Fundamental Rights in India v. American Bill of Rights

Introduction

The Framers of the Indian Constitution took as long as 2 years, 11 months and 18 days to draft the longest Written Constitution in the world. Resulting from several deliberations amongst numerous members of the Constituent Assembly, the final draft of the Constitution of India, 1950 was enacted on the 26th of January, 1949. The original Constitution consisted of 395 articles in 22 parts and 8 schedules. It was ultimately an amalgamation of the best features adopted from various constitutions across the globe. However, these features were delicately moderated to meet the needs and aspirations of Independent India.

The most important feature of the Indian Constitution, from the perspective of her citizens, is Part III which deals with Fundamental Rights. This Part discusses the relationship of justice and fairness between the State and the citizens. It enhances the rights that all citizens, and in some cases non-citizens, are guaranteed protection against the State's arbitrary action. This Part constitutes 19 rights under 6 different categories, namely:

1. Right to Equality (Articles 14 - 18)
2. Right to Freedom (Articles 19 - 22)
3. Right against Exploitation (Articles 23 & 24)
4. Right to Freedom of Religion (Articles 25 - 28)
5. Cultural and Educational Rights (Articles 29 & 30)
6. Right to Constitutional Remedies (Article 32)

The concept of Fundamental Rights has been adopted from the Constitution of the United States. While the idea has been broadly based on the American Bill of Rights, the rights in Part III have been remodelled to better suit Indian society. The differences and similarities between the two documents are further discussed in great detail.

Similarities between Fundamental Rights and the Bill of Rights

Part III of the Indian Constitution is said to have been adopted from the Bill of Rights of America. However, the significance of several of the provisions is different in the two Constitutions.

Freedom of Speech, and Press: The 1st Amendment to the American Constitution deals with the people's freedom of religion and speech. It also explicitly guarantees the freedom of the press. The Indian Constitution is similar to the Bill of Rights in guaranteeing the protection of these rights to all citizens.

Article 19(1)(a) of the Indian Constitution provides citizens with the Right to Freedom of Speech and Expression. Over time, the Supreme Court of India has also interpreted this provision to include the Freedom of the Press. In the landmark judgements of Romesh Thappar v. State of Madras, 1950 and Indian Express Newspapers v. Union of India, 1958, the Supreme Court recognised that the freedom of the press forms the foundation of the democratic character of India thereby making it a vital component of the Indian system. Nevertheless, this right has been subjected to 'reasonable restrictions' in both, India and the United States. Despite this commonality, the restrictions considered to be reasonable differ between the two Nations.

Freedom of Religion: While the Bill of Rights provides the freedom of religion as a part of the 1st Amendment, the Indian Constitution explicitly mentions the freedom of religion guaranteed to all persons within the territory of India. This provision holds special importance in Indian society as a result of her secular feature. Moreover, the concept of secularism, as interpreted in the Indian context, includes the fact that the State does not promote or practice a particular religion. The State is bound to assist the promotion of all religions existing in Indian society, without any kind of bias.

Right to Live with Dignity and Privacy: The 4th Amendment to the American Constitution establishes the people's right to a secure environment and the right against unreasonable search and seizure. The Right to Live with Dignity, judicially included under Article 21 of the Indian Constitution, protects all persons against State actions that impact the individual's dignity and personal liberty. The Supreme Court of India has established these rights through its law-making power, exercised in the case of Maneka Gandhi v. Union of India, 1978. This broad interpretation of Article 21 is inclusive of the rights under the 4th Amendment to the American Constitution. Moreover, this constitutional provision is also strengthened through the addition of Section 93 of the Indian Penal Code, which clearly states the requirement of a search warrant to access the individual's property. This is further constitutionally guaranteed through the Right to Privacy available to all individuals within the territory of India.

Rights of the Arrested: The phrase "taking the fifth" has been popularised worldwide through several television shows. These cinematic instances only highlight the provisions of the 5th Amendment partially, i.e., the segments of right against double jeopardy and self-incrimination. However, there are two more vital segments to this amendment which are those of the right against indictment, unless by a Grand Jury, and the right to life and liberty, unless deprived by the due process of law.

While these rights are all guaranteed to Americans under a single provision, the Indian Constitution grants these rights through separate provisions thereby enabling a broader interpretation of each. For instance, Article 21 of the Indian Constitution provides the right to life and personal liberty. The Indian judiciary has, with time, interpreted this right to include several other rights that are considered necessary for a fair and peaceful co-existence. In addition, Articles 20(2) and 20(3) of the Indian Constitution also provide protection to the citizens against double jeopardy and self-incrimination respectively.

Right to a Speedy Trial: The 6th Amendment to the American Constitution guaranteed citizens the right to a speedy trial before an impartial jury. Similarly, the Indian Supreme Court has included this right under Article 21 of the Indian Constitution. This was done through their broad interpretation of the provision in the landmark case of Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, 1980. In this case, the Court held that the right to a speedy trial is included in the "reasonable, fair and just trial" guaranteed under Article 21.

Right to Counsel: The 6th Amendment also states that it is the right of an accused to seek legal assistance for the purposes of his defence. The Indian Constitution also grants this right, amongst others, to all accused under Article 22(1).

Criminal Principles of Proportionality: The 8th Amendment to the US Constitution guarantees the right against excessive bail or fines and unusual and cruel punishments. The Indian Constitution protects those within Indian territory against the arbitrary action of the State under Article 14. This provision deals with an individual's right to equality before the law.

Differences between Fundamental Rights and the Bill of Rights

While several provisions in the Indian Constitution are similar to those guaranteed through the Bill of Rights, the latter also provides several other rights that were excluded from the Indian Constitution considering the social setup thereof. A few such provisions are:

Right to Carry Arms

Right to a Jury Trial in Civil Cases with Compensation above $20: Provisions such as this were not included in the Indian Constitution since the practice of Jury Trials was already on a descent at the time of the making of the Constitution. However, the said decline did not prevent the members of the Constituent Assembly from deliberating on the furtherance of the practice. However, after discussing past experiences with the British and observing the biases created by a Jury during a trial, the Constituent Assembly decided against continuing the system. Several reasonings were also made by the Law Commission of India in multiple reports on the impact of a Jury System in India.

Assurance that the Bill of Rights does not Eliminate the Other Rights: While the American Constitution explicitly provides for such assurance under the 9th Amendment, the Indian Constitution does not. However, in the case of Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., 1973, a Basic Structure Doctrine was laid down. As per this doctrine, certain features were said to be the basic structure of the Constitution of India thereby making them un-amendable. Thus, any law or provision that was found to be violative of the said Basic Structure of the Indian Constitution, was deemed to be void ab initio.

Separation of Powers between States and Union: The preamble to the American Bill of Rights states that the relevant provisions are for the purposes of avoiding abuse of powers by the different States or the Federal Government. It also aims to increase the confidence of the public in the State. Thus, the inclusion of provisions regarding the separation of powers is justified.

However, Part III of the Indian Constitution specifically addresses the relationship between the public and the State. More specifically, it specifies the protections available to the public against certain unwarranted actions of the State authorities. Therefore, Part III does not require provisions similar to the 10th Amendment. Nevertheless, the makers of the Indian Constitution have consciously elaborated on the separation of powers, both vertically and horizontally, between the different levels and organs of the Government respectively. Details regarding the vertical separation of powers have been mentioned in the 7th Schedule to the Indian Constitution. Similarly, the separation of powers among the different organs of the Government has been explained in detail in different Parts across the Supreme Law of the Land.

The Doctrine of Waiver of Fundamental Rights: A "Waiver" refers to the conscious and intentional sacrifice of certain powers or rights with full knowledge of the consequences of doing so. One of the widely recognised differences between the Indian Fundamental Rights and the American Bill of Rights is the doctrine of Waiver of Fundamental Rights. American law provides the public with the opportunity to waive off their constitutional rights provided certain criteria, such as, intention, knowledge of consequences and voluntariness are met.

However, the State authorities of India deem the Constitution the Supreme Law of the Land. Moreover, Fundamental Rights form a vital part of the Basic Structure Doctrine. Therefore, the public is not given the liberty to waive their fundamental rights, or any other constitutional rights under any circumstances. The Indian Judiciary clearly stated in the case of Behram Khurshed Pesikaka v. State of Bombay, 1954 and Olga Tellis & Ors. v. Bombay Municipal Corporation, 1985 that the Fundamental Rights were based on the principles established in the Preamble and thus the waiver does not apply to constitutional policies. Similarly, Justice Bhagwati also held in the case of Basheshar Nath v. Commissioner of Income Tax Delhi and Rajasthan and Anr., 1959 that the waiver does not apply to the Fundamental Rights in India since the Nation is a developing democracy and thus it becomes the duty of the Supreme Court to protect the rights enshrined in the Constitution.

Conclusion

The comparison between the Fundamental Rights enshrined in the Indian Constitution and the American Bill of Rights reveals both striking similarities and significant differences. While the Indian Constitution draws inspiration from the US Constitution, it has uniquely tailored its provisions to suit the needs and aspirations of Indian society.

Both constitutions recognize and protect essential freedoms, such as freedom of religion, speech, and the press. These fundamental liberties serve as pillars of democratic societies, fostering open dialogue, expression, and the pursuit of individual beliefs. Furthermore, certain rights related to the arrest and trial process find resonance in both documents, highlighting the shared commitment to due process and fair treatment.

Nevertheless, The Indian Constitution does not introduce a specific doctrine of waiver of Fundamental Rights. There is no provision that allows for the voluntary surrender of fundamental rights under certain conditions. The Indian Constitution upholds the Fundamental Rights as essential and inviolable rights of individuals. The Constitution does, however, allow for certain reasonable restrictions on the exercise of these rights in the interest of public order, morality, security, and other specified grounds.

In conclusion, while the Indian Constitution adopted and adapted certain aspects from the American Bill of Rights, it has evolved into a distinctive legal framework. It amalgamates global influences with indigenous wisdom to safeguard the rights and values cherished by Indian society. The comparative analysis underscores the importance of tailoring constitutional provisions to suit the unique social, cultural, and historical context of a nation. By understanding these similarities and differences, we can appreciate the diverse approaches taken by different countries to protect and uphold the rights of their citizens.

References:

1. Romesh Thappar v. State of Madras, 1950
2. Indian Express Newspapers v. Union of India, 1958
3. Maneka Gandhi v. Union of India, 1978
4. Hussainara Khatoon (IV) v. Home Secretary, State of Bihar, 1980
5. Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., 1973
6. Behram Khurshed Pesikaka v. State of Bombay, 1954
7. Olga Tellis & Ors. v. Bombay Municipal Corporation, 1985
8. Basheshar Nath v. Commissioner of Income Tax Delhi and Rajasthan and Anr., 1959