Comparative Analysis of “Rule of Law” between India and

the United States

ABSTRACT

Kumar Bhaskar
3 year LLM
210620144039@law.du.ac.in
 Comparative Analysis of “Rule of Law” between India and
the United States

INTRODUCTION
‘Rule of Law’ is essentially a contested concept which can
encompass within itself wide ranging political world views, from
Libertarianism to socialism and to Authoritarianism. This is so
because the rhetoric value of the phrase ‘Rule of Law’ is such
that even the most tyrannical ruler tries to justify his rule under
the rubric of ‘Rule of Law’.
The Hon’ble Justice (retd.) of Supreme Court of India, H R
Khanna has recapitulated the essentials of ‘Rule of Law’ in his
seminal essay titled ‘Rule of Law’1, highlighting that rule of law
as opposed to ‘rule by men’ is the accepted principle in all
civilized societies implying that Power to govern should be
exercised only as per the Constitution or as laid down by the
People. ‘Rule of Law’, according to Justice Khanna is further
characterised by ‘Liberty of Individual’ in a society,
‘Democracy’, ‘Independence of Courts’, ‘dignity to each and
every Individual’. Justice Khanna has went a step ahead and even
made ‘Duties’ to be essential for the conception ‘Rule of Law’
relying on Article 122 of the Japanese Constitution which casts a
duty on all citizens of Japan to not abuse the Freedom and Rights
guaranteed under it and use the same for public welfare.
To analyse the concept any further, it is important that we
separate the quintessential part of the concept of ‘Rule of Law’,
which are uniformly accepted by scholars to form its substratum
from the add-ons, which changes their nature according to the
need of a Nation and its polity. The method adopted by modern
scholars is to analyse the concept of ‘Rule of Law’ is two-fold;
firstly, a formalistic (Thin) conception, and secondly, the
substantive (Thick) conception.
THICK AND THIN CONCEPTIONS OF RULE OF LAW

1
(1977) 4 SCC J-7
2
Article 12, The Constitution of Japan
“The freedoms and rights guaranteed to the people by this Constitution shall be
maintained by the constant endeavour of the people, who shall refrain from any abuse of
these freedoms and rights and shall always be responsible for utilizing them for the public
welfare.”
There is unanimity amongst the scholars that at the very
minimum ‘rule of law’ refers to a system in which there are
‘reasonable restraints on the State and individual members of
ruling elite, equality before the law and supremacy of the laws’.3
In addition to the aforementioned qualities, Randall Peerenboom,
argues that Thin (formalistic) conception of rule of Law must
have:
a. “Rules or norms for determining which entities (including
courts) may make law, and laws must be made by an entity
in accordance with such rules and norms to be valid.
b. Laws must be made public and readily accessible.
c. Law must be generally applicable: that is, laws must not
be aimed at a particular person and must treat similarly
situated people equally for the most part.
d. Laws must be relatively clear, consistent on the whole,
relatively stable, and generally prospective rather than
retroactive Laws must be enforced—the gap between the
law on books and law in practice should be relatively
narrow—and fairly applied
e. Laws must be reasonably acceptable to a majority of the
populace or people affected (or at least the key groups
affected) by the laws.”4

If the aforementioned qualities are absent from a State/Polity

then it is enmeshed with chaos and the State cannot be said to be
ruled as per Law.
In contrast, the thick or substantive conception of Law includes
element of ‘political morality’ with the ingredients of thin
conception of law. ‘Political Morality’, in this context, means a
nudge or even an explicit support/advocacy by the State towards
a particular economic arrangement for e.g. Capitalism, Central
Planning; forms of Government for e.g Democratic, Socialist or
Authoritarian or an ideology like Libertarian, classical. This
paper seeks to show inter-alia, one key difference between ‘Rule
of Law’ in the United States of America and India is that the
United States has Liberalism (‘liberal democratic’ version of
Rule of Law) whereas India has been a Welfare, Equality of
opportunity based ‘Rule of Law’.

3
VARIETIES OF RULE OF LAW: An introduction and provisional conclusion by Randall
Peerenboom
4
ibid
It is important to note that substantive conception of Rule of Law
and Formalistic conception do not exist in separate silos, rather
they are inextricably linked meaning thereby, that every State
that claims to follow Rule of Law must be embedded in some
political, economic and cultural milieu and therefore, no Rule of
Law can be said to be completely based on thin conception of
Rule of Law and must have some substantive component. R
Peerenboom has explained the inter-relationship between the two
most eloquently as “Theoretically, one way of conceptualizing
the relationship between a thin rule of law, particular thick
conceptions of rule of law, and the broader context is in terms of
concentric circles. The smallest circle consists of the core
elements of a thin rule of law, which is embedded within a thick
rule of law conception or framework. The thick conception is in
turn part of a broader social and political philosophy that
addresses a range of issues beyond those relating to the legal
system and rule of law. This broader social and political
philosophy would be one aspect of a more comprehensive
general philosophy or worldview that might include metaphysics,
religious beliefs, aesthetics, and so on.”5

RULE OF LAW IN UNITED STATES OF AMERICA

This paper tries to explore the conception of Rule of law in the
US as discussed by various judgements of the Hon’ble Supreme
Court of the United States, further it discusses the distinguishing
features of American version of Rule of Law by emphasising, on
eminent jurist Brian Z. Tamanaha’s seminal work, Rule of Law
in the United States.

RULE OF LAW IN INDIA

This paper tries to explore the conception of Rule of law in India
as discussed by various judgements of the Hon’ble Supreme
Court of India, further it discusses the distinguishing features of
Indian version of Rule of Law by emphasising, on eminent jurist
Upendra Baxi’s seminal work, Rule of Law in India: Theory and
Practice.
At the very outset, it is worthy to note that the Hon’ble Justice
Bhagwati in S P Gupta vs Union of India & Anr6 has observed
that “If there is one principle which runs through the entire
5
ibid
6
(1981) Supp SCC 87
fabric of the Constitution, it is the principle of the rule of law
and under the Constitution, it is the judiciary which is entrusted
with the task of keeping every organ of the State within the limits
of the law and thereby making the rule of law meaningful and
effective ….”
According to eminent Jurist Upendra Baxi, the four corner stones
of Rule of Law in India are rights, developments, governance
and justice.7
Part III of the Indian Constitution guarantees various
fundamental rights to citizens and non-citizens. The rights are not
just against the State like the rights guaranteed under Article 14,
19, 21 etc. but also against historical civil society norms and
practices like untouchability (Art 18), abolition of titles (Art 19)
etc.
There are no unqualified right as the first amendment of the
constitution of the United States8 in the Indian Constitution, all
fundamental rights are subject to ‘reasonable restrictions’.
Baxi argues that the evolution of Indian Rule of Law can be best
described as steady and substantial growth of the micro powers
of Judicial Review. 9 That the powers of the Supreme Court of
India to Review laws and administrative decisions emanates from
Article 13 of the Indian Constitution itself unlike the Constitution
of the United States wherein no specific provision enables
Judicial Review.
The evolution of Rule of Law is India, especially in the formative
years after independence was marked by the contradistinction
between the justiciable Part III of the Constitution (Fundamental
Rights) and the Non-justiciable Part IV (Directive Principles of
State Policy). This was evident from the series of constitutional
cases starting from Shankari Prasad Singh Deo vs Union of
India10 and the Introduction of 1st amendment to the Constitution;
back and forth between the more progressive Legislature and the
conservative Judiciary in the domain of Land Reforms.

7
Rule of Law in India: Theory and Practice by Upendra Baxi.
8
Amendment I, Constitution of the United States: Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.
9
Rule of Law in India: Theory and Practice by Upendra Baxi.
10
(1952) S.C.R. 89
In terms of the Rule of Law debate concerning development, the
Hon’ble Supreme Court has devised the balance between the
Development vs Rights binary (also knowns as Development vs
Displacement debates among academic circles) by firmly
establishing the concept of ‘Sustainable Development’ in Indian
Jurisprudence through Vellore Citizens Welfare Forum v. Union
of India11.
Federalism forms the core of governance as well as Rule of Law
in India. India has a quasi-federal structure; the seventh schedule
of Indian Constitution provides for division of legislative field
into three heads, broadly, the Union List, the State List and the
Concurrent List with the Centre having all the residuary powers.
In practice the norm in India is that of Co-operative federalism.
This is truer in cases when the Centre lacks a single party
majority government and a multiple party coalition is ruling the
roost.
The Hon’ble Supreme Court of India has fairly contributed in
jurisprudence to prevent the abuse of the powers granted to the
Centre by virtue of Article 356 of the Constitution of India which
provides for imposition of President’s Rule in a State in case of
failure of constitutional machinery in the State. Through S R
Bommai vs Union of India12, the Supreme Court has opened the
path for judicial review of the advice tendered to the President
(albeit in a very limited sense) thus, restricting the arbitrary
imposition of the same.
The last component of Rule of Law in India is Justice and
Adjudication by the Hon’ble Supreme Court of India. This paper
briefly touches the 4 core issues in which the pronouncements by
the Hon’ble Supreme Court has contributed significantly in the
‘Rule of Law’ debate in India.
a. Power of Delegated Legislation: The Hon’ble Supreme
Court In re: The Delhi Laws Act, 191213 has although,
upheld the constitutional validity of Delegated Legislations
but subjected it to one limitation which is that the
legislature cannot delegate the essential legislative
functions which consists in the determination of the

11
AIR 1996 SC 2715
12
(1994) 3 SCC 1
13
AIR 1951 SC 332
 legislative policy and of formally enacting that policy into
a binding rule of conduct.

b. Judicial Review, Doctrine of Ultra vires and Originalism:

Article 13 of the Indian Constitution is the progenitor of
the Doctrine of ‘Ultra vires’, the Courts (Supreme Courts
& High Courts), using this doctrine, have consistently held
that the exercise of Legislative and/or executive power is
valid (and legitimate) only if the exercise is consistent with
the purposes for which power is conferred and repugnant
to any of the provision of the Constitution. ‘Originalism’
in the American Constitutional theory is used to refer to
limits of Judicial Review. ‘Originalism’ in the Indian
context, as argued by Upendra Baxi is essentially “re-
authorship of the originally written Constitution.”
It is worthy to note that the use of doctrine of Ultra Vires
and the invalidation of statutes, Administrative Orders, by-
laws, Rules etc are far more numerous in India than in the
United States.
c. Innovation of the concept of Basic Structure doctrine: A
uniquely Indian feature of the Rule of Law in India is that
the legislature do not have the authority to alter each and
every part of the Constitution. The Hon’ble Supreme Court
of India in Kesavananda Bharati Sripadagalvaru & Ors.
v. State of Kerala & Anr14 devised the doctrine of Basic
Structure on whose anvil constitutional Amendments could
be tested. Through Kesavananda (supra) & several other
judgements which followed the Hon’ble Supreme Court
has put ‘Rule of Law’, ‘essence of Fundamental Rights in
Part III’, ‘Secularism’, ‘Federalism’, ‘Democracy’,
‘Independence of Judiciary’ etc. as part and parcel of the
Basic Structure.

d. Judicial Activism (or Adventurism): The last aspect that

has a profound effect on the ‘Rule of Law’ debates in India
has been Judicial Activism or as some critics call out
Judicial Adventurism. It is worthy to note that PILs (Public
interest Litigations or Social Action Litigation) has played
a key role in it. A simple example of this is that
fundamental rights which were not part of the letter of the
14
(1973) 4 SCC 225
 Constitution have now been classified as Fundamental
Rights by the Hon’ble Supreme Court, for e.g. Right to
Speedy trial after Hussianara Khatoon & Ors vs State of
Bihar (Thru. Home Secretary)15, most recently, Right to
Privacy after K S Puttaswamy and Another vs Union of
India & Ors16 etc.

CONCLUSION

15
1979 AIR 1369
16
(2017) 10 SCC 1