Compare the Fundamental Rights in the Indian Constitution with the Bill of Rights in South
African Constitution. Make a list of rights that are:
a. Common to both the Constitutions.
b. Available in South Africa but not in India.
c. Clearly granted in South Africa but implicit in the Indian Constitution.
A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determine how that entity is to be governed. In this context Indian and South African constitutions have some contrasts and similarities in their evolution and features.
Similarities between Indian constitution and South African constitution:-
1- Both Indian and South African constitution evolved through a long struggle against colonialism and imperialism.
2- While drafting constitution both countries closely observed constitutions of other countries and made their own constitutions as the best in the world. In both Constitution, every citizen has got equal rights and equal opportunities.
3- Both Countries Constitution’s “Preamble” starts with wordings “We the People”, meaning People are Sovereign and constitution draws its authority from the People of the nation.
4- Both Fundamental Rights and Bill of Rights form the bedrock of the constitution and democracy under the Indian and SA Constitutions respectively. Just as the Fundamental Rights under Indian Constitution, the Bill of Rights under the SA Constitution are available against the State. In fact some limited rights under both Constitutions are available against private citizens also. Neither the Fundamental Rights nor Bill of Rights are absolute both are subject to reasonable restrictions and limitations.
5- Both allow certain degree of freedom to the State to work for upliftment of the marginalized and downtrodden.
Like the constitution of South Africa certain articles of Indian constitution are amended by two-thirds majority of parliament.
Differences between both the constitutions:-
1- Voting rights: India gave voting rights to limited number of people before Independence by Government of India act 1919, on the other hand South African constitution gave voting rights to its citizens after its independence.
2- The establishment of a Federal Court: India Established Its Federal Court by Government of India Act, 1935. On the other hand South African Federal court is established by Interim constitution of 1993.
Features of Indian and South African Constitutions
3- Indian Constitution was framed in 1949 and we borrowed the feature of Constitutional Amendment from South Africa. Though South African Constitution, framed in 1996 against backdrop of Apartheid and civil war like conditions, does NOT have any exclusive Fundamental Rights like Indian, but there are many similarities and differences between the two.
4- Right to vote which finds a place in the Bill of Rights is only a statutory/legal right in India i.e., it does not have the status of a Fundamental Rights.
5- Right to property, which finds a place in the Bill of Rights was removed from Part III of the Constitution by the 44nd Constitutional Amendment and has been placed under Art 300A thereby reducing its status to that of a legal right.
6- Right to information, which is included in Bill of Rights is only a statutory right in India.