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Day 8 – Q 2. In philosophy  and essence, the fundamental rights are similar to the bill of rights enshrined in the US constitution. Elucidate.

  • IASbaba
  • June 18, 2020
  • 0
GS 2, Indian Polity, TLP-UPSC Mains Answer Writing
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2. In philosophy  and essence, the fundamental rights are similar to the bill of rights enshrined in the US constitution. Elucidate.

दर्शन और सार में, मौलिक अधिकार अमेरिकी संविधान में निहित अधिकारों के बिल के समान हैं। स्पष्ट करें

Demand of the question:

It expects students to write about the similarities between fundamental rights of Indian constitution and bill of rights of US constitution in essence and philosophy. 

Introduction:

At the time of the framing of the Indian Constitution, a vision for the future society that we aspired to become and a blueprint of the nation whose borders were soon to come into existence; both these imperatives came together to constitute the Fundamental Rights Chapter, which still remains the beating heart of the Constitution.

Body:

US case of bill of rights: India’s fundamental rights:
Not originally part of US constitution. First Congress amended the Constitution by adding what became known as the Bill of Rights in ten amendments to the Constitution which still stands as both the symbol and foundation of American ideals of individual liberty, limited government, and the rule of law.  Part 3 of the Indian constitution consists of fundamental rights. It included rights for equality, liberty, freedom of speech, movement, religion. It also ensures protection from arbitrary detention, exploitation and protection for minority language and religions.
Most of the Bill of Rights concerns legal protections for those accused of crimes. This part of Indian constitution is legally enforceable and these rights are protected against state action.  
The first amendment, perhaps the broadest and most famous of the Bill of Rights, establishes a range of political and civil rights including those of free speech, assembly, press, and religion. Ironically first amendment in India actually curtailed then fundamental right of right to property to ensure land reforms.

Similarity in philosophy and essence:

  • Two imperatives shaped India’s freedom struggle. The first was liberation from oppressive colonial rule. The British government was autocratic and repressive, treated Indians as subjects to be ruled rather than equal participants in government, and frequently resorted governing by arbitrary fiat rather than by the rule of law. Second imperative was the internal reforms to deal with social and economic inequality, caste system and untouchability.  
  • In response, Indian articulated a vocabulary of civil rights that would allow them to express their aspirations, engage in political and cultural dissent, and create a public sphere that would form the basis of self-government.
  • Similarly colonies of immigrants in second half of 18th century in North America, in the war of independence fought against British government for civil rights and economic rights.
  • Actually, Ideas of fundamental rights inspired from French revolution ideals of liberty, equality and fraternity. It took codified shape in US congress passed bill of rights. The core philosophy underlying fundamental rights was explained by Dr. Ambedkar in his last speech to the Constituent Assembly. 
  • Dr. Ambedkar observed that liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.
  • Federal polity: Federal nature and written constitution demanded codified common minimum rights enforceable by law to maintain unitary balance of constitution. Fundamental rights proved helpful over the course of time to strengthen national unity and integrity. It helped to fight regionalism in India like right to move to any part of country and settle. Similarly in US, it kept away forces of secessionism. 
  • Belief in the freedom of religion is also part of philosophy behind fundamental rights in both countries. India and US share positive secularism which addresses religious plurality and peaceful coexistence of all the religions.
  • Individual centric nature of fundamental rights, priority of individual rights over community rights is another thread shared by bill of rights and fundamental rights.     

However, fundamental rights differ from bill of rights in many aspects such as right to bear arms for self protection. Fundamental rights in India are not sacrosanct and clouded by reasonable restrictions due to violence witnessed in partition and aftermath. In recent time, national security act, UAPA and defamation cases used by state to curtail fundamental rights. 

Conclusion:

Despite of restrictions and weak civil society to maintain enough surveillance on protection, fundamental rights make Indian constitution a transformative constitution. It transforms subjects to citizens, and brings ideas of freedom and equality into spaces they would otherwise never come. The task of future generation is to defend that precious heritage.

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