THE NORTHCAP UNIVERSITY,

GURGAON

CONCEPT OF FUNDAMENTAL RIGHTS IN THE

CONSTITUTION-COMPARATIVE STUDY OF INDIA
AND U.S.A.

DISSERTATION
SUBJECT CODE: SLC 511

SUBMITTED BY: - SUBMITTED TO:-

VAIBHAV YADAV Ms. Srishty Banerjee

11LLB064
V YEAR
BBA-LLB (HONS.)
IX SEMESTER WORDS: 26081

1|Page
 RESEARCHER DECLARATION

I certify that the dissertation titled “Concept of Fundamental Rights in the constitution-
comparative study of India and U.S.A.” is submitted by me as the partial fulfillment of the
requirement for the award of the degree BBA-LLB (Hons.) awarded by this institution. This is
solely my own work other than where I have clearly indicated that it’s the work of others and
given due regard to it. This is the record of an original unpublished work carried out by me under
the supervision of Ms. Srishty Banerjee, Assistant Professor, School of Law, The North Cap
University.

I declare that no part of this work has been submitted in this or any other University or Institute
for the award of any degree or diploma. The work carried out henceforth is open to any
clarification whatsoever relating to its contents and all mistakes are my own.

2|Page
 SUPERVISOR CERTIFICATE

This is to certify that this Dissertation titled “Concept of Fundamental Rights in the
constitution-comparative study of India and U.S.A.” is prepared by Vaibhav Yadav
(11LLB064) of this institution under my supervision in partial fulfillment of the requirement for
the award of the Degree of Bachelors of Laws (LLB) awarded by this institution.

Date: 30 November, 2015 Ms. Srishty Banerjee

Place- Gurgaon Supervisor

3|Page
 ACKNOWLEDGMENT

I would like to express my sincere gratitude to Ms. Srishty Banerjee and owe my foremost
regards to her for giving me an opportunity to carry out this dissertation work under her
guidance. This work would not have been possible without her invaluable support and thought
provoking comments. It is due to her patient guidance that I have been able to complete the task.

I would like to thanks Mr. Sudhir Verma visiting faculty, School of Law, The North Cap
University who taught me U.S LEGAL SYSTEM in 9th semester and helped me to carry out this
dissertation work under his guidance.

I also extend my gratitude to the Librarian and the Library staff who made available the required
materials within time. I am indebted to all those who guided me while doing the research work.
Their valuable contributions have played a vital role in the completion of this research paper.

Though I have tried out best at the same time I know that there is nothing called perfection so I
would like to have all valuable suggestion for future.

I dedicate this research paper to all the people who believe that hard work and creativity needs
protection and encouragement.

I would also like to thank my batch mates who inspired, helped and guided me in making this
project.

VAIBHAV YADAV

11LLB064

BBA-LLB (Hons.)

V YEAR

4|Page
 RESEARCH METHODOLOGY

SCOPE AND OBJECTIVE OF THE STUDY

TO KNOW THE CONCEPT OF FUNDAMENTAL RIGHTS IN INDIA AND AMERICAN

CONSTITUTION (COMPARATIVE STUDY OF INDIA AND U.S.A.)

CHAPTERS

I. HISTORY OF FUNDAMENTAL RIGHTS IN INDIA AND IN USA

II. FUNDAMENTAL RIGHTS IN INDIA AND IN USA

RESEARCH QUESTIONS

1. Which constitution has a better scheme of fundamental rights?

2. Role of judiciary in enlarging the scope of fundamental rights in India and in U.S.A.?

MODE OF CITATION

A uniform system of citation is followed throughout in the contents.

5|Page
 TABLE OF CONTENTS
Page no.

1. LIST OF CASES…………………………………..……………..……8-9

2. INTRODUCTION……………..……………………………………....10

3. History :

 Evolution of fundamental rights in America and ……………11

 evolution of fundamental rights in India ………………….....11-13

4. Fundamental rights in India and in USA………………………….....14-17

5. Right to equality……………………………………………………...18-26

6. Comparative study of anti-discrimination and equality laws of the US and

India………..…………………………………………………………20-26

7. Right to Freedom ………………………...…………………………..27-46

8. Freedom of Speech and Expression :India v America - A study…...27-42

9. Comparision between India and America…………………………...41-46

10.Article 21A Right to education…………………………..…………..46

11.Article 22………………………………………………..……………47

12.Right Against Exploitation…………………….…………………….48-52

13.THE CONCEPT OF HUMAN TRAFFICKING, FORCED LABOUR AND

EMPLOYMENT OF CHILDREN

6|Page
 14.Right to freedom of religion………………………………………..53-54

15.Cultural and Educational Rights …………………………………..55

16. Right to property…………………………………………………..56-59

17. Right to constitutional remedy……………………………………60-62

18.Right to bear arms…………………………………………………..62-70

19.Right to Bear Arms as a Constitutional Right: Comparitive Stand-point of

the Law in the United States of America and India

20.Right to vote………………………………………………………….71

21. THE RIGHT TO ENJOY MANY OTHER FREEDOMS……..……..72

22.Drawbacks in Indian Constitution……………………………..……73-74

23.CONCLUSION……………………………………………………….75-76

24. Bibliography………………………………………………………...77

7|Page
 LIST OF CASES

S.NO. CASES
1. Shamsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192, 2212.

2. Chiranjit Lal V. Union of India, (1950) SCR 869 (912);

3. State of Bombay V. Balsara, (1951) SCR 682 (708-09); special court bill, in re,
(1979) 1 SCC 380 (para. 78).
4. Dred Scott v Sandford 60 US 393 (1857) (US Supreme Court) at 411.
5. Plessy v Ferguson 163 US 537 (1896) (US Supreme Court).

6. Korematsu v United States 323 US 214, 65 S Ct 193 (1944) (US Supreme Court) at
US 216.
7. McLaughlin v Florida 379 US 184, 85 S Ct 283 (1964
8. Loving v Virginia 388 US 1, 87 S Ct 1817 (1967).
9. Brown v Board of Education 347 US 483 (1954) (US Supreme Court) at 494.
10. Raghunath Rao v Union of India (AIR 1993 SC 1267) at para. 185
11. Schenck v. United States 249 U.S. 47 (1919)
12. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974)
13. Miller v. California 413 U.S. 15 (1973)
14. New York Times Co. v. Sullivan 376 U.S. 254 (1964)
15. Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)
16. A.K. Gopalan vs The State Of Madras.Union Of India 1950 AIR 27, 1950 SCR 88
17. Express Newspapers (Bombay) (P) Ltd. v. Union of India 1986 AIR 872, 1985 SCR
Supl. (3) 382
18. Indirect Tax Practitioners Assn. vs R.K.Jain 1993) AIR SCW 1899
19. S.Rangrajan etc. V. P.Jagjivan Ram’s (1989) 2 SCC 574
20. Maqbool v State of bombay,(1953) SCR 730 (737);
21. M.P. Sharma V. Satish, (1954) SCR 1077 (1083).
22. Maneka Gandhi v. Union of India A.I.R. 1978 S.C. 597.
23. Sunil Batra v. Delhi Admin., A.I.R. 1978 S.C. 1675
24. Charles Sobraj v. Delhi Admin., A.I.R. 1978 S.C. 1590
25. Prem Shanker Shukla v. Delhi Admin., A.I.R. 1980 S.C. 1535
26. Francis Coralie Mullin v. W.C. Khambra, A.I.R. 1980 S.C. 849
27. Sunil Batra v. Delhi Admin., A.I.R. 1980 S.C. 1565, 1579
28. Maqbool v. state of Bombay, (1953) SCR 730(737)

8|Page
 29. M.P. Sharma v. Stish ,(1954) SCR 1077 (1083)
30. Baldwin v Hale, (1850) 68 U.S. 223;
31. Fuentes v Shevin, (1972) 407 U.S. 67.
32. Tumey v. Ohio,(1927) 273 U.S. 510.
33. Fateh chand v. State of Mharastra, AIR 1978 SC 1825(para . 49);
34. New York Times v Sullivan 376 U.S. 254 (1964)
35. State of A.P. v. Nalla Raja ,(1967)3 SCR 28(45);
36. John v. State of T.C. AIR 1955 SC 160;
37. Union of India v. Goel, AIR 1964 SC 364(369);
38. ADM Jabalpur v Shivkant Shukla AIR 1976 SC 1207
39. Debs v. United States 249 U.S. 211 (1919)
40. Dennis v. United States 341 U.S. 494 (1951),
41. Roth v. United States, 354 U.S. 476 (1957)
42. Plessy v. Ferguson 163 US 537
43. Clyatt v. United States 197 U.S. 207 (1905)
44. Keshavanand Bharati v. State of Kerala (AIR 1973 SC 146).
45. Marbury v. Madison 5 U.S. 137 (1803)

Introduction
In this dissertation I have compared fundamental rights mentioned in part three of the Indian
constitution and bill of rights of American constitution.
I have mentioned fundamental rights according to the rights that are mentioned in the Indian
constitution and I have focused my dissertation specifically on Indian fundamental rights.

The modern trend of guaranteeing Fundamental rights to the people may be traced to the
constitution of U.S.A. drafted in 1787.The U.S. Constitution was the first modern constitution to
give concrete shape to the concept of human rights by putting them into the constitution and
making them justiciable and enforceable through the instrumentality of the courts.
The Fundamental Rights were there in the Constitution of India from its very inception. Part III
of the Constitution of India deals with the Fundamental Rights, while the Bill of Rights in the US
Constitution were added as amendments to the Constitution there. Framer of the Indian
constitution borrowed it from USA.

9|Page
 History

Evolution of fundamental rights

USA
In drafting the Constitution, most of the Founding Fathers believed that the safeguards written
into it would protect the rights of Americans. But when the Constitution was sent to the states in
1787 for ratification, a great roar of disapproval went up. In Virginia, Patrick Henry protested
vigorously against the lack of a specific statement of rights. Other Americans from different
states demanded that a Bill of Rights be added to the Constitution. A number of states ratified the
Constitution only conditionally. That is, they would approve the Constitution only if it were
changed to include these rights.

Two years after the new American government went into effect, the Bill of Rights was added as
the first ten amendments to the Constitution. Congress discussed nearly 200 proposals for

10 | P a g e
amendments before it presented these ten to the states for approval. The states ratified these
amendments, and they became part of the Constitution in 1791

India

Great philosophers Locke and Adam Smith and Mill believed that social harmony and progress
were compatible with reserving a large area for private life over which neither the State nor any
other authority must be allowed to trespass. Hobbes stressed the need for centralized control and
decreases that of the individual. But both the sides agreed that some portion of human existence
must remain independent of the sphere of social control. To invade that preserve, however small,
would be despotism. Jefferson, Burke, Paine and Mill stated that we must preserve a minimum
area of personal freedom if we are not to ‘degrade or deny our nature’. We cannot remain
absolutely free, and must give up some or our liberty to preserve the rest. But total self-surrender
is self-defeating. Since justice demands that all individuals be entitled to a minimum of freedom,
all other individuals were of necessity to be restrained, if need be by force, from depriving any
one of it1. This is the philosophical basis for freedoms and the restrictions over it, which appears
in appropriate equilibrium in Indian Constitution.

The inclusion in the Constitution of a distinct part guaranteeing Fundamental Rights can be
traced to the forces that operated in the struggle for independence during British Rule. As early
as 1895 Bill, which was described by Mrs. Annie Besant as the Home Rule Bill, was introduced
which envisaged a Constitution for India guaranteeing to every citizen freedom of expression,
inviolability of one’s house, right to property, equality before the law and in regard to admission
to public office, the right to present claims, petitions and complaints and right to personal liberty.
In August 1918 Indian National Congress soon after he publication of the Montagu-Chelmsford
Report, made a demand that the new Government of India Act should declare the rights of the
people of India as British Citizens. The Constitution of the Irish Free State in 1921 which
included a list of Fundamental Rights also made a lasting impression on the Indian leaders.

The Commonwealth of India Bill finalized by the National Convention in 1925 contained
specific declaration of rights visualizing for every person in terms practically identical with the
relevant provisions of the Irish Constitution specifying fundamental rights. Simon Commission
1 Khanna H R, Making of India’s Constitution,

11 | P a g e
Report in 1930 did not support the demand for enumeration of Fundamental Rights in the
Constitution Act on the ground that abstract declaration of such rights was useless there existed
the will and means to make them effective. In March 1931 Indian National Congress Karachi
session reiterated demand for a written guarantee of Fundamental Rights as essential in any
future Constitutional set up in India. The Joint Select Committee of the British Parliament on the
Government of India Bill of 1934 did not favour this demand. Thus the Government of India Act
1935 did not enumerate the Fundamental Rights. The Sapru Committee appointed by the All
Parties Conference during the year 1944-45 expressed the view that Fundamental Rights should
be expressly guaranteed. The British Cabinet Mission Plan of 1946 envisaged the setting up of an
Advisory Committee for reporting, inter alia, on Fundamental Rights. The Constituent Assembly
has debated every fundamental right and developed the text of the significant Part II.

Did the idea of guaranteeing human rights to Indians sprout in the minds of the founding fathers
on the eve of independence? No. In- deed, a great patriot, Lokmanya B. Tilak, declared in 1895
to the British government, "Swaraj mnera janma sidl adhikar hai.”2 Of greater note, unlike some
of Britain's former colonies that rejected the idea of an entrenched bill of rights in their
constitutions,3 Indian political thought focused on the idea of constitutionalized fundamental
political rights as early as 1928.4 Thus, when the members of the Constituent Assembly
convened to frame Part III of the Constitution, they naturally had before them the United States
Bill of Rights. Thus, with respect to the Constitution's human rights provisions, it was the
"Potomac and not the Thames that fertilized the flow of Yamuna .5 The idea of fundamental rights
did draw on American origins; in places, the phraseology of the Indian Constitution echoes its
American counterpart.6 Despite this influence, India's particular history shaped the fundamental

2 Sripati, (translation: "freedom is my birthright and I shall have it").

3 See Rapaczynski, (detailing former colonies' views on enumerating express rights in a bill of rights).
4 See Sorabjee (noting that the Motilal Nehru Commit- tee's 1928 "Declaration of Fundamental Rights," clearly
reflects the influence of the United States Constitution and its Bill of Rights). In response to the Secretary of State
for India, Lord Birkenhead's challenge to Indians to come up with a constitution, India's freedom fighters drafted the
Motilal Nehru Committee Report of 1928.

5 Shamsher Singh v. State of Punjab, A.I.R. 1974 S.C. 2192, 2212.

6 Both the United States Constitution and the Indian Constitution guarantee equal protection of law .compare Indian

constitution pt. III, art. 14 ("The State shall not deny to any person equality before the law or the equal protection of

12 | P a g e
rights.

The Constitution guarantees a comprehensive array of fundamental rights that are subject to
certain explicit exceptions that do not render them illusory. The range of human rights in Part III,
Articles 14 through 32, is very wide. Some of these rights are available to both citizens and
aliens alike. The following sections briefly describes the major categories of rights as they are
commonly clustered and discussed in India.

Fundamental rights in India and in USA

U.S.A.
The original U.S. constitution did not contain any Fundamental Rights. There was trenchant
criticism of the constitution on this scope. Consequently, the bill of rights came to be
incorporated in the constitution in 1791 in the form of ten amendments which embody the
LOCKEIAN ideas about protection of life, liberty and property.

First Amendment [Religion, Speech, Press, Assembly, Petition (1791)]

Second Amendment [Right to Bear Arms (1791)]
Third Amendment [Quartering of Troops (1791)]
Fourth Amendment [Search and Seizure (1791)]
Fifth Amendment [Grand Jury, Double Jeopardy, Self-Incrimination, Due Process (1791)]
Sixth Amendment [Criminal Prosecutions - Jury Trial, Right to Confront and to Counsel (1791)]
Seventh Amendment [Common Law Suits - Jury Trial (1791)]
Eighth Amendment [Excess Bail or Fines, Cruel and Unusual Punishment (1791)]
Ninth Amendment [Non-Enumerated Rights (1791)]
Tenth Amendment [Rights Reserved to States or People (1791)]
the laws within the territory of India."), with U.S. CONST. amend. XIV, sec. I ("No state shall ... deny to any person
within its jurisdiction the equal protection of the laws.").

13 | P a g e
The nature of fundamental rights in the U.S.A. has been described thus: “The very purpose of
Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials, to establish them as legal principle to be
applied by the courts. One’s right of life, liberty, and property, to free speech, a free press,
freedom of worship and assembly and other fundamental rights may not be submitted to vote;
they depend on the outcome of no election.7

INDIA

The Fundamental Rights are considered as one of the Integral part of Indian Constitution. 8 Part
III of the constitution deals with fundamental rights.9 It carries the primary theme of dignity of
the individual, and also of the unity and integrity of the nation.

The Constitution guarantees certain fundamental rights to protect the individual against arbitrary
actions of the State and create conditions in which he can secure social and economic justice.10

The Fundamental Rights are defined as the basic human freedoms that every individual has a
right to enjoy for a proper and harmonious development of personality. It is an interest protected
by the superior or basic law of the land.11

All Fundamental Rights are subject to exceptions provided in the constitution itself.

1) Right to Equality

7 Justice Jackson in West Virginia Origins Of The American Revolution ,(1967).

8[http://legal-articles.deysot.com/constitutional-law/history-of-introduction-of-fundamental-rights-in-indian-
constitution.htm]
9 V. N. SHUKLA, CONSTITUTION OF INDIA, 24
10 (MANOJ PANDEY, ONKAR KEDIA), FUNDAMENTALS OF INDIAN CONSTITUTION, 5
11 [http://www.halfmantr.com/display-polity/173-fundamental-rights-meaning-and-amendability

14 | P a g e
  Article 14- Equality before law: The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.
 Article 15- Prohibition of discrimination on grounds of religion, race, caste, sex
or place of birth.
 Article 16- Equality of opportunity in matters of public employment.
 Article 17- Abolition of untouchability.
 Article 18- Abolition of titles.
2) Right to Freedom
 Article 19- Protection of certain rights regarding freedom of speech.
 Article 20- Protection in respect of conviction for offences.
 Article 21- Protection of life and personal liberty: No person shall be deprived of
his life or personal liberty except according to procedure established by law.
 Article 22- Protection against arrest and detention in certain cases.
3) Right against Exploitation
 Article 23- Prohibition of traffic in human beings and forced labour.
 Article 24- Prohibition of employment of children in factories. No child below
the age of fourteen years shall be employed to work in any factory or mine or
engaged in any other hazardous employment.

4) Right to Freedom of Religion

 Article 25- Freedom of conscience and free profession, practice and propagation
of religion.
 Article 26- Freedom to manage religious affairs.
 Article 27- Freedom as to payment of taxes for any particular religion.
 Article 28- Freedom as to attendance at religious instruction or religious worship
in certain educational institutions.

5) Cultural and Educational Rights

 Article 29- Protection of Interests of Minorities.

15 | P a g e
  Article 30- Right of minorities to establish and administer educational
institutions.

6) Right to Constitutional Remedies

 Article 32- Remedies for enforcement of rights conferred by the part III of the
Constitution of India.
 Article 33- Power of Parliament to modify the rights conferred by this Part in
their application to Forces.
 Article 34- Restriction of rights conferred by this Part while martial law is in
force in any area.
 Article 35- Legislation to give effect to the provisions of this Part:
Notwithstanding anything in the Constitution.

These Fundamental Rights are in fulfillment of the pledges given to the people of India by the
National Liberation Movement knowing fully well that India was a country of perplexing
diversity.12 They affirm in emphatic terms that India is a secular State and what she aims to
achieve in a secular democracy.

Entrenchment means that the guaranteed rights cannot be taken away by ordinary law. A law
curtailing or infringing entrenched rights would be declared to be constitutional. If ever it is
deemed necessary to curtail an entrenched rights, that can only be done by the elaborate and
more formal procedure way of constitutional amendment. As the Supreme Court has observed, 13
the purpose of enumerating fundamental rights in the constitution “is to safeguard the basic
human rights fro the vicissitudes of political controversy and to place them beyond the reach of
political parties who by virtue of their majority, may come to form the government in the centre
or in the state”

12 M. V. PYLEE, CONSTITUTIONAL HISTORY OF INDIA, 150

13 Chairman, Rly. Board v. Chandrima das, AIR 2000 SC 988,997: (2000)2 SCC 465

16 | P a g e
 Comparative study of Fundamental Rights in India and U.S.A.

Right to Equality (Articles 14 to18)

Article 14 confers "equality before the law" and "the equal protection of the laws.14

Equality before law and equal protection of law, Article 14 states that State shall not deny to any
person equality before law or equal protection of the Laws within the territory of India.

In interpreting Art.14 on ‘equal protection of the laws’ the Indian Supreme Court has copiously
referred to American decision, to import the doctrine of ‘reasonable classification’, which is
inherent in the guarantee of equal protection even though not explicitly mentioned in Art. 14.15

Equality Under Law

The Fourteenth Amendment (for the states) and the Fifth Amendment (for the federal
government) forbid unreasonable discrimination by the law that is discrimination by criteria

14. INDIA CONST. pt. III, art. 14, reprinted in VII CONSTITUTIONS OF THE COUNTRIES OF THE WORLD
15 Chiranjit Lal V. Union of India, (1950) SCR 869 (912); State of Bombay V. Balsara, (1951) SCR 682 (708-09);
special court bill, in re, (1979) 1 SCC 380 (para. 78).

17 | P a g e
irrelevant to the law's application. To discriminate, that is to punish, against people based on
irrelevant criteria would deprive them of liberty without "due process of law" since a proper
process of law can be based only on relevant criteria. Such discrimination occurred and still
occurs because of the prejudice of the lawmakers, greatly damaging the society. Generally, laws
cannot discriminate based on race, sex, age, and other irrelevant criteria such as sexual
orientation, ethnic culture, and religion. To forbid certain actions (with several exceptions)
simply because of one's age would arbitrarily deprive some people of their rights. Age by itself
has no relevance since all people are fundamentally equal and methods that are much more
precise than age of differentiating people exist. Laws can discriminate based on relevant criteria
that is ability, performance (both actual and expected), and sometimes past activities. Past
activities are only relevant as determinants of rewards and punishments; in other cases, the
people must be differentiated but what they are now and not by what they have done in the past.
Making facilities separate but equal for different groups is generally not permissible because
even if the facilities are fully equal, the surrounding people are not. Some compensation for
people discriminated against is desirable; however, the compensation must be based on the
relevant criteria (the actual discrimination) rather than irrelevant criteria such as race (that is the
amount of a pigment (melanin) in the skin).

Article 15 is significant because it prohibits discrimination on the grounds of race, caste, religion,
creed, sex, or place of birth.16Also, it sanctions special provisions for women, children, 17 and for
the advancement of members of scheduled castes and tribes and socially and educationally
backward classes of citizens.18

16. See id. art. 15, cl. 1 ("The State shall not discriminate against any citizen on he grounds only of religion, race,
caste, sex, place of birth or any of them.").
17. See id. art. 15, cl. 3 ("Nothing in this article shall prevent the State from making any special provision for
women and children.").
18. See id. art. 15, cl. 4 ("Nothing in this article or in clause (2) of article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward class of citizens for the scheduled
castes and the scheduled tribes."). See generalli MARK GAL.NTER, COMPETING EQUALITIES: LAW AND
THE BACKWARD CLASSES OF INDIA (1984) (discussing the Indian Constitution's attempts to redress centuries
of historic repression of India's underprivileged classes by including a constitutional scheme of compensatory dis-
crimination); E.J. Prior, Constitutional Fairness or Fraud on the Constitution. Compensatory Discrimination in
India, 28 CASE W. RES. J. INT'L L. 63 (1996) (describing India's compensatory discrimination program, an

18 | P a g e
Article 16 guarantees equality of opportunity in matters of public employment.19 Discrimination
in matters of public employment in any form such as religion, sex, caste, and place of birth-is
strictly prohibited.20 In the past, persons at the lower levels of India's caste hierarchy suffered and
still suffer from untouchability. Happily, the Indian Constitution reflects sensitivity to this
problem.21 In reaction against earlier intolerance,

Article 17 specifically abolishes untouchability and outlaws its practice in any form. 22

Comparative study of anti-discrimination and equality laws of the US and India

1. Legal and Social Context

The American Declaration of Independence in 1776 asserted that: ‘We hold these truths to be
self-evident: that all men are created equal.’ These words would seem to ‘embrace the whole
human family.’23 However, as the US Supreme Court asserted in the infamous case of Dred
Scott18 in 1857: ‘It is too clear for dispute, that the enslaved African race were not intended to
be included ... The unhappy black race were separated from the white by indelible marks, and
laws long before established, and were never thought of or spoken of except as property.’
Moreover, the Court held: ‘the right of property in a slave is distinctly and expressly affirmed in
affirmative action attempt to remedy past injustices suffered by those at the lower levels of the hierarchical social
order of the Hindu caste system).
19. See INDIA CONST. pt. III, art. 16, cl. 1, re printed in VII CONSTITUTIONS OF THE COUNTRIES OF THE
WORLD, supra note 7, at 1, 48 ("There shall be equality of opportunity for all citizens in matters relating to
employment or appointment to any office under the State.").
20. See id. art. 16, cl. 2 ("No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,
residence or any of them, be ineligible for, or discriminated against in respect of any employment or office under the
State.").
21 See INDIA CONST. pt. III, arts. 14-15, reprinted in VII CONSTITUTIONS OF THE COUNTRIES OF THE
WORLD, supra note 7, at 1, 35, 41 (referring to India's backward classes and "untouchability").
22 See id. art. 17 (stating that "untouchability' is abolished and its practice in any form is forbidden... the
enforcement of any disability arising out of untouchabilty shall be an offense punishable in accordance with law.").
23 Dred Scott v Sandford 60 US 393 (1857) (US Supreme Court) at 411.

19 | P a g e
the Constitution. This is done in plain words- too plain to be misunderstood.’ The intention of the
original framers of the Constitution was paramount: ‘No one, we presume, supposes that any
change in public opinion or feeling should induce the court to give to the words of the
Constitution a more liberal construction in their favor than they were intended to bear when the
instrument was framed and adopted. If any of its provisions are deemed unjust, there is a mode
prescribed in the instrument itself by which it may be amended; but while it remains unaltered, it
must be construed now as it was understood at the time of its adoption.’ Thus the Act of
Congress prohibiting slave-owning in the Northern States was held to be unwarranted by the
Constitution and void, and slaves remained the property of their owner even if they were taken to
Northern States which had abolished slavery.

It was only after the victory of the North in the Civil War of 1861-1865 that progress could be
made. Three seminal constitutional amendments were adopted directly after the Civil War. The
Thirteenth Amendment, adopted in 1865, outlawed slavery and prevented the imposition of any
burdens or disabilities that constitute badges of slavery or servitude. The Fifteenth Amendment,
adopted in 1870, provided equal suffrage to all adult male citizens: ‘The right of citizens of the
US to vote shall not be denied or abridged by the US or by any State on account of race, color, or
previous condition of servitude.’ But by far the most important for our purposes was the
Fourteenth Amendment, also adopted in 1870. As well as giving citizenship to all former slaves,
it stated: ‘All persons born or naturalized in the US, and subject to the jurisdiction thereof, are
citizens of the US and of the States wherein they reside. No State shall make or enforce any law,
which shall abridge the privileges or immunities of citizens of the US, nor shall any State deprive
any person of life, liberty, or property, without due process of law; nor deny to any person the
equal protection of the laws ’

Despite the abolition of slavery and the constitutional guarantee of equality, blatant
discrimination remained endemic throughout the US. African Americans were not permitted to
vote in many states, and they were consigned to separate and vastly inferior facilities. Nor was
the Equal Protection Clause in the Fourteenth Amendment sufficiently robust to combat such
inequality. In Plessy v Ferguson,24 the Court refused to strike down a Louisiana statute, passed
in 1890, providing for separate railway carriages for the ‘white and colored races.’ The Court

24 Plessy v Ferguson 163 US 537 (1896) (US Supreme Court).

20 | P a g e
held that although the object of the Fourteenth Amendment ‘was undoubtedly to enforce the
absolute equality of the two races before the law, ... it could not have been intended to abolish
distinctions based upon color, or to enforce social, as distinguished from political equality.’ The
Court’s assumption that enforced separation did not ‘stamp the colored race with a badge of
inferiority’ was forcefully rebutted by Harlan J. In a stinging dissent, he argued: ‘Everyone
knows that the statute in question had its origin in the purpose, not so much to exclude white
persons from railroad cars occupied by blacks, as to exclude colored people from coaches
occupied by or assigned to white persons. No one would be so wanting in candor as to assert the
contrary.’

It was not until well into the 20th century that the majority of the Court began to echo the lone
voice of Harlan J that ‘such legislation, as that here in question, is inconsistent not only with that
equality of rights which pertains to citizenship, National and State, but with the personal liberty
enjoyed by everyone within the United States.’ Thus, in a seminal case concerning internship of
Japanese citizens during the Second World War, the Court held: ‘Legal restrictions which curtail
the civil rights of a single racial group are immediately suspect. Courts must subject them to the
most rigid scrutiny.’25 Although this in principle leaves open the possibility of justification of a
racial classification, in practice the strict scrutiny test has almost invariably led to the Court
striking down racial classifications operating to the detriment of Afro-Americans.26 In the famous
case of Brown v Board of Education in 1954, the US Supreme Court decisively rejected the
‘separate but equal’ doctrine. In a surprisingly brief but unequivocal judgment, the Court held
that ‘in the field of public education the doctrine of “separate but equal” has no place. Separate
educational facilities are inherently unequal. Therefore, we hold that the plaintiffs ... are, by
reason of the segregation complained of, deprived of the equal protection of the laws guaranteed
by the Fourteenth Amendment.’27 This opened the door to a series of cases in which segregated

25 Korematsu v United States 323 US 214, 65 S Ct 193 (1944) (US Supreme Court) at US 216.

26 See e.g. McLaughlin v Florida 379 US 184, 85 S Ct 283 (1964); Loving v Virginia 388 US 1, 87 S Ct 1817
(1967).

27 Brown v Board of Education 347 US 483 (1954) (US Supreme Court) at 494.

21 | P a g e
hospitals, libraries, parks, public transit systems and other publicly owned facilities were held to
be unconstitutional.28

In the latter part of the 20th century, the initiative for change was taken by the US Congress. In
1964, the Civil Rights Act was passed, banning discrimination by both private and public
entities. This was followed quickly by the Voting Rights Act 1965, aimed at states and
communities which suppressed minority voting. Other important federal anti-discrimination
statutes were passed in the subsequent decades. However, since 1980, these initiatives have met
growing opposition from the US Supreme Court, which has become increasingly conservative.
Such resistance looks set to continue. In addition, a proposal to amend the US Constitution to
include a gender equality clause (the ‘Equal Rights Amendment’) was passed by both houses of
Congress in 1972 but failed to be ratified by two thirds of states and so died in 1979.

India

Equality law in India has been heavily influenced by the caste structure of Hindu society.
Religious conflict between Muslims and Hindus, which resulted in Partition and the creation of
the State of Pakistan in 1947, has also been a central factor. Although Pakistan became a Muslim
state, India remained secular. Caste, however, remained deeply engrained in Indian society.
Hindu society is characterised by a hierarchy of castes, determined by birth. There are four main
castes; and those without caste, or outcastes. 29 These groups are often known as ‘Untouchables’
because physical untouchability is a central part of their subordination. Dominant castes would
not accept food or water from them, and in parts of South India they were required to live as a
group on the outskirts of villages. In his determined campaign to integrate the ‘Untouchables’,
Ghandi called them ‘Harijan’ or people of God; but members of this group in modern India
prefer to be known as ‘Dalits’ or broken people. Dalits were oppressed for centuries, restricted to
the most menial and degrading of tasks, and often subject to violence and humiliation.

28 D.B. Oppenheimer ‘Sources of US Equality Law’, Anti-discrimination Law Review, 10 (2010), 20.
29 This paragraph and the following one rely heavily on Anup Surendranath ‘Sub-Classification of Scheduled
Castes Before the Indian Supreme Court: The Case for a More Inclusive Approach’, M Phil thesis, Oxford
University (2009).

22 | P a g e
The abolition of such practices, as well as the substantive advance of the Dalits, was central to
the constitutional commitments made by the Constitutional Assembly, which drafted the
Constitution of newly independent India between 1947 and 1949. Article 17 of the final
Constitution, which came into effect in January 1950, specifically prohibited untouchability, and
Articles 15 and 16 expressly authorize the State to provide for reservations in public employment
and education for ‘Scheduled Castes and Tribes’ and ‘other backward classes’.

The Indian Constitution contains a cluster of provisions pertaining to the right to equality. The
flagship provision, Article 14, derives directly from the Fourteenth Amendment of the US
Constitution.30 Thus, it states: ‘The State shall not deny to any person equality before the law or
the equal protection of the laws within the territory of India.’ Article 14 has been held to form
part of the basic structure of the Constitution. This means that it cannot be curtailed by
constitutional amendment.31 In addition, Article 15 provides that the State shall not discriminate
against any citizen and that no citizen should, on the specified grounds ‘be subject to any
disability, liability, restriction or condition with regard to (a) access to shops, public restaurants,
hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and
places of public resort maintained wholly or partly out of State funds or dedicated to the use of
the general public.’ Finally, Article 16 provides for equality of opportunity for all citizens in
relation to employment or appointment to an office under the State and prohibits discrimination
on the specified grounds in relation to state employment or office. Article 15 also allows for
special provision to be made for women, children, socially and educationally backward classes
of citizens as well as the Scheduled Castes and Tribes. The Constitution does not specifically
mention reservation for women. However, the Constitutional (Seventy-fourth Amendment) Act,
1992, brought in provisions mandating one-third reservations for women in local governance
bodies.

30 I Jaising, ‘Gender Justice and the Supreme Court’, in B Kirpal and others (eds), Supreme but not Infallible (New
Delhi: OUP, 2000), 293.

31 Raghunath Rao v Union of India (AIR 1993 SC 1267) at para. 185.

23 | P a g e
As well as these ‘fundamental rights’, the Indian Constitution also contains ‘Directive Principles
of State Policies’, which include socio-economic and cultural rights. In principle, Directive
Principles, unlike the fundamental rights, are not enforceable, but are intended to guide the State
in its legislative and policy-making functions. However, the Supreme Court of India has relied
on the directive principles to give substantive meaning to the fundamental rights, in particular,
the right to life. This has opened up the opportunity to bring legal challenges in relation to socio-
economic inequalities in India. The Constitution gives the Supreme Court and the High Courts
the power to enforce constitutional guarantees of fundamental rights. 32 The right to a
constitutional remedy is itself a fundamental right.

India differs from the US, in that ‘caste-based reservations in public employment and education
have been India’s primary vehicle for fulfilling its constitutional promise of an egalitarian
society.’ The most important questions have therefore been the eligibility of different groups to
access the benefits of reservation. In the past five years, there have been some proposals to
include a more general equality provision. The Sachar Committee, which reported in 2006 on the
Social, Economic and Educational Status of the Muslim Community of India, recommended the
establishment of an Equal Opportunity Commission, a proposal which was followed up in detail
in 2008 by the Menon report. This report, together with a related report on diversity, opened up
the possibility of a broader anti-discrimination framework, which affected the private as well as
the public sector. The recommendations emphasize deprivation as the key issue to be addressed.
Deprivation is to be identified by an objective deprivation index which potentially spreads
beyond caste to include sex, caste, language, religion, disability, descent, place of birth,
residence, race or any other ground.

Constitutional Sources

As we have seen, all four jurisdictions in this study include an equality guarantee in their
Constitutions. The broadest and most open-textured is the Fourteenth Amendment in the US
Constitution. Thus the Equal Protection Clause of the Fourteenth Amendment states: ‘No State

32 Articles 32 and 226.

24 | P a g e
shall deny to any person the equal protection of the laws…’ This provision has been emulated
and expanded upon in the more recent Constitutions of India.

Thus Article 14 of the Indian Constitution, which derives directly from the Fourteenth
Amendment of the US Constitution, states: ‘The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.’ This generic right
is elaborated on in Articles 15 and 16. Article 15 states: ‘(1) The State shall not discriminate
against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them; (2)
No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be
subject to any disability, liability, restriction or condition with regard to (a) access to shops,
public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks,
bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or
dedicated to the use of the general public.’ Article 16 in turn provides: ‘16. (1) There shall be
equality of opportunity for all citizens in matters relating to employment or appointment to any
office under the State. (2) No citizen shall, on grounds only of religion, race, caste, sex, descent,
place of birth, residence or any of them, be ineligible for, or discriminated against in respect of,
any employment or office under the State.’ Articles 15 and 16 also allow for special provision to
be made for women, children, socially and educationally backward classes of citizens as well as
the Scheduled Castes and Tribes. Article 39(d) of the Constitution also mentions the principle of
equal pay for equal work.

25 | P a g e
 Right to Fundamental Freedoms (Art. 19-22)

Freedom of Speech and Expression :India v America - A study

Introduction

The freedom of speech is regarded as the first condition of liberty. It occupies a preferred and
important position in the hierarchy of the liberty, it is truly said about the freedom of speech that
it is the mother of all other liberties. Freedom of Speech and expression means the right to
express one's own convictions and opinions freely by words of mouth, writing, printing, pictures,
or any other mode. In modern time it is widely accepted that the right to freedom of speech is the
essence of free society and it must be safeguarded at all time. The first principle of a free society
is an untrammeled flow of words in an open forum. Liberty to express opinions and ideas
without hindrance, and especially without fear of punishment plays significant role in the
development of that particular society and ultimately for that state. It is one of the most
important fundamental liberties guaranteed against state suppression or regulation.

Freedom of speech is guaranteed not only by the constitution or statutes of various states but also
by various international conventions like Universal Declaration of Human Rights, European
convention on Human Rights and fundamental freedoms, International Covenant on Civil and
Political Rights etc. These declarations expressly talk about protection of freedom of speech and
expression.

26 | P a g e
Why to protect freedom of speech?

Freedom of speech offers human being to express his feelings to other, but this is not the only
reason; purpose to protect the freedom of speech. There could be more reasons to protect these
essential liberties. There are four important justifications for freedom of speech –

1) For the discovery of truth by open discussion - According to it, if restrictions on speech are
tolerated, society prevents the ascertainment and publication of accurate facts and valuable
opinion. That is to say, it assists in the discovery of truth.

2) Free speech as an aspect of self- fulfillment and development – freedom of speech is an

integral aspect of each individual’s right to self-development and self-fulfillment. Restriction on
what we are allowed to say and write or to hear and read will hamper our personality and its
growth. It helps an individual to attain self-fulfillment.

3) For expressing belief and political attitudes - freedom of speech provides opportunity to
express one’s belief and show political attitudes. It ultimately results in the welfare of the society
and state. Thus, freedom of speech provides a mechanism by which it would be possible to
establish a reasonable balance between stability and social change.

4) For active participation in democracy – democracy is most important feature of today’s world.
Freedom of speech is there to protect the right of all citizens to understand political issues so that
they can participate in smooth working of democracy. That is to say, freedom of speech
strengthens the capacity of an individual in participating in decision-making.

Thus we find that protection of freedom of speech is very much essential. Protection of freedom
of speech is important for the discovery of truth by open discussion, for self- fulfillment and
development, for expressing belief and political attitudes, and for active participation in
democracy.
The present study is intended to present the provisions of the American and Indian Constitution
that recognize the freedom of speech and expression, the basic fundamental rights of human

27 | P a g e
being. It is also to be examined that what is judicial trend in interpreting the freedom of speech
and expression provisions. The study also covers the comparison between the approaches of both
countries as far as freedom of speech is concerned.

Freedom of Speech in America

America is leader country as far as protection of freedom of speech and expression is concerned.
It provides very wide interpretation of freedom of speech to its citizen. Freedom of speech, of the
press, of association, of assembly and petition this set of guarantees, protected by the First
Amendment, comprises what we refer to as freedom of expression. However, initially there was
no provision for protecting freedom of speech in American Constitution, but very soon realizing
the importance of freedom of speech it amended its constitution and pave way for protection of
speech and expression. The first amendment of the American constitution specially provides that

“Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances”.33

The above Amendment to the American Constitution is the part of the United States Bill of
Rights. As per the Bill of Rights United States Congress has been prohibited from making laws,
infringe the freedom of speech, infringe the freedom of the press, limit the right to peaceably
assemble, etc. The sum total of the components of the law of the First Amendment provides a
great deal of protection to freedom of speech. Although, as per the provision, the First
Amendment only explicitly applies to the Congress, the Supreme Court of America has
interpreted it as applying to the executive and judicial branches. The Supreme Court has
interpreted the First Amendment's guarantee of freedom of speech very expansively, and the
constitutional protection afforded to freedom of speech is perhaps the strongest protection

33 first amendment of the American constitution

28 | P a g e
afforded to any individual right under the Constitution.

We see then that in the United States freedom of speech receives a very high degree of
constitutional protection. It is not untrue to say that the constitutional protection afforded to
freedom of speech is perhaps the strongest protection afforded to any individual right under the
American Constitution, and the value of freedom of speech generally prevails over other
democratic values such as equality, human dignity, and privacy. American judiciary, too, has
played very important role in broadening the scope of freedom of speech.

Schenck v. United States34 was the one of the first important case where Supreme Court was
first requested to strike down a law violating the Free Speech Clause. It was a case related to
Sedition Act of 1918 which criminalized "disloyal," "scurrilous" or "abusive" language against
the government. Supreme court held in this case “ the question in every case is whether the
words used are used in such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that Congress has a right to
prevent." Thus in this case court evolved a new doctrine of “clear and present danger”.

The "clear and present danger" test of Schenck case was extended in Debs v. United States35
again by Justice Oliver Wendell Holmes. The case involved a speech made by Eugene V. Debs,
a political activist. Debs had not spoken any words that posed a "clear and present danger" to the
conscription system, but a speech in which he denounced militarism was nonetheless found to be
sufficient grounds for his conviction. Justice Holmes suggested that the speech had a "natural
tendency" to occlude the draft. The test of clear and present danger was further upheld by the
court in Dennis v. United States.36 It was observed by the court that “clear and present danger"
test did not require the government to "wait until the putsch is about to be executed, the plans
have been laid and the signal is awaited", thereby broadly defining the words "clear and present
danger."

34 249 U.S. 47 (1919)

35 249 U.S. 211 (1919)
36 341 U.S. 494 (1951),

29 | P a g e
Thus, the Supreme Court effectively shaped the First Amendment in such a manner as to permit
a multitude of restrictions on speech. Example such restriction is providing authority to state to
punish words that "by their very nature, involve danger to the public peace and to the security of
the state." Moreover, Lawmakers were given the freedom to decide which speech would
constitute a danger.

Press and freedom of speech

With regard to press freedom, America has again adopted very liberal attitude towards it.
Freedom of press is the heart of social and political intercourse. It is the primary duty of the
courts to uphold the freedom of press and invalidate all laws or administrative actions, which
interfere with it contrary to the constitutional mandate. It has provided broad freedom to press
(every sort of publication which affords a vehicle of information and opinion) to provide
information to public. However, Freedom of the press, like freedom of speech, is subject to
restrictions on bases such as defamation law.

Again, American judiciary has approved content-based regulation. Content-based regulation of

television and radio has been sustained by the Supreme Court in various cases. For example In
Miami Herald Publishing Co. v. Tornillo37 the Court unanimously struck down a state law
requiring newspapers criticizing political candidates to publish their responses. The state claimed
that the law had been passed to ensure press responsibility. Finding that only freedom, and not
press responsibility, is mandated by the First Amendment, the Supreme Court ruled that the
government may not force newspapers to publish that which they do not desire to publish.

Obscenity
Since the freedom of speech is mainly governed by the first amendment of the constitution and
first amendment did not talk about obscenity and freedom of speech, The Supreme Court has
usually refused to give obscenity any protection. The governments, both federal and state, have
been permitted to make suitable legislation. However the court from time to time developed
various tests to examine obscenity. In Roth v. United States,38 Court applied a new test for
37 418 U.S. 241 (1974)
38 354 U.S. 476 (1957

30 | P a g e
obscenity, which was "whether to the average person, applying contemporary community
standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest."
this is known as Ruth test of obscenity.

The Roth test was further expanded when the Court decided Miller v. California39 case. It is
commonly known as Miller test. Under the Miller test, a work is obscene if it would be found
appealing to the prurient interest by an average person applying contemporary community
standards depicts sexual conduct in a patently offensive way and has no serious literary, artistic,
political, or scientific value. It thus includes the expression of one’s ideas through any
communicable medium or visible representation, such as gesture, signs and the like .It very
important to note that under Miller test, the “community" standards are followed, which might be
different from the national standard. Thus, material may be deemed obscene in one locality but
not in another. National standards, however, are applied whether the material is of value.

Defamation and freedom of speech

American law also recognizes the liability for defamatory speech or publication i.e. slander and
libel. The nature of American defamation law was vitally changed by the Supreme Court in
1964, in deciding New York Times Co. v. Sullivan,40 The New York Times had published an
advertisement indicating that officials in Montgomery, Alabama had acted violently in
suppressing the protests of African-Americans during the Civil rights movement. The
Montgomery Police Commissioner, L. B. Sullivan, sued the Times for libel on the grounds that
the advertisement damaged his reputation. The Sullivan case provides the principal doctrinal
justification for the development, although the results had long since been fully applied by the
Court. In Sullivan, Justice Brennan discerned in the controversies over the Sedition Act a
crystallization of ''a national awareness of the central meaning of the First Amendment, '' which
is that the ''right of free public discussion of the stewardship of public officials is a fundamental
principle of the American form of government.

This ''central meaning'' proscribes either civil or criminal punishment for any but the most

39 413 U.S. 15 (1973)

40 376 U.S. 254 (1964)

31 | P a g e
maliciously, knowingly false criticism of government. ''Although the Sedition Act was never
tested in this Court, the attack upon its validity has carried the day in the court of history. [The
historical record] reflects a broad consensus that the Act, because of the restraint it imposed upon
criticism of government and public officials, was inconsistent with the First Amendment.''
Supreme Court unanimously overruled the $500,000 judgment against the Times. Justice
William J. Brennan suggested that public officials may sue for libel only if the publisher
published the statements in question with "malice.” The actual malice standard applies to both
public officials and public figures, including celebrities. Though the details vary from state to
state, private individuals normally need only to prove negligence on the part of the defendant.

Hustler Magazine v. Falwell,41 extended the "actual malice" standard to intentional infliction of
emotional distress in a ruling which protected a parody. In the ruling, "actual malice" was
described as "knowledge that the statement was false or with reckless disregard whether or not it
was true.” It is clear from the above discussion that in American people enjoyed real freedom of
speech but at the same time, American judiciary has evolved very fair ground to put restriction
on freedom of speech. These restrictions can be summarized as- Seditious Speech and Seditious
Libel, Fighting Words and Other Threats to the Peace, Defamation, Group Libel, Hate Speech.
Thus Despite the constitutional guarantee of free speech in the United States, legal systems have
not treated freedom of speech as absolute and have put some obvious restrictions on the freedom
to speech and expression.

Freedom of Speech in India

Freedom of speech enjoys special position as far India is concerned. The importance of freedom
of expression and speech can be easily understand by the fact that preamble of constitution itself
ensures to all citizens inter alia, liberty of thought, expression, belief, faith and worship. The
constitutional significance of the freedom of speech consists in the Preamble of Constitution and
is transformed as fundamental and human right in Article 19(1) (a) as “freedom of speech and
expression”. Explaining the scope of freedom of speech and expression Supreme Court has said
that the words "freedom of speech and expression" must be broadly constructed to include the
freedom to circulate one's views by words of mouth or in writing or through audiovisual

41 Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)

32 | P a g e
instrumentalities. Freedom of Speech and expression means the right to express one's own
convictions and opinions freely by words of mouth, writing, printing, pictures, or any other
mode. It thus includes the expression of one's idea through any communicable medium or visible
representation, such as gesture, signs, and the like.

Moreover, it is important to note that liberty of one must not offend the liberty of others.
Patanjali Shastri,J. in A.K. Gopalan case42, observed, “man as a rational being desires to do
many things, but in a civil society his desires will have to be controlled with the exercise of
similar desires by other individuals”. It therefore includes the right to propagate one's views
through the print media or through any other communication channel e.g. the radio and the
television. Every citizen of this country therefore has the right to air his or their views through
the printing and or the electronic media subject of course to permissible restrictions imposed
under Article 19(2) of the Constitution. In sum, the fundamental principle involved here is the
people's right to know. Freedom of speech and expression should, therefore, receive generous
support from all those who believe in the participation of people in the administration. We can
see the guarantee of freedom of speech under following heads.

Freedom of Press
Although Article 19 does not express provision for freedom of press but the fundamental right of
the freedom of press implicit in the right the freedom of speech and expression. In the famous
case Express Newspapers (Bombay) (P) Ltd. v. Union of India 43 court observed the
importance of press very aptly. Court held in this case that “In today’s free world freedom of
press is the heart of social and political intercourse. The press has now assumed the role of the
public educator making formal and non-formal education possible in a large scale particularly in
the developing world, where television and other kinds of modern communication are not still
available for all sections of society. The purpose of the press is to advance the public interest by
publishing facts and opinions without which a democratic electorate [Government] cannot make
responsible judgments. Newspapers being purveyors of news and views having a bearing on
public administration very often carry material which would not be palatable to Governments
42 1950 AIR 27, 1950 SCR 88
43 1986 AIR 872, 1985 SCR Supl. (3) 382

33 | P a g e
and other authorities.”

The above statement of the Supreme Court illustrates that the freedom of press is essential for the
proper functioning of the democratic process. Democracy means Government of the people, by
the people and for the people; it is obvious that every citizen must be entitled to participate in the
democratic process and in order to enable him to intelligently exercise his right of making a
choice, free and general discussion of public matters is absolutely essential. This explains the
constitutional viewpoint of the freedom of press in India.

Obscenity
Freedom of speech, though guaranteed, is not absolute in India. Unlike the U.S. Constitution, the
text of India's Constitution clearly sets out restrictions on free speech. The freedom of speech
guarantee under Article 19(1) (a) can be subject to reasonable state restriction in the interest of
decency or morality. Obscenity in India is defined as "offensive to modesty or decency; lewd,
filthy and repulsive." It stated that the test of obscenity is whether the publication, read as a
whole, has a tendency to deprave and corrupt those whose minds are open to such immoral
influences, and therefore each work must be examined by itself.
With respect to art and obscenity, the Court held that "the art must be so preponderating as to
throw obscenity into a shadow or the obscenity so trivial and insignificant that it can have no
effect and may be overlooked". The Court concluded that the test to adopt in India, emphasizing
community mores, is that obscenity without a preponderating social purpose or profit cannot
have the constitutional protection of free speech.

Right to Information
Right to know, to information is other facet of freedom of speech. The right to know, to receive,
and to impart information has been recognized within the right to freedom of speech and
expression. A citizen has a fundamental right to use the best means of imparting and receiving
information and as such to have an access to telecasting for the purpose. The right to know has,
however, not yet extended to the extent of invalidating Section 5 of the Official Secrets Act,
1923 which prohibits disclosure of certain official documents. Even, Right to Information Act-
2005, which specially talks about peoples’ right to ask information from Government official,

34 | P a g e
prohibits discloser of certain documents under u/s 8 of the Act. These exceptions are generally
the grounds of reasonable restrictions over freedom of speech and expression under Article 19(1)
of Constitution of India. One can conclude that 'right to information is nothing but one small
limb of right of speech and expression.

Grounds of Restrictions
It is necessary to maintain and preserve freedom of speech and expression in a democracy, so
also it is necessary to place some restrictions on this freedom for the maintenance of social order,
because no freedom can be absolute or completely unrestricted. Accordingly, under Article 19(2)
of the Constitution of India, the State may make a law imposing “reasonable restrictions” on the
exercise of the right to freedom of speech and expression “in the interest of” the public on the
following grounds: Clause (2) of Article 19 of Indian constitution contains the grounds on which
restrictions on the freedom of speech and expression can be imposed:-

1) Security of State: Security of state is of vital importance and a government must have power
to impose restriction on the activity affecting it. Under Article 19(2) reasonable restrictions can
be imposed on freedom of speech and expression in the interest of security of State. However the
term “security” is very crucial one. The term "security of state" refers only to serious and
aggravated forms of public order e.g. rebellion, waging war against the State, insurrection and
not ordinary breaches of public order and public safety, e.g. unlawful assembly, riot, affray. Thus
speeches or expression on the part of an individual, which incite to or encourage the commission
of violent crimes, such as, murder are matters, which would undermine the security of State.

2) Friendly relations with foreign states: In the present global world, a country has to maintain
good and friendly relationship with other countries. Government should check something, which
has potential to affect such relation ship. Keeping this thing in mind, this ground was added by
the constitution (First Amendment) Act, 1951. The object behind the provision is to prohibit
unrestrained malicious propaganda against a foreign friendly state, which may jeopardize the
maintenance of good relations between India, and that state.

No similar provision is present in any other Constitution of the world. In India, the Foreign

35 | P a g e
Relations Act, (XII of 1932) provides punishment for libel by Indian citizens against foreign
dignitaries. Interest of friendly relations with foreign States, would not justify the suppression of
fair criticism of foreign policy of the Government. However it is interesting to note that member
of the commonwealth including Pakistan is not a "foreign state" for the purposes of this
Constitution. The result is that freedom of speech and expression cannot be restricted on the
ground that the matter is adverse to Pakistan.

3) Public Order: Next restriction prescribed by constitution is to maintain public order. This
ground was added by the Constitution (First Amendment) Act. 'Public order' is an expression of
wide connotation and signifies "that state of tranquility which prevails among the members of
political society as a result of internal regulations enforced by the Government which they have
established."
Here it is pertinent to look into meaning of the word “Public order. Public order is something
more than ordinary maintenance of law and order. 'Public order' is synonymous with public
peace, safety, and tranquility. Anything that disturbs public tranquility or public peace disturbs
public order. Thus communal disturbances and strikes promoted with the sole object of accusing
unrest among workmen are offences against public order. Public order thus implies absence of
violence and an orderly state of affairs in which citizens can peacefully pursue their normal
avocation of life. Public order also includes public safety. Thus creating internal disorder or
rebellion would affect public order and public safety. But mere criticism of government does not
necessarily disturb public order.
The words 'in the interest of public order' includes not only such utterances as are directly
intended to lead to disorder but also those that have the tendency to lead to disorder. Thus a law
punishing utterances made with the deliberate intention to hurt the religious feelings of any class
of persons is valid because it imposes a restriction on the right of free speech in the interest of
public order since such speech or writing has the tendency to create public disorder even if in
some case those activities may not actually lead to a breach of peace. But there must be
reasonable and proper nexus or relationship between the restrictions and the achievements of
public order.

4) Decency or morality: The way to express something or to say something should be decent

36 | P a g e
one. It should not affect the morality of the society adversely. Our constitution has taken care of
this view and inserted decency and morality as a ground. The words 'morality or decency' are
words of wide meaning. Sections 292 to 294 of the Indian Penal Code provide instances of
restrictions on the freedom of speech and expression in the interest of decency or morality. These
sections prohibit the sale or distribution or exhibition of obscene words, etc. in public places. No
fix standard is laid down till now as to what is moral and indecent. The standard of morality
varies from time to time and from place to place.

5) Contempt of Court: In a democratic country Judiciary plays very important role. In such
situation it becomes essential to respect such institution and its order. Thus, restriction on the
freedom of speech and expression can be imposed if it exceeds the reasonable and fair limit and
amounts to contempt of court. According to the Section 2 'Contempt of court' may be either 'civil
contempt' or 'criminal contempt.' But now, Indian contempt law was amended in 2006 to make
“truth” a defense. However, even after such amendment a person can be punished for the
statement unless they were made in public interest. Again in Indirect Tax Practitioners Assn.
vs. R.K.Jain,44 it was held by court that, “Truth based on the facts should be allowed as a valid
defense if courts are asked to decide contempt proceedings relating to contempt proceeding
relating to a speech or an editorial or article”. The qualification is that such defense should not
cover-up to escape from the consequences of a deliberate effort to scandalize the court.

6) Defamation: Ones’ freedom, be it of any type, must not affect the reputation or status another
person. A person is known by his reputation more than his wealth or any thing else. Constitution
considers it as ground to put restriction on freedom of speech. Basically, a statement, which
injures a man's reputation, amounts to defamation. Defamation consists in exposing a man to
hatred, ridicule, or contempt. The civil law in relating to defamation is still uncodified in India
and subject to certain exceptions.

7) Incitement to an offence: This ground was also added by the constitution (First Amendment)
Act, 1951. Obviously, freedom of speech and expression cannot confer a right to incite people to
commit offence. The word 'offence' is defined as any act or omission made punishable by law for

44 1993) AIR SCW 1899

37 | P a g e
the time being in force.

8) Sovereignty and integrity of India- To maintain sovereignty and integrity of a state is prime
duty of government. Taking into it into account, freedom of speech and expression can be
restricted so as not to permit any one to challenge sovereignty or to permit any one to preach
something which will result in threat to integrity of the country.

From above analysis, it is evident that Grounds contained in Article 19(2) show that they are all
concerned with the national interest or in the interest of the society. The first set of grounds i.e.
the sovereignty and integrity of India, the security of the State, friendly relations with foreign
States and public order are all grounds referable to national interest, whereas, the second set of
grounds i.e. decency, morality, contempt of court, defamation and incitement to an offence are
all concerned with the interest of the society.

India and America- A Swot Analysis

Two great democracies of world America and India very aptly recognizes the right of freedom of
speech and expression. The United States and India almost have similar free speech provisions in
their Constitutions. Article 19(1) (a) of Indian constitution corresponds to the First Amendment
of the United States Constitution which says, “congress shall make no law… abridging the
freedom of speech or of the press”4. However, the provisions in the US Constitution have two
notable features i.e.:
freedom of press is specifically mentioned therein,
No restrictions are mentioned on the freedom of speech.
As far as India is concerned, Supreme Court of India has held that there is no specific provision
ensuring freedom of the press separately. The freedom of the press is regarded as a “species of
which freedom of expression is a genus”. Therefore, press cannot be subjected to any special
restrictions which could not be imposed on any private citizen,5 and cannot claim any privilege
(unless conferred specifically by law), as such, as distinct from those of any other citizen.

In the famous case, Express Newspapers (Private) Ltd. v. Union of India, 45 Justice Bhagwati

45 1986 AIR 872, 1985 SCR Supl.

38 | P a g e
stated, "[that] the fundamental right to the freedom of speech and expression enshrined in our
constitution is based on (the provisions in) Amendment I of the Constitution of the United States
and it would be therefore legitimate and proper to refer to those decisions of the Supreme Court
of the United States of America in order to appreciate the true nature, scope and extent of this
right in spite of the warning administered by this court against use of American and other cases.”
Despite similarities in their constitutional provisions, the United States and India have their own
unique jurisprudence on freedom of speech. Consequently, they differ as to what is and what is
not acceptable free speech. As mentioned, the real difference in freedom of speech enjoyed in the
United States and India is a question of degree. This difference in degree is attributable to the
reasonable restrictions provision and the moral standard of the communities. India has
progressed from an authoritarian system of control and is now attempting a legislative model of
control, quite similar to that of the United States.

Free speech is meaningless unless it has space to breathe. It is important to note that false
statements made honestly are equally a part of freedom of speech. The supreme court of India
applied the famous doctrine of New York Times v Sullivan 46 standard of American
constitutional law against public officials. Accordingly, statements made against persons in the
public eye cannot be considered defamatory unless they were made with “actual malice”. The
reason for this is very simple, democratic governance mandates the strict scrutiny of public
official duties.

The consequence of this very high degree of constitutional protection to freedom of speech in the
United States is that ideas most Americans consider very repugnant, and that may be hurtful to
some people, such as racial hatred, can be expressed freely. At the same time, the expansive
protection to freedom of speech under the First Amendment ensures robust debate on all public
issues and the widest dissemination of all ideas. As stated above, under the First Amendment,
there is no such thing as a "bad idea," and the remedy for bad speech is said to be "more speech,
and not enforced silence. It is part of our culture that people are "free to speak their mind" and
need not fear that they will be sanctioned for saying something that is offensive or unpopular.
The government is not required to and, more importantly, is not permitted to make decisions

46 376 U.S. 254 (1964)

39 | P a g e
about what ideas may be expressed and what ideas may not be expressed. The constitutional
guarantee of freedom of expression under the First Amendment then means freedom of
expression in the fullest sense. For better or worse, this is the American way.

However in the case of India constitutional provisions have been widely influenced by the moral
standard of the society. Constitution has tried to adapt and embody those freedom and
restrictions enjoyed by the Indian people from long time. The provision of freedom of speech
and restrictions are the result of that way of thinking, and this is the Indian way.

Conclusion
Expression through speech is one of the basic guarantees provided by civil society. However in
modern world Right to freedom of speech and expression is not limited to express ones’ view
through words but it also includes circulating one's views in writing or through audiovisual
instrumentalities, through advertisements and through any other communication channel. It also
comprises of right to information, freedom of press etc. It is a right to express and self-
realization. Two big democracies of world i.e. America and India have remarkably protected this
right. As far as India is concerned, this important right is mentioned in Article 19(1) (a), which
falls in fundamental right category. Indian courts have always placed a broad interpretation on
the value and content of Article 19(1) (a), making it subjective only to the restrictions
permissible under Article 19(2).

The words 'in the interest of public order', as used in the Article 19 include not only utterances as
are directly intended to lead to disorder but also those that have the tendency to lead to disorder.
There should be reasonable and proper nexus or relationship between the restriction and
achievement of public order. Initially, the American constitution was not having any provisions
directed to protection of freedom of speech and expression. It was inserted in the constitution
vide first amendment of the constitution. The First Amendment has been drafted in broad and
sweeping terms, and for this reason, the text of the First Amendment does not contain any
standard for determining permissible restrictions on freedom of speech. The restrictions that are
permissible now are those that have been developed by the Supreme Court in its interpretation of
the First Amendment.

40 | P a g e
 The United States has a complex First Amendment jurisprudence that varies the
protection offered free speech according to form. Similarly, India developed its own free speech
jurisprudence that applies a "reasonable restrictions" test based on eight mentioned restrictions.
The real difference in freedom of speech enjoyed in the United States and India is a question of
degree. This difference in degree is attributable to the reasonable restrictions provision and the
moral standard of the communities.

Article 19 confers vital freedoms such as "freedom of speech and expression,” freedom to
"assemble peacefully and without arms," to "form associations or unions," to move freely and to
reside and settle in any part of the country, and to practice any profession, occupation, trade or
business47. These rights are subject to "reasonable restrictions" on specific grounds mentioned in
the Constitution.48

In USA The right to express your ideas and opinions when you speak is called freedom of
speech. Freedom of speech also means the right to listen to the thoughts and opinions of others.
This freedom guarantees that Americans are free to express their thoughts and ideas about
anything. They may talk freely to their friends and neighbors or speak in public to a group of
people. Of course, no one may use his freedom of speech to injure others. If a person knowingly
says things that are false about another, the person or persons who believe they have been
harmed by what he said may sue him in court.

Americans are free to express opinions about their government or anything else. They are free to
criticize the actions of the government and of government officials. In a dictatorship, where the
nation's government has all the powers, the people have no right to speak like this. They do not
dare to criticize the actions of the government. If they do, they may be imprisoned. But all
Americans enjoy the freedom of speech, which is guaranteed in the First Amendment.

47 See INDIA CONST. pt. III, art. 19, cl. I (g), reprintedin VII CONSTITUTIONS OF THE COUNTRIES OF THE
WORLD, supra note 7, at 1, 45 (stating that "[a]ll citi- zens shall have the right to practice any profession, or to
carry on any occupation, trade orbusiness").
48 See id. art. 19, cl. 1 (g), (2)-(6) (limiting fundamental freedoms on the basis of state security, foreign relations,
public order, decency, and morality).

41 | P a g e
The freedom to express your ideas and opinions in writing is known as freedom of the press. This
freedom is closely related to freedom of speech and is also guaranteed by the First Amendment.
Freedom of the press gives all Americans the right to express their ideas and thoughts freely in
writing. This writing may be in newspapers, books, magazines, or any other printed or written
form. Americans are also free to read what others write. They may read any newspaper, book or
magazine they want. Because they are free to read a variety of facts and opinions, Americans can
become better-informed citizens.

Another priceless freedom guaranteed by the First Amendment is freedom of assembly, or

freedom to hold meetings. Americans are free to meet together to discuss problems and to plan
their actions. Of course, such meetings must be carried on in a peaceful way.

In India it is impliedly read under the Article 19[1] [a], freedom of speech and expression.
Petition to the Supreme Court is fundamental right in India, where as in US it is petition to the
government.

S.Rangrajan etc. V. P.Jagjivan Ram’s case-“the first amendment to the U.S. constitution
provides-‘the congress shall form no law, abridging the freedom of speech, or of the press’. This
amendment is absolute in term and it contains no exception of the exercise of the right’ wherein
test of ‘clear and present danger’ was evolved by Justice Holmes, however Article 19(1)(a) of
our constitution guarantee to all citizens the, right to freedom to speech and expression on the
ground set under Article 19(1)(a) of the constitution”.49

Similarly has the court relied upon American decision in interpreting the doctrines of immunity
against double jeopardy and self-incrimination, which are embodied in Cls. (2)-(3) of Art. 20 of
our constitution (though in a different language). 50

Impressive procedural rights are provided in Articles 20 through 22 of the Constitution of India,
with Article 21 setting the tone: "No person shall be deprived of life or personal liberty except
according to procedure established by law" 51.
49 S.Rangarajan etc. V. P.Jagjivan Ram(1989) 2 SCC 574
50 Maqbool v State of bombay,(1953) SCR 730 (737); M.P. Sharma V. Satish, (1954) SCR 1077 (1083).

51 Id. art. 21. See also infra Part I.C (recounting the story behind the absence of a due process clause in the Indian
Constitution). The advice of United States Supreme Court justice Felix Frankfurter to visiting Constituent Assembly

42 | P a g e
IN USA No person’s life and liberty shall be deprived without “due process” of law. Due
process means the content and procedure of law must be just, fair, and equitable which will be
decided by the judiciary. Legislative power of depriving the person liberty is restricted and
scrutinized and evaluated by the judiciary. In India the person’s life and liberty shall be deprived
according to procedure established by law. The world “procedure established by law” gives wide
discretionary power to the legislator to restrict the liberty. Nevertheless, the Supreme Court
in Menaka Gandhi case, even though the court did not use the world due process, it held that the
procedure established by law must be fair, just and equitable.

The Supreme Court gloriously expanded the right to life and personal liberty to include the right
to travel abroad in Maneka Gandhi v. Union of India its historic post-Emergency decision.52
The Court articulated that Part III of the Constitution was designed to create conditions in which
every human could develop his personality to the fullest extent. 53 Even more notably, the judges
declared that any procedure that curtails life and liberty must be right, just, fair, and in- fused
with the principles of natural justice.54Procedure cannot be arbitrary, fanciful, and oppressive was
crystallized in the Constitution and received a deathblow in Gopalan, was finally resurrected
twenty-eight years after the commencement of the Constitution.

The Court's historic ruling in Maneka Gandhi resulted in remarkable developments in the
protection of life and liberty, even for individuals accused of crimes and individuals confined
behind iron walls. The sensitized Judiciary declared that life, even life behind prison bars, did not
mean mere animal existence.55 Ergo, death row prisoners are entitled to food, clothing, and
shelter on par with other ordinary prisoners. Inmates are considered to be in the "safekeeping" of
prison authorities and cannot be subjected to mental or physical torture. Torture, cruelty,

member B.N. Rau was influential. See AUSTIN, supra note 50, at 103 (describing the Rau- Frankfurter meeting in
the United States).
52 A.I.R. 1978 S.C. 597.
53 See id. at 620 (noting that these rights are comprehensive, falling under four categories, namely, the rights to
equality, freedom against exploitation, freedom of religion, cultural and educational rights).
54 See id. at 619-23 (noting that Article 21 provides that "[n]o person shall be deprived of his life or personal liberty
except according to procedure established by law").
55 Sunil Batra v. Delhi Admin., A.I.R. 1978 S.C. 1675 (continuing the expansion of personal fundamental rights).

43 | P a g e
arbitrary imposition of solitary confinement, use of iron chains,56 routine handcuffing of
prisoners,57 denial of permission to prison inmates to have interviews with their attorneys and
family members,58 and other inhumane practices 59can no longer pass the constitutional gauntlet
masked as punitive practices pursuant to the rule of fair procedure established in Maneka
Gandhi. The following passage perhaps best sums up the great strides the Court had made in
weaving procedural due process into the constitutional tapestry:

True, our Constitution has no due process clause or the VIII amendment. But after Maneka
Gandhi, the consequence is the same. For what is punitively outrageous, scandalizingly unusual
or cruel, rehabilitatively counter productive is unarguably unreasonable or arbitrary. Part Ill of
the Constitution does not part company with the prisoner at the gates. Judicial oversight protects
the prisoners' shrunken fundamental rights if frowned, frozen or flouted on by the prison
authorities.

Additionally, as a result of Maneka Gandhi, Article 21 mandates a speedy trial for the accused.
In fact, any procedure that does not ensure a reasonably expeditious trial can never be regarded
as reasonable, fair, or just. Consequently, the Supreme Court held incarceration of pre-trial
prisoners languishing in prison for patently long periods prior to trial unconstitutional and
violative of Article 21.' Galvanized by "Gideon's trumpet that was heard across the Atlantic, 'the
Court also declared free legal services, another ingredient of fair procedure under Article 21, a
"processual piece of criminal justice.' The right to free legal services was not the last right to be
articulated. Many more rights followed.

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

56 Charles Sobraj v. Delhi Admin., A.I.R. 1978 S.C. 1590 (expanding prisoners' fundamental rights and conditions).
57 Prem Shanker Shukla v. Delhi Admin., A.I.R. 1980 S.C. 1535 (ad- judging that preventing a prisoner from
escaping custody or becoming violent are the only two valid justifications for chaining prisoners).
58 Francis Coralie Mullin v. W.C. Khambra, A.I.R. 1980 S.C. 849 (noting that the detaining authority must provide
the inmate with a "very earl), opportunity to make an effective representation").
59 Sunil Batra v. Delhi Admin., A.I.R. 1980 S.C. 1565, 1579 (noting that this case "imparts to the habeas corpus
writ a versatile vitality and operational util- ity that makes the healing presence of the law live up to its reputation as
a bastion of liberty even within the secrecy of the hidden cell").

44 | P a g e
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.

Courts have relied upon American decisions in interpreting the doctrines of immunity against
double-jeopardy and self incrimination which are embodied in Cls. (2)-(3) of article 20. Of our
constitution (though in different language)60

Article 20 provides certain crucial safeguards in respect of conviction for offenses. It guarantees
freedom from retroactive crimes,61 double jeopardy,62 and self- incrimination.63

IN USA -The freedom of petition is the right to ask your government to do something or to
refrain from doing something. The First Amendment contains this guarantee, also. The freedom
of petition gives you the right to write to your Congressman and request him to work for the
passage of laws you favor. You are free to ask him to change laws that you do not like. The right
of petition also helps government officials to know what Americans think and what actions they
want the government to take.

The U.S. Constitution does not explicitly mention a right to education,64

21A. RIGHT TO EDUCATION 65 - the state shall provide free and compulsory education to all
children of the age of six to fourteen years in such a manner as the state may, by law determine

60 Maqbool v. state of Bombay, (1953) SCR 730(737);M.P. Sharma v. Stish ,(1954) SCR 1077 (1083)
61 See id. art. 20, cl. I ("No person shall be convicted of any offence except for violation of a law in force at the
time of the commission of the act charged as an offence").
62 See id. art. 20, cl. 2 ("No person shall be prosecuted and punished for the same offence more than once.").
63 See id. art. 20, cl. 3 ("No person shall be compelled to be a witness against himself.").
64 See generally U.S. CONST.
65 ins. By constitution(86th amendment) Act,2002, sec.2 (w.e.f.1-4-2010)

45 | P a g e
Article 22 concerns access to the courts, counsel, and a public trial. 66 Essentially, this Article
provides protection against arrest and detention in certain cases. 67 In case of arrest, a person has
the right to know the grounds of arrest, the right to counsel on arrest, and the right to appear
before a magistrate within "twenty-four hours" of arrest. The Constitution specifically mandates
magisterial supervision in case of imprisonment for a period beyond "twenty- four hours.'' 68

66 See id.pt. III, art. 22 (providing the extensive text of article 22).
67 See id. art. 22, cl. 1 (stating that "[no person who is arrested shall be detained in custody without being informed,
as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a
legal practitioner of his choice.").
68 Id. art. 22, cl.2.

46 | P a g e
 Right Against Exploitation (Art. 23-24)

Articles 23 and 24 of the Constitution evidence how deeply com- mitted the founding fathers
were to creating a humane society in India. Article 23 prohibits traffic in "human beings and
beggar and other similar forms of forced labor,"69 while Article 24 prohibits the employment of
children in factories, mines, and other hazardous work situations. 70

THE CONCEPT OF HUMAN TRAFFICKING, FORCED LABOUR AND

EMPLOYMENT OF CHILDREN

The article 23 embodies two declarations, First, that traffic in human beings, begar and other
similar forms of forced labour are prohibited. The prohibition applies not only to State but also to
private persons, bodies and organizations. Second, any contravention of the prohibition shall be
71
an offence punishable in accordance with law. under Article 35 of the constitution laws
punishing acts prohibited by this article shall only be made by the Parliament, though existing
laws on the subject, until altered or repealed by parliament, are saved.

The general understanding was that right secured by Article 24 would hardly be effective in the
absence of legislation prohibiting and penalizing its violation. However, Supreme Court clearly
stated that Article 24 “must operate proprio vigour” even if the prohibition lay down in it is not
“followed up by appropriate legislation.”72

The State shall, in particular, direct its policy towards securing the health and strength of
workers, men and women, and the tender age of children are not abused and that citizens are not
forced by economic necessity to enter avocations unsuited to their age or strength. Also the State
shall, direct its policy towards securing the given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that childhood and youth are
protected against exploitation and against moral and material abandonment to the children.
69 Id. art. 23.
70 See id. art. 24 (stating that "No child below the age of fourteen years shall be employed to work in any factory or
mine or engaged in any hazardous employment").
71 http://en.wikipedia.org/wiki/Human_trafficking_in_India
72 http://www.legalservicesindia.com/article/article/child-labour-in-indian-society-257-1.htm

47 | P a g e
Right against Exploitation

ARTICLE 23. Prohibition of traffic in human beings and forced labour.—(1) Traffic in human
beings and begar and other similar forms of forced labour are prohibited and any contravention
of this provision shall be an offence punishable in accordance with law.

(2) Nothing in this article shall prevent the State from imposing compulsory service for public
purposes, and in imposing such service the State shall not make any discrimination on grounds
only of religion, race, caste or class or any of them.

ARTICLE 24. Prohibition of employment of children in factories, etc. —No child below the age
of fourteen years shall be employed to work in any factory or mine or engaged in any other
hazardous employment.73

Scope of Cl.(1): Prohibition of traffic in human beings

This clause prohibits not only forced labour, but also ‘traffic in human beings’, which is
evidently a very wide expression. It would include not only the prohibition of slavery but also of
traffic in women for immoral or other purposes.---Raj Bahadur v. Legal remembrance, Govt. of
West Bengal,74 .Trafficking in human beings has been interoreted to include a contract for sale of
a women to a man for marriage or concubinage, though not for prostitution even when such sale
is supported by caste custom. The court took the above view taking into consideration Arts.1 and
4 of Universal Declaration and Art.8 of the International Covenant.

Again, while the American Constitution (13th Amendment). Expressely prohibits slavery or
involuntary servitude, that has not been done under the present Article of Indian Constitution s.
370 of the I.P.C. penalizes the exportation, buying, selling, use and detention of a person ‘against
his will as a slave’; and kidnapping a person for the purpose of slavery, is a n offence under s.
367, I.P.C.

U.S.A. The Thirteen Amendment (1865) to the Constitution of the United States says:

“(1) Neither Slavery nor involuntary servitude, except as a punishment for crime whereof the
73 CONSTITUTION OF INDIA; BARE ACT
74 17 AIR 1953 Cal 522

48 | P a g e
party shall have been duly convicted, shall exist within the united States, or any place subject to
their jurisdiction.”

Art.6 of American Convention of Human Rights read as follows:

“(1) No one shall be subject to slavery or involuntary servitude, which one prohibited in all their
forms, as are slave trade and traffic in women.

(2) No one shall be required to perform forced or compulsory labour. This provision shall not be
interpreted to mean that, in those countries in which the penalty established for certain crimes in
deprivation of liberty at forced labour, the carrying out of such sentence imposed by a competent
court is prohibited. Forced labour shall not adversely affect the dignity or the physical or
intellectual capacity of the prisoner.

(3) For the purpose of this Articles, the following do not constitute forced or compulsory labour:

(a) work or service normally required of a person imprisoned in execution of sentence or formal
decision passed by the competent judicial authority. Such work or service shall be carried out
under the supervision and control of public authorities, and any person performing such work
shall not be placed at the disposal of any private party, company or judicial person;75

(b) military services, and in countries in which conscientious objectors are recognized, national
services that the law may provide for in lien of military service;

c) service extracted in time of danger or calamity that threatens the existence or the well-being of
the community; or

(d) work or services that form part of normal civic obligation.”

‘Involuntary servitude’ has been interpreted to include any kind of “control by which the
personal services of one man is disposed of or served for another’s benefit.” Slavery, it was said
by JUSTICE BROWN in Plessy v. Ferguson,76: implies involuntary servitude – a state of
bondage; the ownership of mankind as a chattel, or at least the control of the labour or services

75 CONSTITUTIONAL LAW OF INDIA,H.M. SEERVAI,4TH EDITION

76 163 US 537

49 | P a g e
of one man for the benefit of the another, and the absence of a legal right to the disposal of his
own person, property or services.

It means the condition of one who is compelled by force, coercion and against his will to work
for another with or without remuneration.77But the involuntary servitude that that is forbidden is
such as would not be tolerated by the free principles of common law and would not include the
following:

(i) Reguilation of services in the domestic relations.

(ii) A statute requiring seamen to carry out the terms of their agreement,in as much as their
employment demands, special regulations.

(iii) Duties of citizenship, such as compulsory military service, compulsory work on the public
highway; compulsory jury service.

(iv) Forced labour as a punishment for crime, or as a part of prison discipline.

(v) Punishment for or injunction against an illegal strike.

The protection from involuntary servitude is not confined to members of any particular race but
extent to any individual.

It follows from the above guarantee that above laborer or worker has the right to quit his work
and that he cannot be compelled to work under any employer, even though he may liable in
damages for breach of contract.

CL (2) of Thirteen Amendment empowers Congress “to enforce this article by appropriate
legislation.” Under the above provision, Congress has prohibited (1867) ‘peonage’ or the
voluntary or involuntary service or labour of any person in liquidation of any debt or obligation.
Clyatt v. U.S.,78 The provision of the Thirteen Amendment have, therefore, to be read along with
this statute.

Even where there is a voluntary contract to render service in payment of a debt, the State cannot
77 RAMNATHAIYER’S ADVANCED LAW LEXICON,3rd Edn. 2005, Book No.2, p.2455
78 (CONSTITUTIONAL LAW OF INDIA,H.M. SEERVAI,4TH EDITION 9 (ibid

50 | P a g e
compel the debtor to render that service by punishment or other coercive process, though the
debtor may be liable in damages for the breach of the contract. Clyatt v. U.S.79, “It may not
make failure to labour in discharge of a debt any part of a crime. It may not directly command
involuntary servitude, even if it was voluntary contracted for’’, and the court would quash a
conviction even where the accused pleads guilty to a statute which makes it a crime to refuse to
serve under any such contract.

LORD DENNING in his book10 has explained what is the nature of slavery:

“A man who was a slave was obliged to serve his master for the whole of his life. He received in
return food, clothing and shelter, by no remuneration by way of wages. If he did not obey the
orders, the master could punish him by whipping or strokes or putting him on short rations. If the
slave grew anything or made anything it belonged to his master. It a women slave bore children
of any father- they belonged to her master. The master could sell his slave for money and transfer
all his right over the slave to the purchaser. If the slave was ill treated, he had no recourse to the
courts of law for redress. He had no right no locus- standi to sue anyone. He was the property of
his master- on the same footing as his horse or his cow or his table or chair.”

79 Clyatt v. United States 197 U.S. 207 (1905)

51 | P a g e
 Right to Freedom of Religion (Art. 25-28)

Various facets of religious freedom rights are delineated in Articles 25 through 28 of the
Constitution. Article 25 guarantees to all people’s freedom of conscience and the right freely to
profess, practice, and propagate their religion.80 Interestingly, the State is vested with far
reaching powers to regulate this freedom not merely in its secular aspects-in the interests of
public order and morality81-but also to affect social reform and compel public Hindu temples to
open their doors to all classes of Hindus. 82 Public order, morality, and health are the only explicit
restrictions on this right.83 Freedom to manage religious affairs, which includes establishing and
maintaining institutions for religious and charitable purposes, is also guaranteed to every
religious denomination in the country.84 Article 27 prohibits compelling any person to pay taxes
for the promotion or maintenance of a particular religion or denomination. 85 This Article
embodies some principles underlying the establishment clause in the United States
Constitution.86 Religious instruction in educational institutions wholly maintained by state funds
is also constitutionally prohibited in India.87

80 See id. art. 25 ("Subject to public order, morality and health and to other provisions of this Part, all persons are
equally entitled to freedom of conscience and the right freely to profess, practice, and propagate religion.").
81 See id. art. 25, cl. 2 (a) ("Nothing in this article shall effect the operation of any existing law or prevent the State
from making any law regulating or restricting any economic, financial, political or other secular activity which may
be associated with religious practice.").
82 See INDIA CONST. pt. III, art. 25, cl. 2 (b), re printed in VII CONSTITUTIONS OF THE COUNTRIES OF
THE WORLD, supra note 7, at 1, 61 ("Nothing in this article shall affect the operation of any existing law or
prevent the state from making any law providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of Hindus.").
83 See id. art. 25, cl. 1.
84 See id. art. 26, cl. 1 (a)-(d) ("Subject to public order, morality and health, every religious denomination or any
section thereof shall the right …).
85 . See id. art. 27 ("No person shall be compelled to pay any taxes the proceeds of which are specifically
appropriated in payment of the expenses for the promotion or maintenance of any particular religion or religious
group.").
86 See U.S. CONST. amend. I.
87 See INDIA CONST. pt. III, art. 28, cl. 1, re printed in VII CONSTITUTIONS OF THE COUNTRIES OF THE
WORLD, supra note 7, at 1, 65.

52 | P a g e
In U.S.A. The first right, or freedom, guaranteed in the Bill of Rights is freedom of religion. This
right is guaranteed in the First Amendment. Freedom of religion guarantees to all Americans the
right to practice any religion they choose, or to practice no religion at all.

Congress is forbidden to establish any religion as our nation's official religion. Congress cannot
favor any one religion over others or tax citizens in order to support any one religion.

Religious Equality: The best religion is selected through free competition of religions.
Therefore, the First Amendment from selectively advancing a religion explicitly prohibits the
federal government. An arbitrary support of a religion by a state would violate equal protection
under the laws and due process of law and is thus unconstitutional by the Fourteenth
Amendment--some people lose comfort (which, as a right, is a liberty) when a state advocates a
religion. Moreover, a governmental support of a religion makes the competition of religions
uneven and thus may prevent the triumph of the best religion. The support can be physical or
verbal. (Verbal support means embracing and teaching religious doctrines as official
knowledge.) Funding religious indoctrination promotes an establishment of religion. When
funding parochial schools, the government may fund secular but not religious components of
education. The funding may be based only on the secular components. Much rather like human
rights impose stringent limitations on government funding of whites-only schools, adherence to
fundamental rights prohibits most governmental funding for services (such as education) that the
service providers offer only to members of a certain religion. Providing broad exceptions to
churches from adhering to laws promotes religion (since 'non religious' organizations do not
receive the exceptions) and is thus unconstitutional.

53 | P a g e
 Cultural and Educational Rights (Art. 29-30)

India is a multi-ethnic and multi-religious nation reflecting a rich diversity of castes, religions,
languages, and cultures. In establishing a secular state founded on the principle of equality, the
founding fathers were guided by the principle of enlightened accommodation of diverse faiths
and religions. Accordingly, the Constitution contained special provisions protecting the interests
of minorities. Any distinct religious, cultural, and linguistic group enjoys the right to freely
establish and administer institutions to preserve their culture, language, and script. 88 Where such
institutions receive grants from the state, they must comply with the constitutional ban on certain
kinds of discrimination in their admission policies.89

Right to Property
88 See id. art. 29, cl. 1 (stating that -any section of the citizens residing in the territory or any part thereof having a
distinct language, script, or culture of its own shall have the right to conserve the same.").
89 See id. art. 30 (providing the "right of minorities to establish and administer educational institutions").

54 | P a g e
As the Constitution was originally drafted, the right to property was enshrined as a fundamental
right. By the 44th Amendment to the Constitution, the right to property was removed as a
fundamental right and instead, a new provision was added to the Constitution i.e. Article 300-A.

The Right to Property prior to the 44th Amendment.

As I mentioned in the introductory paragraph, the right to hold property was a fundamental right
in the Constitution was originally drafted. The right to property was a threefold right:

Article 19(1)(f) stated that every person had a right to acquire any property by lawful means,
hold it as his own and dispose of it freely, limited only by reasonable restrictions to serve the
exigencies of public welfare any other restrictions that may be imposed by the State to protect
interests of Scheduled Tribes.

Article 31(1) provided that no person shall be deprived of his right to property save by the
authority of law.

Article 31(2) provided that if the State wants to acquire the private property of an individual or to
requisition (that is to take over the property of a temporary period), it could do so only if such
acquisition or requisition is for a public purpose and that compensation would be payable to the
owner.

Prior to the deletion under the 44th Amendment Act, several amendments were made by
successive Congress governments eroding these rights. The following are some of the significant
changes:The adequacy of compensation payable on acquisition or requisition could not be
questioned in a court of law.

The obligation of the Government to pay compensation was watered down by addition of
exceptions to such requirements. These exceptions included if the Government acquired property
for estates or intermediate rights (Article 31A), or where land was acquired under certain
specified enactments (Article 31B) and acquisitions aimed towards implementation of the
Directive Principle set out in Article 39(b)-(c)[1] which was aimed at social redistribution of
wealth (Article 31C).

Controversy relating to Article 31C - Keshavanand Bharati

55 | P a g e
With respect to Artcile 31C, please note that the provision was challenged under the celebrated
decision of Keshavanand Bharati v. State of Kerala 90. One of the provisions of Article 31C
stated that any legislative declaration that a particular law was made to implement the directive
principles set out in Article 39(b)-(c) shall not be open to question in the court.

This would mean that any such law could not be challenged by way of a judicial review, which is
a right that would otherwise have been available

The Supreme Court in this case had held that judicial review is one of the essential features of
the Constitution. The Legislature could not, by passing a Constitutional amendment dilute the
right to seek judicial review which is one of the essential features of the Constitution.

However, the Parliament even after this decision, extended the applicability of Article 31 not just
to Article 39(b) and (c) but any directive principle91

The 44th Amendment and abolition of Artcile 31 to 31C

1. The 44th Amendment rang the death knell for the right to property and both Article 19(1)(f)
and Article 31 were as a result deleted.

2. Whenever a law if passed or amended, it is usual for the Legislature to issue a Statement of
Objects and Reasons to explain the reason for the proposed law or amendment. The Statement of
Objects and Reasons to the 44th Amendment provides in this regard:

3. In view of the special position sought to be given to fundamental rights, the right to property,
which has been the occasion for more than one amendment of the Constitution, would cease to
be a fundamental right and become only a legal right. Necessary amendments for this purpose
are being made to article 19 and article 31 is being deleted. It would, however, be ensured that
the removal of property from the list of fundamental rights would not affect the right of
minorities to establish and administer educational institutions of their choice.

4. Similarly, the right of persons holding land for personal cultivation and within the ceiling limit
to receive compensation at the market value would not be affected.
90 (AIR 1973 SC 146)
91 (http://lawmin.nic.in/olwing/coi/...).

56 | P a g e
5.Property, while ceasing to be a fundamental right, would, however, be given express
recognition as a legal right, provision being made that no person shall be deprived of his property
save in accordance with law.

Instead Article 300A was added that provides that 'no person shall be deprived of his property
save by authority of law.

Reasons for the Amendment

The sense that I get from the above is that the Parliament decided that, considering that the
fundamental rights are to be treated as almost sacred [2] and any trifling with them is bound to
create a furore, it would be easier to just demote the right to property from a fundamental right to
a mere Constitutional right.

This basically gives the legislature more of a leeway to pass laws that restrict a person's right to
property and ensuring that a person who is deprived of his property is entitled to fair
compensation by the Government.

The Effect of the Amendment

As the right to property is no longer a fundamental right but only a legal right, a person does not
have a right to file a writ in the Supreme Court under Article 32 for infringement of such right.
He can either file a suit against the Government or file a writ under Article 226 to the High
Court.

This dilutes a person's remedies on deprivation of his right to property.

Originally the Constitution guaranteed the right to property. 92 This right, however, was deleted
from the list of fundamental rights by the 44' Constitutional Amendment Act of 1978, in April
1979. 93 It is made a legal right under Article-300A in part XII of the Constitution. So now there
is only six Rights in part III of the Constitution.
92 See id. art. 31 (stating that Parliament repealed the -compulsory acquisition of property" provision in 1978). see
also AUSTIN, supra note 50.at 89 (discussing the property provisions in the draft constitution).
93 See AUSTIN, supra note 50, at 89: see also notes 152-56 and accompanying text (discussing the litigation and
intense Parliament-Judiciary controversy involving property rights, and the subsequent constitutional amendments
that deleted these rights from the list of fundamental rights).

57 | P a g e
In U.S.A.

The Fifth Amendment guarantees Americans the right to own private property. No person may
take away anything that we own. Nor can the government seize our land, money, or other forms
of property without cause, or without paying for it. The right to own private property is one of
America's basic freedoms.

Since, for proper existence (and for production of speech), people may need some of the items
they own, private property rights are (to a reasonable extent) fundamental. Since the right to
control objects is a liberty, deprivation of property without due process of law violates
fundamental rights. The property rights include the right to one's body, the right to own items,
the right to control the items one owns, and a (limited) freedom to enter into (binding) contracts.
The right to pay for communication equipment to communicate and the right to sell books and
other data storage devices (with information) is (to a reasonable extent) fundamental since
otherwise communication may be impossible. Property rights are also very important as
economic incentives.

Right to Constitutional Remedies (Article 32-35)

All the above rights would be otiose in the absence of a right to move the court for their

enforcement. Happily, the Constitution guarantees th is crucial right in Article 32.94 Any person-

citizen and alien alike-has the right to invoke the highest court's jurisdiction for the vindication
of his or her constitutional rights.95 These human rights provisions were written into the

94 See INDIA CONST. pt. III, art. 32, re printed in VII CONSTITUTIONSOF THE COUNTRIES OF THE
WORLD, supra note 7,at 1. 7 1.
95 See id. (providing the right to petition the Indian Supreme Court for enforcement of fundamental rights).
58 | P a g e
Constitution "with the hope that one day the tree of true liberty would bloom in India."96

The Right to Constitutional Remedies given to us by Article 32 has no equivalent in the US

Constitution, and it has meant that the Supreme Court of India was a much more powerful body
in the initial years of our Constitution than the Supreme Court of the United States was before
Justice Marshall took over as Chief Justice of the United States and famously brought about the
increase of the Court's powers in the celebrated case of Marbury vs Madison.97

IN USA -THE RIGHT TO EQUAL JUSTICE

The Bill of Rights contains many rights that are guaranteed to persons accused of a crime.

Amendments Five, Six, Seven, and Eight are all concerned with these rights. USA places great

importance on these rights in order to guarantee equal justice for all Americans.

1. A person must be indicted, or formally accused of a crime, by a group of citizens called a

"grand jury" before he can be brought into court for trial.

2. A person accused of a crime is guaranteed the right to know what law he is accused of

breaking.

3. A person accused of a crime has a right to a prompt public trial by a jury of his fellow citizens.

4. An accused person cannot be put into prison and kept there for weeks or months while

awaiting a trial. He has the right to leave jail, in most cases, if he can raise a certain sum of

money, or bail, as a pledge that he will appear at his trial.

96 AUSTIN, supra note 50, at 108.

97 5 U.S. 137 (1803)

59 | P a g e
5. An accused person has a right to a lawyer to represent him in court.

6.All the testimony and evidence against an accused person must be presented publicly in court.

7. The accused person has the right to call any witnesses to appear if their testimony will help

him.

8. The accused person cannot be forced to testify or give evidence against himself.

If the accused person is found guilty, he cannot be given cruel or unusual punishment. If the

accused person is found not guilty of a serious crime, he cannot be tried a second time for this

same crime.

Enforcement of Rights:  Fortunately, explicitly and through the Fifth, Ninth, and Fourteenth
Amendments, the USA Constitution grants all fundamental rights to all people. Since
fundamental rights are meaningless if they are not enforced, the right to have fundamental rights
enforced is a fundamental right. If violations of fundamental rights by private people are not
remedied, then fundamental rights are denied. Therefore, those whose fundamental rights have
been abridged (by a government or a private person) have a Constitutional right to have their
complaint properly considered in an appropriate reasonable (and unbiased) court in a timely way.
For the consideration to be proper, it must include the right to public trial  (all of the evidence the
government uses must be public), the right to present relevant evidence, and the right of
consensual assistance of counsel of one's choosing. The court shall grant all necessary
injunctions and remedies to preserve all fundamental rights.
A different person may bring the complaint than the one directly injured when the one injured
cannot properly bring such complaint (if the victim is denied freedom of speech or the victim is a
child or mentally disabled or dead or tortured). Otherwise, fundamental rights would not be
preserved.
The right to some physical safety is, to some extent, a fundamental right since without physical
safety, fundamental rights are likely to be denied. Thus, the governments must take certain steps

60 | P a g e
to protect the safety of the people. Discriminatory enforcement of laws can also be remedied by
court.

THE RIGHT TO BEAR ARMS

There is no right to bear arms provided to us in the Indian Constitution while that is guaranteed
by the 2nd Amendment in the U.S. Constitution.

Right to Bear Arms as a Constitutional Right: Comparitive Stand-point of the Law in the
United States of America and India

Constitutionality of any law is important as it is closely related to the Fundamental Rights of

people. One of the most sacred fundamental rights is the Right to Life. Inherent in the Right to
Life is the right to defend oneself because there may arise circumstances where, in order to
protect one’s life, a person may have to take up arms. The idea of ordinary citizens carrying
weapons is plausible in some nations, while in other nations; it is restricted only to the State. The
right has been granted in countries like the United States through the Second Amendment of the
Constitution. In the States, citizens are allowed to carry arms to defend themselves as private
militia is permitted to exist. However, the right has been restricted by ‘gun control legislations’,
which restrict the right with respect to some places or persons. On the other hand, in India, it is
not recognised as a constitutional right. The Arms Act places numerous impediments with
respect to possession of arms. While keeping weapons may be considered necessary for the
protection of one’s life; in recent times, the right has been misused, as is apparent form
increasing rate of crime perpetrated using privately owned arms. Therefore, it becomes essential
to re-examine the tenets of the right to bear arms with respect to the prevailing situation.’’

Right to bear arms in the literal sense means people’s right to keep arms for the purpose of
defense. It’s open to interpretation whether the purpose is individualistic in nature or collective.
The philosophical and logical reason to bear arms has been explained by many imminent
philosophers like Aristotle and John Locke and Beccaria. John Locke in ‘Two Treatises of
Government, 1689’says “Must men alone be debarred the common privilege of opposing force

61 | P a g e
with force, which nature allows so freely to all other creatures for their preservation from injury?
I answer self-defense is a part of the law of nature, nor can it be denied to the community, even
against the king himself”. Many countries have recognized the right to bear arms as a
constitutional right. India and the United States of America have taken different stands regarding
the right to bear arms.

Right to Bear Arms in the United States of America

In the United States of America, the right to bear arms has a constitutional recognition. The
Second Amendment of the US Constitution protects the right as a constitutional right. It reads as
follows: “A well-regulated militia, being necessary to the security of the State, the right of the
people to keep and bear arms shall not be infringed’’. It was influenced by the English Bill of
Rights 1689.The English Bill of Rights 1689 being a major influence, which protected the
Protestants from the oppression of King James II who discriminated against them. The
Protestants were given the right to have arms for their own defense.98

This right has a history of its own. Between 1776 and 1780, 11 states drew up their
Constitutions. Among the 11 states, only 8 formally declared rights in their Constitution. Out of
that only three states adopted the Bill of Rights and included right to bear arms in their
constitution. The first state to do so was Pennsylvania followed by North Carolina. The
Constitution of Pennsylvania stated that “The people have a right to bear arms for the defense of
themselves and the State”. It also mentioned the danger of having a standing army and said that
the right should occupy a subordinate position to the military and be monitored by the
government. Pennsylvania was closely followed by North Carolina and North Carolina was
closely followed by Massachusetts, the literal text being the same for the three.

By 1780 two patterns were established: the right to bear arms to defend the State against external
threats and to defend oneself against all. Including the right to bear arms was not a prerequisite
for acceptance of the Constitutions but was a popular desire. Popular insistence to include this
right and amend the United States Constitution made the first congress led by James Madison
send out 12 proposals out of which 10 were ratified. Article II of the National Bill of Rights read

98 American Constitutions and the Right to Bear Arms.

62 | P a g e
as “A well- regulated Militia, being necessary to the security of a free state, the right of the
people to keep and bear arms shall not be infringed”. A number of States accepted militia but
under the control of the government. The right to bear arms beyond militia was left for the states
to define.

Many States such as Kentucky dropped this right from the Constitution, but it was eventually
resorted. Arkansas and Florida had omitted this right. All this took place during the Civil War
and Reconstruction Periods. The Constitution of Mississippi stated that: “Every Citizen has a
right to bear arms in defence of himself and the State”. This provision was only applicable to the
citizens, which meant that slaves did not have the right to bear arms because in those days slaves
were not considered citizens or legal persons. Even the blacks were not brought inside the ambit
of citizens as they were considered to be outsiders. The States of Alabama and Texas followed
the text of Mississippi’s Constitution but replaced the word citizen with people. The ‘equal
protection’ clause of the fourteenth amendment was applied to the second amendment.

Though the concept of the right to bear arms remained same throughout the States, the text used
differed which brought in different interpretations by different states. The state of Michigan
equated the term “person” with “people”. It declared that these rights were not only limited to the
military or to the people who are part of the militia but it extends to every individual and even to
aliens. Rhode Island’s Constitution held that people’s right to bear arms should not be infringed.
It was interpreted in a way that unlawful pistols and guns were allowed to be kept at home or at
the place of business or in the property of somebody else for the purpose of self-defence. The
State of Georgia agreed with Rhode’s interpretation but prescribed how the arms have to be
acquired. The state of Idaho went a step ahead by adding that no law should impose any kind of
taxes or fees on the ownership or possession of firearms and no law should confiscate any
firearms except those actually involved in the commission of felony.

Among the 36 states that protect the right to bear arms, only 8 had no specific mention about
defending the state. The standing army was not very effective in nature. It could not be at all
places at all times Therefore having a militia was seen to be important. They were the locals and

63 | P a g e
could reach the situation of emergency at a very short span. The National Guard is considered to
be the modern substitute of the militia.[iii]

The basic purposes behind the right to bear arms is maintaing a militia, protection against
governmental oppression and self-defence. America also relies highly on the citizen militia for
internal and external aggression. The effectiveness of the citizen militia largely depends upon the
familiarity of the citizens with the different firearms available. The second amendment confers
on the citizens the right to rise up against any tyrannical threat with the help of the arms owned
in their private capacity. The third purpose of this right is self-defence. As John Locke had said
the right to self-defence is a natural right and it shall not be taken away. Thus self-defence is
justification for the right to bear arms. However this right does not include within its ambit right
to use arms for hunting of animals.

The question still remains whether the right is individualistic or collective in nature. Americans
have approached this right in various ways. It is right in the Constitution and not as a duty.
Rights are available against the State and duties are owed to the State. Therefore the citizens are
not obliged to defend the country but this kind of obligation may be taken for granted and the
duty towards the State can be inferred from the importance given to the term militia in the
second amendment of the American Constitution. A similarity can be drawn between the
language used in the first and fourth amendment. The first amendment reads “Congress shall
make no law abridging the right of the people, peaceably to assemble, and to petition the
government for a redress of grievances.” The fourth amendment reads “The right of the people to
be secure in their persons, houses, papers, and effects against unreasonable searches and
seizures, shall not be violated.” These three amendments to the Constitution were framed
together and the first and the fourth have always been treated as individual rights than
governmental rights. Therefore it might be inferred that even the second amendment can be
considered as an individual right. However, this may not be a proper justification as the preamble
of the Constitution states that the Constitution was established by the people, although many

64 | P a g e
citizens of The United States of America were barred from taking part in the US ratifying
conventions.

However the right to bear arms in the United States of America is not absolute in nature. It is
subject to scrutiny and restrictions. There are two methods of implementing constitutional
norms; one being strict scrutiny and the other rational basis test. While analysing the second
amendment the courts have followed a process of reasonable regulation in various cases. In the
case of State v. Shelby, the court held that though the state guarantees a right to bear arms, the
right shall be subjected to reasonable regulations.99 Strict scrutiny is however not preferred for
constitutional provisions as it might tend to curtail the constitutional rights completely.

The State has been given the authority to impose reasonable restrictions on the second
amendment. In the absence of any constitutional provisions regulating this right, the authority to
regulate is given to the general police power. The term “police power” refers to the general
authority of state governments to enact legislations protecting or promoting the public health,
safety, moral or general welfare. The State is free to adopt or enact various legislations as gun
control measures; but both the objective of that legislation and the methods chosen to achieve
those goals should be reasonable in nature. 17 states have separate legislations whose objective is
to regulate the right to bear arms, while legislations banning arms is forbidden in twenty of the
States. The purpose behind such gun control legislations is to justify the private possessions of
the arms. These gun control legislations are involved in a balancing act where on one side the
amount of public good arising from the possession of arms must be seen and on the other hand
the right guaranteed to the citizens in the Second Amendment should not be infringed.

Gun control laws prohibit the carrying of certain arms in specific places like carrying concealed
weapons, hand guns within city limits or inside a courtroom. However, these laws hardly
followed by the people. It has been argued that these laws violates the citizens right of self-
defence which can be inferred from the right to bear arms as it leaves them without any mode of
self-defence when they are most prone to attack such as within the city limits. 100 The other class

99 Adam Winkler, Scrutinizing the Second Amendment.

100 he Impact of State Constitutional Right to Bear Arms Provision on State Gun Control Legislation; university of
Chicago law Review,1970.

65 | P a g e
of gun control legislations are the ones which prohibit the possession of firearms by certain
classes of people. Such persons include felons and incompetents. These kinds of legislations do
not necessarily infringe upon their right to self-defence as the disqualified class of people are
more likely to misuse these weapons and commit crime than to use it for self-defence. Thus such
legislations are based on the concept of greater good.

There are also legislations, which deals with the prohibition of unusually dangerous weapons.
Certain weapons are considered to be too dangerous by the State to be tolerated in the society.
Earlier weapons like dirks, clubs, Bowie knifes, pocket pistols were considered to be dangerous
weapons and they were outlawed. With the improvement of science and technology, other
weapons have also been included in this category. Such other weapons are machine guns,
bazookas and missiles. They are considered to be too dangerous for private possession. Although
it has been argued that machine guns are effective against governmental oppression, but the
danger which can arise from such private possessions outweighs the right against governmental
oppression. The idea of greater good is taken into consideration.

A distinction has also been made regarding the possession of hand guns and long guns. The
National Commission on the Causes and Prevention of Violence recommended that possession
of hand guns should be restricted only to police officers, security guards, small business men in
high crime areas and people with special need of protection. It has statistically stated though
people own hand guns for the purpose of self-defence, it has been misused more than long guns.
Hand guns are easy to carry around without being detected and therefore the crimes involving
handguns are more compared to those involving long guns. Long guns are mostly used for
recreational purposes and are not concealable easily therefore the crime rates using long guns are
less. Thus the commission suggested the possession of long guns instead of hand guns. This
suggestion from the commission has not yet gained any legal significance. None of the States
have adopted this proposition. Regulating transfer and sale of weapons could be an effective gun
control measure. This would help in regularizing transfer and sale of prohibited weapons. These
transfer regulations would be held valid as long as they do not prohibit widespread possession of
regular weapons.

Licensing, registration and audits are also very important gun control methods. By granting
license to possess arms, the government can keep a track of who all possess weapons. So in case

66 | P a g e
a crime has been committed it would be easier for the government to track the criminal. While
granting license a lot of things are take into consideration such as details of the applicant which
may help the government to find out whether the applicant has a criminal record or not and
whether he or she should fall under the disqualified category. Before granting the license, the
government should give the applicant a waiting period so that the government has sufficient time
to investigate about the applicant. Regular audit is also helpful to keep a check on the privately
possessed weapons and helps decrease the crimes committed using privately owned arms. The
government may also take into its custody the arms owned by the citizens during an emergency
period or curfew to avoid further disruption to public order.

Though the second amendment guarantees every citizen the right to bear arms, the governments
of the States have worked around it and have found ways to control and regulate such
possession. Most of the gun control legislations have seemed to be valid as they are based on the
principle of greater good. These legislations should themselves be constitutionally valid and
must abide by other criterias such as due process of law and equal protection of the law.

Right to Bear Arms in India

The Indian scenario regarding the right to bear arms is completely different from the United
States of America. It has not been given the protection of the Indian Constitution. Right to bear
arms is regulated by the Arms Act 1959. The basic objective behind the act is to consolidate,
regulate and amend the laws in India relating to arms and ammunition to stop the circulation of
illegal weapons and crimes using these illegal weapons. According to this legislation, no person
should acquire or possess or bear any arms or ammunition unless the person has a license which
has been issued in accordance with the provisions of this Act. The Act defines various terms
such as possession, acquisition, sale, import, export and manufacture. It mentions the rules and
regulations attached to these terms. It also deals with the licensing of the arms, the procedure
which needs to be followed and the fees required for the same. It also talks about the
punishments which are there for breaking the rules mentioned in this Act.101

Thus all aspects of gun control and possession are driven by this legislation and the right has no
constitutional significance. However in certain cases the right to self-defence has been included

101 The Arms Act, 1959.

67 | P a g e
under the ambit of Article 21 of the Indian Constitution. In the case of Ganesh Chandra Bhatt,
Justice Katju had taken the above view. Ganesh Chandra Bhatt had applied for the license of a
revolver. Even after fulfilling all the necessary formalities for obtaining a clearance, license was
not granted. The petitioner approached the Allahabad High Court. Justice Katju in this particular
case ruled that if an application has been made for a weapon which does not come under the
category of prohibited weapons, and if three months have passed and there has been no
communication, it would be deemed that the license has been granted by the government. 102 He
opined that the right to bear arms is included in the right to self-defence, which being a natural
right should come within the boundaries of Article 21 which talks about right to life. He
mentioned that worshipping firearms during Diwali and Dusherra and using fire arms in
Mahabharata illustrates that this right is related to the dignity and self-respect of the citizen and
right to life with dignity is guaranteed by Article 21. However this decision was taken before the
Mumbai 1993 bomb blast. This decision has been over-ruled by subsequent judgements and as of
now the settled point is that right to bear arms is governed by the Arms Act only and is not
constitutionally protected.

Conclusion

An analysis of the right in the USA and India reveals the different treatment that has been given
under the two jurisdictions. One gives it a constitutional validity; the other has a separate
legislation that severely controls the right. Though the right to bear arms is a historic principle, it
is always debated whether such right is valid or not. It must be noted that nowadays, the right is
being misused as a result of which the objective of this right is getting lost. 96% of the killings of
police officers in United States of America are done using personal firearms. The death rate has
increased about eight times. The rate of suicide committed by individuals has also increased; so
have hunting activities- using personal firearms. Hand-guns are being sold as a regular
commodity. Among all the states only North Carolina prohibits the sale of hand guns.

102 Ganesh Chandra Bhatt v District Magistrate,Almora;AIR 1993 Al 291

68 | P a g e
The objective of the right to bear arms is being lost. It was meant to protect the society and the
people from threats but in recent years this itself has become a threat to oneself and the society.
The richer classes who can afford to purchase a firearm are exploiting the lower section of the
society who are economically backward and are not in a position to purchase firearms. This right
drives men against each other. Though the gun control legislations tries maintain a balance in the
society, their applicability and efficiency are a constant subject of debate as the crime rates have
increased considerably.

The Indian situation cannot be compared to the situation in the United States of America. It is a
developed country. The government is efficient enough to regulate the arms and carry on
investigation of the applicant. Though the crime rate is high in America, it is still less than the
crime rate in India. Even after strict licensing and regulation of arms in India, the crime rate has
not gone down but has increased. Therefore granting a constitutional status to right to bear arms
in India would do no good to the country. Therefore unlike the United States of America, where
laws related to gun control are subjected to reasonable regulation, in India such laws need be
strictly scrutinized. Hence, it is highly debatable whether bearing of arms to essential to protect
the society or not bearing of arms is essential to protect the society.

RIGHT TO VOTE
Is stated in 15thand 19th amendment of U.S. constitution .A vital "protection under the laws" is
the right to vote. All people are fundamentally equal, and thus welfare of each person is of equal
importance to the society. Inequality is allowed as long as it increases total welfare of the
society. Since people tend to be selfish, the only practical way to make the government work for

69 | P a g e
such goals is to make the government democratic, that is ruled (usually indirectly) by the people
through voting. Each person must have a right to vote. This fundamental right must be given
equally to all people and the government must be controlled (indirectly) through voting.
Otherwise, the power would belong to an elite (those who can vote) who can choose to use it for
their benefit at others expense. It is essential for the government to improve the country and to
serve the people, and thus it is essential not to give the government the power to ignore the
people by denying some people the right to vote. Freedom from arbitrary discrimination of
interests can only be meaningful if the government must consider one's interest, and such a
requirement can only be achieved through democracy. For efficiency, many powers of the
government can be vested in the president; however, the fundamental rights must be preserved
and the president must be periodically elected (directly or indirectly) by the people.

IN INDIA right to vote is not a fundamental right it’s a constitutional right under article 326 of
the constitution of India

THE RIGHT TO ENJOY MANY OTHER FREEDOMS

To make doubly sure that Americans should enjoy every right and freedom possible, Amendment
Nine was added to the Constitution. This amendment states that the list of rights contained in the
Bill of Rights is not complete. There are many other rights that all Americans have and will
continue to have even though they are not mentioned in the Bill of Rights. Among them are the

70 | P a g e
following.

1 Freedom to live or travel anywhere in our nation

2 Freedom to work at any job for which we can qualify
3 Freedom to marry and raise a family
4 Freedom to receive a free education in good public schools
5 Freedom to join a political party, a union, and other legal groups
As a final guarantee of our rights, the Tenth Amendment set aside many powers of government
for the states. This Amendment says that all powers not given to the federal government by the
Constitution, nor forbidden to the states, are set aside for the states, or for the people. This
provision leaves with the states the power to act in many ways to guarantee the rights of their
citizens.

Drawbacks in Indian Constitution

Indian constitution has certain fundamental rights modeled on American Bill of rights. But
unlike USA fundamental rights in India are not absolute and hence govt. can impose reasonable
restrictions on them. Whether the restrictions are reasonable or not is to be detected by the courts

71 | P a g e
EXCEPTIONS IN INDIAN CONSTITUTION

The Constitutional remedies are not available under Articles 32, 226, 227 and 136 under two
occasions. The Parliament has power under Article 33, to determine by law to what extent any of
the remedial rights are available against Armed Forces or the forces charged with the
maintenance of public order. The right to move the court for the enforcement of fundamental
rights can be suspended during a declaration of emergency. The President may under Article 352
by proclamation make a declaration of existence of emergency. In ADM Jabalpur v Shivkant
Shukla103 the Supreme Court by a majority of four against one (Khanna J) held that prima facie
valid detention order, was a complete answer to a petition for habeas corpus. This decision was
criticized severely while the Khanna’s dissent was well appreciated. The emergency provisions
were amended by the Constitution (Forty-Fourth) Amendment Act 1978. There cannot be any
declaration of emergency on the ground of internal disturbance. Except when internal rebellion is
threatened, the emergency can never be declared. Even during emergency, the right to move a
Court for the enforcement of the rights guaranteed by articles 20 and 21of the Constitution
(regarding rights of a person accused of an offence and the right to personal liberty) shall not be
suspended.

In drafting the Constitution, the framers drew ideas freely from foreign constitutions, but as the
Assembly Chairman's remarks reflect, the United States Constitution was undoubtedly the
principal model. India's first Prime Minister, Jawaharlal Nehru, acknowledged this fact in an
address to the United States Congress by announcing, “we have been greatly influenced by your
own constitution”

The framers etched into this supreme law of the land an impressive array of fundamental rights-
basic human rights-that constitute the conscience of the Constitution. 104 The framers also vested
the Supreme Court with the power to declare the law , 105 and to quash as unconstitutional any law

103 AIR 1976 SC 1207

104 See INDIA CONST. pt. III, arts. 12-35, reprintedin VII CONSTITUrIONS OF THE COUNTRIES OF THE
WORLD, supra note 7, at 1, 31-75 (providing Indians' fun- damental rights).

72 | P a g e
or order that transgresses any fundamental right, a power otherwise known as judicial review. 106
Significantly, access to the apex court to issue writs enforcing fundamental rights is itself a
fundamental right.107 Even more notably, the framers deemed the Court to be part of the State.
The Court was envisaged to actively participate in the transformation of India from a feudal
society into that of an egalitarian one, within the parameters of the Constitution.108

The fundamental rights under part 3 of our constitution to need to include many of those rights
that have developed over a history of various judicial pronouncements. These rights though not
really stated in part 3 have been recognized as fundamental right in nature and are better known
as implied fundamental rights. For eg. Right to food, right to livelihood, right to clean portable
drinking water, right to fresh air and clean environment

CONCLUSION

105 See id. pt. IV, ch. IV, art. 141 ("The law declared by the Supreme Court shall be binding on all courts within the
territory of India."). Thus, the Supreme Court heads the unified judicial system in India and all laws it declares are
binding n all courts in the Indian Union. See id. The highest courts in each of the states comprising the Indian Union
are the High Courts. See id. pt. VI, ch. V, art. 214 ("There shall be a High Court for each state."). Appeals from the
High Courts are brought to the Supreme Court pursuant to articles 132, 133, and 134 of the Indian Constitution. See
id. pt. V, ch. IV, art. 132 (providing the text of the Constitution concerning appellate jurisdiction of Supreme Court
in appeals from High Courts in certain cases); id. art. 133 (providing the text of the Constitution concerning ap-
pellate jurisdiction of Supreme Court from High Courts in regard to civil matters); id. art. 134 (providing the text of
the Constitution concerning appellate jurisdiction of Supreme Court from High Courts in regard to criminal matters).
106 See INDIA CONST. pt. III, art. 13 reprintedin VII CONSTITUTIONS OF THE COUNTRIES OF THE
WORLD, supra note 7, at 1, 33-34 (discussing laws that are in- consistent with or in derogation of Indians'
fundamental rights) Article 13 states:
(I) All laws in force on the territory of India immediately before the commencement of this Constitution, in so far as
they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law
made in contravention of this clause shall, to the extent of the contravention, be void.
107 See id. art. 32 (ensuring the right to access the Supreme Court to enforce
fundamental rights).
108 See GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 167 (1966)
(stating that the Supreme Court functions was to protect the social revolution).

73 | P a g e
Which constitution has a better scheme of fundamental rights?

The Indian fundamental rights, contrasted with such rights contained in the U. S. bill of rights,
present several peculiarities.

First, the fundamental rights in India are far more elaborate than in the U. S. A. Thus, for
example, the U. S. bill of rights (first ten amendments) only names some rights. The Supreme
Court, through the process of judicial review decides the limitations on these rights. In India,
determination of limitations on fundamental rights is not left to judicial interpretation. The
constitution itself contains (clauses 2-6 in Art. 19) such limitations. The limitations contemplated
by the constitution are-Public order, security of the state and sovereignty and integrity of India.

In the face of these limitations, the fundamental rights guaranteed by the constitution cannot be
said to be absolute.

However, whenever the state restricts fundamental rights by legislation, the courts have the right
to examine whether the limitations imposed are “reasonable or not.” The courts are free to strike
down any law imposing unreasonable restriction on the enjoyment of fundamental rights. The
courts in India enjoy a limited degree of judicial review with respect to fundamental rights.

Yet, in view of these limitations, some critics argue that the Indian constitution gives
fundamental rights with one hand and takes them away with the other. It should also be pointed
out that provision of preventive detention under Art. 22 is a gross violation of the individual
liberty under Art. 21. The power of the state to detain persons without trial is not to be found in
any other democratic country like the U. S. A. Further, in case of proclamation of emergency
under Art. 352, fundamental rights guaranteed under Art. 19 remain suspended by virtue of Arts
358 and 359.

Consequently, the Parliament may easily tamper with Indian fundamental rights. The capacity of
the judiciary to afford protection to the fundamental rights is very limited. Part III of the
Constitution has been held to be part of the Basic Structure of the Indian Constitution envisaged
in the Keshavananda Bharati case, as was held in the case of I. R. Coelho vs State of Tamil
Nadu.109 This means Fundamental Rights cannot be done away with in future by way of

109 AIR 2007 SC 861

74 | P a g e
Constitutional Amendment.

The processes of amendment given in Art 368 are far easier than the one given in Art 5 of the
U.S. constitution. Consequently, the Union Parliament with a qualified majority may now easily
amend any fundamental right contained in Part III of the constitution. The USA does not have a
Basic Structure doctrine, which means, in theory, the Bill of Rights may be repealed by way of a
Constitutional Amendment, however unlikely that may be.

BIBLIOGRAPHY

Articles

75 | P a g e
1. Comparative study of anti-discrimination and equality laws of the US and India

2. CONCEPT OF HUMAN TRAFFICKING, FORCED LABOUR AND EMPLOYMENT OF

CHILDREN

3.Right to Bear Arms as a Constitutional Right: Comparitive Standpoint of the Law in the United
States of America and India

Books

1. Comparative constitutional law by D.D.Basu (3rd edition)

2.The constitution of India by P.M.Bakshi

3.Indian constitutional law by M.P.Jain(sixth edition)

Website

1. www.indiankanoon.com
2. www.lawctopus.com
3. www.wikipedia.com
4. https://www.law.cornell.edu/wex/fundamental_right
5. http://www.yourarticlelibrary.com/indian-constitution/article-21-of-the-constitution-of-
india-discussed/5497/
6. http://www.gyancentral.com/forum/law-preparation/legal-aptitude-preparation/7884-
fundamental-rights-indian-constitution.html
7. http://subhashgoudappanavar.blogspot.in/2013/01/comparative-study-of-indian-and-
usa.html

76 | P a g e