Report relating to Citizenship
and Fundamental Rights, 1954
Legal Document No
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 Constituent Assembly by its resolution dated the 20th October,
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 Constitution of India.
It is, however, recognized by the Government of India that this position
would not affect the existing State subject definition. While the Committee
adheres to principle 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. Accordingly every person residing in the State who is a
State Subject 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 enforcement 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 Constitution 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 Residents of the State and
until the State Legislature enacts provision 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 securing a certificate as to the status of a Permanent Resident.
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. Lauterpacht'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 Fundamental 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 Residents
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 Constitution 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 cooperation
in the mighty and responsible task of nation building must be secured.
Similarly all children born in the State should be ensured equality of
opportunity irrespective 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 occupation, 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 corresponding 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
8. Cultural and educational rights should also
be guaranteed 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 Legislature,
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
Legislature defining the Permanent Residents, and conferring 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
Fundamental Rights would be more effective if suitable judicial remedies
for the enforcement of these rights are provided and therefore it is proposed
that the citizens 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 Suprement 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 Constitution 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 governance 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 civilised 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 quality 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 standard 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
(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
(iii) that the operation of free competition shall
not be allowed to result in the concentration of the ownership and control
of essential commodities 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 vocations
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
(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 Academy
where scholars and gramarians shall work to develop these languages by:
(a) perfecting and providing their scripts;
(b) enriching them through foreign translations;
(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,
destruction, 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
In the light of the foregoing the committee recommends
(i) the Drafting Committee, set up by this House
be directed to propose appropriate modifications 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.