FOREIGN CONSTITUTION SOURCES OF FUNDAMENTAL RIGHTS

FUNDAMENTAL RIGHTS AND ITS FOREIGN INSPIRATIONS.

Fundamental Rights are essential Human Rights that are offered to every
citizen irrespective of caste, race, creed, place of birth , religion or gender.
These are equal to freedom and these rights are essential for personal good
and society at large.
The framers of the Indian Constitution were in a happy position to examine
the experience of a variety of constitutions from different parts of the world to
select the appropriate rights to be safeguarded as fundamental rights. Out of
all the constitutions prevalent at the time the Indian Constitution framers
were most impressed by the

- Bill of Rights of the American Constitution.

- French Declaration of Rights of Man
- The Irish Constitution, 1935
Our experience with the British Rule was painful because basic rights were
dependent on the whim of the rulers. Hence our constitution secures to the
people basic rights which cannot be trampled by the state. In this respect we
followed the American constitution.
The Constituent Assembly was determined to safeguard certain rights and
incorporated them into the Part III of the Constitution; around the same time
the Universal Declaration of Human Rights was on the final stage of drafting
of the United Nations. Apart from these, the situation and circumstances at
home had influenced the framing of the Fundamental Rights i.e.

- the special disability the people of India suffered during the British Rule.
- the division of Indian society into various castes, creeds and a large section
of Indian society being secluded as untouchables.

- the presence of various religious minorities in India whose cultural and

other rights had to be safeguarded.
Fundamental Rights Part III of the constitution covers all the traditional Civil
and Political rights enumerated in the Universal Declaration of Human Rights
as well The American Bill of Rights. Fundamental Rights were deemed
essential to protect the rights and liberties of the people against
encroachment of the power delegated by them to their Government. They
weave a pattern of guarantee on the basic structure of human Rights and
impose negative obligations on the state not to encroach on individual liberty
There are 6 Fundamental Rights which were incorporated from the American
Bill of Rights

RIGHT TO EQUALITY
RIGHT TO FREEDOM
RIGHT TO FREEDOM FROM EXPLOITATION
RIGHT TO FREEDOM OF RELIGION
CULTURAL AND EDUCATIONAL RIGHTS
RIGHT TO CONSTITUTIONAL REMEDIES.

From a historical perspective, US constitution was made in a period of

revolution, when rights given to people were more important than
maintaining unity and security of the nation. Whereas the Indian
Constitution was made during a time of turmoil, religious disharmony and
communal violence.
Part III of the Constitution (Article 12 through 35) constitutes the entire
minutia on fundamental Rights.

US constitution, First Amendment prohibits the making of any law

respecting an establishment of religion, making US secular nation. It
also provides Freedom of Speech without restrictions and freedom to
Press, right to assemble peacefully. Similarly, Indian Constitution
Provides Fundamental Rights (articles: 25 28) for freedom to
religion, Article 19 which provides Freedom of expression and speech
including freedom of press.
In Contrast, Article 19 has certain enabling restriction which are absent
in US constitution.
The Fourth Amendment guards against unreasonable seizures; it
requires warrants having judicial sanction. It was adopted as a response
to the abuse of the writ of assistance, which is a type of general search
warrant, in the American Revolution.
Indian Constitution, Article 22 (protection against arrest and detention),
it applies to all arrests made under any law except in the cases of
preventive detention. There is no scope of preventive detention in US
constitution. India is only country to have preventive detention which
can be induced in connection with security and public order. The
provision of preventive detention is a necessary evil. Thus, Indian
constitution provides Fundamental rights are in prohibitive nature,
while US constitution provides rights in enabling nature.

Indian Parliament deleted the right to property from the list of

Fundamental Rights in 1978. Whereas in US the right to property is
still fundamental right and no property shall be acquired without
just compensation.
Accused person of crime enjoys certain explicit rights under the VI
Amendment of US Constitution; those are speedy and public trial,

notice of accusation, compulsory process of obtaining witness in his

favor and assistance of legal counsel of his choice. All these rights in
India are not expressly mentioned in the Constitution, nonetheless
these rights are provided by the Supreme Court by broadly
interpreting the life and liberty under Article 21. Further the VIII
amendment of US says that the bail shall not be denied to accused,
the imposed fine should not be excessive and inflicted punishment
shall not be cruel. These rights are also made available to Indian
people because of well established precedents pronounced by the
Supreme Court under Article 21.
Rights granted by the Indian Constitution is divided into two
parts

- Justifiable rights
- Non Justifiable rights
The Justifiable rights were those enforced by a court of law. These
enforceable rights were incorporated in the Part III of the
constitution and are known as Fundamental Rights.
The Non Justifiable rights were incorporated as a directive to the
state to take all measures to provide those rights to individuals
without any guarantee. These were incorporated in the Part IV of
the Constitution and were called The Directive Principles of State
Policy. These were inspired from the Irish Constitution 1935.

The Fundamental Duties of the Indian Constitution has been

inspired by the USSR. They were not a part of the original
constitution and were added by the 42nd Amendment in 1972. The
idea behind incorporation of fundamental duties was to remind the
citizens of the country that they have certain obligations towards the
country and society.
Suspension of Fundamental Rights during emergency as
incorporated in Article 352, 356 and 360 was adopted from the
Weimar Constitution of Germany. This was necessary during the
framing of the constitution as during the partition of the country,
there were communal riots and problems concerning the merger of
princely states. Thus the constitution makers thought to equip the
central government with the necessary authority incase of
emergencies.
Therefore the Indian Constitution has taken references from various
foreign constitutions in drafting Fundamental Rights, Fundamental
Duties as well as Directive principles of State Policy. These
influences have made the Indian Constitution the thorough
constitution that it is today and helps protect and safeguard the
rights of the Indian citizens.