Constitutionalism in India and South Africa: A Comparative Study from a Human Rights Perspective
68 Pages Posted: 11 Jul 2011
Date Written: 2007
This article examines and compares, from a human rights perspective, both the constitution -making processes and the bills of rights of the Indian and the South African constitutions. The emphasis in this study is on the making of constitutions. It examines the impact of the radically divergent processes by which these constitutions were forged on their contents and the different international landscapes amidst which those processes occurred. This Article’s overarching thematic argument is that a constitution can advance constitutionalism in four critical ways: (1) by defining the nature of the state, including a broad equality provision; (2) by addressing social oppression and past injustices (2) by defining property and land rights; and (4) by defining social and economic rights. It compares how the framers in India and South Africa used the framework of rights to achieve these tasks and highlights the Indian influences on the South African Bill of Rights.
While the Indian Constitution was conceived and drafted before the adoption in 1948 of the Universal Declaration of Human Rights UDHR, the South African Constitution was adopted in 1996, at the peak of the modern international human rights movement. The Indian Constitution was forged by an elitist process whereas the South African constitution was the product of a sharply participatory process. While this Article applauds South Africa for its participatory constitution -making, it draws on the Indian experience to challenge the premise that a constitution’s legitimacy hinges on popular participation, arguing that this bit of accepted wisdom needs to be viewed critically.
Keywords: Indian constitution, South African constitution, constitution-making, constitutionalism, human rights, conflict resolution, comparative constitutionalism, India and South Africa comparison, UDHR-Its incorporation in national constitutions, post-colonial constitutions
JEL Classification: D74, K10
Suggested Citation: Suggested Citation