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Level Playing Fields: The Post-Colonial State, Democracy, Courts and Citizenship in India

Published online by Cambridge University Press:  06 March 2019

Subrata K. Mitra

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This article analyses the legal, political and moral basis of citizenship in the contemporary world. India is analyzed here as a case in point of a general category of ‘changing societies’ emerging from colonial or communist rule. Citizenship, which used to be considered a part of the general problem of nation-building, has increasingly acquired the character of a salient problem in its own right. This change in perspective has come about as a consequence of globalization and the world-wide diffusion of basic norms of human rights. In the contemporary context, with regard to the problems of endangered minorities whose lives, dignity and welfare are at risk – be it in Kashmir or Kosovo – the world at large considers itself morally bound to intervene, if not militarily, then at least in terms of the invocation of law and good conduct. As such, from the point of view of the post-colonial state, both its national sovereignty and legitimacy are contingent on its success with turning its whole population into citizens. This, the article argues, is contingent on the ability of the post-colonial state to gear its laws, courts and administration towards effective management of identity and the constitutional incorporation of core social values (see Figure 2 below). With regard to ‘making citizens out of subjects’, the Indian ‘experiment’ holds important lessons for other states, ensconced in multi-cultural societies.

Type
Research Article
Information
German Law Journal , Volume 9 , Issue 3: A Special Issue on India , 01 March 2008 , pp. 343 - 366
Copyright
Copyright © 2008 by German Law Journal GbR 

References

1 Nearly half of all literature on the subject has been written in that decade, see Isin, E.F. & Turner, B.S., Citizenship Studies: An Introduction, in Handbook of Citizenship 1, 9 (B.S. Turner & E.F. Isin eds., 2002); citizenship studies now de facto constitute a field of social science.Google Scholar

2 See Young, I.M., Polity and Group Difference: A Critique of the Ideal of Universal Citizenship, 99 Ethics 250 (1989); W. Kymlika, Multicultural Citizenship (1995); G. Mahajan, The Multicultural Path: Issues of Diversity and Discrimination in Democracy (2002).Google Scholar

3 See T. Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (1994); D. Jacobson, Rights Across Border:: Immigration and the Decline of Citizenship (1996).Google Scholar

4 See Schiller, N. Glick, Bash, L. and Blanc, C. Szanton, From Immigrant to Transmigrant: Theorizing Transnational Migration, in Transnational Migration 121 (Ludgar Pries ed., 1997); A. Ong, Flexible Citizenship: The Cultural Logics of Transnationality (1999); Appadurai, A., Grassroots Globalization and the Research Imagination, 12 Public Culture 1 (2000); Hannerz, U., Transnational Research, in Handbook of Methods in Anthropology, (H. Russell Bernard ed., 1998)Google Scholar

5 See Subrata K. Mitra & V B Singh, Democracy and Social Change (1999).Google Scholar

6 James Anderson, Transnational Democracy: Political Spaces and Border Crossings (Routledge 2002).Google Scholar

7 Id. at 6.Google Scholar

8 See Kymlika, , supra note 2.Google Scholar

9 Anderson, , supra note 6, at 6.Google Scholar

10 Id.Google Scholar

11 Id. at 7.Google Scholar

12 Stefan Kadelbach, Union Citizenship (2003).Google Scholar

13 Id. at 11.Google Scholar

14 Izhar Ahmad Khan v. Union of India (UOI), AIR 1962, SC 1052. The case dealt in detail with the following questions: the rights to and of citizenship; the issues of partition related citizenship; the value of a passport in determining citizenship; and the question of domicile versus citizenship. The issue in this case was the constitutional validity of Section 9(2) of the Citizenship Act, 1955, which dealt with the termination of citizenship. This case exemplified the policies which discouraged multiple or even dual citizenships, and held that upon acquiring in any manner the citizenship of another country, an Indian citizen automatically loses Indian citizenship.Google Scholar

15 See Bachan Lal Kalgotra v. State of Jammu and Kashmir, AIR 1987, SC 1169.Google Scholar

16 See Subrata K. Mitra, The Puzzle of India's Governance: Culture, Context and Comparative Theory (2005).Google Scholar

17 “The question of citizenship became particularly important at the time of the making of our Constitution because the Constitution sought to confer certain rights and privilege upon those who were entitled to Indian citizenship while they were to be denied to ‘aliens’. The latter were even placed under certain disabilities.” Durga Das Basu, Introduction to the Constitution of India 74 (2001).Google Scholar

18 Constitution of India, pmbl., available at www.lawmin.nic.in/legislative/Art1-242%20(1-88).doc.Google Scholar

19 See Kadelbach, , supra note 12, at 12.Google Scholar

20 See T.H. Marshall & T. Bottomore, Citizenship and Social Class (1992); and Dahrendorf, R., The Changing Quality of Citizenship, in The Condition of Citizenship (B. van Steenbergen ed., 1994).Google Scholar

21 Seyla Benhabib, Political Theory and Political Membership in a Changing World 410-11 (2002).Google Scholar

22 “I thought that an Indian is a very easily recognizable person. When combined with domicile, it is easier to define it. But if the Professor thinks that an Indian cannot be recognized and that it is necessary to lay down who is an Indian, what is his colour and complexion and so on, I would leave it to him to suggest a suitable definition. I think the existing definition is capable of being understood without any difficulty. I do not think that a definition is necessary for every expression used. If you examine the Constitutions of other countries, the Constitution of Poland for instance, you will find that all that they provided is that any person who is born of Polish parents is a citizen of Poland. They know who is a Pole, just as we know who is an Indian. I do not think therefore that any definition is necessary in this connection.” Yet, P.S. Deshmukh's optimism for an “easy” solution was misplaced. While the results look fairly effortless and straightforward, drafting the citizenship articles was one of the most contentious issues of the Constituent Assembly, with almost 120 amendments moved. “[T]his article on the question of citizenship has been the most ill-fated article in the whole Constitution. This is the third time we are debating it. The first time it was you, Sir, who held the view which was upheld by the House that the definition was very unsatisfactory. It was then referred to a group of lawyers and I am sorry to say that they produced a definition by which all those, persons who are in existence at the present time could not be included as Citizens of India. That had therefore to go back again and we have now a fresh definition which I may say at the very outset, is as unsatisfactory as the one which the House rejected […]” (Dr. P. S. Deshmukh, Constituent Assembly Debates).Google Scholar

23 Constitution of India, art. 5.Google Scholar

24 Id., art. 6.Google Scholar

25 Id. at art. 7.Google Scholar

26 Id. at art. 8.Google Scholar

27 Id. at art. 9.Google Scholar

28 Id. at art. 10.Google Scholar

29 Id. at art. 11.Google Scholar

30 Lloyd I. Rudolph & Susanne Hoeber Rudolph, In Pursuit of Lakshmi: The Political Economy of the Indian State (1987).Google Scholar

31 Subrata K. Mitra, Caste and the Politics of Identity: Beyond the Orientalist Discourse, in Culture and Rationality: The Politics of Social Change in Post-colonial India (1999); Mitra & Singh, supra note 5; Mitra, supra note 16.Google Scholar

32 “Negotiation is a basic means of getting what you want from others. It is back-and-forth communication designed to reach an agreement when you and the other side have some interests that are shared and others that are opposed […]. People negotiate even when they don't think they are doing so. A person negotiates with his spouse about where to go for dinner and with his child about when the lights go out.” Roger Fisher, William Ury & Bruce Patton, Getting to Yes: Negotiating an Agreement Without Giving In, at XIII (1991).Google Scholar

33 The comments of Fisher et al. are perfectly appropriate for India's everyday life. “Everyone wants to participate in decisions that affect them; fewer and fewer people will accept decisions dictated by someone else. People differ and they use negotiations to handle their differences. Whether in business, government, or in the family, people reach most decisions through negotiations. Even when they go to court, they almost always negotiate a settlement before trial.” Id.Google Scholar

34 Fisher, Ury and Patton describe the characteristics of principled negotiations as follows: [1] ‘wise’ and durable; [2] based on interests and not positions; [3] objective (inter-subjective) rather than subjective; [4] separate people from interests; [5] look beyond perceptions by putting themselves in other people's shoes; and [6] Principled negotiators know their BATNA (Best Alternative to a Negotiated Agreement).Google Scholar

35 See I.W. Zartman & M.R. Berman, The Practical Negotiator 201-02 (1982).Google Scholar

36 See Izhar Ahmad Khan v. Union of India (UOI), supra note 14.Google Scholar

37 This is attributed to the Treaty of Westphalia, 1648, which led to the recognition of the territorial state as the ultimate, sovereign unit in national and international politics.Google Scholar

38 See the case of immigrants from North Africa in the suburbs of Paris, and the controversy surrounding the head scarf in France and Germany.Google Scholar

39 The reference here is to the rise of the language movement and the violent separation of Bangladesh from Pakistan; and, the current civil war in Sri Lanka.Google Scholar

40 Constitution of India, art. 9.Google Scholar

41 When asked “Suppose there were no parties or assemblies and elections were not held - do you think that the government in this country can be run better?,” 69% of Indians argue in the opposite. But the number of Muslims, at 72%, making the same argument in favor of retaining the democratic structure, is even higher than the average.Google Scholar

42 See Subrata K. Mitra, Kashipur Revisited: Social Ritual, Electoral Politics and the State of India, in Jagannath Revisited: Studying Society, Religion and the State in Orissa (Hermann Kulke & Burkhard Schepel eds., 2001) (for an analysis of the cult of Jagannath, which provides an example of inter-community accommodation and its role on extending a sense of dignity to those previously excluded from the mainstream, from the South-Eastern State of Orissa).Google Scholar