Rights of Citizens: Equal and
Differentiated
The concept of ‘citizenship’ entails numerous
interpretations and affiliations, leading it to be one of the most contested
issues in modern political, social and cultural life. According to Brubaker
(2004), ‘The nation-state remains a
decisive locus of power in world affairs; it is the only major locus of power
with the public sphere and institutional forms, however imperfect, that permit
some degree of meaningful and effective civic participation’ (Brubaker 2004:124).
This argument lays emphasis on the decisive role of state in granting (or
withdrawing) rights of citizenship and the benefits that follow thus. In
viewing citizenship as a state-related concept, Joppke (2001) urges for a
distinction…
between at least three aspects of citizenship: citizenship as status, which denotes
formal state membership and the rules of access to it; citizenship as rights,
which is about the formal capacities and immunities connected with such status;
and, in addition, citizenship as identity,
which refers to the behavioural aspects of individuals acting and conceiving of
themselves as members of a collectivity, classically the nation, or the
normative conceptions of such behaviour imputed by the state (Joppke 2001:38,
emphasis added).
This essay begins with an outline of some
theoretical accounts of citizenship and justice. Its aim is to lead into a
discussion on granting equal rights to all citizens as opposed to
differentiated rights, on account of historic discrimination against certain
groups. The essay attempts to explore the various conceptions of the latter by
(most famously) Young (1989) and Taylor (1994). A critique of these
propositions is also briefly discussed. In the final section, the focus is on
the case of India
Conditions
of Citizenship – Rights and Justice
In modern democratic societies, the universalist
paradigm assumes that every person enjoys the same legal and political rights.
This is ‘more of an illusion’
(Mitnick 2004:168) than reality. Hence, in laying the ground for her case in
favour of ‘differentiated rights’, Young (1989) posits that,
the responsible citizen
is concerned not merely with interests but with justice, with acknowledging
that each other person's interest and point of view is as good as his or her
own, and that the needs and interests of everyone must be voiced and be heard
by the others, who must acknowledge, respect, and address those needs and
interests (Young 1989:262).
Young’s formulation ‘is a precept of formal justice, and not one of formal equality’
(Mitnick 2004:169). Isin (1997) in tracing the genealogy of citizenship and
rights argues that, the ‘emergence of
differential class powers result(ing) from the ownership of different forms of
capital that condition(ed) the territorial as well as the legal and moral
boundaries of citizenship’ (Isin 1997:121). An illustration of this is
provided by Holston (2008) who, while discussing the historical conditions of
differentiated social citizenship in Brazil Holston 2008:7). The acts of affirmative
action and provisions for formal justice intend to (at least, in spirit)
gradually overturn the historic injustice and discrimination meted out to
disadvantaged groups.
It is evident that attempts by the state to provide
for formal justice and formal equality do not necessarily convert into
substantive justice and substantive equality. I argue, that, this is because
the relations of power are so entrenched between various classes in societies
that legal means of providing certain disadvantaged groups with equal, or
rather, enhanced access to resources may not compulsorily lead to a dramatic
change in their social status. ‘The
supposedly neutral set of difference-blind principles of the politics of equal
dignity is in fact a reflection of one
hegemonic culture’ (Taylor 1994: 43). Faulks (2000) also points out that since
all citizenship rights involve the distribution of resources, and because
obligations are exercised within a societal context, any discussion of
citizenship is also a consideration of power (Faulks 2000:86). Nevertheless, Young (1989) morally exhorts us
arguing that, ‘to give group
representation is the best means to promote just outcomes to democratic
decision-making processes. Group representation provides the opportunity for
some to express their needs or interests who would not likely be heard without
that representation’ (Young 1989:263).
While the argument that the above assertion is
entirely contingent on power relations and group hegemony may go on forever,
the essay will now shift its focus to provide an insight into the case made for
recognition of differentiated-group rights, rather than blanket application of
laws. The next section discusses the role of ‘politics of recognition’ (Taylor
Differentiated
Citizenship (DC)
‘Differentiated
citizenship policies often arise in circumstances of cultural
pluralism where the congenial association we previously
witnessed between formal equality and self-invention quickly collapses’ (Mitnick’s
2004:173, emphasis added).
Cultural pluralists focus on the
issue of “difference”. Citizenship to them is a matter of identity, where
members of groups feel excluded not only because of their socio-economic
status, but also because of their socio-cultural identity – their difference.
The attempt to create a universal conception of citizenship, which transcends
group differences, is unjust, because it oppresses historically excluded
groups. Therefore, there is a need to develop a theory of “differentiated
citizenship” (Chari 2009:49).
If we were to continue going by Mitnick’s (ibid.)
argument, then the idea of DC stands on shaky grounds as…
The very notion of law as a system of rules entails
generality across persons, such that no individual may be singled out for
social benefits or obligations (Fuller, 1969). In virtue of their generality,
then, legal rights will indeed be afforded to general classes of persons. But, it certainly does not follow from the
principle of legal generality that all rights will be afforded to all persons;
the classes engendered by legal rights are rarely universal. If this were
otherwise, most forms of legislation (e.g., regarding taxation, welfare,
property), indeed the idea of citizenship itself, would be proscribed (Mitnick
2004:168).
Young (1989), though, stresses on the promotion of a "differentiated
citizenship," which takes into account distinct group identities and group
concerns in a multicultural society. ‘The inclusion and participation of
everyone in public discussion and decision making requires mechanisms for group representation’ (Young 1989:251,
emphasis added). This implies that the entity
recognising and granting citizenship rights must also provide for recognition
of active differences between groups of recipients and, hence, also legally
provide for means of reducing, if not eliminating, the factors that have led to
historic disadvantage or exclusion of such groups. Her proposition of
recognising differences in the access to civil, political and social resources
by certain groups ‘is understood either
as just compensation for groups that have suffered discrimination in the past,
or as compensation for the present disadvantage these groups suffer because of
that history of discrimination and exclusion’ (Young 1989:271). Her
argument marked a shift in the political theory of rights of disadvantaged
groups, especially in a welfare state. It was preceded by Balibar’s (1988)
foresight questioning,
to what extent a defence of social and workers'
rights is today connected with progress toward a multinational and
multicultural definition of the state, and so toward a regulated extension of
the notion of citizenship which breaks with the sacrosanct equation of citizenship
and nationality (Balibar 1988:728).
Citizenship, then, is not only about nations, states
and identities. Within this larger axis lie multiple sites of exercising or
depriving citizenship rights. If the notion of universal citizenship with
equally applicable laws were in place, then it would ‘impede the full inclusion and participation of all in law and public
life’ (Young 1989:273-4). Young
argues for recognition of differences, ‘to the degree that there are group
differences that disadvantage, fairness seems to call for acknowledging rather than being blind to them’ (Young 1989:268,
emphasis added). Her assertion is endorsed by Taylor (1994) and Fraser (1995)
by their respective arguments for politics of recognition and redistribution.
The practice of DC entails legally providing for
enhanced or special rights to alleviate the social conditions of certain groups
which were previously denied of equal opportunities to progress. This involves
efforts by the state to align them with the mainstream and has to be heralded
by recognising the existence of such groups and the historic causes for their
exclusion.
Equal recognition is not just the appropriate mode
for a healthy democratic society. Its refusal can inflict damage on those who
are denied it … . The projection of an inferior or demeaning image on another
can actually distort and oppress, to the extent that the image is internalized
(Taylor 1994: 36).
It is this ‘internalized’
(ibid.) inferiority which needs to be dealt with by redistributing the common
pool of resources available to a state, and also recognition of the formal
justice to such groups at national and international levels. ‘Justice today requires both redistribution and recognition’
(Fraser 1995:69, emphasis in original). Fraser also argues that certain
conditions may help the politics of recognition to promote the politics of
redistribution. The politics of
recognition and dignity is in itself a widely contested domain, as also is the
politics of redistribution. There is also an entire set of exchanges of
critiques between Young and Kymlicka which provide an interesting insight into
the development of the theory of DC and its nuances. For the purpose of this
essay, I will refrain from dwelling into these debates and only briefly discuss
some critiques of Young and the moral hazards of DC, following it with a
special focus on the Indian case.
‘The most obvious moral
difficulty with differentiated citizenship policy is that social benefits and
obligations are distributed in a formally unequal way’
(Mitnick 2004:169). This belies the universalist claim of citizenship that
assumes all citizens as equal consequently granting equal rights to each of
them. Secondly, Young’s (1989) argument focuses explicitly on groups and
differentiating their rights from the others. The critiques about politics of
recognition of such groups notwithstanding, there is no certainty that all
members of a group may benefit proportionally from such measures of positive
discrimination (as exemplified by the case in India
Kymlicka and Norman (1994),
distinguish three different kinds of groups and
three different kinds of group rights, which both Young and her critics tend to
run together: (a) special representation rights (for disadvantaged groups); (b)
multi- cultural rights (for immigrant and religious groups); and (c)
self-government rights (for national minorities). Each of these has very
different implications for citizenship identity (Kymlicka and Norman 1994:372).
In
Articles 15 and 16, among others, the Indian Constitution ‘recognizes different kinds of citizens on the basis of their group
affiliation and cultural belonging. All citizens are not alike although all are
citizens. In consideration it proposes differential treatment over and above
equal rights’ (Rodrigues 2008:165). Importantly, Rodrigues distinguishes
two bases for ‘recognition of group-differentiated citizenship’ in the
Constitution, namely: disadvantage and “difference (with respect to religion,
language and ethnicity)” (Rodrigues 2008:181-182). Such a distinction creates
schisms between uniformity of law and finds a clear reflection in the case of
women’s status and equality. While the Fundamental Rights clearly negate any
discrimination on the basis of gender, the fact that personal law is linked to
religious identity often results in curtailing women’s right to equality. This
sort of a dichotomy is summarised by Jayal (2011), as…
In sum,
then, the Indian citizenship regime inaugurated in 1950 conceptualized the
individual as the basic unit of citizenship, whose inclusion in the polity was
on equal terms with every other citizen. Groups and cultural communities found
recognition in the form of special compensatory provisions, but they were not
in the first instance viewed as the locus of the primary membership of the
individual; nor were they recognized as the mandated mediators of group
interests vis-a`-vis the state. In terms of the substance of citizenship
rights, these were interpreted comprehensively and expansively, even if the
state capacity to provide them proved wanting.
(Jayal
2011:194)
The differences endorsed by the Constitution
(Rodrigues 2008 and Jayal 2011) implied, I argue, that while on hand it wished
to emphasise on the universal generality of law, it also did not want to not
recognise and protect the rights of disadvantaged groups of citizens, of which
India is abound. Sundar (2004) discusses how existing laws shape ideas of
citizenship and structure the strategies that lead to the articulation of one
or the other idea of entitlement, clearly a case of the exercise of power by
those with the privilege of formulating such laws. Sundar (2004) argues that ‘subalterns are bound by state categories,
and that ‘insisting on historical claims
and particular identities is the only recourse people have in the face of
systems which disenfranchise them’ (Sundar 2004:155).
Conclusion
From the above discussion, it may be deduced that
the category of DC in inherent with layers of disagreement, as are most
political conceptions. Young (1989) intended to propound a case for recognising
the rights of those who have been historically marginalised. Her argument
opened the door to a wide-ranging debate on issues of recognition, group
representation, individual and minority rights among other issues. In more than
two decades since her seminal argument, the body of work analysing the case of
DC has grown consistently. This debate also finds itself physically incarnated
in various policies of redistribution, affirmative action and positive
discrimination undertaken by states across the globe. Brubaker (2004) puts
forth a word of caution at the alarming rise of ‘differentiated’
‘multicultural’ citizenship debates.
To some postmodernist apostles –of multiple and
differentiated citizenships, the weakness of national citizenship is no cause
for alarm. It is compensated for by a proliferating variety of other
citizenships. This burgeoning literature has usefully called attention to the many
sites of citizenship within and beyond the boundaries of nation-states. Yet it
risks overlooking the persisting importance of national citizenship (Brubaker
2004:124).
In conclusion, I would like to dispel the fears
aired by Brubaker (2004), as I believe that DC and other such plethora of
citizenships are subsumed under national citizenship and the latter stands no
risk of losing any significance whatsoever, because, eventually, the
nation-state remains the ultimate site of recognising and granting citizenship
rights.
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