Comparative Constitutional Rights Chart

More Information on...
the Constitution of India

       

        T.K. Tope, in the second edition of his authoritative hornbook titled Constitutional Law of India, wrote that the drafters of the Indian Constitution attempted to combine the best elements of the "British theory of parliamentary sovereignty and the American theory of judicial supremacy." Tope, at 37. While the Indian Constitution provides for a central Parliamentary role in numerous areas of the law, fundamental rights limit the powers of Parliament and are explicitly incorporated within the body of the Constitution. The fundamental rights of the Indian Constitution are positive in nature, not merely negative restrictions upon governmental action, and their violation gives rise to a constitutional remedy. Judicial review

        Tope addresses the philosophical origins of the Indian Constitution’s provisions on rights, and rejects any influence of the natural rights theories that were important in shaping the text of the U.S. Constitution, though rejected in modern U.S. jurisprudence. Tope, at 39-40. Also unlike the U.S. model, the theory of rights driving the Indian Constitution gives an important role to rights of communities and groups, in addition to rights of the individual.

        The limitations upon rights that are incorporated in the Indian Constitution are of great importance in the interpretation and application of those rights. The Indian Constitution incorporates language on limitations as a part of many of the Articles that define fundamental rights. Limitations on rights are therefore more often specific rather than general, much more so than in many other rights-oriented constitutions of the world. One specific example is Article 19, which in its first part lays out a number of fundamental freedoms and in its second through sixth part provides a specific set of limitations for each of these freedoms. In these provisions the drafters of the Indian Constitution sought to explicitly provide for the police power and other sorts of limitations on rights that U.S. courts have found it necessary to develop in caselaw. Tope, at 108-09.

        The sources of Indian Constitutional rights include the U.S. Constitution and the French Declaration of 1789, as well as the special social needs and problems of India’s population. For example, there are special provisions on citizenship made necessary by the confusion and turmoil during India’s birth caused by partition into India and Pakistan. Also, there are rights directed at lessening the negative social effects of the caste system and the religious and social divide between Hindus, Muslims, and other religions making up India’s population.

        The Constitution of India contains both civil/political and economic/social rights.  Many of the economic and social rights, however, were included as "directive principles."  Under Art. 37, the state (executive and legislative branches) has a duty to apply these principles in making law.   This duty cannot be enforced by the courts.  However, it seems this duty and the principles themselves are justiciable, in the sense that the courts may take note of them. See Tope at 335-36.

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