A COMPARATIVE ANALYSIS OF RULE OF LAW

Submitted by:

Shreha Shah 190401417036

Hiranmayi Rajeev 190401417011

Shelika Laller 190401417051

 BA LLB (HONS.)

2019-24

Course Teacher: Prof. Mahantesh G. S

Alliance School of Law

Alliance University, Bengaluru
28/04/2021

DECLARATION

I declare that the paper entitled "A COMPARATIVE ANALYSIS OF RULE OF LAW" has
been prepared by me and it is the original work carried out by me for the fulfillment of the
requirements of B.A., LL.B (Hons.) degree program of School of Law, Alliance University.
No part of this seminar paper has already formed the basis for any examination/evaluation
requirement of any degree.

Signature and Name of the Student:

SHREHA SHAH

Registration Number: 190401417036

I declare that the paper entitled " A COMPARATIVE ANALYSIS OF RULE OF LAW " has
been prepared by me and it is the original work carried out by me for the fulfillment of the
requirements of B.A., LL.B (Hons.) degree program of School of Law, Alliance University. No
part of this seminar paper has already formed the basis for any examination/evaluation
requirement of any degree.

Signature and Name of the Student

 HIRANMAYI RAJEEV

Registration Number: 190401417011

I declare that the paper entitled " A COMPARATIVE ANALYSIS OF RULE OF LAW " has
been prepared by me and it is the original work carried out by me for the fulfillment of the
requirements of B.A., LL.B (Hons.) degree program of School of Law, Alliance University. No
part of this seminar paper has already formed the basis for any examination/evaluation
requirement of any degree.

Signature and Name of the student

 SHELIKA LALLER

Registration Number: 190401417051

Batch:
2019-2024

School of Law

Alliance University, Bengaluru.

Date: 28/04/2021

ABSTRACT

Rule of law is the term based on the French phase ‘la principe de legalite’, which translates to
‘the principle of Legality’. This certain concept was initially based on the unitary notion that the
government must not be entirely based on men but should also be governed by the law. This
principle came into existence to remove the arbitrariness of the regime and the same was
involved when the people of the nation started losing their faith in the monarchy and their heirs.
It was evident that the people moreover preferred laws and some sort of uniformity rather than a
nation ruled by a dictatorship and thus the Rule of Law was introduced. To understand the
concept of rule of law it is to be known that any state is governed by the law and not by the
rulers or the nominated representatives by the people.

This term is often used in judgments but has no definition under the Indian constitution. The
Supreme court has declared the rule of law as one of the basic features of the constitution and
because of that, it cannot be amended by even the constitutional amendment. And it has been
seen as an important part of good governance. According to the rule of law, people must be
governed by the made rules and not according to the decisions taken by rulers.

The power of government is divided by laws enacted by another body and administered by
different and to ensure the laws there is the judiciary. Although the idea of the Rule of Law is old
and has been practiced all over the world, the origin and their processes are unique and very
much diverse amongst each country. This paper will be focusing on the comparisons on one of
the foundations of administrative law concerning The United States of America, the United
Kingdom, France, and India likewise its objectives are firstly to observe and study the unique
ways regarding the Rule of Law between these 4 countries as already stated and to compare the
foundation of rule of law between India and the rest.

Keywords: rule of law, constitutional, amendments, morality, government.

TABLE OF CONTENTS
1. Introduction
1.1 Introduction ----------------------------------------------------------------------------------01
1.2 Research Question --------------------------------------------------------------------------02
1.3 Literature Review ---------------------------------------------------------------------------02
1.4 Scope and Objectives -----------------------------------------------------------------------04
1.5 Research Methodology ---------------------------------------------------------------------04
2. The Concept of Rule of Law -----------------------------------------------------05
2.1 Dicey’s Concept of Rule of Law -------------------------------------------------------------06
3. The Rule of Law in United Kingdom--------------------------------------------09
4. The Rule of Law in United States of America----------------------------------10
5. The Rule of Law in France --------------------------------------------------------11
6. The Rule of Law in India ----------------------------------------------------------13
7. The Present Rule of Law ----------------------------------------------------------15
8. Conclusion ----------------------------------------------------------------------------17
9. References-----------------------------------------------------------------------------18
 1. INTRODUCTION

1.1 Introduction
The system, structure, agency, procedure, or tradition that promotes the dignity of all people
before the law, ensures a nonarbitrary mode of government, and prohibits the unconstitutional
use of force, in general, is known as the rule of law. Despotism, absolutism, authoritarianism,
and totalitarianism are all characterized by arbitrary rule. Despotic regimes have also strongly
institutionalized systems of governance in which the individual at the top of the power hierarchy
(such as a monarch, a junta, or a party committee) has the ability to operate without regard to the
rule of law when it so desires. Since at least the 4th century BCE, when Aristotle separated "the
rule of law" from "that of any man," debates about the rule of law have been fundamental to
political and legal thinking. Montesquieu, a French political philosopher, developed a theory of
the rule of law in the 18th century that compared monarchs' rightful authority with despots'
caprice. In general, the rule of law means that the making of laws, their implementation, and the
relationships between legal codes are all governed by the law and that no one is above the law,
even the highest-ranking official. The legal limit on rulers implies that the state, like its subjects,
is bound by current laws. As a result, a closely related concept is that of equality before the law,
which states that no “legal” citizen should be granted rights that are not available to others and
that no one should be exempt from legal penalties. Furthermore, different governing authorities
must apply and adjudicate legal laws in a fair and coherent manner through similar situations.
Not only does the rule of law imply certain attributes regarding the characteristics and substance
of the rules themselves, but it also means certain fundamental criteria about how the law can be
enacted in society. Laws should be free and simple, generic in form, standardized in
implementation, and understandable for all. Furthermore, regulatory provisions must be able to
direct people; they must not impose undue cognitive or behavioral burdens on those who must
obey them. As a result, the legislation should be reasonably consistent, with clear criteria that
citizens can review before behaving, and legal responsibilities cannot be imposed retroactively.
Furthermore, the law should be internally coherent, and if it isn't, procedural mechanisms should
be in place to address any inconsistencies that may arise.

1
1.2 Research Question

Why is it that despite its importance, reform of India's legal institutions has been seen as a
'second order' issue?

1.3 Literature Review

1. Tom Bingham. 2010. “The Rule of Law”1

The book is based on the philosophical philosophy of ‘Rule of Law,' which refers to the
exercising of authority that is legal or has a legal reason. The term is widely used in
contemporary times, despite the fact that its origins, evolution, and use have received little
attention. The doctrine's jurisprudence is that law should prevail over humans and that it should
be justified and righteous, not tyrannical or unreasonable. The book tries to relay to readers and
power holders the message that whatever power that someone has been given to them by LAW
itself, and that it should be used wisely and in compliance with it. The book attempts to
emphasize that powers granted by statute must be exercised in compliance with the law, not
according to the authority granted by the law to the individual who holds the power.
A discussion of historical milestones surrounding the rule of law sounds a little out of place in
the context of the rest of the book, but it is limited to one-chapter, which Bingham recognizes
some readers might choose to miss. The book's heart, however, is gripping, as it elucidates the
eight values with real-life examples ranging from the abolition of slavery in Britain after the
1772 James Somerset case to modern-day violence against non-citizens in 2004 Belmarsh
prisoners’ case. When discussing the final premise, adherence to international law, Bingham
situates the rule of law on a global scale and addresses conflict, which is "a central preoccupation
of international law." He discusses the invasion of Iraq by the United States and the United

1
Tom Bingham, Baron Bingham of Cornhill, The Rule of Law, 2010

2
Kingdom in 2003, concluding that it was illegal. This debate is still important today, particularly
in light of the current war in the Middle East, so the book is useful for learning what the law says
about this subject. Bingham contrasts the US and UK responses to 9/11 in his study of crime and
the rule of law. It includes enlightening examinations of US extraordinary rendition (basically,
the practice of kidnapping criminals and torturing them for information) and UK monitoring
(‘more than 4 million CCTV cameras and the world's biggest DNA database').
Finally, he concludes that parliamentary authority and the rule of law are uneasy bedfellows
because he argues that no parliament will legislate against the rule of law.

2. Joseph Raz. 1979. “The Authority of Law: Essays on Law and Morality”2

Joseph Raz is a legal, religious, and political philosopher from Israel. He is well-known for his
conception of perfectionist populism and is a leading proponent of legal positivism. He was a
part-time professor of law at Columbia University Law School and King's College London
before becoming a professor of legal theory at the University of Oxford Raz. In 2018, he was
awarded the coveted Tang Prize for the Rule of Law.
Judicial positivism informs Raz's systematic interpretation of the rule of law. As a result, it
insists on the laws and practices that are "inseparable" from the rule of law, thus ignoring the
law's content. The rule of law, according to Raz, is not the same as the ‘rule of good law.'
As a result, the rule of law should be separated from principles like liberty, freedom, and even
democracy. If this is not the case, Raz believes, the rule of law would lose its function and
freedom, becoming a mere social theory rather than a law.
As a result, the rule of law is regarded as a component of the legal system rather than the
overarching image by which it can be measured. The preceding analysis slammed Raz's
interpretation of the rule of law for failing to recognize its role in safeguarding "unalienable"
human rights. It did so in support of a rule of law philosophy that recognizes that the substance
of legislation can safeguard basic human rights. However, there is an underlying problem with
this assertion because [t]here is no internationally agreed-upon standard of human rights, even
within civilized nations.' Bingham proposes a relative solution to this issue, in which legal
boundaries are drawn around individual rights that are considered "fundamental" in each region.
2
Joseph Raz, The Authority of Law, Essays on Law and Morality (2nd ed. Oxford 2009)

3
This article, on the other hand, favors Ellis's radically different stance, in which he optimistically
advocates for unconditional recognition of "derivable" rights to be secured by the rule of law.
The right not to be tortured or subjected to any barbaric, inhumane, or unfair treatment or
discipline, the right to a fair hearing, the right to freedom of expression, conscience, and faith,
the right to nondiscrimination, and the right not to be treated unfairly are all examples of those
privileges.
In order to respect cultural values enshrined in individual states, Ellis's solution remains open
across societies by providing "derivable freedom" that might need to be sacrificed "in order to
respect cultural values enshrined in individual states.” This adaptable approach can be used
across cultures to ensure that basic human rights are secured while rights on the ‘periphery' can
be adapted or overlooked based on cultural sensitivities.

1.4 Scope and Objectives

a. To observe and study the unique ways regarding the Rule of Law between these 4
countries.
b. To compare the foundation of rule of law between India and the rest.

1.5 Research Methodology

The methods that will be used in order to complete this research paper is by using secondary
resources such as the internet and multiple of articles. Due to the current pandemic situation a
real life, hand on hand data collection is impossible hence why this paper is going to be based on
the already existing data collected

4
 II. THE CONCEPT OF RULE OF LAW

The Rule of Law is a fundamental feature of democracy, good governance, and constitutional
government. It is often referred to as an extension of the Natural Law, which encapsulates a
man's fundamental demands from his state. The supremacy of the rule of law is a moral
principle.
The goal of balancing individual rights and powers, as well as individual balance Individuals and
the state must be in a state of equilibrium. Over the passage of time, this concept of morality
evolved into a tradition, and it is today an indispensable feature of every Constitution around the
world (either directly or indirectly).
The concept of the Rule of Law 3 was popular in the Early Greek era4, when great Greek
philosophers such as Plato and Aristotle emphasized the importance of a selfless society. The
concept was filed under "Right Reason," implying that state subjects have a right to know about
all government actions.
The primary need for accountability helps citizens to engage in state actions, challenge arbitrary
decisions, and verify the state's functioning, which is where the Rule of Law got its start.
The principle of Rule of Law is said to have been invented by Sir Edward Coke of the United
Kingdom. He challenged the long-held belief that the King can do no wrong, asserting that the
King is just a man who must answer to his subjects. He said that the King must be subject to God
and the Law, thus defending the Supremacy of Law over executive pretensions. Professor Albert
Venn Dicey identified the Rule of Law in Right-based Liberalism and Judicial Review, and this
evolution took shape. Professor Dicey's behaviorism5 is explained by the fact that he formulated
this theory towards the height of the Golden Victorian Era of Laissez Faire in England. 6 The
Professor proposed a political framework that the government is bound by statute, accountable to

3
Qwerty, ‘Rule of Law’ (2012) <http://www.legalserviceindia.com/legal/article-719-rule-of-law.html#:~:text=To
%20simply%20understand%20the%20meaning,of%20their%20position%20and%20rank.&text=The%20concept
%20of%20rule%20of%20law%20further%20requires%20that%20no,to%20harsh%20or%20arbitrary
%20treatment.>
4
Circa 350 BC
5
The Editors of Encyclopedia Britannica, ‘Albert Venn Dicey’ (2021) <
https://www.britannica.com/biography/Albert-Venn-Dicey>

5
people, ensuring their rights, and ultimately not to behave unilaterally because he is an ordinate
individualist and the British Kingdom was facing the modern emergence of liberalism and free
markets. According to careful observation, the Rule of Law was shaped in European countries
for a century and a half, gradually leading to the emergence of Administrative Law, while in the
United States of America, the study was popularized just a few decades ago, as shown by the
steady development of Administrative Law in the United States.
The Rule of Law, on the other hand, was the idea that sparked the French Revolution 7 but it was
not formalized or standardized in France. This forced the French government to experience
dictatorship under Napoleon Bonaparte's rule.
The intriguing thing is how the idea was incorporated into Indian Upanishads and how most
Indians are unaware of it. We can see from this overview that it is important to examine the
principle of Rule of Law in each of these four nations.

2.1 Dicey’s Concept of Rule of Law

The Rule of Law is a viable and complex definition and defining and stating its components is
virtually impossible. The weight of value changes from one limb to another as time passes. For
example, under the reign of monarchs, the avoidance of coercive powers in the hands of the
government was a priority, but today, with more open markets, the Rule of Law has progressed
toward an understanding of human freedom and less government interference in the conduct of
business. Because of this uncertainty and reliance on an evolving culture, Rule of Law cannot be
described. However, it is important to read Professor Dicey's definition, which was the first to be
structuralized and forms the basis for the rest of the book8.
The definition of the Rule of Law is used in almost every country. Three ideals are included in
Dicey's formulation of the Rule of Law:
a. Government officials do not have arbitrary rights.

6
Laissez-faire is a theory of economics and politics. It comes from a French expression that means "to be alone." It
ensures that the government stays out of the industry and the economy. Finance and trade decisions are left at the
discretion of the individual.
7
It is also possible that English academicians who formulated the concept were influenced by the French Revolution.
8
Preethi Ramanujam. ‘Development of the Rule of Law’ (2015) < http://www.legalserviceindia.com/legal/article-
85-development-of-the-rule-of-law.html#:~:text=The%20Rule%20of%20Law%20doctrine,man%20is%20above
%20the%20law.>

6
 b. No one should be subjected to physical pain or be stripped of his property unless there is
a compelling reason.
c. A violation of the law founded in a regular legal fashion before the regular courts of a
location.
d. In the administration of justice, the people's rights must derive from their customs and
practices, which must be recognized by the courts.

a. Against Arbitrariness

The first theory stipulates that elected governments must be free of arbitrary and autocratic
practices. Human rights and independence must not be harmed by the government acting
unilaterally or using arbitrary forces. However, the same must be followed based about the
passing of time. Kings wielded arbitrary authority at the time, followed by feudal rulers, the
military, and finally, members of the people chosen by the people. As a result, protections
against state arbitrariness must be included in the Constitution to deter unforeseen or potential
breaches of justice.

b. Equality

The second principle says that no one should be afforded preferential treatment in the eyes of
the law, and that all should be entitled to the ordinary law of the land as enforced by ordinary
courts. It should be remembered, though, that all rules must be equal for all, since we are all
inferior in every way. As a result, the legislation must be written in such a manner that poor and
underrepresented groups are able to exist on an equal footing with affluent groups. The laws
enacted here are intended to help the underprivileged and privileged parts, ensuring that true
equity is no longer a pipe dream. The justification behind this principle is Dicey's adamant
opposition to the government interfering in other people's lives. As a result, he insisted that
government officers (as well as famous people) should not be handled differently.
They must therefore be held to ordinary legal procedures and taken before ordinary courts.

7
 c. Customs and Traditions

This theory has a wide application since the customs and practices of one country vary from
those of another (even within the same country's sections). As a result, it is critical that the nation
follow or go hand in hand with its own traditions and customs at this stage. If a country is
required to follow a scheme that is not its own, it would either suffer or fail (for example, the
establishment of the Indian Court System). Dicey proposed that the English government should
use the Common Law system9 as a legal standard. Since the British government was founded on
the Courts and pronouncements of the House of Lords and the King, it was relatively simple for
them to create a legal system based on precedents, which proved to be popular. Similarly,
Professor Dicey proposed that individual rights would stem from a country's unique history, as
shown by the emphasis placed on personal laws in India. However, when the British came to
believe that Dicey's Rule of Law was fairly set and rigid, the term evolved further with judicial
pronouncements. According to F. A. Hayek10:
“Stripped of all technicalities this means that government in all its actions is bound by rules
fixed and announced beforehand - rules which make it possible to foresee with fair certainty how
the authority will use its coercive powers in given circumstances, and to plan one’s individual
affairs on the basis of this knowledge”.
This explicitly demonstrates that the principle of Rule of Law is ever evolving, and that it cannot
be reduced to a single definition.
Furthermore, in Chu Kheng Lim v. Minister for Immigration 11, Justices Brenan, Deane, and
Dawson took a wider view of the Rule of Law. The Court formed a strong interdependence
between the Rule of Law and the Separation of Powers in this decision. Slowly, the courts
gained authority and began to address the critiques of the rule of law. However, one critique has
not faded, and that is the commitment to procedural rules in order to achieve Rule of Law.

III. RULE OF LAW IN UNITED KINGDOM

9
A body of unwritten rules based on legal precedents developed by the courts is known as common law. In special
cases where the result cannot be decided by current laws or written codes of law, common law plays a role in the
decision-making process.
10
Joseph Raz, ‘The Rule of Law and its Virtue’ (March 2012)
11
(1992) 176 CLR

8
The Rule of Law developed in the United Kingdom as a result of constant vulnerability to
harmful coercive forces exercised by the rulers at the time. Various political and political wars
between English kings and their subjects, as well as strife between English kings and their
subjects, honed the principle of Rule of Law.
Parliament and Kings, as well as the British Empire's struggle to suppress its colonies. With the
aim of achieving democracy, people's perspectives on personal liberty and rights expanded.
Magna Carta was the first political text to restrict the King's authority. Kind John agreed to the
Charter on June 15, 1215, which restricts the King's authority and empowers the Barons to make
administrative decisions. The King must review the situation and consider the Baroness'
discretion. The principle that the Crown was supreme was revolutionized by this Charter. Not in
any case. Following that, subsequent kings adhered to the Magna Carta and the strict monarchy.
The influence of kings had come to an end. The question of the Stuart Kings' forces emerged at
this stage.
When Sir Edward Coke was Chief Justice of England in the 17th century, there was clear
opposition from Parliament and the Royal Courts of Justice to the king's divine authority. Where
prerogative rights, arrests, and detentions were involved, the courts ruled.
The writs were given to review the judgments of the Feudal and Ecclesiastical Courts of their
respective jurisdictions. Due to this dispute, James I gave a royal Order to Justice Coke in 1616,
instructing him not to mess with the king's forces, as issued by Sir Francis Bacon, Attorney
General. Justice Coke was adamant accept the same, arguing that it is the job of the courts to
make decisions in cases. As a result of this uprising, Justice Coke was suspended from his post,
and the tug-of-war continued for 100 years. The Act of Settlement was created in 1701 as a
result of the revolution in the land, and it established the Parliamentary Powers as supreme and
the Judges' term as independent.

9
 IV. THE RULE OF LAW IN UNITED STATES OF AMERICA

The inordinate obligation of people to obey the rules is bound by the core focus on the Rule of
Law. As a result, the state’s place a premium on upholding and adhering to the laws enacted by
their respective governments. The United States was once a British colony; however, continuous
rebellion in the 18th and 19th centuries led to the States' independence from the United
Kingdom, and they adopted the United Kingdom's principles and concepts. Structured as a legal
document known as a Bill in Equity, it includes a statement on the jurisdiction, the identification
of parties, and a list of creditors. The paper was presented to the Court by then-President
Jefferson to demonstrate that the United States was sovereign and to demonstrate this to the rest
of the world. It established a framework for the American government by establishing three
distinct branches, each of which is independent and balanced in relation to the others. Congress,
the legislative branch, will make legislation in a free and straightforward manner. The Executive
Branch, which includes the President, Cabinet, and other departments, must faithfully uphold
legislation and never put anybody above the rules. The Judicial Branch 12, which includes federal
courts such as the United States Supreme Court, must interpret laws and settle issues in an
unbiased and neutral manner. As a result, we will see how the United States enshrined and
embraced the separation of powers.

Furthermore, it is important to remember that by adhering to flawless Federal Government

Policy13, the Rule of Law was deemed supreme, since the Federal Government Setup was a part
of the Constitution, and the Supremacy of Law was upheld.
Human protections, such as due process and the right to a lawyer in court, are outlined in the
United States Constitution. The Constitution further restricts the government's conduct, shielding
citizens from a state-sanctioned religion, a state-controlled press, illegal arrests, and cruel and
unusual punishments. The United States Constitution is widely regarded as one of the most
effective constitutions for ensuring individual liberty. The provisions of the US Constitution
strongly affected the idea of Fundamental Rights in India, and we can see the widespread
recognition of Individual Freedom and Liberty in the country.
12
13
‘Flaws in the Democratic System of Government’ (2008) <
https://opentextbc.ca/principlesofeconomics2eopenstax/chapter/flaws-in-the-democratic-system-of-government/>

10
The Federal Structure, therefore, forbids the government from wielding undue authority, since
the positions of Congress and the states are well defined. Each state is represented equally,
preventing unfair power and authority sharing among the states. From the above, we can
conclude that the United States adheres to a strict Rule of Law and is dynamic in its approach to
globalization.

V. THE RULE OF LAW IN FRANCE

In France, the equivalent expression for Rule of Law is ‘Etat de Droit’ although this definition
was much broader than Rule of Law. It was derived from the German term "Rechtsstaat," which
was described by Robert Van Mohl14 as "people living together in such a way that each
individual will be encouraged and fostered to the greatest extent possible in the free and
thorough exercise and use of their strengths." The centrality and liberal concepts of Rule of Law
and Rechtstaat illustrate why there are no other words that are identical. The Etat De Droit
guarantees the full superiority or predominance of the rule of law over arbitrary control and
precludes the presence of prerogative arbitrariness or even broad discretionary jurisdiction.

The concept gained popularity after the French Revolution (against private oppression; Feudal
System, Church, and Aristocracy) in 1789 when the French monarchy was defeated. In 1789,
Article XVI of the Declaration of the Rights of Man and Citizen stressed that every state that
does not grant rights by the division of powers defined lacks a constitution. It is clear that the
Rule of Law was implied in the preceding Declaration. Republique (Freedom and Equality) and
Etat were both used in the Declaration (Submission of Political Power to Law)
Though France was the first to structure the Rule of Law Principle, it was virtually difficult to
obey since they were too well ahead of their time. This resulted in the humiliation of being
suffocated by the Monarchy once more.

14
James R, James. E, Hickey Jr. The Legal Doctrines if the Rule of Law and the Legal State (vol. 38 2012)

11
From the 18th century to the present, France has had five republics 15 from Constitutional
Monarchy to the Radical Republic to Moderate Reaction to Dictatorship to Restoration of
Monarchy, the governance changed. In 1958, during the 5th Republic, the Stable Constitution
was adopted. The Roman principle of Jus Divine, which means "divine law," was supplemented
by Royal Absolutism, in which the King assumed responsibility for delivering law and justice.
The French Revolution deposed the then-King as the iron jaws of Sovereignty overtook human
liberty.
The French judicial system is unusual in that it is based on the concept of Droit Administratiff,
which means that administrative matters and legislation are dealt with by a separate body of
courts from ordinary courts. The topic is restricted to Administrative Courts since the article is
about administrative law. First-instance courts – administrative courts (Tribunal administratif) –
These are the lower courts or first-instance courts where administrative matters are brought to
light.

Disputes between regulatory bodies and the government would be decided by the courts.
a) Administrative Courts of Appeal (Cour administrative d'appel) are intermediate appeals
courts.
b) Courts of last resort – the Council of State (Conseil d'Etat)
These Courts have precedent-setting authority and apply the Stare Decisis doctrine.
Administrative Courts are not governed by any particular legislation, and judgments are made by
the Courts based on the decisions of the Courts of Last Resort. Furthermore, in the event of a
disagreement about the scope of the matter or whether it falls under the jurisdiction of the
Administrative Courts, the Tribunal Des Conflicts will determine the nature of the dispute and
whether it will be handled by ordinary courts or special administrative courts. In France, the Etat
De Droit was effective because it permitted Judicial Review of Statutory Law, as in other
countries, and it also restricted Executive Power by Courts in accordance with Substantive
Constitutional Standards.

15
Wikipedia, ‘French First Republic’ <https://en.wikipedia.org/wiki/French_First_Republic#:~:text=In%20the
%20history%20of%20France,1792%20during%20the%20French%20Revolution.>

12
 VI. RULE OF LAW IN INDIA
At first, India was administered by Monarchs and the current India is a mix of a few
commonplace States. So, India was first represented by Vedas, Puranas, Sacred Texts and
Upanishads where the Kings are supposed to be the people with a definitive object of delivering
equity. The laws are made by Sadhus like Manu through his lessons and writings, which were
learnt by the Kings and they convey equity dependent on those standards. Also, the King's
choices were guided by the pastors and learned savants who structure the piece of the
administration. Though during the Mughal Rule, the standards in Quran and furthermore
customs and customs winning in the nation assumed dominating part in conveying equity.
With the British Colonization, the Rule of Law took the state of advanced courts, where Indians
cling to the guidelines and laws made by British Parliament and follow something very similar.
The legal proclamations by the then Supreme Courts in Bombay, Madras and Bengal filled in as
measuring stick while concerning the contested issues, the profession of the Privy Council was
given due significance. Subsequent to accomplishing Independence Indian Constitution became
Magna Carta of India and began embracing different standards inside itself. For instance, we can
see the counteraction of discretion and obligation of State to guarantee equity in Article 14 and
Article 21; while freedom and force of the Courts can be seen through Articles 32, 141 and 226
of Constitution of India.
Despite that, India dazzled different nations through persistent understanding of Rule of Law
with the assistance of its Judiciary. India accepted the ideas of Judicial Activism, Judicial
Creativity, Judicial Independence and Judicial Restraints. Through the play of translation, Indian
Judiciary had the option to guarantee that Rule of Law exists with development yet not
devolution. Presently it is relevant to cite a couple of cases to demonstrate something similar.
Kesavananda Bharathi v. State of Kerala16

This case is the justification people to live with genuine autonomy. The Court held that the
Parliament is having the ability to revise anything in Constitution yet not the essential design of
the Constitution. Here the principle of essential Structure was presented which maintained that
Rule of Law can't be undermined. The Court additionally guaranteed Rule of Law by restricting

16
(1973) 4 SCC 225

13
the forces of the Parliament that is to forestall the subjective law-making forces of the
Parliament. This case demonstrated why Judiciary is the overseer of the Indian Constitution.

Maneka Gandhi v. Union of India17

In spite of the fact that the case was relating just to one side of the person to travel to another
country, the case all around talked about the privileges of a person by and large. Because of this
case, presently Article 21 is the umbrella of all fundamental rights which make a human a
human. Additionally, the case was repeated with the Foreign law i.e., the American Law to
choose what "Technique Established by Law" signifies. The court certified that the Procedure set
up by Law must be compared with the Due Process of Law similarly as with changing conditions
the law will change. The subjective law won't ever be a law.
For each portion we got Judiciary backing us so that Rule of Law will be followed. In Indira
Nehru Gandhi Case18, the Court held that the appointment of the at that point Prime Minister
Candidate isn't legitimate and negated the workplace of the Prime Minister and this case shows
that law is equivalent to all.
Also, in instances of Vishakha v. state of Rajasthan19, the Court held that if there should arise an
occurrence of nonappearance of laws, the Supreme Court can make rules to fill the vacuum with
the assistance of the unfamiliar and worldwide shows. Gradually, we can see India through
Judiciary is maintaining the Rule of Law.

VII. THE PRESENT RULE OF LAW

17
1978 SCR (2) 621

18
(1975) SCR (3) 333
19
(1997) 6 SCC 241

14
The advanced idea of Rule of Law is very wide, and it is set as an ideal to be accomplished by
any Government. This idea was created by the International Commission of Jurists (Delhi
Declaration, 1959), where it was figured that the Rule of Law infers the elements of the public
authority in a free society ought to be to make conditions in which the nobility of an individual is
maintained. The Declaration stresses that the autonomy of the Judiciary and successful
government is fundamental to accomplish something very similar. Besides, the nobility expected
can't be accomplished uniquely through common or political rights however through
acknowledgment and making of certain political, social, efficient, instructive and social rights

In 1957, the University of Chicago held a gathering on the Rule of Law which was gone to by 11
nations. The Secretary of the Colloquium depicted the spaces of understanding as:
a) The Rule of Law is an articulation which isn't promptly expressible as it is principally
related to the privileges of a man. Essentially, law and order are valued in a positive
substance in certain nations and negative substance in different nations. Yet, it is to be
noticed that law and order is the essential target which should be gotten chiefly however
not just through courts.
b) The Rule of Law depends on the freedom of the individual thus the public authority
should adjust between two negating ideas, individual freedom and public request. The
equivalent can be accomplished through equity by thinking about the changing time and
conditions.
c) The Conference likewise features the slim distinction between the Rule of Law as
Supremacy of Law over Government and Rule of Law as Supremacy of Law in the
public arena by and large. The meeting demanded that there should be a method where
Government is exposed to the law so the activities of the Government will consistently be
within proper limits. If not, the Government will choose laws, even it tends to be
discretionary activities, in this manner it will be an oddity inside law and order.
d) In Western Countries, the significance is fixed to Legislatures that make laws, so the
gathering gets that Rule free from Law isn't joined to establishment however just
qualities. So, law should be maintained overall however not as a formation of the State.

15
Likewise, the Report of the United Nations additionally uncovers the proceeding with
conversation on the Rule of Law. The Secretary General of the United Nations in its 2004 Report
depicted law and order to contain standards of administration and the actions important to
guarantee adherence to two wide standards:

a. Principles of Governance: Responsibility, everything being equal, establishments and

elements (public and private) where the law is freely proclaimed, similarly authorized
and autonomously mediated. It should be in adherence to the Human Rights, Values and
Standards.
b. Enforcing the Principles of Governance: The accompanying measures (conventions)
must be followed to implement the Principles of Governance which incorporates the
Supremacy of Law dependent on
 Equality under the watchful eye of law
 Equal Protection of law
 Fairness in the utilization of law
 Separation of Powers
 Participation in the dynamic
 Legal Certainty
 Avoidance of assertion
 Procedural Transparency
 Accountability to Law

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 VIII. CONCLUSION

In the light of this paper, we can see the change in the philosophy of the Rule of Law. When the
Rule of Law was particular from one country to another because of the
a. Culture and custom pervasive in those nations
b. Different abuse strategies by various Governments
c. Form of Rebellions and Revolutions embraced by those nations.

However, it is to be taken as a top priority that the fundamental guideline of Rule of Law is
same. In the midst of different endeavors to plan and reactions by contending scholars the Rule
of Law began consolidating different sub-segments inside itself to meet the changing
requirements of the general public. So, the distinctions in the belief systems of the nations
concerning Rule of Law contracted and the equivalent is obvious through the worldwide interest
in making uniform idea. Individuals began contrasting nations with receive the segments
followed by effective nations. However, it is likewise to be contemplated that in instances of
advancement, we began alluding to the Reports of United Nations and International Conventions
to fill the holes which shows that the way towards consistency is in a roundabout way very much
laid and as yet advancing. The article manages the contrasting inceptions of the Rule of Law in
UK, USA, France and India and with movement we can see the idea converging into present day
idea occupying the spaces with no significant differentiations. I might want to reason that the
Rule of Law varies in strategy however not in idea.

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 IX. REFERENCES

WEBSITES

1. Qwerty, ‘Rule of Law’ (2012) <http://www.legalserviceindia.com/legal/article-719-rule-

of-law.html#:~:text=To%20simply%20understand%20the%20meaning,of%20their
%20position%20and%20rank.&text=The%20concept%20of%20rule%20of%20law
%20further%20requires%20that%20no,to%20harsh%20or%20arbitrary%20treatment.>
2. The Editors of Encyclopedia Britannica, ‘Albert Venn Dicey’ (2021) <
https://www.britannica.com/biography/Albert-Venn-Dicey>
3. Preethi Ramanujam. ‘Development of the Rule of Law’ (2015) <
http://www.legalserviceindia.com/legal/article-85-development-of-the-rule-of-
law.html#:~:text=The%20Rule%20of%20Law%20doctrine,man%20is%20above%20the
%20law.>
4. ‘Flaws in the Democratic System of Government’ (2008) <
https://opentextbc.ca/principlesofeconomics2eopenstax/chapter/flaws-in-the-democratic-
system-of-government/>
5. Wikipedia, ‘French First Republic’
<https://en.wikipedia.org/wiki/French_First_Republic#:~:text=In%20the%20history
%20of%20France,1792%20during%20the%20French%20Revolution.>
6. Jistor, < https://www.jstor.org/>
7. Indian Kanoon, < https://indiankanoon.org/>
8. Qwerty, ‘Rule of Law’ < https://legalserviceindia.com/>
9. Legal Service India, ‘Rule of Law in India and Uk’ <
http://www.legalserviceindia.com/article/l457-Rule-of-Law-in-India-&-UK.html>
10. ABA, ‘Rule of Law in American Life: A Long and Intentional Tradition’ (2019) <
https://www.americanbar.org/groups/public_education/resources/rule-of-law/rule-of-law-
in-american-life--a-long-and-intentional-tradition/>

DISSERTATIONS

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 1. Joseph Raz, ‘The Rule of Law and its Virtue’ (March 2012)
2. Erik O. Wennerstrom, ‘The Rule of Law and the European Union’ (2007)
3. Van-hoa To, ‘Judicial Independence’ (2006)
4. Courtney Taylor Hamara, ‘The Concept of the Rule of Law’ (BA, McMaster University
2009)

CASES

1. Chu Kheng Lim v. Minister for Immigration [1992] 176 CLR

2. Kesavananda Bharathi v. State of Kerala (1973) 4 SCC 225
3. Maneka Gandhi v. Union of India1978 SCR (2) 621
4. Indira Nehru Gandhi vs. Shri Raj Narain, 1975 SCR (3) 333
5. Vishakha v. state of Rajasthan (1997) 6 SCC 241

BOOKS

1. James R, James. E, Hickey Jr. The Legal Doctrines if the Rule of Law and the Legal
State (vol. 38 2012)
2. Tom Bingham, Baron Bingham of Cornhill, The Rule of Law, 2010
3. Harsh Narasappa, Rule of Law in India: A Quest for Reason. 2018
4. Christopher May, The Rule of law: The Common Sense of Global Politics, 2014
5. Tom Bingham, Baron Bingham of Cornhill. The Rule of Law (1st ed. Penguin Law 2011)
6. A.V Dicey. Introduction to the Study of the Law of the Constitution (1 st ed. Oxford
University. 1922)
7. Joseph Raz, The Authority of Law, Essays on Law and Morality (2nd ed. Oxford 2009)

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