Bill of Rights of USA v. Fundamental Rights of India

The Bill of rights in USA and the Fundamental rights in India are similar in certain aspects and quite different in other. These rights help the individuals in integrating with the society by incorporating certain morals like educative values, non-discriminatory values, equal opportunities, right to health, to shelter, to privacy and many more. They both are basic essential rights provided to the inhabitants of the nation which protects their liberties and freedom from the encroachment of the state or the government.

Bill of Rights:

The bill of rights in the United States is the first 10 amendments to the constitution. The US Constitution was drafted and its final text which consisted of 4200 words came into force on September 1787.  James Madison proposed the bill of rights which became the United States Bill of Rights effective from December 15, 1791. The Us bill of rights was largely influenced from the George Mason’s 1776 Virginia Declaration of Rights, the English Bill of rights, 1689 and the Magna Carta, 1215.

James Madison initially drafted 19 amendments which were proposed to the congress on June 8 1789. This was then narrowed down to 17 by the House of Representatives which was again narrowed to 12 by the senate with the consent of the house and was sent to states for ratification on September 1789. Out of the twelve amendments proposed by the congress, two were rejected which were about apportioning representation in the House of representatives and the second was to prevent the congress members from voting to change their pay until the next session of congress.

The first 10 Amendments[1]:

  1. First Amendment: Freedom of religion, speech and the press; rights of assembly and petition.

This right allows to freely express oneself and allows to freely worship whoever one wants. It also includes the freedom to assemble and to file petition and many more.

2. Second Amendment: Right to bear arms.

This right allows individuals to have weapons in their possession.

3. Third Amendment: Housing of Soldiers

This right guarantees the people that the government cannot house troops and soldiers into their houses without their consent.

4. Fourth Amendment: Search and Arrest Warrants

This right provides that the government cannot search or seize any possession of the people without them being properly informed of.

5. Fifth Amendment: Rights in criminal cases

This amendment gives the individual the liberty to stay silent inside the court if they do not want to testify. It allows the right to fair treatment in a court.

6. Sixth Amendment: Rights to a fair trial

This amendment guarantees the people of a fast and public trial which implies that the government cannot simply call off a trial and must have it done within a fair amount of time.

7. Seventh Amendment: Rights in civil cases

This right allows the people to be tried by a jury in civil cases.

8. Eighth Amendment: Bails, fines, Punishments

This amendment ensures fair treatment of the individuals. It protects them from cruel and unusual punishment. They ensure the reasonable treatment for the particular crime. It also protects people from excessive bail which is the money that they pay to go instead of waiting for the trial.

9. Ninth Amendment: Rights retained by the people

This amendment says that not all rights are listed in the constitution explicitly and those can be claimed by the people.

10. Tenth Amendment: Rights retained by the states and the people

This amendment gives the United States Government the power not vested with the separate state or with the individual people[2].

The Fundamental Rights:

The Fundamental Rights are enjoyed by the citizens of India and certain rights are applicable to non-citizens also. They are largely inspired and incorporated from the USA’s Bill of Rights along with certain values of India’s traditions and civilizations. The Fundamental Rights are very essential for the all- round development of the individuals and the country. They uphold the equality and dignity of all the individuals as well as the dignity of the nation. The Fundamental Rights enshrine in part III of the Constitution of India and initially there were seven Fundamental Rights but later on right to property was abolished from the status. The six Fundamental Rights[3] are;

  1. Right to Equality
  2. Right to Freedom
  3. Right against Exploitation
  4. Right to Freedom of Religion
  5. Cultural and Educational Rights
  6. Right to Constitutional Remedies

Bill of Rights v. Fundamental Rights

Both the Bill of Rights and Fundamental Right focus on bestowing civil liberties and freedom to its individuals by maintaining a balance between individual liberties and social interests. Its main objective is to protect the individuals of their liberties from being infringed by the public officials or government.

They cannot be easily amended by the legislature as in India; there is a principle as the basic structure of the constitution which absolutely cannot be amended which includes the fundamental right, whereas for United States; there are two types of rights i.e., entrenched and un-entrenched rights. Entrenched rights cannot be amended or repealed by the legislature whereas un-entrenched rights are normal statute law that can be modified by the legislature.

The Bill of Rights of the first ten amendments provide certain basic rights such as the right to speech, right to assembly, right to religion, right to speedy trial etc. either directly to the individuals or can be declared by the states. Rights which are not provided by the Bill of Rights can be claimed by the 9th and 10th amendments of the US Constitution. The Fundamental Rights also provide the elemental liberties to the individuals like the right to equality, right to education, right to privacy, right to health etc. and only the rights provided under Part III of the constitution can claim the status of the Fundamental Rights and no other right outside part III will be treated as the same.

Neither the Bill of Rights nor the Fundamental Rights can be considered as absolute as both are bound by respective restrictions. The Bill of Rights is imposed of restrictions by the US congress which is made valid or invalid by the US Supreme Court. The Fundamental Rights are also bound by certain elaborative restrictions. Unlike US Bill of Rights, the Fundamental Rights cannot be amended or restricted (on reasonable grounds) by the parliament by any law but requires an amendment act. The Supreme Court also has the power to impose reasonable restrictions on the Fundamental Rights by interpreting the constitution and this is power of the courts is known as the judicial power.

The Fundamental Rights can be suspended during the national emergency times except for article 21 and article 20. But the Bill of Rights can never be suspended even during any national emergencies.

The US Constitution recognizes the right to due process as one of the basic right, which means the legal requirement, that a government must respect a person’s legal rights before taking from them. This escalates the power of judiciary. On the other hand, Indian constitution does not recognize such right of due process, at least not explicitly.

Conclusion:

To shortlist, both Bill of Rights and the Fundamental Rights are framed to confer and guarantee the individuals liberties as well as to limit and check on the powers of the state. Yet, they differ in certain ways and manner to fulfill their objective though at the long run, do the same job.

AUTHOR: Jaya Hari Rasika J, Research Board Member-1.


[1] The Bill of Rights,CONSTITUTIONFACTS.COM, https://www.constitutionfacts.com/content/constitution/files/Constitution_BillOfRights.pdf

[2] Bill of Rights, LEGAL INFO. INST., https://www.law.cornell.edu/constitution/billofrights

[3] Fundamental Rights, IAS ABHIYAN, https://www.iasabhiyan.com/difference-between-fundamental-rights-and-constitutional-rights/#:~:text=A%20constitutional%20right%20is%20a,to%20everyone%2C%20unlike%20fundamental%20rights. (last visited Jan. 27, 2019)

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