COMPARATIVE PUBLIC LAW

CONSTITUTIONAL RIGHTS: A COMPARATIVE STUDY BETWEEN

INDIA AND GERMANY

Submitted by:

Ayesha Anand

PRN - 20010241017

LL.M. Batch – 2020-2021

In

October, 2020

Under the guidance of:

Prof. Ankur Sharma

Symbiosis Law School, Noida.

Symbiosis International (Deemed) University, Pune.

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 TABLE OF CONTENTS

1. CHAPTER I-

INTRODUCTION......................................03

2. CHAPTER II – COMPARATIVE

ANALYSIS......................04

3. CHAPTER III – LITERATURE REVIEW..........................06

4. CHAPTER IV – CONCLUSION.....................................08

5. CHAPTER V - BIBLIOGRAPHY....................................09

Constitutional Rights of India and Germany 2

 CHAPTER I- INTRODUCTION

The term “Constitution” has been derived from a Latin term “Constitutio” that is
used for the purposes of regulation and orders, in other words its a set of rules that
is used for making certain decisions collectively. A country’s constitution has
established precedents and a set of fundamental principles which further governs
the state or the country or any other organisations, it is the basic and fundamental
law that provides basis for other laws and gives rights and duties as well. That
being said it is clear that constitution is principal of all other laws that validate from
it. Constitution may or may not be in a written form for each country, when it is not
written the rules of that country are originated from various different sources. Due
to globalisation each and every country’s constitution needs to keep reinventing
itself in order to keep pace with such changes brought to the Global World which
further enhances a comparative analysis of the constitutions. “A particular
constitutional provision is drafted to perform a particular function in a legal system.
Comparative constitutional study can help identify -those functions and show how
different constitutional provisions serve the same function in different constitutional
systems.”1 Fundamental Rights are the basic human rights given to all the citizens,
which constitutes the backbone of the nation, these safeguard and protect the
interests, freedom and liberty of the people against any sort of invasion although
these are not absolute rights. In this paper the constitution of India and Germany
will be analysed comparatively with an aim to understand the variation these two
hold when it comes to the fundamental rights that are granted to the citizens of the
respective countries.

1
Mark Tushnet, ‘The Possibilities of Comparative Law’, 108,The Yale Law Journal (April, 1999)
Constitutional Rights of India and Germany 3
 CHAPTER II – COMPARATIVE ANALYSIS

A brief distinction with respect to the Constitution and some basic features of India
and Germany - The Constitution of India is more flexible than Rigid due to the
amendment power that it holds which can be done by a simple majority of the
parliament while the Constitution of Germany is Rigid as in order to make
amendments there has to be an absolute majority i.e. two-thirds majority of both
the upper (Bundesrat) as well as the lower (Bundestag) houses. Indian
constitution is federal in nature with unitary bias while Germany is a federation,
the residuary powers being held by the states. India provides single citizenship
despite it being a federal country though Germany on the other hand has dual
citizenship. Where on one hand President of India is the states head being nominal
head of the government , the Prime Minister has been vested with the real power;
on the other hand Germany’s government is one of a parliamentary form which is
known as the Chancellors Democracy and the Prime Minister is the Chancellor, the
President is the government’s constitutional head.

Further coming to the Fundamental Rights of India and Germany:

In India the fundamental rights are provided to all the citizens of the country
under the Part III of the constitution from Article 12 to 35, these fundamental
rights have been initially borrowed from the American Bill of rights. The Rights so
enshrined or rather guaranteed by the Constitution of India are Right to equality;
Right to freedom; Right to freedom of religion; Right to constitutional remedies;
Right against exploitation and cultural and educational rights. In Germany on the
other hand the “Fundamental Rights in the Federal Republic of Germany (German:
Grundrechte) are a set of rights guaranteed to everyone in Germany and partially
to German people only through their Federal Constitution, the Grundgesetz and
the constitutions of some of the States of Germany. In the Federal Constitution,
the majority of the Grundrechte are contained in the first title, Articles 1 to 19 of
the Grundgesetz (GG). These rights have constitutional status, binding each of the
country's constitutional institutions. In the event that these rights are violated and
a remedy is denied by other courts, the constitution provides for an appeal to the
Federal Constitutional Court. These rights are older than the basic law which
applies to all the people and are also thus known as the basic rights for the
citizens.”

The rights such as right to equality including equality before law and prohibition on
grounds of race, sex, place of birth, etc; right to freedom which includes speech,
expression, assembly, right to practice any profession or occupation; right to life
and liberty; right to education; protection against arrest and detention and
protection in respect of conviction in certain cases; right against exploitation

Constitutional Rights of India and Germany 4

prohibiting all forms of forced labour, child labour and human trafficking; right to
freedom of religion including freedom of free conscience and profession, practice
or propagation of religion, freedom from certain taxes religious instructions in
certain educational institutes; cultural and educational rights, right to conserve
their culture, language, script, right of minorities to establish and administer
educational institutions of their choice; right to constitutional remedies for
enforcement of fundamental rights and right to life or right to human dignity i.e.
live with respect are some of the fundamental rights that have been provided by
both Indian and German Constitutions.

Some of the other fundamental rights as provided by the German Constitution that
are not guaranteed under the Indian Constitution are the right to property (this
right was provided by the Indian Constitution as well but the was removed by the
44th amendment and since then has been a legal right in India not a fundamental
right); right to Marriage and the family; children born outside of marriage; right to
Privacy of correspondence, posts and telecommunications; Compulsory military or
alternative service; Inviolability of the home; Socialization; Citizenship;
extradition; Right of asylum; Right to Petition; Restriction of certain basic rights by
laws respecting defense and alternative service; Forfeiture and restrictions of basic
rights.

In India a remedy can be asked for through courts by approaching the High court
of a state or Supreme court for violation of their fundamental rights which are
justiciable or enforceable by law as its their fundamental right while in the event
that these rights are violated in Germany a complaint is to be filed and a remedy
is denied by other ordinary courts, the constitution provides for an appeal to the
Federal Constitutional Court, also a constitutional complaint can be filed to assert
fundamental rights vis-à-vis the state.

Constitutional Rights of India and Germany 5

CHAPTER III – LITERATURE REVIEW

1. Rule of Law and Fundamental Rights : Broadly this book 2

deals with the issue of lack of rule of law and thereby leads us to understand
a comparative analysis of constitutional review in US, Germany and Mexico;
it elaborates a theoretical model for achieving Rule-of-law and compares it
to the constitutional review systems of the United States, the Federal
Republic of Germany, and Mexico; and the enforcement of the fundamental
rights or the basic rights so as to what rights do these countries have, the
constitutional review regarding the enforcement of these rights and what is
the German system.

2. The Possibilities of Comparative Law3: The Author Mark

Tushnet in this article has emphasized on the ways in which arguments to
which comparative experience might direct our attention; how one can learn
from such comparisons and the need seeking to learn from comparative
constitutional law, he has explained how it’ll be legally irrelevant if the
arguments within the legal system cannot be connected.

3.

2
Alfredo Narvaez Medecigo “Rule of Law and Fundamental Rights, 2016
3
Mark Tushnet, ‘The Possibilities of Comparative Law’, 108,The Yale Law Journal (April, 1999)
Constitutional Rights of India and Germany 6
 CHAPTER IV – CONCLUSION

A comparative study is both about identifying patterns of similarity and patterns of

difference within particular groups of countries. The analysis of the Constitution of
India and Germany made herein in this paper helps us understand how the
constitution of these countries are not just different in their salient features aspects
but also there are many such differences when we talk about the fundamental
rights that are guaranteed to the citizens of their respective country in order to
provide them liberties and freedom and to thereby safeguard and protect their
interests. To conclude where on one hand India has fundamental rights and legal
rights in accordance with the Constitution of India there on the other hand the
Constitution of Germany has basic rights that are their fundamental rights and
some other rights which are identical to their fundamental right provided under
different articles of the said act. Therefore through the study it can be very well
said that one fundamental right for one country may or may not be the
fundamental right of the other country for example right to Marriage and the
family; children born outside of marriage; right to Privacy of correspondence, posts
and telecommunications; Compulsory military or alternative service; Inviolability of
the home; Socialization; Citizenship; extradition; Right of asylum; Right to Petition,
etc are guaranteed as basic or fundamental rights for the citizens of Germany but
are not guaranteed under the articles of fundamental rights for the Indian citizens
in the constitution of India. Furthermore, there are certain rights that although are
there for citizens of both the countries i.e. India and Germany but are fundamental
rights for one country while merely a legal right for the other country’s citizens, for
instance one such right is the Right to Property, this right is a fundamental right for
Germans while a legal right for the Indian Citizens. Apart from the kinds of rights
another difference is of the remedy or procedure of remedy that are provided for
the citizens in case of violation of any fundamental rights.

Constitutional Rights of India and Germany 7

 CHAPTER V - BIBLIOGRAPHY

Books and Articles (accessed manually or via Google

Books) :

1. Mark Tushnet, ‘The Possibilities of Comparative Law’, 108,The Yale Law Journal
(April, 1999)
2. Alfredo Narvaez Medecigo “Rule of Law and Fundamental Rights, 2016
3. D D basu

Statutes:

1. The Constitution of India, 1949

2. The Constitution of Germany, 1949

Websites:

1.

Journals and Reports:

1. All India Report (used for case laws)

Constitutional Rights of India and Germany 8