CITIZENSHIP RIGHTS UNDER INDIAN CONSTITUTION

Author: Sania Kaushik

Symbiosis Law School

INTRODUCTION

The Indian state immediately after the partition decidedly embarked on a project of defining the meaning of ‘Indian-ness’- a meaning that would ultimately transcend social differences and create a political community of Indian citizens across different religious, caste, linguistic, and cultural groups. The diversity of cultures and people has generally been applauded as the index of India’s civilisational traits and its composite culture. However, it has overtime been constructed as a common proposition for the endurance of India’s national integrity and particularly immortalised by Nehruvian imagination when he suggested that “the consolidation of independent India was to occur around the concept of ‘unity in diversity”.[i]

The idea although eluded precision and was subjected to different interpretations, it involved recognition of plurality of religions, cultures, and languages which demanded a federal arrangement for its sustenance. The desire to create a secular state was informed as much by the idea to preserve its diversity and foster unity, as much by the idea to usher out of medieval vestiges and into a post-enlightenment modern era. During the Constitution making, different theoretical assumptions interpreted to specify a particular meaning to secularism resulted in different forms of secularism being discussed and deliberated upon. The commitment of the post-colonial Indian state towards secularism is as much dictated by the need to bring different and divided communities together as much its importance as a constituent part of the larger democratic project that was outlined for the post-colonial state and society.

The Gandhian interpretation that he thought could serve as the organising principle for managing India’s religious pluralism was founded on the doctrine of “Sarva dharma sambhava” meaning equality of all religions while Nehru’s preferred notion of secularism was to be situated in “Dharma Nirpekshita” meaning separation of religion and politics. The constitutional arrangement ultimately interpreted secularism as the equidistance of the state from all the religious communities, which, as mentioned above, can be understood as Sarva dharma sambhava (equal treatment of all religions). The form secularism was to finally assume in India had as much concern with minority rights, justice and managing the diversity as it had with state-religion relationship.

The institutional adjustment or the structuring of the legal order for the accommodation of the diversity claims carried an implicit assertion of protecting the minority rights which was to be achieved and articulated through a combination of majority sensitivity and minority inclusion.4 This articulation was drawn from the convergence of the political project of shaping secularism and the commitment to the rights of minorities to their own culture and religion in the colonial era. Despite the fact that secularism in India has not only been exorcised for its ineffectiveness but even for its relevance in a deeply religious society, it needs to be recognized that it underpins the project of citizenship which defines the practices that constitute the engagement between citizens and the state[ii].

Citizenship is the status of a person recognized under law as being a legal member of a sovereign state or belonging to a nation. In India, Articles 5 – 11 of the Constitution deals with the concept of citizenship. The term citizenship entails the enjoyment of full membership of any State in which a citizen has civil and political rights.

THE BACKGROUND TO THE CONCEPT OF CITIZENSHIP

Recently, citizenship has been a centre of attention in political theory. The breaking of post World War II consensus and the new rise of xenophobic attitudes in Western countries have made questions of citizenship even more potent. In sum, there are various different meanings attached to the concept of citizenship. On the one hand, there are the questions related to migration from one country to another. These questions often relate to residence permits, the right to vote or to seek asylum. On the other hand, there are the questions within a polity: the questions of equal treatment of citizens, who may come from different backgrounds. The rights of different groups are usually discussed under the latter heading. Citizenship is a contested and sensitive issue. The interpretations and meanings connected with citizenship vary in different societies and in different times. Citizenship is a central concept in political philosophy: it is a framework for political democracy and individual autonomy as well as an intellectual and political tradition that connects the modern era with antiquity.

The classical Athenian account represented here by Aristotle supposes a strict division between public and domestic lives, and requires that citizens should participate in decision making (to rule and be ruled): to be able to participate, a citizen must be “a male of known genealogy, a patriarch, a warrior, and a master of the labor of others”. These prerequisites excluded most of the people from access to it. Nowadays these are not the preconditions of citizenship. The meaning has changed: citizenship used to be something acquired by your status in society, when nowadays it is citizenship that guarantees the status. Therefore, the meaning has diverged from the Aristotelian meaning and the legal dimension has changed too: the freedom to act under the law, and to be protected by the law. However, Aristotle’s formulation of a human being as “a creature formed to live a political life” seems still to be an appealing definition. Still, as Pocock argues, we have not quite got rid of the classical prerequisites for citizenship, there is nevertheless something exclusive about citizenship, as can be seen from the multiplicity of accounts criticising the concept.[iii]

The concept of citizenship includes the legal status and the political recognition as a member of a community as well as the specific rights and obligations associated with the membership. The political ideal is that every citizen is equally entitled to the same rights and duties. The idea of rights is inseparable from the idea of duties. If a person has a right, then there has to be someone who has the corresponding duty to fulfil that right. If I have a right not to be injured, other people around me have the duty not to violate or hurt me. Human rights – or more precisely, the implementation of human rights – are closely connected with the concept of citizenship. In the contemporary world citizenship has become the primary category of membership; in a state-centric world it is crucial to be a member of a political community. In principle human rights are entitled to all people regardless of their social status, gender or race. Nevertheless, in practice many states violate these rights. People travelling without proper documents of identification, especially, are often treated harshly. Still it does not end there; also within the societies there are groups of people that do not have the same kind of recognition of their status as full members of that society. Various minorities, especially indigenous ones, have faced severe discrimination based on their status as minorities.

THE LIBERAL CONCEPT OF CITIZENSHIP

The liberal concept of citizenship flows from Enlightenment thinking and is deeply rooted in the liberal thought tradition, which takes individualism as its main component. Individuals are seen as the basic units of society all possessing the same rights to participate in the political, economic and cultural life of society. Liberal political theory is a rights-based one; it takes the rights of individual as the fundamental basis for the society. However, the idea that all human beings should have equal rights has not always been widely appreciated. Until modern times, only property-owning men were able to vote or participate in political affairs.

Nowadays citizenship rights in liberal countries include in principle everyone regardless of their gender, race or wealth. The liberal concept of citizenship has traditionally bound together equality before the law and the actualisation of social justice. Welfare-liberals, especially, have concentrated on equality. The law is considered colour and gender blind; according to many liberal theorists this is the only way to guarantee equality within society. Along with freedom to choose one’s way of living, equality before the law can be held as one of the most important aspects of the liberal notion of citizenship.[iv]

According to critics, the liberal understanding of the concept concentrates almost solely on the legal dimension; from the welfare-liberal point of view, the formal equality before the law gives everyone the same opportunities. This view can be called a thin concept of citizenship: any given political theory is based on some kind of view of human life, or a so called thin or background theory of life. In order to define what is needed for the society to work, every theory has to have an account of what is good and worth pursuing. It can be a thin theory that gives just a framework for where to start when defining the principles of good life.

According to Waldron, many liberals, such as Dworkin or Rawls, support the view that each individual choose a particular conception of good that determines his or her way of living, and that rights are for the protection of an individual in the pursuit of such a way of living. However, not all liberals agree with this view on how to conceptualize good life. Some liberal theories seek a theory of good, which could explain how the society works best, but some refuse to think in these terms. As J.L. Mackie states: “People differ radically about the kinds of life that they choose to pursue. Even this way of putting it is misleading: in general people do not and cannot make an overall choice of a total plan of life. They choose successively to pursue various activities from time to time, not once and for all”.

In the liberal tradition, equality before the law and freedom to choose one’s way of living are the most important aspects. Everyone is equally entitled to this freedom; it is the task of the state and the law to ensure that. One of the most important principles of liberal theory is that citizens should be able to choose their way of living freely as long as they do not harm others. They should be able to live their life and choose the ends they see worth striving for free from coercion. This principle is called negative freedom (or freedom as non-interference, as republicans call it) and it is the most important principle of political liberalism. From the point of view of some liberals, all interference with individual affairs can be seen as coercive and the role of the state should be only a minimal one in order to truly protect everyone’s rights.[v]

Other theorists (like Rawls) believe that a state needs to have a greater role, and for instance the redistribution of wealth may be necessary. There are many different strands within liberal theory, but they all share some basic principles. Liberal theory sees citizens as promoting “their self-interest within certain constraints imposed by the exigency to respect the rights of others”. Respecting the rights of others sets the limits on individual freedom; if the individual in question is aiming at harming others, then coercing them by hindering their behaviour is acceptable.[vi]

Often state intervention is considered as unwanted, in some cases dangerous and possibly leading to totalitarianism. Some liberals argue that all laws are coercive by nature, and so diminishing the scope of individual liberty. The holders of this view see negative liberty as a fundamental right. Not all liberal theorists share the same idea though: Dworkin disputes this view by stating that negative liberty or ‘liberty as a license’ cannot be a right in a strong sense. There is a right to certain liberties, but they cannot be grounded on a general right to liberty. Dworkin argues that instead rights to certain liberties are grounded on every citizen’s right to equal concern and respect. This can be viewed as the core of neutralist egalitarian liberalism. A liberal state should not favour certain life choices or styles as more valuable. The state should be neutral; though the concept of neutrality has been criticised for being vague. Therefore it is important to preserve individual liberties and to avoid state regulations which are too heavy, because this might easily turn a state into an oppressive regime. There are milder and stronger interpretations within liberal political tradition, but the basic principle is that of negative freedom.[vii]

BIBLIOGRAPHY & REFERENCES

• Jones, Peter (1999): “Group Rights and Group Oppression”, Journal of Political Philosophy 7(4):353-377

• Jennings, Jeremy (2000): ”Citizenship, Republicanism and Multiculturalism in Contemporary France” British Journal of Political Science, Vol.30, No. 4 (Oct., 2000), pp.575-597

• Kant, Immanuel (1991): Metaphysics of Morals in Immanuel Kant: Political Writings. Translated by H.B. Nisbet, edited with an introduction by Hans Reiss. Cambridge University Press, Cambridge. (Metaphysik der Sitten first published in 1797.)

• Kymlicka, Will and Norman, Wayne (2000): ”Citizenship in Culturally Diverse Societies: Issues, Contexts, Concepts” in Will Kymlicka and Wayne Norman (eds.): Citizenship in Diverse Societies. Oxford University Press, Oxford.

• Friedman, Marilyn (2008): “Pettit’s Civic Republicanism and Male Domination” in Cécile Laborde and John Maynor (eds.): Republicanism and Political Theory. Blackwell Publishing Ltd, Oxford.

• Deane, Herbert A. (1963): The Political and Social Ideas of St. Augustine. Columbia University Press, New York.

• Aristotle (1962): The Nicomachean Ethics, commentary by H.H. Joachim, ed. by D.A. Rees. Clarendon Press, Oxford.

• Beiner, Ronald (2006): “Multiculturalism and Citizenship: A critical response to Iris Marion Young”, Educational Philosophy and Theory, Vol. 38, No. 1.

• Frank, Ana (2010): “Rethinking European Past and Future Legacies”, Journal of Contemporary European Studies, 18, 2, pp. 229-239, Academic Search Complete, EBSCOhost, viewed 11 October 2011.

• Kymlicka, Will (1989): Liberalism, Community and Culture. Clarendon Press, Oxford [i] Jones, Peter (1999): “Group Rights and Group Oppression”, Journal of Political Philosophy 7(4):353-377 [ii] Jennings, Jeremy (2000): “Citizenship, Republicanism and Multiculturalism in Contemporary France” British Journal of Political Science, Vol.30, No. 4 (Oct., 2000), pp.575-597 [iii] Kant, Immanuel (1991): Metaphysics of Morals in Immanuel Kant: Political Writings. Translated by H.B. Nisbet, edited with an introduction by Hans Reiss. Cambridge University Press, Cambridge. (Metaphysik der Sitten first published in 1797.) [iv] Kymlicka, Will and Norman, Wayne (2000): “Citizenship in Culturally Diverse Societies: Issues, Contexts, Concepts” in Will Kymlicka and Wayne Norman (eds.): Citizenship in Diverse Societies. Oxford University Press, Oxford. [v] Friedman, Marilyn (2008): “Pettit’s Civic Republicanism and Male Domination” in Cécile Laborde and John Maynor (eds.): Republicanism and Political Theory. Blackwell Publishing Ltd, Oxford. [vi] Deane, Herbert A. (1963): The Political and Social Ideas of St. Augustine. Columbia University Press, New York. [vii] Aristotle (1962): The Nicomachean Ethics, commentary by H.H. Joachim, ed. by D.A. Rees. Clarendon Press, Oxford.