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
with an examination of the provision in the Constitution, in the light of the
aforementioned case made in favour of differentiated citizenship. 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
, observes the ‘use of social qualifications (primarily
differences of education, property, race, gender and occupation) to organize
political, civil and social dimensions and to regulate its (Brazilian
nation-state) distributions of powers.
This scheme of citizenship, in short, is a mechanism to distribute inequality’
( 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
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’ (
1994) in promoting the ‘politics of
redistribution’ (Fraser, 1995). These are preceded by Young’s (1989)
argument that, ‘a democratic public,
however that is constituted, should provide mechanisms for the effective
representation and recognition of the distinct voices and perspectives of those
of its constituent groups that are oppressed or disadvantaged within it’
(Young 1989:261). 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” (
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
, ref. Jayal and Heyer, 2009).
Fraser (2000) advances a modified approach to fulfil Young’s (1989) dream of DC
by arguing that, ‘what requires recognition is not group-specific
identity but the status of individual
group members as full partners in social interaction’ (Fraser
2000:113, emphasis added). 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.
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).
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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