comparision between the provision made in South Africa Constitution with regart to fundamental right
Answers
Answer:
Explanation:
Just as the Indian Constitution lists the fundamental right (FRs) that are available to the people of India under its Part III, the South African Constitution contains analogous rights in Chapter 2 titled Bill of Rights (BoRs). The following are some similarities and dissimilarities between the FRs and BoRs:
Similarities:
(1) Both FRs and BoRs form the bedrock of the constitution and democracy under the Indian and SA Constitutions respectively.
(2) Just as the FRs under Indian Constitution, the BoRs under the SA Constitution are available against the State. In fact some limited rights under both Constitutions are available against private citizens also.
(3) Under both Constitutions, while most rights are available to citizens alone, some universally recognised rights such as the right to life and equality are available to all persons.
(4) Neither the FRs nor BoRs are absolute. Both are subject to reasonable restrictions and limitations.
Differences:
(1) Given the SA Constitution was framed in 1996, it had the benefit of hindsight and was able to learn lot more from experiences of other vibrant democracies like India. This advantage is reflected in the fact that the BoRs is the most elaborate and extensive set of rights endowed upon citizens anywhere in the world including India. For e.g., rights such as the right to privacy and the right to healthy environment which had to be read into FRs in India by the judiciary are explicitly mentioned in the BoRs.
(2) Right to vote which finds a place in the BoRs is only a statutory/legal right in India i.e., it does not have the status of a FR.
(3) Right to property, which finds a place in the BoRs, 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.
(4) Right to information, which is included in BoRs, is only a statutory right in India.
(5) The SA Constitution provides for creation of a special constitutional court for the enforcement of BoRs. This court has jurisdiction only over constitutional matters and controversies. Under the Indian Constitution, the Supreme Court is endowed with writ jurisdiction. However, it also exercises many other kinds of jurisdictions concurrently. This makes a difference because the special constitution court is less burdened and therefore can spend larger amount of time and expertise in adjudicating and interpreting the provisions of BoRs.