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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

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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

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10 Id.Google Scholar

11 Id. at 7.Google Scholar

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

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

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

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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

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

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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

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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