SUPREMO AMICUS

VOLUME 30 | JUNE, 2022 ISSN 2456-9704

______________________________________________________________________________
THE RULE OF LAW AND ITS The author in this paper has studied the
MODERN CONCEPT- A concept of rule of law with a new angle and
has tried to show that rule of law will always
COMPARATIVE STUDY
be required in every democratic country in
order to ensure justice and equality to the
By Nikita Deo Singh & Dr. S.K. Bose citizens.
Research Scholar & Professor respectively Meaning of Rule of Law
From Manav Rachna University
Rule of law means that no man is above law
Abstract and every person is subject to the jurisdiction
of ordinary courts of law irrespective of
This paper is intended to give a new position and rank. The phrase rule of law has
dimension to the rule of law. Rule of law has been derived from the phrase la principle de
been discussed with various details giving it legalite which implies principle of legality.
a new angle. A comparative analysis has also
been done in this paper by the author. This According to Black’s Law Dictionary,
paper is an insight into the concept of rule of Rule of Law means legal principles of day
law and the need of rule of law even today. to day application, approved by the
governing bodies or authorities and
Introduction expressed in the form of logical
Rule of law means preventing or restricting proposition.
the use of arbitrary exercise of power and According to Oxford Advance Learner’s
promoting equality for all the citizens. In Dictionary, Rule of Law means the
simple words it can be interpreted that law is situation in which all the citizens as well as
above all including government or the King. the state are ruled by the law.
This research paper gives a clarity regarding According to Sir Edward Coke, Rule of
the meaning of rule of law and its historical law means the absence of arbitrary power
perspective which is very important in order on the part of government.
to study the rule of law in detail. The most
famous concept of rule of law by Dicey has Thus, in simple words, rule of law means
also been discussed. Universal aspect of rule supremacy of law and that nothing is above
of law has also been explained with a law. The government or the king also have to
comparative analysis of rule of law in India abide by the law
and United Kingdom. The exceptions to the
Historical Perspective of Rule of Law
rule of law has also been studied as it gives
an understanding regarding the limitations of Sir Edward Coke, the Chief Justice in
rule of law. At last, the modern concept of James I Reign was the originator of the rule
rule of law has also been discussed which of law. The Greek Philosophers including
makes it clear that in this modern world, rule Aristotle, Plato, Cicero etc. were the ones
of law is still needed without which who first wrote about the doctrine of rule of
democracy is nothing. law. For example, according to Aristotle,
Law should govern and those who are in
power should be servants of law.
_____________________________________________________________________________________
PIF 6.242 www.supremoamicus.org
 SUPREMO AMICUS

VOLUME 30 | JUNE, 2022 ISSN 2456-9704

______________________________________________________________________________
The term rule of law has been originated from constituted in order to promote absolute
England around 1215 when King John of supremacy of law so that there is no
England signed the Magna Carta. The signing arbitrariness. In other words, a person can
of Magna Carta meant that law would be only be punished for the breach of law and
supreme as it would be above the consent of not for anything else.
the Monarchy. There was a fight between the
Monarchy and the Parliament for supreme • Equality before Law
authority but the conflict was in favour of the This is the second most important pillar of
Parliament. Thus, the Parliament made laws rule of law as given by Dicey. Every
which had led to the control and limitation individual is subjected to the ordinary law
towards the power of Monarchy. Thus, the and jurisdiction of the ordinary court
Executives in England became subjected to irrespective of their ranks or position. Special
the law of the Parliament and this how the laws and special courts were considered as a
rule of law began in England. threat to the equality as explained by Dicey.
In the United States of America, this doctrine Therefore, same set of laws must be there for
of rule of law was first introduced in 1776 by all the individuals and must be adjudicated by
the Constitutional lawyer, Paine according to the same civil courts which was believed by
whom law is the king and no one else. Dicey.

In modern sense, more ideas regarding rule of • Predominance of the Legal Spirit
law was developed by the most famous According to Dicey, this third pillar of rule
English Constitutional lawyer, Dicey. of law means that in order
Concept of Rule of law by Dicey to enforce rule of law, an enforcing authority
is required. Dicey considered courts to be the
The concept of rule of law came into picture best enforcing authority without any
through Sir Edward Coke who believed that impartiality and external influence.
King is under God as well as Law. The base Therefore, Dicey believed in independent
for this rule of law was given by Albert Venn judiciary and not on written Constitution for
Dicey. In 1885, Dicey developed the protecting individual’s fundamentals.
concept given by Coke in his book, “Law
and Constitution”. Universality of Rule of Law

According to Dicey, the Rule of law consists Rule of law is considered to be very durable
of three pillars which are based on the which delivers mainly four universal
concept that the government should be based principles:-
on the principles of law and not of men. • Accountable: Both government and
These are:- citizens are accountable under the law.
• Supremacy of Law • Law is just: Law has clarity. It is
publicized and stable. Law is evenly
It is the first pillar for the concept of rule of applied.
law given by Dicey. This means that law is • Fair and Accessible: The process by
above all the people including the people who which law has been made either through
are administering it. Rule of law had been
_____________________________________________________________________________________
PIF 6.242 www.supremoamicus.org
 SUPREMO AMICUS

VOLUME 30 | JUNE, 2022 ISSN 2456-9704

______________________________________________________________________________
administration etc. and is enforced are Parliament and State Legislatures are
fair, accessible and efficient. democratically elected. Mechanism for
• Justice is Impartial: Justice is delivered Judicial Review are also included in the
timely and is competent. Law also Indian Constitution.
restricts the arbitrary use of power.
The court also has played a very important
These four universal principles mentioned role in the establishment of rule of law.
above of the rule of law works as a definition Following are some of the examples:
of the rule of law and are accepted standards
and norms universally. • Keshvananda Bharti v. State of kerela1

Rule of law in India In this case, some of the property of the

petitioner was acquired by the government. It
India has been an advocate of rule of law was decided that the Judiciary has the
since ancient times. For example: Dharma’s authority to amend the Constitution for the
dominion was established by Dharmashastras benefit of the people. Therefore, it was clear
or Nitishastras and even the King was that the basic structure of the Constitution
subjected to the control of Dharma. cannot be changed and this framework was
determined as the rule of law.
India adopted the rule of law in the influence
of its implementation in England. The • ADM Jabalpur v. Shivkant Shukla2
requirements of rule of law are fulfilled by
the Indian Constitution which is known as the In this case, fundamental rights of the people
Grundnorm of the country. Constitution is were removed forcefully due to declaration
considered as the supreme law of land and of emergency. The question before the court
nothing is higher than this. was whether Article 21 will protect people’s
lives and freedom. According to the court,
India has a written Constitution as well as Article 21 guarantees life and liberty and also
body of laws which are subjected to it and stated further that though Article 21 loses
deals with various issues such as rules and procedural power during the declaration of
regulations, executive orders and emergency but it will retain its substantive
conventions. Together they are called law power.
and their application to the general public is
called rule of law. • Maneka Gandhi v. Union of India3

Liberty, justice, equality and fraternity are Under this case of dispute, the passport of the
some of the elements of the Indian petitioner was confiscated in the public
Constitution which are mentioned in the interest. The petitioner filed a complaint in
Preamble and this is what is known as rule of court raising concern regarding the
law. relationship between Article 14, 21 and 19.
The Supreme Court expanded the reach of
Article 21 by declaring that no one shall be

1 3
Keshvananda Bharti v. State of kerela (1973) 4 SCC Maneka Gandhi v. Union of India (1978) AIR 597,
225 1978 SCR (2) 621
2
ADM Jabalpur v. Shivkant Shukla (1976) 2 SCC
521
_____________________________________________________________________________________
PIF 6.242 www.supremoamicus.org
 SUPREMO AMICUS

VOLUME 30 | JUNE, 2022 ISSN 2456-9704

______________________________________________________________________________
denied the said right. Procedures must also private property and seize personal property.
fulfil the criteria set out in the preceding three In this case police officer went into Entick’s
articles in order to be considered as property and seized personal papers without
legitimate. having warrant which led to arrest and loss of
personal liberty. Thus, a fundamental value
Rule of Law in United Kingdom under the rule of law is that personal liberty
Rule of law was formed when King John of a person cannot be harmed unless he or she
adopted the document know as Magna Carta has broken any law.
in 1215. This was the most important written Therefore, in United Kingdom, rule of law
text which curtailed the King’s authority and has evolved since generations in order to
obliged him to observe law for the first time. keep a check on the arbitrary power. The rule
It confirmed the supremacy of rule of law and of law along with Parliamentary Sovereignty
it was considered above the monarch. and rulings of the court is fundamentally the
United Kingdom implemented the rule of law defining principle of unwritten Constitution
in its administration. It lacks a written of United Kingdom.
Constitution but the rule of law, legislature Exceptions to the Rule of Law
and judiciary is present in its unwritten
Constitution. Therefore, rule of law in United In today’s world, it is very important to cope
Kingdom evolved over time. up with the new era of the government which
is more practical and this is the reason that
The rule of law first appeared in United there are various exceptions to the rule of
Kingdom in the case of 4Golder v. United law.
Kingdom, where the court based its broad
interpretation of Article 6 (1) of the In India, the concept of rule of law given by
Convention (Right to a fair trial) from which Dicey cannot be followed strictly. There are
right of access to court on the reference to the various exceptions here under the Indian
rule of law was made in the Preamble of the Constitution and other laws. For example:
Convention. Rule of law became a guiding
principle for the court as it was considered as • Equality before law does not mean that
an inspiration and was inherent in all the the power of private citizens will be same
Articles of the Convention. It was also as the power of public officials. For
defined as one of the fundamental principles example: A police officer has the power
of a democratic society. The close to arrest but no private person has the
relationship between the rule of law and power to do that.
democratic society has been underlined by • Rule of law cannot prevent certain classes
the court with the help of different of persons from being subjected to
expressions in this case. special rules. For example: Members of
armed forces are controlled by military
Another notable case which led to the laws, medical practitioners are subjected
establishment of rule of law was 5Entick v. to the regulations framed by the Medical
Carrington where it was made clear that Council of India etc. Article 361 of the
police must show lawful authority to enter Indian Constitution provides that the
4 5
Golder v. United Kingdom, 21 February, 1975 (34) Entick v. Carrington (1765) 19 St Tr 1030
_____________________________________________________________________________________
PIF 6.242 www.supremoamicus.org
 SUPREMO AMICUS

VOLUME 30 | JUNE, 2022 ISSN 2456-9704

______________________________________________________________________________
President or the Governors of the State There are cases where the principles of rule
shall not be answerable to any Court for of law is being destroyed in United Kingdom.
the exercise and performance of the The Legal Aid Sentencing and Punishment
powers and duties of the office or for any of Offenders Act, 2012 is a huge part of
act done or purporting to be done by him justice but now it is simply unavailable. For
in the exercise and performance of those most type of cases two tier system of justice
powers and duties. No criminal is there which includes one for rich and one
proceedings shall be instituted or for everyone else. This destroys the principle
continued against the President or the of equality before law which is considered as
Governor of a State in any Court during a universal principle of rule of law which is
his term of office. No process for the being affected. Even the violation of fair
arrest or imprisonment of the President or trial imposed by counter terrorism has led
the Governor of State shall be issued from to avoiding the principles of rule of law
any Court during his term of office. So, recently. Thus, the spirit of rule of law
such kind of persons are immune from sometimes leads to biasness in the United
ordinary courts. Kingdom as the legislature there is the
sovereign authority in order to make laws.
• Ministers and other executive bodies are
Modern Concept of Rule Of Law
given very wide discretionary powers by
the Statutes today. Even a large number Rule of law is considered as an important
of legislation is passed in the form of aspect for the betterment of the society. The
delegated legislation which means rules, written or unwritten Constitution of India and
order or statutory instruments made by United Kingdom includes the rule of law.
ministers and other bodies and not Separation of powers is also a notion that is
directly by the Parliament. These rules followed by both India and United Kingdom.
did not exist at the time of Dicey. Rule of law today is not strictly followed but
it has some flexibility. Judiciary has also
• Certain members of society are governed included the concept of rule of law today for
by special rules in their professions i.e. the benefit and justice of the society.
lawyers, doctors, members of armed
forces and police. Such class of people There have been various modifications in the
are treated differently from ordinary rule of law today but it has created a new path
citizens. which includes controlled power rather than
arbitrary power.
In United Kingdom, modern notion of rule
of law was shaped due to the fights between The modern concept of rule of law has been
English Monarchs and their subjects, the greatly developed which can be greatly
struggle of power between Parliament and developed by any government. International
Stuart Kings and the war between British Commission of Jurist known as Delhi
empire and American colonies. Rule of law Declaration, 1959 developed this concept
evolved in United Kingdom in order to block which was later confirmed at Lagos in 1961.
unfettered and unconstrained authority. Dignity of a man as an individual is upheld
according to this formulation. It means that
the rule of law should be applied in such a
_____________________________________________________________________________________
PIF 6.242 www.supremoamicus.org
 SUPREMO AMICUS

VOLUME 30 | JUNE, 2022 ISSN 2456-9704

______________________________________________________________________________
way that it creates conditions in which the their great efforts. The strategy of the court is
dignity of an individual should be given mainly to make the government realise that
priority. Recognition of civil and political, nothing is above law so that all the citizens
social, economic, educational, cultural and can enjoy their rights in a proper and
developmental rights are included in the meaningful manner. Therefore, according to
dignity of an individual. Ensuring of human my opinion, rule of law will always reside in
rights mechanism is required for the proper the democratic countries whether they have
incorporation of the rule of law. For example, written or unwritten Constitution. Thus,
in case of India, Human Rights mechanism is Democracy is nothing without rule of law.
very much needed as it comes under third
world country. *****

Rule of law is considered as the fundamental References

principle for any good governance in today’s
• http://indiankanoon.org
developed or developing democratic
• http://www.legalserviceIndia.com
countries. Observation of rule of law has
become a true basis of a democratic society. • http://www.lawinsider.org
• http://worldjusticeproject.org
Thus, rule of law by Dicey has been modified • https://www.inbrief.co.uk
in the present day as it now includes effective • https://www.opendemocracy.net
control and has become a proper publicity for • The Rule of Law: its origin and
delegated legislation. Rule of law now works meaning by Anthony Valcke,
hand in hand with practicality of governance. University of Kent
• Constitutional Law of India by Dr.
Conclusion J.N. Pandey
• Concept Of The Rule Of Law In The
The rule of law is that framework which leads
Case-Law Of The European Court Of
to fair and just society with the help of its
Human Rights by Davit Melkonyan
universal principles that include
accountability, justice, accessibility and
impartiality. It restricts the exercise of
arbitrary power.

In many countries, the rule of law has been

adopted as an essential liberal democratic
mode of governance for the economic and
social development and it is considered
necessary for the existence of democratic
form of government.

Therefore, it can by concluded that the

supremacy of law is the ultimate aim of the
rule of law. In India, there are various
instances where the court has linked the rule
of law with human rights of the people with
_____________________________________________________________________________________
PIF 6.242 www.supremoamicus.org
 SUPREMO AMICUS

VOLUME 30 | JUNE, 2022 ISSN 2456-9704

______________________________________________________________________________

_____________________________________________________________________________________
PIF 6.242 www.supremoamicus.org