Extracts from the report relating to Citizenship and Fundamental Rights, 1954
The Advisory Committee on Fundamental Rights and Citizenship was set up by the resolution of the Constituent Assembly dated 7th November, 1951, in order to make recommendations as regards qualifications required for Citizenship and the determination of Fundamental Rights of the residents of the State. The Committee was reconstituted by the Consti-tuent Assembly by its resolution dated the 20th October, 1953.
The State having acceded to the Union of India, every State Subject and every person having his domicile in the State is a Citizen of India under the provisions of the Cons-titution of India. It is, however, recognized by the Govern-ment of India that this position would not affect the existing State subject definition. While the Committee adheres to prin-ciple underlying this definition, it feels that the definition should be liberalized in keeping with the changed times. The Committee therefore recommends that all the three classes of State Subjects provided in the definition be removed and a uniform class of permanent residents be established. Accor-dingly every person residing in the State who isa State Sub-ject of Class I or Class II or after having acquired immovable property in the State has been ordinarily residing there for a period of not less than ten years prior to the date of enforce-ment of this provision shall be a permanent resident of the State.
The powers of the State Legislature to define ‘Permanent Residents of the State’ in future in any manner it deems fit and to regulate the special rights and privileges of the Permanent Residents of the State should be preserved. A majority of not less than two-thirds of the total membership of the House shall be necessary for the exercise of this power. The Committee is of the opinion that while adequate provisions to that effect should be incorporated at an appropriate place in the Constitution of India, the provisions of Part II of the Con-stitution of India relating to Citizenship also be made applicable to the State and care should be taken to protect the special position accorded to the State Subjects to be now known as “Permanent Residents of the State” and their special rights and privileges. Necessary modification shall also have to be provided in that Part to enable those Subjects of the State who had migrated to Pakistan in 1947 in connection with the disturbance or in fear of the same, to return to the State under a permit for resettlement or permanent return issued under the authority of law that would be made by the State Legislature in due course.
The Committee is of the view that the State Legislature should also be competent to make provisions with respect to acquisition and termination of the Status of Permanent Resi-dents of the State and until the State Legislature enacts provi-sion that behalf, the existing Ijazatnama Rules should continue to remain in force and the existing procedure for obtaining a State Subject Certificate should apply for the purpose of secur-ing a certificate as to the status of a Permanent Resident.
FUNDAMENTAL RIGHTS
An examination of the Fundamental Rights embodied in the Constitutions of some of the more important countries of the world would reveal that while there are certain rights which require position by the State and which can be granted only so far as such action is practicable, there are others which require that the State shall abstain from prejudicial action. It is obvious that the rights of the first type are not normally either capable of or suitable for enforcement by legal action, while those of the second type may be so enforced. Both classes of rights are mentioned together under the head “Fundamental Rights” in certain Constitutions but in certain others distinction between two forms of rights is clearly re-cognized. A similar distinction is recognized in Dr. Lauter-pacht’s” International Bill of Rights of Man 1945.” The Committee having carefully considered that matter is of the view that it would be useful to separate the two classes of- rights, firstly those rights which shall be enforceable in a Court of Law and secondly those which shall be guaranteed by enjoining upon the State to take specified and planned action in the field of special and economic reconstruction of the State. This set of rights shall retain fundamental position in the governance of the State.
The question of evolving Fundamental Rights has been considered and discussed at length by the Committee. It has been recognized by the Government of India that the Funda-mental Rights as contained in part III of the Constitution of India, should not come in the way of Land Reforms already introduced by the State or the reforms that might be undertaken by the State in future. This was particularly necessary in view of the fact that the State has not provided for any compensation for the land expropriated under its Land Reforms. The Government of India has also recognised that the special rights and privileges enjoyed by the Permanent Resi-dents of the State relating to acquisition and holding of immovable property and in respect of employment under the State shall be fully safeguarded.
The Committee having taken note of the Fundamental Rights provided in various constitutions including the Consti-tution of India recommends the following rights for adoption by the State.
1. Equality of rights of all citizens, irrespective of religion, race, caste, sex, place of birth of any of them, in all spheres-economic, political cultural and social should be guaranteed; that is to say, every citizen should have the right to Equality before law and there should be no discrimination against any citizen on grounds only of religion, race, caste, or sex, place of birth, and no citizen should be subject to any disability, liability, restriction or condition with regard to:
(a) access of 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.
2. The Committee strongly feels that women must attain their just and rightful place in society and their cooper-ation in the mighty and responsible task of nation build-ing must be secured. Similarly all children born in the State should be ensured equality of opportunity irres-pective of accidents of birth and percentage. In order achieve to that end the State should be able to make any special provisions it deems fit for women and children.
3. Untouchability is abolished and its practice in any form shall be forbidden.
4. In conformity with the interests of the people, all citizens shall have right to Freedom of speech and expression, to assemble peaceably and without arms, to form associations or unions, to move freely throughout the territory of the State, to reside and settle in any part of the territory of the State, to acquire, hold and dispose of property subject to the laws of the State and to practice any profession or to carry on any occupa-tion, trade or business.
The State should, however, have powers to impose such restrictions as are considered reasonably by the State Legislature on the exercise of these rights in the interests of general public, security of the State, public order, communal harmony, decency or morally in relation to contempt of court, defamation, or incitement to an offense, or for the protection of the special rights and privileges of the Permanent Residents of the State.
Protection in respect of conviction for offenses and of life and personal liberty shall also be afforded. The provisions and procedure pertaining to preventive detention should follow on the lines of the correspond-ing provisions in the Fundamental Rights of India.
6. All citizens shall have Right Against exploitation i.e. traffic in human beings and forced labour, employment of children in factories etc. shall be prohibited.
7. Freedom of Religion shall be guaranteed i.e. all citizens shall have the freedom of conscience and shall be free to profess, practice, and propagate any religion and to manage their respective religious affairs.
8. Cultural and educational rights should also be guaran-teed by the Constitution. The interests of the minorities should be protected and any section of citizens having a distinct language, script or culture should have the right to conserve the same.
9. Right to property shall be guaranteed, and no person shall be deprived of this property save by authority of Law. This should not, however, in any way effect the existing laws relating to land reforms nor should it prevent the State Legislature to make any further land reforms. Accordingly no law, made by the State Legis-lature, providing for the acquisition by the State of any land or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is inconsistent with or takes away or abridges any of the aforesaid rights. The existing definition of land shall be preserved.
10. Similarly all these fundamental Rights should be subject to the over-riding condition that:
(i) no law of the State relating to State Subject to be hereafter called ‘Permanent Residents’ and regulating their rights and privileges; and
(ii) no law hereafter to be made by the State Legisla-ture defining the Permanent Residents, and con-ferring on them special rights and privileges in relation to acquisition and holding of property in the State or in matter of employment under the State and imposing restrictions on citizens other than Permanent Residents for settling within the State should become void on the ground that it is inconsistent with or takes away or abridges any of the rights conferred by Part (III) of Constitution of India.
11. The Committee feels that a declaration of Funda-mental Rights would be more effective if suitable judicial remedies for the enforcement of these rights are provided and therefore it is proposed that the citi-zens shall have the right to Constitutional Remedies. In order to ensure the fullest protection in regard to enjoyment of these rights the citizens shall be allowed to seek redress from the highest court i.e. the Supre-ment Court of India. In order to avoid any possibility of conflict of the Fundamental Rights proposed above and those contained in Part (iii) of the Constitu-tion of India, the Committee feels that the former rights in so far as they vary in certain respects the provisions of the Fundamental Rights of the Union should be reflected in part (iii) of the Constitution of India. The Government of India has already agreed to provide appropriate modifications or exceptions in Part (III) of the Constitution of India to suit the requirements of the State.
As indicated above there should be separate set of Principles which would be fundamental in the govern-ance of the State and shall be intended for the guidance of the State. The Committee recognises that in a democratic State every person must be provided with equal opportunities and adequate minimum of a civili-sed standard of life. To realise that ideal, however, the State must take resort to economic planning with a view to achieve all sides advance on a country wide scale. Similar other rights, for instance, the right to rest, the right to material security etc. can be ensured only when a stage of industrial development and economic prosperity, as envisaged in ‘New Kashmir’, is achieved. The Committee, therefore, proposes that the principles of policies set forth below should serve as guidance for the State leading the people towards that end.
I. The State shall within the limits of its economic capacity and development make effective provision for securing the right to work, that is, the right to receive guaranteed work with payment for their labour in accordance with its quantity and quali-ty subject to a basic minimum and maximum wage established by law.
II. The State shall endeavour to secure, by suitable legislation, economic organisation and in other ways, to all workers, industrial or otherwise, better conditions of work ensuring a decent stand-ard of life, full enjoyment of leisure and cultural opportunities.
III. The State shall make provision for securing just and humane conditions of work and for maternity relief for workers.
IV. All permanent residents of the State shall have the right to material security in old age as well as in the event of sickness and loss of capacity to work.
This right shall be ensured by the wide development of social insurance of workers and employees at the expense of the State, free medical aid for workers and the provision of a wide network of health resorts for the use of working men and women.
The State shall, in particular, direct its policy towards securing:
(i) that the Permanent Residents of the State, men and women equally, have the right to an adequate means of livelihood;
(ii) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
(iii) that the operation of free competition shall not be allowed to result in the concentration of the ownership and control of essential com-modities in few individuals to the common detriment;
(iv) that the strength and health of workers, men and women, and the tender age of children shall not be abused and that citizens shall not be forced by economic necessity to enter voca-tions unsuited to their age and strength; and
(v) that childhood and youth are protected against moral and material abandonment;
(vi) every Permanent Resident shall be entitled to free education, and it shall be the duty of the State to provide free education which shall be compul-sory for all children upto the primary standard.
(vii) the State shall promote with special care the edu-cational and economic interests of the socially and educationally backward sections of the people and shall protect them from social injustice and all forms of exploitations.
(viii) the State shall foster and encourage the growth and development of State and regional languages’ especially those which are more backward by every possible means including the following:
(i) the establishment of a State Languages Aca-demy where scholars and gramarians shall work to develop these languages by:
(a) perfecting and providing their scripts;
(b) enriching them through foreign transla-tions;
(c) studying their history;
(d) compiling dictionaries and textbooks;
(ii) founding of State scholarships for the study of these languages:
(iii) fostering of local press and publications in in local languages; and
(ix) It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest declared by the Law of the State to be national importance, from spoilation, des-truction, removal, disposal or export as the case may be and to preserve and maintain according to the law of the State all such monuments or places or objects.
In the light of the foregoing the committee recommends that:
(i) the Drafting Committee, set up by this House be directed to propose appropriate modifica-tions or exceptions in Part II and Part III of the Constitution of India in their application to the State of Jammu and Kashmir in the light of the recommendations contained in this report; and
(ii) that the Drafting Committee should, while preparing the Draft Constitution of the State incorporate therein the rights and principles indicated above.