Constituent Assembly Debates

Fundamental Rights and Citizenship: Subject before J&K Constituent Assembly

A group photograph of the Members of the Constituent Assembly of Jammu and Kashmir

On November 7, 1951, Revenue Minister Mirza Afzal Beg moved resolution in Jammu and Kashmir Constituent Assembly for appointment of an Advisory Committee on Fundamental Rights and Citizenship.

Besides himself as Chairman, Beg named following ten members on the Committee: G.M.Hamdani, Chuni Lal, Abdul Gani Goni, Isher Devi Maini, Mubarak Shah, Sardar Kulbir Singh, Mansukh Rai, Kashuk Baqula, Mir Qasim and Assad Ullah Mir. Mir Mubarak Shah was to act as Secretary to the Committee.

The resolution further said: “That the Committee shall make recommendations as regards the qualifications necessary for the State citizenship and the Fundamental Rights of the citizens of the State. In making recommendations, the committee shall keep in view the definition of the “State Subject” as contained in Notification No. 1-L/84 dated the 20th April 1927. That the committee may invite any other person to take part in its deliberations. That the quorum for the Committee shall be one third of the total number of members for the time being on the committee. That the Committee shall submit its report to the Assembly within four months from this date”.

Below is the transcript of Mirza Afzal Beg’s statement on the resolution and interventions by various members:

Mr. President, Before I speak on the merits of the Resolution, I beg to move an amendment with regard to the personnel of the Committee of which I have given notice this morning. In view of the short time at my disposal and in view of requests which came from certain quarters and which could be easily accommodated I am sorry I could not submit my notice. It is, therefore, requested that my notice may be admitted. I propose that in clause I, sub-clause (b) instead of the names at items Nos. 9 and 10, the names of Kh. Abdul Gani Trali and Mr. Habibullah of Sopore be substituted.

President: No notice to this effect was received in this office in time.

Mirza Afzal Beg: Sir, Permission may be given now.

President: I am afraid, I cannot give permission at this time

Mirza Afzal Beg: Before the draft of this resolution is taken up by this Assembly, it is necessary for this Assembly to make a detailed enquiry on different subjects which concern its very basics principles : These subjects involve two questions viz. the Fundamental Rights and the Citizenship Rights which stand in need of a thorough investigation. There are different rules in different countries for granting civic rights to citizen of a country. In some country continuous residence for a specific for period entitles an individual to the civic rights. For instance, if a person resides somewhere for twenty-five, twenty or ten years the law of the land treats him as a citizen of that country and this renders him eligible to the same political, social, economic and other rights as possessed by other citizens of that country. In some countries the principle of birth is current and the civic right of the country is possessed only by such people as are born within the country. Somewhere residence and birth both form the conditions precedent to the grant of civic right.

Now the question arises as to who is called a citizen and what rights citizen processes? A citizen of a country can take part in its economic, social and political activities and also in all matters that are calculated to keep up or change its destiny. What rights should a citizen of our country have in the new set up is one of the many important questions before this Assembly for the solution of which it is intended to constitute this committee. For becoming a citizen of the Jammu and Kashmir State a specific date was fixed twenty-four years back under the Law 1-1/48 issued on 20th April, 1927. This law was given the importance of a notification and under it the limit of S. Year 1942 was prescribed i.e. those who had been residing in the state on or before that date were granted the Status of First Class State Subject. For the second-class residence and immovable property were prescribed as necessary conditions and for the third class the condition of ten years continuous residence was prescribed. This notification formed the basis for the definition of citizenship.

It would be irrelevant to discuss as to what benefit of harm resulted from this definition. For the preservation of a country’s rights whether social, economic or political it is necessary to define citizenship. The Dominion Constitution of India also embodies the defini9tion of a citizen to show who is a citizen of India. They instituted a detailed enquiry in the matter and after sufficient consideration decided this important question. Now as the State of Kashmir is acceding to the Dominion Centre and has to find the solution for various pressing problems, we have to see how the local citizenship and the Indian Citizenship will come up before the committee and on the solution of which it has to bestow its thoughtful consideration. This committee will have to examine the definition citizenship is an international and complicated question and needs detailed investigation. This committee will have to examine the definition of citizenship prescribed in the U.S.A., Britain, Russia and china and think over it. This is an international and complicated question and needs detailed investigation. This committee has to frame laws after careful consideration and in framing the constitution it should not be swayed by any narrow mindedness or prejudice. As remarked by the Quaid-IAzam yesterday that in framing the constitution of our country we should not entertain any king of malice or jealousy but we have to scrutinize the constitutions and the laws of the world and keep in view all that is good in them.

The second thing on which the committee has to deliberate and present its report in this Assembly relates to fundamental rights. What are the fundamental rights and what provisions are necessary to be made in the constitution to preserve them work has to be accomplished by this committee in framing the constitution.

Man is born free and possesses the birth right of speech. He should have the right to move from one place to another according to his will, earn his bread by adopting an occupation of his liking. He has the full right to form associations.

The highly intellectual people of the most civilized countries of the world have given much thought to this question and also written on it. But this matter is not an easy one. Every body has the unfettered birth right of freedom of conscience speech, association and occupation. But it is necessary that those rights are exercised in such a way as would in no way clash with the rights of other people.

Much has been thought and also written on this. This is not so easy as we may imagine by merely saying that man is free and born free and therefore he possesses the right of freedom of speech, of writing, of holding property, of free assemblage, of religious belief and of association. Although man possesses all these rights from his birth yet restrictions have been imposed on them at some places and somewhere these restrictions are legitimate. For instance you like the proprietary right. Ordinarily a citizen has the right to create property and hold it. In Kashmir we took exception to this proprietary right. For instance a Jagirdar who is in possession of Lakhs of kanals of land snatches a way under cover of this proprietary right even the small piece of land from the other poor man holding ten or fifteen kanals of land. We have also to guard against the misuse of this slogan.

We objected to this right in the interest of the growth of society and the economic progress of the country and imposed restrictions on it to guard against the ruination of these poor people by the very big Industrialists and the Capitalists. Similarly, let us take the freedom of conscience. Everybody should have complete right in this connection and here we are engaged in a Jahad for securing this right instead of suppressing it. This time an attack is being directed against the freedom of conscience in Pakistan and the administration of that country is being carried on at present on theocratic principles, thereby, a restriction has been placed on the freedom of conscience of non-Muslims because the acts of the administrators necessarily affected the inhabitants of the country – the effect being indirect or unconscious. We have seen that the class, which governed us for centuries-, affected our dress, our language, our civilization and us. We take it as a blow to our freedom of conscience. We shall vigilantly guard these rights for the growth of our society and shall not permit any interference with them. We shall not deprive the non-Muslim in our country of his freedom of conscience merely because of his being a non-Muslim but it shall be the foremost duty of a Muslim here that he will respect the freedom of conscience of a non-Muslim in the same manner as he would respects his own. This very principle that the citizen of this country shall have the freedom of conscience shall be the very basis of our constitution.

The Committee has to enquire into all the difficulties and after thoughtful consideration submit its considered opinion to the House so that the Hon’ble Members of the House might at the time of framing the constitution, give such weight as it deserves. You know that the difficulties were present in this would from the very beginning and much has been written on them. But this does not mean that when the question of fundamental rights is taken up for consideration by us we should copy different countries with our eyes shut. New conditions emerge with change of times. Therefore keeping in view all these conditions we have to consider the fundamental rights. The most important thing about Kashmir which is partly fortunate and partly otherwise is that it is situated at a place where five big powers meet, Russia meets on one side and China on the other. Afghanistan is quite near and Pakistan contiguous and lastly the great Dominion of India to which we have acceded. Our fundamental rights should, therefore, be framed in such a way that their growth is not hampered. In spite of this, we have to take decision on our new principles with due deference to the neighbouring countries and also keeping in view the matters including the possibilities of our growth, in respect of which we have acceded to the Central Dominion. Besides, as has been stressed by the Quid-I-Azam in his policy speech that leaving aside the matters on which we have acceded to the India Dominion we have also to keep in view the cultural, social and political progress of the forty lakhs people of this State. We wish that our progress in all directions should be such as not only India, and Pakistan but the whole world may feel proud of it (cheers).

This is already a settled fact that the National Conference wants to base the constitution on secularism and socialism where there may be no exploitation of any kind and no possibility of one section usurping the rights of the other. The principal of self-determination which we have accepted several years back at Sopore will form the basis of our Constitution so that every section of the population may have full opportunity for growth and development. With these few words I commend my resolution to the House, which I believe will accord its full support.

Khwaja Ghulam Mohi-ud-Din Hamdani: Hon’ble President, I support the motion introduced in the House at this time by Mr.Beg. The learned mover has stated the positive side in the House while I shall express myself on the negative side of it to enable the House to appreciate the importance of the functions and duties assigned to this Committee. Sir, the Committee has to make its recommendations as to what should be Citizenship Rights of an individual in the State and what status should one possess to entitle him to be treated as a citizen of the State; what should be his political, social rights? sir, previously no news paper existed in this State of Jammu and Kashmir and everybody’s mouth was gagged. During the days of personal rule, freedom of speech was not tolerated.

Let alone the political and social freedom as well the religious freedom was restricted and it was on this very ground that sir Albion Bannerji had remarked that the people of State were like dump driven cattle. Today after twenty-five years struggle, the people have sent their representatives to this House. This House has to fulfill the dream of public. This Committee will have to see that one section may not dominate the other as previously and also that no section usurps the rights of the other. This Committee shall have to guarantee to the State Press complete freedom of expression of opinion. With these words I support the Hon’ble mover’s motion.

Habibullah: Sir, before I want to say something about the resolution moved by Hon’ble M. A. Beg I want to throw some light on the basic principles and fundamental rights of the constitution that we are going to frame. It is a great pleasure that we have assembled here in order to frame the construction of the country according to the will land wishes of the people. Democratic Government

means that the Government must be for the people, of the people and by the people. We want that every man of lour country should prosper and have a brilliant future. We want each man’s rights, basic rights, economic rights, social rights, political rights and other rights whatever they must be preserved and must be taken into consideration. I, can also give an example that can be quoted regarding the basic principles and liberty of the constitution i.e. “render into Caesar the things that are Caesar’s and into God that are God’s”

Hon’ble Revenue Minister: But Caesar wanted all these.

Habibullah: We want that every man of this country must be given his fullest right and must lead a peaceful life; Rights can be analyzed in many ways. Basic Rights and freedom of space, freedom of platform, freedom of press and freedom of everything can be said to be the fundamental and basic rights of men. Any power or Government who tries to keep people away from those liberties, you will see, that Government will not last long. You will see only that Government will prosper which will give these fundamental rights to its people. One the contrary when the rights of the people are not exercised according to there will and wishes the future of this very uncertain and dark. The people should be cause everything has been made clear by Hon’ble M. A. Beg it will be sufficient to say here that every Government which wants to gain good reputation must always have the consideration that the people living under it must have equal rights, and their rights must be preserved whole heartedly. If they are kept away from these rights the consequence will be bitter and against that Government. Liberties are of two kinds. You can say that the raiders are enjoying the liberties. They also enjoy a kind of liberty. But that liberty cannot compete the one, which is being enjoyed by the people under the Government acting according to the democratic principles. The raiders, liberty are also a kind of liberty but we cannot call it liberty in the real sense. So we do not want that liberty. We so not want that any body’s rights should be suppressed in any way. I have given you an example but the liberty of raiders, which is condemned by the people living in the Democratic world.

Sardar Harbans Singh: Excepting Pakistan

Habibullah: But I do not want to exaggerate the things. One explanation is that the raiders came here and had guns with them in order to defend themselves. This was also a sort of liberty but they misused it and exploited everybody whether he was a Hindu, Sikh or a Muslim. By liberty they mean “Kill whom you can; take what you can” But this must not be taken into consideration. We should take real meaning of right of freedom. When we will understand the full meaning of fundamental rights our country will shine and prosper. With these words I would request that the committee should take into consideration the fundamental and basic principles of freedom while framing the constitution. By doing so our country shall become a symbol of justice, equality, fraternity and brotherhood.

Mir Qasim: Mr. President. In deference to wishes of the respectable mover I would like to state a few words about his intentions. At the time the mover presented his Resolution, his ideas had not turned into a resolute but were shaky. He intended to substitute some other name for mine, which appears at item 9. At the time when he at first introduced his motion he had intended to give further consideration to the matter. For this reason he can have full liberty to do this. I feel that before adding any one of member of this House with a responsibility, it is necessary for the nation to take into consideration his importance as well as his capability to shoulder it. As I was selected only yesterday as a member for an important committee I wish to withdraw my name from the committee, which may be allowed.

D.P. Dhar: Sir, the Hon’ble Member’s intention is not clear.

Hon’ble President: Please wait.

Mir Qasim: Sir, the sentence has not yet been completed, how can the conclusion be assumed since an important work was entrusted to me yesterday I am afraid with that in hand. I shall perhaps not be able to pay full attention to this job. I therefore, in deference to the wishes of the mover and also finding myself not available, request that my name may not be included in this committee. In supporting the motion I would, however, like to state as also done by my other learned friends that the basic principal is that for the citizenship rights in any country, the society reflects the rights of every individual and, therefore, the society is also the guarantor of those rights. What should be the civic rights in a society? Different views are held on this in the world. What should be the rights of an individual in a society, the society itself advances a particular view on this.

Had the definition of these rights been quite simple in the world, the rights of self determination and of citizenship would have been uniform. But separate definitions of freedom of different individuals in different societies and of the society itself have been laid down. If the leaves of the past history are turned over, three different views would be revealed. At one time a big Jagirdar could collect the rent by the open employment of reactionary elements. At that time this was also regarded as a citizenship right. At another time it was penal for the public to raise its voice against the Government whether established by virtue of a sale deed or in consequence of aggressive attack or forced possession. But along with the progress of the times, this definition of the civic freedom also under went a change and that society came to be regarded as more advanced whose constitution upheld the freedom of its individual and the organization guaranteed the rights after the means had been devised for safeguarding them.

As was just now stated by the mover the civic freedom connotes the fundamental rights of freedom of movement, writing and speech. The committee shall have to take them into consideration at the time of completing its report. A man cannot be allowed the latitude of a free lancer in matters relating to the freedom of the press so that he may have the liberty to indulge in writing whatever comes to his brain at any time. No, the use of this freedom should be permitted with special limitations so that he may have constantly in view the welfare of the society. This freedom should be able, in particular to guard the right of the public to live, side by side with the maintenance of the peace. The Quaid-I-Azam and the mover have also urged that the Committee while considering the Resolution should give top most priority to the question of the betterment of the society so that the fundamental rights of the individual are safeguarded. In the year 1659 about three centuries back from today, an English poet said that the law defines the right but it is a task of utmost importance to secure the rights by solid means. It is most urgent to provide opportunities for this.

When the law defines civic rights the outlook of a very great poet becomes clear on what should be the definition of the right and the provision for safeguards. The law locks up the man or women who steals the goose from the common. But leaves that greatest villain loose who steals the common from the goose.

While defining freedom of law, the word has no0 meaning if it merely remains on paper but you have to think of enforcing it practically. It has to be impressed upon the masses as to what rights they have been granted and whether or not the society has devised means to protect them. In granting freedom to the public in writing, speech association or other matters the intention is that it should be used for the progress and well being of the society as otherwise the freedom will have no more value than a scrap of a paper. At any rate the right will be preserved if the society guarantees the safeguards. After this explanation and withdrawing my name form the membership of this committee, I support this motion.

Assadullah: Hon’ble President; The respectable mover while introducing the motion has expressed the wish that my name that appears last of all on this committee should be deleted.   In this connection I have to submit for consideration of the Hon’ble President that since I have previously been selected as member for one or two committees, I request with due deference to the wishes of the mover Hon’ble Mr. Beg that my name may be omitted from this committee. In support of the motion I am further stating a few words.

President: Before the Hon’ble mover speaks anything in support of the withdrawal of the name, I do not permit this amendment as the Hon’ble mover had given no previous notice of the amendment regarding the deletion or addition of the two members. But should he, however, like to add two more members, he could do so even now because the motion embodies: – “That the Committee may invite any person to take part in the deliberations” I think there is no necessity for an amendment at this stage.

Sheikh Mohammad Abdullah: Sir, everybody has a right to withdraw his name from the committee.

President: So far as the learned members are concerned Hon’ble Mir Qasim has stated that he supported the resolution with the amendment. If these words are treated as an amendment, I do not permit the amendment.

Mir Qasim: Sir, I withdraw my name from the committee.

Assad Ullah: I also withdraw my name.

Note : Permission to withdraw the names of Messrs Mir Qasim and Assad Ullah Mir from the proposed Committee was granted.


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