FUNDAMENTAL RIGHTS – Compare and Contrast India, USA, South Africa

INDIA

Fundamental rights of the Indian citizens are provided by the constitution of India, that was adopted
on 26th November 1949 which was put into use 26th of January 1950. The fundamental rights are
enshrined in the Part III of constitution. The fundamental rights were included in the constitution
because they were considered essential for the development of the personality of every individual and
to preserve human dignity. All people, irrespective of race, religion, caste or sex, have been given the
right to move the Supreme Court and the High Courts for the enforcement of their fundamental
rights. There are seven categories of Fundamental rights which are covered from Articles 12-35. India
has adopted the fundamental rights from the United States of America.

USA

On September 25, 1789, Congress transmitted to the states twelve proposed amendments. Two of
these, which involved congressional representation and pay, were not adopted. The remaining ten
amendments, known as the Bill of Rights, were ratified on December 15, 1791. It guarantees the civil
rights and liberties to the citizens. The congress is prohibited from making laws establishing the
religion and abridging the freedom of speech of the citizens.

SOUTH AFRICA

The Bill of Rights enshrined in Chapter 2 of the Constitution of Republic of South Africa set out the
Fundamental Rights of all South Africans. It also states when the rights may be limited. The Bill of
Rights is the cornerstone of democracy of South Africa. The Bill of Rights was born out of the
amalgamation of the universal fight against injustice that took place after the Second World War, and
the fight against the inhumane rule of the Apartheid Government in South Africa. The Bill of Rights
is informed by two vital documents in the history of fight for human justice: the Universal Declaration
of Human Rights and the South African Freedom Charter.

INDIA USA SOUTH AFRICA

Part III of Indian Constitution Bill of Rights Bill of Rights

General Rights Amendment I : Article 7: Rights

Article 12- The definition of
fundamental rights.
Article 13- The Article comprises
Law inconsistent with or
derogation of the Fundamental
Rights.
Right to Equality
Article 14- Provision regarding
Equality before Law.
Article 15- Prohibition of
discrimination on grounds of
religion, race, caste sex or place of
birth.
Article 16- Rights of equal
Freedom of religion, speech,
and the press; rights of
assembly and petition.
Amendment II :
Right to bear arms.
Amendment III :
Housing of soldiers.
Amendment IV :
Search and arrest warrants.
Article 8: Application
Article 9: Equality
Article 10: Human Dignity
Article 11: Life
Article 12: Freedom and
Security of the Person.
Article 13: Slavery, Servitude
and Forced Labour.
Article 14: Privacy
Article 15: Freedom of Religion,
Belief and Opinion.
Article 16: Freedom of
Expression
opportunity in the matter of public Amendment V : Article 17: Assembly,
employment. Rights in criminal cases. Demonstration, Picket and
Right of Freedom Amendment VI : petition.
Article 19- Freedom of Speech and
Rights to a fair trial. Article 18: Freedom of
expression; to assemble peaceably
and without arms; to form Association
associations or union or Amendment VII : Article 19: Political Rights
cooperative societies; to move Rights in civil cases. Article 20: Citizenship
freely throughout the territory of Article 21: Freedom of
India; to reside and settle in any Amendment VIII : Movement and Residence.
part of the territory of India; to
Bails, fines, and punishments. Article 22: Freedom of Trade,
reside and settle in any part of
territory of India; to practice any Occupation and Profession.
profession or to carry on any Amendment IX : Article 23: Labour Relation
occupation, trade or business. Rights retained by the people. Article 24: Environment
Article 20- Protection in respect of Article 25: Property
conviction for offences. Amendment X : Article 26: Housing
Article 21- Protection of life and
Powers retained by the states Article 27: Health Care, Food
personal liberty.
Article 22- Protection against and the people. Water and Social Security.
arrest and detention. Article 28: Children
Rights against Exploitation Article 29: Education
Article 23- Prohibition of traffic in Article 30: Language and
human beings and forced labor. Culture
Article 23- Prohibition of Article 31: Cultural, Religious
employment of children in And Linguist Communities.
factories. Article 32: Access to
information.
Right to freedom of Religion
Article 33: Just Administrative
Article 25- Freedom of conscience
and free protection and Action.
propagation of religion. Article 34: Access to
Article 26- Freedom to manage information.
religious affairs. Article 35: Arrested, Detained
Article 27- Freedom as to payment and Accused Person
of taxes for promotion of any Article 36: Limitation of Rights
particular religion. Article 37: Sates of Emergency
Article 28- Freedom as to Article 38: Enforcement of
attendance at religious Rights.
instructions or religious worship in
Article 39: Interpretation of Bill
certain educational institution.
of Rights.
Cultural and Educational Rights
Article 29- Protection of interests
of minorities.
Articles 30- Right of minorities to
establish and administer
educational institutions.
Right to Constitutional Remedies
Article 332- Remedies for
enforcement of rights.
Article 33- The power of
Parliament to modify the rights
conferred by this Part In their
application to forces.
Article 35- The legislative to give
effect to the provisions of this
Part.
SIMILARITIES
There are similarities between the fundamental rights that are enforced by India, South Africa and
USA. The common rights like the Freedom of speech and expression, the provision for fair trial and
freedom of Religion is clearly visible. The similarity between the India Fundamental Rights and South
African Bill of Rights are more similar. The Right to Privacy, Life, Education, Language and Culture,
Freedom of Movement, Equality, Freedom to form association, privacy, human dignity, Cultural and
Educational rights, Cultural, Religious And Linguist Communities rights, Arrested, Detained and
Accused Person Article 19 of the Indian Constitution, Amendment I of Bill of Rights of USA and
Article 15, 16, 17, 18, 21, 22 provides the same rights to the citizens.

DIFFERENCE

There are significant differences between the rights enumerated in the Constitution of India and USA,

1) The Fundamental Rights were there in the Constitution of India from its very inception. Part
III of the Constitution of India deals with the Fundamental Rights, while the Bill of Rights in
the US Constitution were added as amendments to the Constitution there.

2) The Bill of Right didn’t mention any of restrictions on the rights given therein. The
freedom of speech, for instance, found space for restrictions only after the US Supreme Court
ruled that there are limitations to the exercise of these freedoms. However, in India, the
freedoms enumerated in Article 19 including the freedom of speech amongst others have been
subject to reasonable restrictions therein provided in Article 19 itself.

3) The Right to Constitutional Remedies given to us by Article 32 has no equivalent in the US

Constitution.

4) There is no right to bear arms provided to us in the Indian Constitution while that is
guaranteed by the 2nd Amendment in the US Constitution.

5) 5th amendment to the US Constitution guarantees that an accused will be tried for criminal
offence with a system of “Grand Jury”. On the other hand, in India criminal trials are
adjudicated by the Judges only.

6) The 8th amendment to the US Constitution says that bail shall not be denied to an accused,
the imposed fine should not be excessive and inflicted punishment shall not be cruel. These
rights are also made available to Indian people because of well-established precedents
pronounced by the Supreme Court under Article 21.

7)9th Amendment to the US Constitution is quite important because it says that mere
enumeration of certain rights in the Constitution shall not be interpreted to deny the other
rights retained by the American people. The Indian Constitution, on the other hand, does not
contain any such notable Article.

8) Meanwhile, South Africa Bill of Rights have provided other essential provisions including
the Provisions relating to Environment, Housing, Food, Social Security, Water, slavery,
servitude and forced labour.