The Indian Constitution and the Rule of Law: A comparative summary.

Shree Rahul
LL.M. Candidate
(International Trade and Investment Law)

Introduction:
The Indian constitution is the most articulate and extensively documented constitution in the
world. It is the foundational law of the country and lays down the principles which are most
essential for sustainable governance and confers rights to the people against the misuse of power
by the government. This paper will outline one of these principles, namely, the rule of law, in a
comparative analysis with the constitution of the United States, Britain and Canada.

Rule of law:

The rule of law has been defined as a notion that places restraints on sovereign and governmental
power. It is the extent to which the government and its agents abide by the law.

The rule of law consolidates obligations relating to fairness, fraternity, equality in concrete terms.
The concept shares a common English inheritance and apart from the statement of generalities,
it embraces a body of specific detail. Romans have called this Jus Naturale.

Indian Constitution:
Though the term rule of law has not been expressly used in the text of the constitution, it has
been embodied in the preamble and as part of the basic structure and therefore, it cannot be
abrogated even by parliament1. The Supreme Court, in A.D.M. Jabalpur v. Shivakant Shukla2, has
held that there is no rule of law other than the constitutional rule of law. The Court noted this
principle in the following terms:

There cannot be any pre Constitution or post Constitution rule of law which can run counter to
the rule of law embodied in the Constitution. The rule of law is not a mere catchword or
incantation. There cannot be a brooding an omnipotent rule of law, drowning in its effervescence
the emergency provisions of the Constitution.

The apex court has further held, in K.T. Plantation Pvt. Ltd. V. State of Karnataka3 that the rule
of law as a principle contains no explicit substantive domain but has many shades and colours.
1 Indira Gandhi v Raj Narain, AIR 1975 SC 2299 (2369-71)
2 AIR 1976 SC 1207

The rule of law as an overreaching principle can be applied by the courts and the courts can undo
laws which are tyrannical, violate the basic structure of the constitution and norms of law and
justice.

Canadian Constitution:
The Canadian constitution stipulates that Canada is founded upon principles that recognize the
supremacy of God and the rule of law4. The Supreme Court of Canada has stated that the rule of
law is a highly textured expression, importing many things, and can be summarized as conveying
orderliness, subjection to known legal rules and of executive accountability to legal authority5.
Further, the Court has also stated that at its most basic level, the rule of law vouchsafes to the
citizens and residents of the country a stable, predictable and ordered society in which to conduct
their affairs and provides a shield for individuals from arbitrary state action6.

Constitution of the United States:

The American idea of the rule of law has been borrowed from the Magna Carta. The first
expression for the term came from John Adams in the Massachusetts Constitution in 1780, in
which the powers of the Commonwealth are divided to the end, it may be a government of laws,
not of men.

The four significant elements of the rule of law in the United States are:

1.

A formal process of law enforcement.

2.

Such rules are binding as much on the ruled as the rulers.

3.

That there are certain implicit standards to which law making must conform.

3 (2011) 9 SCC 1
4 The Constitution Act, 1982, Canadian Charter of Rights and Freedoms
5 Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753
6 Reference re Secession of Quebec [1998] 2 S.C.R. 217

4.

That, the lawmaking power is the most important of all, and that the legislature is
the most powerful branch of the government.

The Supreme Court has recently laid down, in the landmark ruling of King v.
Burwell7, that the Affordable Care Act is an attack on the rule of law.

Britain:
The rule of law has been described as the noble lie of Britain.
According to Dicey, parliamentary sovereignty and the rule of law are the main principles
underlying the British Constitution.

The key elements of the rule of law in Britain are:

Certainty:
Certainty entails the precise application of all laws passed.

Equality:
According to Dicey, equality before the law was significant inasmuch as it treated government
employees at par with the ordinary citizen and left no room for privilege to bureaucrats and
politicians.

Due Process:
Due process ensures fairness in procedural law. It safeguards one f the most essential rights, that
is the right to personal liberty of a citizen.

7 http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf

This element is best exemplified in the landmark judgment of Entick v. Carington8. This case laid
down that the state cannot deprive a person of his right to liberty without lawful authority.

Conclusion:
The rule of law, thus, is a common component, shared by all the constitutions discussed in this
analysis. It is a foundational aspect of the constitutional framework in India. It gives shape and
substance to abstract the

8 ( 1765 19 St Tr 1030)