, the rule was recognized by several countries across the world.
PRINCIPLE OF RULE OF LAW IN UK
In the UK, the arbitrary powers of the monarchy system led to the development of the rule of law across the nation. Earlier, there was an unwritten constitution of the UK as what the king says is to be followed. So, the Rule of Law was adopted in 1215 by the then king of the UK, King John, when he accepted the Rule of Law by signing the great charter, Magna Carta.
The Magna Carta
The Magna Carta was the first written instrument that restricted the in-hand power of the then king of the UK, King John, and confined him with only those powers that could ensure good governance across the nation. This made it bluntly clear that nothing was above the law, not even the king. This led to a huge battle between the monarch and the parliament. But the charter reflected the superiority of law, which was its greatest work of principle.
Several philosophers have contributed to determining the nature of the rule of law that they convey to the world in their own specific manner. Of all the philosophers, the view of Dicey is of extreme importance for understanding the principle. Dicey was the core exponent of the rule of law. According to him, the rule of law possesses three main attributes, as discussed below:
The superiority of the law
According to Dicey, the component of the rule of law establishes that nothing is superior to the law. It recognizes the supremacy of the democratic government by opposing arbitrariness, which violates basic individual rights.
Equality amongst law
In a democratic government, every citizen belonging to the nation is considered equal in front of the law. Equality under the law is the cardinal gist of non-arbitrariness and thus establishes the uniform and harmonized status of every person. They are treated equally and are given equal rights and powers to exercise them.
Judiciary protects the individual right
The main essence of the superiority of law must abide with true wisdom and fair and just legal principles. Hence, in the case where there is an infringement of individual rights, it will be the judicial authority to retain those rights.
The philosopher observed, that in England, the principle was applicable in only certain cases like the wrongful arrest of the individual by the police as a private individual or when the land of an individual is acquired through an illegal order. In these cases, an individual is granted the power to invoke a suit for damages and against trespass.
Further, Dicey determines three important principles of the rule of law upon which English constitutionalism is based i.e., the absence of discretionary power, no individual should be deprived of his property except in case of breach of the law; and the rights of individuals shall be derived from their customs and traditions.
In the United Kingdom, the principle of the rule of law contributes in the following ways:
- The law shall be translated by the judiciary in such a manner that it sets a pertinent standard for the principle of law.
- Every law should be accessible to the entire nation.
- The law shall implement every order effectively.
- The law should establish a fair and just relationship between individuals and the law.
PRINCIPLE OF RULE OF LAW IN US
In the US, the rule of law functions upon certainty, continuity, transparency and consistency against arbitrariness, inconsistency and uncertainty in American government functioning. These are the main essence of the US rule of law contained in the US constitution.
According to prof. Ronald Cass, the US rule of law highlights that the character of the judicial system of the US is reproving to the universal principle of the law. Non-discriminatory judges commit to enforcing the legal principles in a written and independent manner.
The US rule of law outlines some fundamental forms of freedom that need to be granted to its citizens by representing the restrictions upon the limits of governmental intervention. The most basic and foremost freedom acquired by Americans is freedom of speech.
Freedom of speech amongst citizens denotes the power to speak their minds, raise their voices against political orthodoxy, and criticize inefficient governmental policies.
PRINCIPLE OF RULE OF LAW IN INDIA
Our Indian Constitution is an ideal document determining the acceptance of rule of law by our nation in a just manner. The written constitution of our nation is based upon the preamble which justifies the essentiality of rule of law and thus, comprises it with laws, execution instructions, distributed powers amongst various governmental bodies, fundamental rights of its citizens, and various constitutional remedies.
Our nation establishes a lot of examples to highlight it as a modern nation. It has a democratic form of government.
The fundamental rights granted to Indian citizens and foreign nationals under Part III of the Indian Constitution show the diverse aspects of the rule of law. These rights are not absolute, but still, no law can be made that violates these rights of individuals.
The government is denied the power to take such steps that infringe on the rights of an individual.
Role of Indian Judiciary
The Hon’ble courts of India, i.e. Supreme Court and High Court, with the help of other governmental bodies like the national human rights commission or state rights commission, and non-governmental institutions that have contributed to protecting the fundamental rights of individuals, hence, ensuring the existence of the rule of law and incorporation of the same.
With the various constitutional amendments, the rule of law was challenged and determined by the Indian judiciary in cases before them.
In the 1st Constitutional Amendment Act, 1951, in the case of Shankari Prasad v. UOI, AIR 1951 SC 455, A. 31 A and 31B were inserted with the amendment Act, 1951, which was challenged on the basis that it violates Part III of the Indian Constitution. It was asked whether Part III of the Indian Constitution can be amended within A.368? Where the court said that Part III can be amended under A.368 by virtue of A.13.
However, in the case of Golak Nath v. the State of Punjab (AIR 1971 SC 1643), the same issue was asked. The court held that parliament does not have the power to amend part III of the Indian Constitution as it can abridge fundamental rights and thus end the concept of the rule of law.
Further, with the 24th Constitutional Amendment Act, 1971, A.13(4) was inserted in the constitution that gave the parliament power to amend any provision of the constitution under A. 368. It widened the scope of parliament by giving it the power to amend or repeal any provisions of the constitution which hinder the essence of rule of law.
This 24th Amendment Act, 1971 was challenged in the case of Keshavanand Bharti v. State of Kerala, AIR 1973 SC 1461, where the SC overruled the decision of Golak Nath’s case and held that though parliament has the power to amend the provisions of the constitution, such power is restricted up to certain limits as under A. 368.
Also, the case of A.D.M. Jabalpur v. ShivKanth Shukla, (1976) 2 SCC 521, popularly known as the “Habeas Corpus Case”, questioned the rule of law on the basis of A.21 of the constitution. The court opined that even if A.21 is absent, the state cannot deprive any individual of his right to life and liberty without a law.
Rule of Law Comparative Analysis
With the above words, it can be determined that the rule of law is the essence of a non-discriminatory and fair form of government. Commonly, it does not matter whether a nation has the rule of law or not because the principle has numerous facets. It can be possible that some nations have it in the mentioned way and some do not, but it does not lead to the idea of the non-existence of the rule of law.
The main purpose of the rule of law is to establish individuals’ equality and liberty by restricting arbitrariness. The actual interpretation of this rule is that every action taken for the sake of public benefit is to be regulated by the law.
It is essential to reform the laws to reflect the changing times and needs of society. Yet, in the UK, the entire judicial resolution is based upon this principle, establishing the superiority of the parliament. Although, this concept of the powers submerged in the hands of the parliament was criticized by Due Process of Law in the US and Procedure Established by the Law in India.
It does not revoke the view that the US and India do not follow rule of law. A.14 of the Indian constitution holds the essence of the principle by establishing equality before the law and in the US, the rule of law is the backbone of liberty across the nation.
The constitutional provision of equality amongst the law is one of the attributes of the rule of law however, it is restricted to enforcement of law and not the content. The rule of law gets achieved when the laws made are enforced as well as applied without any biasness and irrationality.
Lastly, it can be said that the rule of law is the basis of a rational government establishing justice, equality, liberty and fraternity.
CONCLUSION AND SUGGESTIONS
Referring to the above comparative study of the rule of law in the UK, US and India, it can be concluded that the rule of law and its methods of enforcement in all the three countries vary in their own manner to suit the needs of their respective societies. The view of Dicey can be taken as a perfect interpretation of the rule of law for ideal governance, but it is quite challenging to follow the principle in a strict way.
Even the Indian Constitution does not follow the principle in a rigid way. Despite all the inconsistencies with respect to the rule of law, it can be seen that the principle holds the character to establish an ideal governmental form that could determine the accurate power and rights that are required to be provided to the individuals and the authorities.
- Bhavani Kumar (n.d.). The Rule of Law in India: Lawoctopus. https://www.lawctopus.com/academike/rule-of-law-in-india/.
- Dicey and the rule of law. Lawteacher.net https://www.lawteacher.net/free-law-essays/constitutional-law/.
- Naomi Choi (n.d.), Rule of Law. Britannica. https://www.britannica.com/topic/rule-of-law.
- Rule of Law. Legal Services India. https://www.legalserviceindia.com/legal/article-719-rule-of-law.html.
- Overview-Rule of law. United States Court. https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-law.