Day 10 – Q 5.Compare and contrast the evolution and broad features of the Indian and the South African constitutions.
5. Compare and contrast the evolution and broad features of the Indian and the South African constitutions.
भारतीय और दक्षिण अफ्रीकी संविधान के विकास और विशेषताओं का तुलनात्मक अध्ययन करें।
A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determine how that entity is to be governed. In this context Indian and South African constitutions have some contrasts and similarities in their evolution and features.
Evolution of Indian and South African constitution
- Both Indian and South African constitution evolved through a long struggle against colonialism and imperialism.
- While drafting constitution both countries closely observed constitutions of other countries and made their own constitutions as the best in the world. In both Constitution, every citizen has got equal rights and equal opportunities.
- The South Africa Act of 1909 and Government of India act of 1935: The period 1909 to 1910 covers the independence period and is essentially the genesis of the constitutional development of South Africa. This period was characterized by the enactment of the South Africa Act by the British Parliament, establishing an independent Union of South Africa comprising the territories of Cape Colony, Orange Free State, Natal and Transvaal. In reality, this was South Africa’s Independence constitution. On the other hand, Government of India act 1935, stressed on Establishment of a Federation of India (which never came into force though)
- Voting rights: India gave voting rights to limited number of people before Independence by Government of India act 1919, on the other hand South African constitution gave voting rights to its citizens after its independence.
- The establishment of a Federal Court: India Established Its Federal Court by Government of India Act, 1935. On the other hand South African Federal court is established by Interim constitution of 1993.
Features of Indian and South African Constitutions
Indian Constitution was framed in 1949 and we borrowed the feature of Constitutional Amendment from South Africa. Though South African Constitution, framed in 1996 against backdrop of Apartheid and civil war like conditions, does NOT have any exclusive Fundamental Rights like Indian, but there are many similarities and differences between the two.
- Both Countries Constitution’s “Preamble” starts with wordings “We the People”, meaning People are Sovereign and constitution draws its authority from the People of the nation.
- Both Fundamental Rights and Bill of Rights form the bedrock of the constitution and democracy under the Indian and SA Constitutions respectively. Just as the Fundamental Rights under Indian Constitution, the Bill of Rights under the SA Constitution are available against the State. In fact some limited rights under both Constitutions are available against private citizens also. Neither the Fundamental Rights nor Bill of Rights are absolute both are subject to reasonable restrictions and limitations.
- Both allow certain degree of freedom to the State to work for upliftment of the marginalized and downtrodden.
- Like the constitution of South Africa certain articles of Indian constitution are amended by two-thirds majority of parliament.
- Right to vote which finds a place in the Bill of Rights is only a statutory/legal right in India i.e., it does not have the status of a Fundamental Rights.
- Right to property, which finds a place in the Bill of Rights was removed from Part III of the Constitution by the 44nd Constitutional Amendment and has been placed under Art 300A thereby reducing its status to that of a legal right.
- Right to information, which is included in Bill of Rights is only a statutory right in India.
While making the Constitution, the South African Constitutional Experts forgot about their past where there were clashes between Whites and Blacks. They only thought about the situation where both the Whites and the Blacks lived together with harmony. Whereas while making the Indian Constitution, Indian leaders thoroughly studied Constitutions of various countries of the world and then drafted the Indian Constitution. Our Constitution is truly based on the Principles of Secularism and equality between all religions.