Bills of Rights Compared

In one line

Six of the seven constitutions have a bill of rights and each uses a different drafting technique to say how far a right may be limited.

In the wording a student can write in an exam: a bill of rights may be drafted as a set of prohibitions on government, as a set of positive guarantees, or as guarantees with an express limitation clause; the limitation may be general, as in Canada and Switzerland, or specific to each right, as in India, and may be qualified by a legislative override, as in Canada alone.

The five techniques

One: unqualified prohibition. The First Amendment 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. There is no limitation clause anywhere in the American Bill of Rights. Limits are therefore judicial: the Court carves out categories of unprotected speech and applies levels of scrutiny.

Two: right plus a specific limitation clause. India. Article 19(1) confers six freedoms; article 19(2) permits reasonable restrictions on the freedom of speech and expression in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence; articles 19(3) to (6) do the same for the other freedoms with different grounds.

The technique is precise and rigid: a restriction must fit a listed ground and must be reasonable.

Three: right plus a general limitation clause. Canada, section 1: the Charter guarantees the rights subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Switzerland, article 36: a legal basis, a public interest or the protection of others' rights, proportionality, and the essence inviolable.

The technique is flexible and puts the whole weight on a proportionality test, which R v. Oakes, [1986] 1 SCR 103, decided on 28 February 1986, supplied for Canada.

Four: essence protection. Germany, article 19(2): in no case may the essence of a basic right be affected. Switzerland, article 36(4), to the same effect. There is no Indian counterpart in the text, though the basic structure doctrine performs a related function against amendments.

Five: legislative override. Canada, section 33, and nowhere else. A legislature may expressly declare that an Act shall operate notwithstanding sections 2 or 7 to 15 of the Charter, for five renewable years.

What each bill of rights binds

India, article 12. The State includes the Government and Parliament of India, the Government and legislature of each State, and all local or other authorities within the territory of India or under the control of the Government of India. Certain rights bind private persons directly: article 15(2) on access to shops and public places, article 17 on untouchability, article 23 on traffic in human beings and forced labour, and article 24 on child labour.