Table of Contents
- The Rise of free India and its Fundamental rights
- USA: Bill of Rights
- The contrast between Indian fundamental Rights and American Bill of rights
The following paper touches on the very essence of both India as well as the USA’s rights. We currently live in a world where we find the civilians who take for granted their rights and their duties towards their nation. I write this paper with one thought in mind is whether the rights that we have right now are enough for us to conclude that we are free or whether those rights are formed to make us believe that we are free. I do believe both the nations, India as well as the USA are true believers of liberty but do their rights outshine the same motto? And if they think they do then do the citizens of the nation feel the same way?
The question here is not how many rights a nation has over the other but how many of the given rights provide a better standard of living to their citizens. Through the following paper, I would like to address key roles that both the nation’s rights play in the development of their respective nations as well as the downfalls of having these rights or lack thereof.
The USA is known as the torchbearer of free reign and rule for the citizens. India on the other hand has acquired its position from being oppressed to be a free nation. There is a lot you will find that is common between the two nations. But what one fails to see is how one is still on its way to total freedom and the other is already there. It is the harsh truth that after years of being oppressed India fought for its freedom and held its position as a nation that truly believes in the right to free speech and the right to live. One might also argue that the nation has formed its entire constitution taking inspiration from other nations. One of them being America. Whether the rights are the same or whether one nation did a better job at forming it than the other is the real question.
The Rise of free India and its Fundamental rights
For a while now India was oppressed by British rule. They had been fighting tooth and nail to gain their freedom. There were no human rights. The nation’s citizens were suffering from a lack of basic needs and no voice. Two major key actors played a role in the formation of the so-called fundamental rights. One being the freedom fighters, the leaders who had suffered a lot under the British rule had a positive attitude towards the rights, and second, would be the Indian society in general. The whole foundation of Indian society is based on caste, religion, culture, different linguistic groups. All of them needed a medium and a strong platform to voice out their concerns and motivate the citizens to live a life free of oppression.
This led to the creators of the constitution as a source of inspiration to build a strong yet vocal list of rights for their nation. During the time of formation of these rights, the bill of rights already existed so they had a good source to look forward to. India enforced its constitution on the 26th of November 1949 but was adopted on the 26th of January 1950. The Creators have formulated one constitution and one citizenship for the entire nation. That is one significant entity that separates them from the USA.
Apart from not having the additional Human rights that the USA has there are a lot of other factors that show that India did after falter while formulating its fundamental rights and the constitution in general.
India in general highlights few key fundamental rights such as the right to freedom of speech and expression, the right to live in peace and without arms, the right to form associations and unions, etc. These were namely few of the rights that spoke to me but there are plenty of others that have flaws that need fixing when compared with the USA’s bill of rights.
USA: Bill of Rights
Just like India, America also had struggled with gaining and formatting its own constitution and rights free from oppression. The nation has been the first one to introduce the concept of rights. They additionally added to their constitution the Bill of Rights. They did so because they believed that every citizen has the right to liberty, life, freedom of speech, press, worship. The very essence of their rights lies in the above belief. The nation and the creators believed in forming a union of citizens who have the right to live a happy life with a good and ethical standing. The nation incorporated the Bill of Rights in the year 1791 which constituted of ten amendments.
The nation had a difficult time reaching the position that they are in right now, but they did so by believing that they and to provide a better and safe option for their citizens. They believed in protecting their citizens not only from third parties but also from their own government.
The contrast between Indian fundamental Rights and American Bill of rights
• Freedom of speech:
One might argue that both the nations provide equal opportunities to exercise the above rights but what one fails to understand is that one nation recognizes the right as a right and the other considers it as a bonus advantage. If for instance, you take the current scenario in India, you will have seen through media that there have been a lot of incidents where the press has been oppressed and not given enough voice or sometimes not at all. Whereas in the USA, you cannot find a more vocal position for the press. Moreover, you can find the freedom to press in the first amendment whereas India has included it under the right to freedom of speech and expression. One needs to read it thoroughly to understand its meaning. If theoretically, it falters how is one supposed to expect it to function well in reality?
• Legality in filling petition:
Indian rights do not allow you to file a petition against the government as a whole. It only allows you to file a petition against the supreme court. Whereas the bill of rights exclusively allows you to file a petition against the government. This means that you can reach the entire judiciary system including the executive. This just goes to show that Indians just acknowledge the thought of freedom of choice and protection for the weak but when one needs to approach or voice out their concerns against the ruling, they cannot reach them neither can they approach them.
• Arms and Ammunition:
American Bill of rights under the second amendment recognizes the right to hold guns for their own protection and safety for themselves as well as their own property. You will find that in America guns and ammunition are sold as commodities without any legal complications. On the other hand, in India, it is not recognized as a legal right and is been regulated by the government. Hence you would not find it under the category of commodities. In my defense, I believe America needs gun control more than ever. Given the current scenario with an increase in mass shootings, hate crimes, riots, protests, increase in illegal ownership of arms and ammunition, the nation should revisit this right. India on the other hand has restricted and regulated the said right and so far, is trying to enforce better laws in ownership and usage of guns in the nation.
• Fifth Amendment and right to the grand jury:
We are aware that the fifth amendment in the bill of rights allows every citizen of the country the right to trial and the right to have a grand jury. The jury might differ from six to twelve depending on how crucial and huge your case is. This is understood through a legal lens is best understood through the concept of due process. Due process in legal terms means when a person is tried in a court, they have the right to be tried with just and fair means. This means that every court in the United States of America needs to have a grand jury of six to twelve common people depending on the case type who help the judge in deciding guilty or free. This by the fifth amendment is the right and just way of serving the true interests of the citizens and always maintain a just legislature. But India begs to differ. As they just have the judge in the session who has to take all the pressure and has to take the final decision. There is no mention of the jury and there is no mention of a just trial. This is true by theory and practice. One can clearly see the downfall of the system here. India clearly restricts their citizens from having liberty and this to me puts the judiciary in question. Moreover, India has established the recognition of the said right under the heading procedure established by law. Where it explains that the legislation can and has the right to restrict a citizen from having full liberty and be tried by the established power of the legislator. One might argue that over the period of time, India has broadened the meaning of the said right, and, but still, effective measures haven’t been taken to be as equal and fair as the USA.
• Right to Property:
Although one might argue that this should constitute a human right, there is a significant disagreement from India. The creators have removed the right to property from its fundamental rights since 1978. According to my, this is a clear violation of the first and foremost right that is the right to freedom because what is freedom if one cannot simply hold its own property without due process? On the other hand, the USA has recognized this right and one must have the freedom to acquire any property provided in return one has paid due to compensation.
• Importance of the sixth Amendment and Eighth Amendment:
The USA broadens the meaning of liberty and justice beyond providing a court and a justice at the bench. This right ensures that any accused has the right to assign themselves with a lawyer of their own choice, demanding a speedy and fair trial and also to hold a position that allows them to have a process that obtains all the necessary witness and evidence required for their casework. This elaborate and structured right provides the accused with all the means and methods to fight for liberty. On the other hand, India fails to recognize the said right direction.
One has to read the rights to understand and interpret it and go through the right of liberty and life in a deeper sense to know that they have provided their citizens with equal opportunities to fight for their innocence. This right here is the main issue with the formation of fundamental rights. They fail to provide direct classifications and implications of the rights rather one has to dissect every right and try and test them to know whether the citizen has the said right or not.
In the same way, the Eighth amendment allows the accused of the bail. This bail could amount to a certain amount of fine. Now, given in the amendment, the fine shall not be excessive, and neither should be the punishment cruel if found guilty. This is a clear demonstration of a right that is served both for a weaker and stronger population of the country. None the less one can also find the said right in the fundamental rights provided by the Indian constitution.
• Major disparity between both the rights:
It is obvious to notice that the bill of rights is an addition beyond constitutional rights. It is not exhaustive material. They prove to be an additional boost in the power of the citizens of the State. All these amendments are and have been working for the people. They serve the true essence of liberty. They fulfill all the basic as well as the complex issues a citizen might have in the near foreseeable future. Sure, one right or two might not align with the interests of the general public but it sure helps a general goal that is to serve and protect the nation.
While interpreting the bill of rights, what struck me is a lot of times one could see a glimpse or two of Locke’s views, ideologies, and beliefs. Locke was a true believer in having rights to humans as a necessity and to have a future that abides by not alienating the humans of the basic decency of rights. Bill of rights is an example of the same. Bill of rights is an addition to the constitutional rights that a citizen holds in that nation.
On the other hand, one can clearly note that all the rights that an Indian citizen enjoys are the rights created under the constitution. They are not privy to any rights beyond constitutional rights. They do not have the luxury of having additional rights. The creators did not believe in inculcating the importance of human rights. This is totally against Locke’s ideology and hence should be the major difference between the outlook of viewing India and the United States of America’s way of governing.
Through this paper, I wanted to establish a thought or a question that should have been addressed a long time ago but still hasn’t is why is it that we live in the twenty-first century and we still have nations who have such diverse functioning nations? Why is it that one nation allows its citizens the right to be free in full capacity while the other puts conditions on it? Why does one believe in letting its citizens practice their right to liberty and life in full capacity without any restrictions whereas the other fails to mention that absence of the said right even in the slightest has its own repercussions?
It is painfully obvious that the one I am attacking here is the fundamental rights laid down by the Indian constitution. Even though the fighters fought the great war they failed miserably at forming a just and true constitution for their citizens. They faltered to provide them with basic as well as intricate human rights which they need to survive.
So, my question here is: “Is India really free or does freedom come to the citizens in conditions?”
