CITIZENSHIP UNDER CONSTITUTION
Though India is Federation having two levels of government, Centre and the States – there is only single citizenship, viz, the Indian citizenship and no separate State citizenship
Articles 5 to 11min the Constitution lay down as to who are the citizens of India at the commencement of the Constitution, i.e., on January 26, 1950. These citizens have been classified into:
Citizens by domicile;
Citizens by migration;
Citizens by registration,
CITIZENS BY DOMICILE
Under Art. 5, every person having domicile in India at the commencement of the Constitution, the fulfilling any of the following conditions, is a citizen of India, viz,:He was born in India
Either of whose parents was born in India
Who has been ordinarily resident In India for not less than five years immediately preceding the commencement of the Constitution
Condition (a), (b) and (c) are not cumulative but alternative and, therefore. Any one of them needs to be fulfilled by a person having domicile in India to be an Indian citizen. Therefore, a person shall be a citizen of India under Art. 5(b) of the Constitution and either of his parents were born in the territory of India.
The term ‘domicile’ is not defined in the Constitution. Domicile is a complex legal concept in the area of the Conflict of Laws, Article 5 draws a distinction between ‘domicile’ and ‘residence’, for neither ‘domicile’ nor mere ‘residence’ is sufficient to make a person an Indian citizen. Domicile and five years’ residence are necessary to make a person a citizen.
The basic idea of ‘domicile’ is permanent home. A person’s domicile is the country which is considered by law to be his permanent home. Residence is a place by itself is not sufficient to constitute it his home are necessary to constitute a domicile. The residence in a place by itself is not sufficient to constitute it his domicile. It must be accompanied by the intention to make it his permanent home.
The Representation of the peoples Act, 1951 initially required “domicile “in the State concerned for getting elected to the Council of States. This was deleted in 2003.
Under the Indian Constitution, the power to legislate on succession, marriage and minority has been conferred on both the Union and State Legislatures, and so it quite conceivable that until the Centre intervenes and enacts uniform code for the whole of India, each State may have its own laws on these subjects, and, thus, there could be different domiciles for different States.
In India there is only one domicile and each citizen of this country carries with him or her, one single domicile which is the “Domicile of India”. The concept of regional or provincial domicile is alien to Indian legal system. Even the Constitution of India (Article) while explaining “citizenship” speaks of “domicile” in the territory of India. There cannot be the domicile of State. The rule debarring any person from admission on the ground of non-domicile/non-resident of that particular State can be assailed as violative of Article 14 of the Constitution. There cannot be separate domicile of state in view of Article 5 of the Constitution.
CITIZENS BY MIGRATION
The Independence of India was accompanied by a large scale migration of people from Pakistan .As these belonged to the territory which ceased to be a part of India after the Independence, they could not be regarded as Indian citizens under Art. 5 and, therefore, special provisions had to be made for them in the Constitution.
Under Art. 6, an immigrant from Pakistan became a citizen of India if he, or either of his parents, or any of his grandparents, was born in India (as it was prior to the independence), and, in addition, fulfilled either of the following two conditions:
In case he migrated to India before July 19, 1948, ordinarily resident in India since the date of his migration; or
In case he migrated on or after July 19, 1948, he had been registered as a citizen of a person could be so registered only if had been resident in India for at least six months preceding the date of his application for registration.
The migration envisaged in Art. 6 only means coming to India from outside and it must have taken place before, and not after, the commencement of the Constitution.
CITIZEN BY REGISTRATION
According to Art.8, a person who, or either of whose parents, or any of whose grandparents, was born in India (before independence) but who is ordinarily residing in any country outside India and Pakistan, may register himself as a citizen of India with the diplomatic or consular representative of India in the country of residence.
This provision confers Indian citizenship on a person who prima facie has no domicile in India and it seeks to cover the overseas Indians who may want to acquire Indian citizenship.
TERMINATION OF CITIZENSHIP
Under Art. 7, a citizen of India by domicile (Art.5), or by migration (Art. 6), ceases to be citizen if he migrated to Pakistan after March 1, 1947. If, however, after migration to Pakistan, he has returned to India under a permit of resettlement, or permanent return, he can register himself as a citizen of India in the same manner as a person migrating from Pakistan after July 19, 1948.
Article 7 thus overrides Arts. 5 and 6. Article 7 envisages only those persons who migrated to Pakistan between March 1, 1947, and January 26, 1950.These persons lost their Indian citizenship. The question of citizenship of persons migrating to Pakistan after January 26, 1950, has to be decided under the provisions of the Indian Citizenship Act.
Under Art. 9, no person can be citizen if India under art. 5, 6 and 8, if he has voluntarily acquired the citizenship of a foreign country. This provision thus recognises the principle that no Indian citizen can claim a dual or plural citizenship, However, this is subject to Parliament’s power under Art 11.To provide for inter alia, the acquisition of citizenship.
Article 9 thus applies only to those cases where foreign citizenship has been acquired before, and not after, the commencement of the Constitution. The latter type of situation has been dealt with under the provisions of the Indian Citizenship Act, 1955.
THE CITIZENSHIP ACT, 1995
The above-mentioned provisions of the Constitution regarding citizenship are not exhaustive but fragmentary and skeletal. These provisions are confined mainly to defining who are citizens of India at the commencement of the Constitution but do not deal with the acquisitions of citizenship subsequent to that date. Nor there any provision in the Constitution to deal with such matters as termination of citizenship (other than Art. 7 and 9), or other matters concerning citizenship. Art.icle 11 expressly empowers parliament to make a law to provide for such matters and, accordingly, Parliament has enacted the Citizenship Act, 1955, to provide for the acquisition and determination of Indian citizenship.
In the connection reference may be made to entry 17, List I which runs as “citizenship, naturalization and aliens”. Thus, parliament has exclusive power to legislate with respect to “citizenship”. Also, Art. 10says that a person who is a citizen of India under Arts. 5 to 8 shall, subject to any law made by Parliament, continue to be such citizen. This means that the law enacted by Parliament can make changes even in Arts. 5 to 8.The Act provides for acquisition of Indian citizenship after the commencement of the Constitution, makes necessary provisions for termination and deprivation of citizenship in certain circumstances and seeks to recognize formally the concept of commonwealth citizenship. The Act does not apply to a company, association or body of individuals whether incorporated or not.
The Act provides for five ways for acquiring Indian citizenship, viz. ,Birth;
Incorporation of some territory into India.
CITIZEN BY BIRTH
According to section 3, a person born in India on or after the 26th January, 1950, but therefore the commencement of Citizenship (Amendment) Act, 986, and those born in India on or after such commencement and either of whose parents is a citizen of India at the time of his birth is a citizen of India by birth except when –(1) his father possesses diplomatic immunity and is not an Indian citizen; or (2) his father is an enemy alien and his birth occurs at a place under enemy occupation.
CITIZEN BT DESCENT
Section 4 provides for citizenship by descent. A person born outside India on or January 26, 1950, before the commencement of the Citizenship (Amendment) Act, 1992, is citizen of India by descent if at the time of his birth his father is an Indian citizen, or a person born outside India on or after such commencement shall be a citizen of India by descent if either of his parents is a citizen if India at the time of his birth is provided that in the later case if either of the parents of such a person was a citizen of India by descent only, the person shall not be an Indian citizen by virtue of his provision unless his birth, in service under Government in India.
CITIZENSHIP BY REGISTRATION
Section 5 deals with citizenship by registration. The following categories of persons, if not already citizens of India, can be registered as Indian citizens, after taking an oath of allegiance:
Persons of Indian origin or ordinarily resident in India and residing there for six months immediately preceding the application for registration;
Persons of Indian origin who are ordinarily resident outside undivided India;
Women married to the Indian citizen;
Minor children of Indian citizens;
Persons of full age and capacity who are citizens of commonwealth country.
Category (a), mentioned above, covers migrates from Pakistan who could not become Indian citizens under the provisions of the Constitution.
In prescribing conditions and restrictions subject to which citizens of a commonwealth country may be registered as Indian citizens under head (e), mentioned above, the central Government is to keep due to regard to the conditions subject to which Indian citizens may become citizens of that country by registration.
Clauses (a) and (e) of this section are manually exclusive and a person of Indian origin who is a citizen of a commonwealth country falls under (e) and not (a).
Since 2003, citizenship can be granted to an overseas citizen of India right in accordance with the provisions of sections 7A and 7B.
The Citizenship Act does not have any provision providing for cancellation of a certificate of registration issued under s. 5.
In spite of a certificate of registration under Section 5(1)(c) of the Citizenship Act, 1955 having been granted to a person and in spite of his having been enrolled in the voters’ list, the question whether he is a citizen of India and hence qualified fir, or disqualified from contesting and election can be raised before and tried by the High Court hearing election petition.
The registration granted to an overseas citizen under Section 7A can be withdrawn/cancelled in terms of Section 7D by the Central Government.
CITIZENSHIP BY NATURALISATION
Section 6 deals with the citizenship by naturalization. A person of full age and capacity who is a citizen of non-commonwealth country may became a citizen by naturalization, if the Central Government is satisfied that he fulfills the conditions laid in the Act. These conditions are:
He is not a subject or citizen of a country where Indian citizens are preserved from becoming citizens by naturalization;
He renounces his citizenship of the other country;
He has resided and/or been in government service for 12 months immediately preceeding the date of application
During 7 years prior to these 12 months, he has resided and/or been in government service for not less than four years;
He is of good character;
He has an adequate knowledge of a language recognized by the Constitution;
After naturalization he intends to reside in India, or enter into service with government international organization, or society or company in India.
CITIZENSHIP BY INCORPORATION OF TERRITORY
Section 7 provides for citizenship by incorporation of territory. On any territory becoming a part of India, the Central Government may notify the persons who shall be the citizens of India by reason of their connection with that territory.
A citizen of a commonwealth country has the status of a commonwealth citizen in India. The central government may, by an order notified in the official gazette, make provisions, on basis of reciprocity, for the conferment of all or any of the rights of an Indian citizen of a commonwealth country.
Overseas Citizenship The Citizenship Amendment Act of 2003, provided for acquisition of overseas citizenship of India by persons of Indian origin of 16 specified countries other than Pakistan and Bangladesh. In 2005, the Act was further amended in order to grant more and more overseas citizenship of India to persons of Indian origin of all Countries except Pakistan and Bangladesh. By this amendment, the earlier requirement of period of residence in India was also reduced from two years to one year for persons registered as overseas citizens of India to acquire Indian citizenship. The Overseas Citizenship of India (OCI) Scheme was introduced by amending the Citizenship Act, 1955 in August 2005. The Scheme was launched in 2006. The Scheme provides for registration as Overseas Citizen of India (OCI) of all Persons of Indian Origin (PIOs) who were citizens of India on 26th January, 1950 or thereafter or were eligible to become citizens of India on 26th January, 1950. But the scheme excludes citizens of Pakistan and Bangladesh.14 Overseas Citizen of India (OCI) does not mean „dual citizenship?. Overseas Citizen of India (OCI) does not confer any political right on the concerned persons. The registered Overseas Citizens of India cannot enjoy the same status as that of Indian citizens in case of equal opportunities in public employment. It means Overseas Citizen of India (OCI) cannot enforce Article 16 of the Indian Constitution. 15 Furthermore, Overseas citizens of India cannot enjoy voting rights. Overseas Citizen of India (OCI) cannot enjoy the right to hold offices like President, Vice-President, Judge of Supreme Court and High Court, Member of Lok Sabha, Rajya Sabha, Legislative Assembly or Council. Overseas Citizen of India (OCI) cannot be appointed to the Public Services. However, Overseas Citizen of India (OCI) enjoys some other rights. A registered Overseas Citizen of India gets Indian visa for his whole life. He or she enjoys the same status as that of Non-Resident Indians in matters of inter-country adoption, tariffs in domestic air fares, entry fee for visiting national parks, the national monuments, museums, etc. in India. Overseas citizen is eligible to practice professions of doctors, dentists, nurses and pharmacists, Advocates, Architects, Chartered Accountants in India. But Overseas Citizen of India (OCI) does not enjoy the same parity with Non-Resident Indians in matters of agricultural properties.
The Citizenship Act was twice amended to provide for dual citizenship. By the amending Act of 2003 provision was made for acquisition of overseas citizenship of India by persons of Indian origin of 16 specified countries other than Pakistan and Bangladesh. The 2003 amendment provides for the manner and methods by which a person could acquire a citizenship of India and its revocation. In 2005, the Act was further amended to (i) expand the scope of grant of overseas citizenship of India to persons of Indian origin of all the countries except Pakistan and Bangladesh; and (ii) reduce the period of residence in India from two years to one year for persons registered as overseas citizens of India to acquire Indian citizenship. However, this concept and the privileges consequent upon registration but also with regard to the procedure for grant of citizenship and the privileges consequent upon registration but also with regard to the cancellation of the citizenship.
Section 8 provides that an Indian citizen of full age and capacity, who is also a citizen or national of another country, can renounce his Indian citizenship by making a declaration to that effect and having it registered. Registration of such declaration in withheld when made during war in which India may be engaged.
When a male person renounces his citizenship, every minor child of his also ceases to be an Indian citizen though such a child, within a year of his attaining full age, may resume Indian citizenship by making declaration to that effect.
CESSATION OF CITIZENSHIP
Section 9 provides for termination if Indian citizenship upon acquisition of citizenship of another country which event entails cessation of citizenship of India.
According to S. 9, a citizen of India ceases to be so on his voluntarily acquiring citizenship of another country by naturalization, registration or otherwise. This provision does not apply during a war in which India may be engaged. If any question arises as to whether, when or how any person has acquired the citizenship of another country, it is to be determined by such authority and in such manner as may be prescribed by the rules.
Under rule 30 of the Citizenship Rules, this authority is the Central Government which acts in a quasi-judicial capacity while discharging this function. Voluntarily obtaining the passport of a foreign country is, according to the Citizenship Rules, conclusive proof of an Indian citizen having voluntarily acquired citizenship of that country.
There is no automatic loss of Indian citizenship by acquisition of a foreign passport. Whether a person has lost his Indian citizenship or not is to be decided by the Central Government and it is the only after such a decision that he can be dealt with as foreigner.
The child of Sri Lankan parents who were found guilty of assassinating the former Prime Minister Rajiv Gandhi, was held to ne an Indian citizen since she was born while her mother was in an Indian prison. She did not cease to be an Indian citizen and was entitled to enter and live in this country till the status of her citizenship was determined by Central Government under section 9(2), although soon after her parents were awarded the death penalty, her grand-mother took her to Sri Lanka on a Sri Lankan passport and she had resided there ever since.
The rule-making power conferred by Act, and Rule 30 along with the rule of evidence, have been held to be valid as these provisions are based on the accepted principle that an Indian citizen cannot acquire a dual citizenship and the rule-making power covers cases of voluntary acquisition of foreign citizenship otherwise than by registration or naturalization.
These provisions become relevant only when the person concerned is, to start with, a citizen of India and has lost this citizenship thereafter. The Supreme Court has observed that he “the question whether a person is a foreigner is a question of fact which would require careful scrutiny of evidence since the inquiry is quasi-judicial in character. This question has to be determined by the Central Government”.
In Lal Babu Hussain, the name of person entered in an electoral roll was deleted on the ground of his citizenship being suspect. The Supreme Court quashed the order on the ground that the procedure followed by the electoral registration officer was flawed. The Supreme Court emphasized that a person must be a citizen of India for his name to be included in the electoral roll. A non-citizen cannot be registered in an electoral roll. When the name of a person is already entered in the electoral roll, his name can be removed only after giving him a reasonable opportunity of being heard.
DEPRIVATION OF CITIZENSHIP
Under Sec 10, Citizens of India by naturalization. Marriage, registration, domicile and residence may be deprived of citizenship by an order of the Central Government, if it satisfied-
The registration or naturalization was obtained by means of fraud, false representation or concealment of any material fact,, or.
He has shown himself act or speech, to be disloyal or disaffected towards the Indian Constitution; or,
During a war in which India may be engaged he has unlawfully traded or communicated with the enemy; or,
Within five years of his registration or naturalization, he has been sentenced to imprisonment for not less than two years; or,
He has been ordinarily resident out of India for seven years continuously
This provision does not apply if he is a student abroad, or is in the service of a government in India, or an international organization of which India is a member, or has registered annually at an Indian consulate his intention to retain his Indian citizenship.
Before making an order depriving a person if his citizenship, the Central Government is to give to the person concerned, a written containing the ground on which the order is proposed to be made. The person concerned may have his case referred to committee of inquiry if the ground is not (e) .The Central Government is bound to refer the case to a committee consisting of a chairman (a person who has held a judicial office for at least ten years) and two other members appointed by the Government. The committee holds the inquiry and the Central Government is to be ordinarily guided by its report in making the order.
EXPULSION OF A FOREIGNER
The Supreme Court has asserted that the power of the Government to expel a foreigner is absolute and unlimited. There is no provision in the Constitution fettering this discretion of the Government.
The Government has an unrestricted power to expel a foreigner without assigning any reasons. A foreigner has no right to claim Indian citizenship. No foreigner can claim to stay in India as a matter of right. The Government has an unrestricted right to expel a foreigner. A foreigner can claim the protection to his life and liberty under Art. 21, but the right to reside and settle in India as conferred by Art. 19(1)(d) is available only to the citizens of India and not to non-citizens.
Renunciation of Citizenship
If any citizen of India of full age and capacity, makes in the prescribed manner a declaration renouncing his Indian Citizenship, the declaration shall be registered by the prescribed authority and upon such registration, that person shall cease to be a citizen of India- provided that if any such declaration is made during any war in which India may be engaged, registration thereof shall be withheld until the Central Government otherwise directs.
Where a married couple ceases to be a citizen of India, every minor child of that person shall thereupon cease to be a citizen of India – provided that any such child may within one year after attaining full age makes a declaration that he wishes to resume Indian citizenship and shall thereupon again become a citizen of India.
Termination of Citizenship
Any citizen of India who by naturalisation, registration otherwise voluntarily acquires or has at any time between the 26th January 1950 and the citizenship act voluntarily acquired the citizenship of another country shall, upon such acquisition or, as the case may be, such commencement, cease to be a citizen of India – provided that nothing applies to a citizen of India who, during any war in which India may be engaged, voluntarily acquires, the citizenship of another country, until the Central Government otherwise directs.
If any question arises as to whether, when or how any citizen of India has acquired the citizenship of another country, it shall be determined by such authority, in such manner, and having regard to such rules of evidence, as may be prescribed in this behalf.
Is Dual Citizenship Permitted Under Indian Law?
The Indian constitution does not allow dual citizenship. An Indian citizen can hold the citizenship of only one nation at a time and that must be of India.
As explained above, the provision of OCI and PIO is often confused with dual citizenship. There is a misconception among the people that our Indian Constitution grants the provision for dual citizenship.
What is Overseas Citizenship of India? Is it Not Dual Citizenship?
Person of Indian Origin who migrated from India to other countries except Pakistan and Bangladesh can be called an overseas citizen of India, provided their country allow OCI citizenship.
The following Categories of persons (except Pakistan and Bangladesh) are eligible to apply under OCI scheme:
Who is a citizen of another country but was a citizen of India at the time of, or at any time after, the commencement of the constitution.
Who is a citizen of another country but was eligible to become a citizen of India at the time of the commencement of the constitution.
Who is a citizen of another country but belonged to a territory that became part of India after the 15th day of August, 1947.
Who is a child or a grandchild or a great grandchild of such a citizen.OCI is not equivalent to Dual citizenship. Overseas citizen of India do not enjoy the following right –
They do not have the right to vote.
They cannot hold an Indian passport.
They are not eligible for constitutional posts.
They cannot be a member of legislature of any house.
AN ANALYSIS OF THE CONCEPT OF CITIZENSHIP: LEGAL, POLITICAL AND SOCIAL
The Legal Dimension of Citizenship
1.1 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. 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. For Rawls, the thin theory takes the “principles of justice already secured, and then uses these principles in defining the other moral concepts in which the notion of goodness is involved”. All the other good things, such as the concept of moral good and moral virtues can be explained by referring to those basic principles of the theory.
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 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. Other theorists 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. The basic principle is protecting individual freedom; people can do whatever they want with their lives. In order to guarantee the maximum freedom for all, the state should sanction only those actions that harm or limit the freedom of other individuals. As John Rawls states: “…all the liberties of equal citizenship must be the same for each member of society”. The laws are acceptable when they guarantee equal freedom to all individuals. Liberalism allows different choices of what is good and worth pursuing.
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
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.
1.2. The Legal Dimension : The Liberalism of Ronald DworkinTraditionally, citizenship has been defined by the public duties and rights, such as a right to vote or hold office. Where do these obligations and rights come from? I cite Ronald Dworkin’s book Taking Rights Seriously. According to Dworkin, the legal practice of a society consists of principles, rules and policies. Rules, such as a rule forbidding driving over 60 kilometres per hour in a certain area, are simple. Policies are standards that “set out a goal to be reached”, concerning the economic, political or social issues within the community. Principles are standards “to be observed”, because they are requirements of “justice, or fairness or some other dimension of morality”. Principles differ from policies in that they are concentrated on moral issues. Principles can be more complicated than rules, such as “no one should take advantage of his own wrong”. Dworkin here uses an example of a case in which a person will inherit from a wealthy relative, but in order to attain the inheritance faster, that person murders the wealthy relative. In this case, most people think that the murderer should not inherit. Principles differ from rules – they can vary in weight or importance and they can be controversial. According to Dworkin, judging certain principles or policies as more weighty than others will often cause controversies since there is no way of measuring them exactly. The principles are there to justify the rules “by identifying the political or moral concerns and traditions of the community”. According to Dworkin, the values and rules of the community are reflected in its legal practice.
In order to understand the legal practice, it is not enough to provide a list of values and rules. It is not even necessary; values and rules vary in different societies and times. There is no sense in trying to make an exhaustive list of them. Nevertheless, the political system needs a justification. The rights and duties of citizens must have a motivation. According to Dworkin, “principle and policy are the major grounds of political justification”. Arguments of policy are used to justify political decisions that advance collective goals, when the arguments of principle justify securing some individual or group right. The legislature needs both types of arguments. Dworkin states that “political rights are creatures of both history and morality: what an individual is entitled to have, in civil society, depends upon both the practice and the justice of its political institutions”. Political rights are enforced by judicial decisions. Policies, principles and rules form a framework for the political theory, but the way in which rights, duties and goals are combined gives the theory its character. In order to be complete, a political theory needs more than a description of the legal practice of the community. Dworkin distinguishes between rights, goals and duties. A political theory can be based on any of these. Goals are generally advancing some general or collective good, such as economic efficiency. In order to be called a right, a political aim has to have weight against the collective goals. Similarly, a duty is a duty only if it is independent of the pursuit of the collective goals. What are considered rights, goals or duties depend on the political theory. Different theories give a different place and function to different political aims. Dworkin himself seems to be supporting a rights-based theory of society: According to Dworkin, judicial decisions are generally ‘justified by arguments of principle rather than arguments for policy’. In order to function, all complete political theories need to fulfil certain requirements. According to Dworkin, no matter what a political theory is based on, in order to be adequate, every theory must make a separation between the background and institutional rights, and abstract and concrete rights and principles. Other distinctions that can be made are between rights against the state and rights against fellow citizens, or universal and special rights. All political rights, such as the right to free speech, are in most theories considered universal.
1.3. Dworkin on Fundamental Background Rights / Human Rights
According to Dworkin, in liberal political philosophy equality is the fundamental background right. Every other right is therefore reducible to the demand for equality of all citizens. In everyday life there are situations that can be hard to settle in a satisfactory way. Nevertheless, equal respect for every citizen is the fundamental goal. Laws should be applied fairly and consistently; despite the fact that some practices and interpretations might be hard to reconcile with one another.
Dworkin distinguishes between the right to equal treatment and the right to treatment as an equal. The first is a derivative of the latter, which is considered as a fundamental right. The right to be treated as an equal is not the same as the right to equal treatment. Sometimes the right to equal treatment may justify special policies towards minorities. However, within a political theory based on the rights of citizens, it cannot happen at the cost of the right to treatment as an equal. Most people believe that individuals have certain moral rights against the state. The constitutional system in Western countries is founded on that principle. Still, what are moral rights? According to Dworkin, moral rights or rights in a strong sense are “special sort of judgment about what is right or wrong for governments to do”. If someone were said to have a right in a strong sense, it would be wrong if the government broke that right, even though it would be in the general interest to do so. There is no need to assume ontological entities behind rights, since moral rights can be reduced to the evaluation of the action of governments. Whether this applies to the international community as well I am not sure. Since the international community does not have the same kind of structure and government as states, addressing the responsibility could be difficult. At the same time, the same applies to governmental entities on a smaller scale, i.e. whether a particular agent can be held responsible for the actions of a collective of which he or she is a part.
Speaking about fundamental rights that qualify as moral rights makes no sense if the speaker is not committed to the ideals of human dignity and equal value. Dworkin argues:
“The first is the vague but powerful idea of human dignity. This idea, associated with Kant, but defended by philosophers of different schools, supposes that there are ways of treating a man that are inconsistent with recognizing him as a full member of the human community, and holds that such treatment is profoundly unjust. The second is the more familiar idea of political equality. This supposes that the weaker members of a political community are entitled to the same concern and respect of their government as the more powerful members have secured themselves…”
In order to argue for the rights of individuals against the state or the rights of minorities against the majority, one must assume that these ideas hold. It does not matter on what grounds someone has come to hold these ideas.
Citizenship Rights versus Background Rights
Citizenship rights can be separated from human rights or ‘background rights’ (as Dworkin calls them), which are abstract and fundamental. Citizenship rights are institutional rights which mean that they are certain rights entitled to the members of a certain society. Citizenship rights and their implementation can vary in different societies. However, are citizenship rights essential since it seems that sometimes other fundamental rights would not be manifest without entitlement to citizenship rights? Is it then a problem of political philosophy or the ‘mere’ imperfection of the world in which we live in? The existence of groups of people who are not citizens in the country they live, or who do not have citizenship in any country, poses a problem to the thinking that connects citizenship rights intimately with the story of a homogenous nation.
The nation-states are still the main guarantors of the basic rights however, through guaranteeing citizenship status. But this may be seen as problematic to the actualisation of the rights. The problem was first addressed by Hannah Arendt in the aftermath of the Second World War in The Origins of Totalitarianism. Arendt was concerned that only the state or community could guarantee the human rights for each person, and when people lost their membership in a society, they lost the protection of their basic rights too:
“Once they had left their homeland they remained homeless, once they had left their state they remained stateless; once they had been deprived of their human rights they were rightless, the scum of the earth.”
Arendt suggested that in order to avoid the aforementioned situation, it should be acknowledged that everyone has a “right to have rights”, which means that everyone should be judged not by their origin but their actions and opinions, and that everyone should be able to be a member in an organised community. Depriving a person the status as a member of a community constituted a crime against humanity in Arendt’s opinion. However, she did not give a philosophical justification for the statement. “Crimes against humanity” are complicated to define: are they a violation of the moral code of a society or an infringement of international law?
Seyla Benhabib has analysed Arendt’s argument in depth. She states that the “right to have rights” contains two different senses. The first term “right” refers to the humanity in general, and evokes a moral imperative to treat others with dignity: “Treat all human beings as persons belonging to some human group and entitled to the protection of the same”. The other sense of the term “right” builds upon the first one. Benhabib calls it the juridico-civil usage of the term: “I have a claim to do or not to do A, and you have an obligation not to hinder me from doing or not doing A”. The autonomy of others should be respected and that also creates reciprocal obligations for the members of the community. Nevertheless, the tension – if not forthright conflict – between universal human rights and particular national and cultural identities, has not gone anywhere. Historically the concept of citizenship has been based on excluding some groups of people from the privileges enjoyed by citizens, and although the meaning of the concept has changed and is nowadays more inclusive, there still seems to be some remnants of the past that maintain the conflict. Some are, though, hopeful; Benhabibm argues that the concept of citizenship is changing from the exclusive concept towards more open and “disaggregated” model and that can also ease the tension between human rights and citizenship rights. That brings us to the critique that has been put forward against the concept of citizenship in the liberal tradition of thought.
Critique of the Liberal Account of Citizenship
While granting the membership to others, the concept of citizenship is at the same time excluding those who are seen as unfit for membership or are not part of the community, such as people seeking immigration. In liberal political philosophy, the equality of all members of the body politic is emphasized. Nonetheless, it can be argued that in many cases the neutral policies actually reflect the values of a dominant majority. If this is the case, then the political ideal of liberalism is not working as hoped. Political structures that use the language of the dominant mainstream have a different impact on members of different non-dominant groups than on members of the majority. Liberals argue that equal respect for all citizens is needed in order to have a just and fair society, and that this is achieved if the state promotes a neutral approach to cultural and other differences. The liberal conception of equal respect is a thin one; everyone is expected to be able to fulfil his or her needs for recognition and acceptance in the private domain, while the public sphere is reserved for enforcing the equal legal status.
Nevertheless, in practice most liberal states accept and endorse some moral or cultural values over others. What makes the concept of citizenship complicated and interesting are the inherent assumptions attached to it. The fact that in principle there is the ideal of equal society, and then the reality is different, is what I think is behind much of the liberalism critique. When the ideal stays at the level of speech it may be just concealing and legitimizing the old power structures. Even if the laws and policies were the same for everyone, the institutions may still fail to recognise those who are different, even possibly humiliating them. Honohan mentions marriage laws as an example; most liberal democracies regulate who can marry whom and on what conditions. The issue of marriage has been a subject topic in the discussion about the citizenship rights of LGTB people. The argument is that membership in a modern Western society is implicitly bound to the assumptions of heterosexuality: heterosexuality being the norm of citizenship. Marriage is in most societies available only to heterosexuals marrying a representative of the opposite sex. At the same time, it is conceived as belonging to the private sphere of life. In reality, marriage is never just a private matter, but enforced by society through public ceremonies and tax-benefits given to people who are married. The fact that gay and lesbian people are not able to marry excludes them and their families from many state-guaranteed rights and benefits available to heterosexuals. The assumptions have real consequences on the lives of people that do not fit in the alleged role in society.
The theories of political philosophy, such as liberalism or republicanism, conceive citizens free and equal and consider how the freedom and equality of citizens could be achieved. Families and the relations between family members have traditionally been excluded from these considerations due to the division between public and private. As mentioned, citizenship is, however, intimately connected to family relations. Most often citizenship is gained by birth, and changing citizenship is the easiest if one has family relations in the country one wishes to become a citizen. Despite the fact that in political theories family relations are often excluded from the considerations, societies regulate the family relations in many ways through laws. Marriage, which is often considered as the basis for family, is a status as well as a contract. The families of married people are often represented in public as the stable and normal ones, while other types of families are conceived as unstable and at the same time, ineligible for inheritance and other privileges conferred to families of married people. By regulating marriage, the society gives differential citizenship rights to the ones who can enter marriage.
As is evident from the example of the regulation of family relations, the institutions perceived as neutral may actually promote a certain type of living. The neutralist liberal conception of equal respect has therefore been criticised by feminists and cultural pluralists. The critics of the thin liberal version of the concept of citizenship have pointed out that the mere formal equality before law does not take into account the inequalities existing in society that might lead to the exclusion of the voices of certain groups. Instead, they argue that in order to achieve a fair society everyone should be heard and their identities should be equally recognised. In practice this means that there would not be only one accepted form of citizenship, but several forms, and different policies and special rights targeted to different groups of people.
However, deciding which group should have what kind of special treatment is a difficult question. According to the multiculturalism argument, cultures are constitutive to the identity and recognition of different groups, and therefore, in order to recognise the citizenship of the representatives of the minorities, all the cultures should be equally recognised. This argument does not notice that the cultures are not wholes or fixed entities. Cultures change, and promoting a certain aspect of a culture might actually benefit only the most advantaged members of a group. Hence it is not desirable to embrace all the cultures as such. Both the solutions, the one offered by the liberal thin concept of equality and the other offered by multiculturalists, are not satisfactory as such.In the welfare-liberalist theory, the assumption is that as long as everyone is equal in front of the law, the question of citizenship is unproblematic. The concept of citizenship is taken for granted and left without further explanations. However, there may be structures that hinder those not fitting the conventional patterns from achieving what they want in life. The question one can ask whether it is a problem of philosophy or just a problem of an imperfect world? Are the real-life inequalities caused by the confusion in concepts or is it just a question of bad governance? On the one hand, if the philosophical theory merely states the ideal model for society without taking into account how it could answer the problems that arise in real societies, then it is also a problem of that philosophical theory. On the other hand, in some cases it might be just the problem of government. However, it would be peculiar to deny that the political ideals affect how the role of government is perceived and the way decisions are made.
Different strands of liberal theory have for the most part been hostile towards granting any special rights for minorities as it has been considered as dangerous and not compatible with the principles of liberal democracy. Nonetheless, if the social dimension of the construction of citizenship is kept in mind, the interpretation of liberals might be inadequate concerning the tensions within societies. Most of the times the majority is already in a privileged position and the representatives of various minorities are on the margins. This is natural, but it can become a problem if the language and values of the majority hinder the representatives of minorities to be heard in policymaking. The political problems that need to be taken care of are framed in public deliberation. If the topics of public discussion are defined by the voices of powerful interest groups or the majority, there might be few possibilities to portray different viewpoints.
There seems to be a conflict between the liberal account of citizenship and the demands for recognition. The liberal tradition answers certain questions about how the society should be organised. As it is, it is not well equipped to answer the questions concerning minority demands, especially if the assumption that everyone in the society can argue for their case in a similar way and a similar language, is contested. From the point of view of equal citizenship, this is clearly a defect. Therefore, despite having good qualities such as promoting the idea that each one should be able to choose their lifestyles or goals in life freely, the liberal tradition is defective when considering the actual solutions it is able to offer to resolve the structures producing inequalities.
The representatives of contemporary republican political theory argue that their account take these issues better into account. Next I will look at republicanism and the republican concept of citizenship and evaluate how the republican theorists keep their promise.
The Political Dimension of Citizenship: Participation
2.1. Considering Freedom – The Two Accounts of Contemporary Republicanism
The history of the republican tradition of thought is not easily captured. Different theorists disagree over the continuity of the tradition and who should be involved in it. Iseult Honohan argues that there is, however, an identifiable tradition of republican thinking, which has Greek and Roman roots. She defines republicanism broadly “as a specific variant of
communitarianism, which values citizenship: membership of a political community, as distinct from other kinds of community based on pre-political commonality, of, for example, race, religion or culture”. The republican tradition valuing political participation as an expression of freedom has its roots in the philosophy of Aristotle, the city-states of the ancient Greece and the Roman republic. The tradition of thought was further developed in the late Middle Ages and prospered in Europe and America until the eighteenth century. The early republicanism of Ancient Athens and Rome faded to the background when self-governing city-states, like Athens, fell to Imperial Rome and later to the dual administration of Pope and Emperor, bishops and kings, and clergy and lords. The tradition was revived at the beginning of the millennium in Italian city-states, where political participation was appreciated and various forms of self-rule of citizens were practiced. In the republicanism of Italian city-states, liberty was considered consisting of political independence and republican self-government. Especially Bartolus of Saxoferrato, whom Quentin Skinner considers as one of the ‘most original jurists of the Middle Ages’, defended the freedom of cities to choose their own political arrangements. The idea of self-government in the city-states was revolutionary since no judicial practice existed that would confirm it: the emperor was thought to be the only ruler. The early republican tradition emphasised the autonomy of cities while at the same time embracing the political virtues of citizens. However, in most of the city-states the revival of the republican tradition did not survive for very long, the only exceptions being Venice and Florentine. By the beginning of the 17th century, this republican tradition was in most cases overridden by more totalitarian tendencies.
At the time when the city-states were formally under the rule of Pope and later under various kings ruling in Europe, the concentration on security issues instead of political freedom became the main topic of politics in most of Europe. Most people did not have the opportunity to take part in political decision-making, and generally for those who participated, political freedom was not on the agenda. Instead of the Aristotelian virtues central to republicanism, which were concentrated on the issue of how people could develop themselves through education, the Medieval times concentrated on Christian virtues. The possession of the Christian virtues, such as faith, hope and humility, were less dependent on developing one’s character and relied more on God’s grace.
During the 17th century and at the beginning of the 18th century, the republican tradition started to raise interest again especially in England, Scotland, the American colonies and France. In 17th century republican thought, moral political action was considered fundamental to the prosperity of both citizens and the city. The most referenced thinkers from this period are Harrington and Machiavelli. In general, classical republicanism as a political theory concentrated on the questions of how to pursue common good, how to achieve good government, the political virtues needed by citizens, the importance of political participation and resistance of oppressive modes of government. Relating to these central themes of republican thought, there have been disagreements throughout the history of republicanism over the relation between republicanism and democracy, what social divisions reinforce republican values and which weaken them, and whether republicanism requires small communities or is able to be applied to bigger societies as well.
After being on the sideline for a long time, republicanism started to raise the interest of political philosophers again in the mid-twentieth century. Usually when speaking about republicanism in political philosophy, two strands of republicanism are separated: the Aristotelian tradition emphasising the good life and the importance of civic virtues and political participation in achieving it, and the neo-Roman tradition emphasising freedom under the rule of law and opposing arbitrary power of autocratic rulers. Also in contemporary republicanism the different strands can be separated; the communitarian strand which concentrates on political participation, culture and community, and the strand of instrumental republicanism represented for instance by Philip Pettit, where the concentration is on the right to be free from outside coercion.
The various strands of the republican tradition have taken a different stand on the issue of freedom and liberty when compared to liberalism. Depending on how strong a republican view is supported, either political participation or non-domination is considered as a prerequisite for realising freedom. Quentin Skinner and Philip Pettit are probably the most discussed representatives of contemporary republicanism. Both concentrate on contemporary interpretations of the neo-Roman tradition of republicanism that concentrates on non-domination. Pettit’s Republicanism has probably influenced most of the contemporary discussion on republicanism. The contemporary republicanism differs from the classical in that it accepts the pluralism of values, moral individualism and the instrumental view of politics. Central to the contemporary neo-Roman republicanism is the definition of freedom as non-domination, which is defined in contrast to the liberal conception of freedom understood as the absence of interference negative freedom Pettit 1997. According to republicans, freedom is not a good possessed by individuals before they enter into society. Instead, it is realised within the society characterised by various interdependencies. In other words, it seems that contemporary republicans argue that there is no freedom without society.
2.2. Freedom as Non-domination
The contemporary republicans argue that the emphasis of political liberalism is on freedom as non-interference. On the contrary, instead of non-interference republicanism emphasises non-dominance, i.e. liberty as independence from arbitrary power. The absence of arbitrary interventions is not enough; the independent status of an individual has to be secured. For republicans, non-dominance is the basic principle of political philosophy, and citizenship is constituted by freedom as non-domination, i.e. a person’s ability to make decisions and live their life as they please without fear of arbitrary intervention or being arbitrarily constrained.
The only acceptable constraint is that set by law, which republicans do not see as arbitrary as long as laws are just. Pettit defines domination through three aspects:
1) the capacity to interfere
2) on an arbitrary basis
3) in certain choices that the other is in a position to make. In Pettit’s view, all these three aspects are required simultaneously for domination to exist. Pettit argues that mere interference will not be coercive if it also tracks the interests of the person whose actions are subject to interference. With this, he maintains that laws are not actually dominating, but rather the source of liberty. However, according to the formulation, a mere capacity to arbitrarily interfere in someone’s choices is enough to constitute domination.
The concept of non-domination differs from the liberal principle of non-interference as it says not only that no one should be subject to arbitrary intervention, but also that one should not even be in danger of being an object of arbitrary power. By opposing not just the acts of interference, but also the position where a person is in danger of being intervened against his or her will, republicanism opposes the status of subordination. This is an important difference between liberalism and republicanism; liberalists think that the absence of interference allows enough space for diversity and does not give preference to any special group. From the minority point of view the principle is too thin, as it does not take the real life inequalities into account. Still, it is not evident how well the republican project succeeds and whether republicanism takes the questions of inequality better into account.
At the same time, perhaps depicting liberalism as concentrated merely on liberty as non-interference or the legal dimension is a mere simplification of liberalism that does nothing to help understand society, but rather represents different political theories as caricatures. Matthew Kramer points out that there is not that big a difference between the concepts of freedom in liberalism and in republicanism if a distinction between particular freedoms and overall freedom is made; that actually unfreedom understood as coercion and unfreedom understood as domination are sides of the same coin. Kramer criticises republicans for understanding the concept of negative liberty too narrowly by concentrating on freedom in single cases and missing the fact that liberalists also consider overall freedom: so if there is domination in the sense republicans argue, there is also no freedom in liberal theory.
It can also be pointed out that most people are dependent on someone else at least at some point in their life. How to make sure that these interdependent relationships do not turn into coercive ones? Is it possible or even desirable to eliminate all relationships that may have coercive elements? After all, there will always be people who do not fit in the republican ideal of an independent actor: such as children or people with mental illnesses or severe disabilities. Naturally the society can be arranged so that it gives as much independence as possible to people that are more vulnerable to abuse than others. Pettit argues that unless there are institutional constraints preventing domination, there is a possibility of arbitrary interventions, even if they would never occur. In order for non-domination to become true, a political framework that is able to provide security against arbitrary powers is needed. Pettit argues that domination often is group-based in character: although the “dominated agent” must always be an individual, the domination may occur on the basis of membership in a certain group or collective.
In the liberal tradition, the focus has been on the protection of civil rights and guaranteeing individual freedom. The republican tradition has been more concentrated on political participation. Republicans do not see that liberty without a society is feasible. As Iseult Honohan says: “On the non-domination view, freedom is not an external consequence of the laws, but is constituted by the institutions of rights and accountability”. In the republican tradition freedom is considered important as well; but in comparison with liberalism it concentrates more on the means of realising that freedom and liberty. The idea of republican freedom is to be free of outside control. If there is a threat or even a possibility of arbitrary interference, then a person will not be able to enjoy freedom. Individuals should be able to govern themselves either directly or indirectly through representatives. There are milder and stronger versions of republicanism, but they all define the concept of citizenship in a different way than liberal tradition, emphasising more the importance of participation and keeping an eye on the decision-makers. All people are dependent on each other; and in order to be free they need to take part in the functioning of society.
The corruptible nature of human beings has also been emphasised in republican theory. In the history of republicanism various propositions have been expressed to solve the problem. Most of them have concentrated on active citizenship. For example, the solution offered by Italian republicans at the beginning of the 16th century to the danger of corruption lurking behind the corner was to involve citizens more and more in the business of government. Republican tradition has a strong emphasis on active citizenship, the virtues of citizens and involvement of citizens in decision-making. The contemporary neo-Roman republicanism is less concentrated on the virtues of citizens than the classical version, but links virtue more with freedom. The focus is less on individual virtues and more on how the society should be arranged: the institutions should be just and there should be possibilities for participation.
What is interesting from the minority rights’ point of view is the relationship of the contemporary republicanism with the question of minority rights. Decision-making should be transparent and decisions open to contestation. For instance, Honohan argues that republicanism’s commitment to the principle of non-domination leads to the endorsement of deliberative democracy as an ideal way of political decision-making. Honohan argues that both instrumental and strong republicans favour deliberative politics over other options such as extended participatory politics that would involve more voting and polls. According to her, the deliberative politics does not presuppose consensus on what constitutes a good life. However, the common goods such as justice, culture or preserving environment are widely recognised, and despite the fact that people disagree about the ways of achieving these common goods, Honohan seems to be arguing that they still form the basis of political theories. Despite these disagreements, people usually prefer to solve these issues through argument and not by force. Honohan argues that deliberation works better than representation, since it manages to take diverse opinions more seriously and it increases people’s participation. However, even if the idea of the deliberative model as a better decision-making procedure is accepted, it does not exclude the possibility that deliberation may lead to the marginalisation of minority groups. Unequal opportunities and power relations may marginalise part of citizens from the deliberative process. Nevertheless, according to Honohan, this is not a fault of the deliberative system but rather tells that there is something in the way the public realm and deliberation are conceived that should be changed.
In contrast to Pettit’s more moderate view, Honohan seems to support the view that participation is intrinsically valuable because it is not just securing the interests of citizens but also important for identity, “a matter of self-definition, concerning what you are and do”. It is important that people can be who they are and bring their concerns and values to public consideration. Therefore the public realm should not be neutral in liberal spirit, but allow for different and sometimes contradictory views. Honohan seems to think that the plurality of the public realm would not be the problem many liberals fear. Instead, she seems to think that the representative system allows only a shallow level of participation and that this forms part of the problem. She claims that current examples of majority views on, for instance, euthanasia or the death penalty that seem to be extreme, are rather a result of the current limited possibilities of participation, and in a truly deliberative and equal public realm there would not necessarily be a problem of the majority tyranny.
This kind of model for society could potentially take the status and rights of minorities better into account. Since many belong to at least one minority, for most people it is desirable to know that they are protected from arbitrary power.
However, there is always a danger that a participatory democracy can also exclude minorities from decision-making. As Iseult Honohan states: “A system of collective decision-making without guarantees against domination may just translate the will of those in socially dominant positions into political effect, and further strengthen their power to realise their own interests.” That is why deliberative democracy with focus on equal opportunities and open and transparent decision-making procedures is needed. I will come to the relationship between republican political theory and group rights later.
2.3. The Republican Concept of Citizenship
Citizenship and freedom in the republican tradition of thought are seen as equivalent. What that means is that republican freedom can only exist under a suitable regime of law that protects the citizens from arbitrary interventions and despotism. The republican tradition has valued active participation of citizens. Good citizens are interested in common good and willing to do their part to realize it. In classical republicanism, the emphasis was on the civic virtue or a commitment to a common good. Political participation was considered the highest realisation of human nature, because only through active participation could individuals get recognition for their identity. Citizens were supposed to be ready to accept both political and military duties. The account that emphasises active participation and striving for common good has been criticised much by feminist and by liberal philosophers. Is common good more important than the needs of an individual? How are the two balanced if they are in contradiction? The classical account of republicanism has been criticised for being oppressive, moralistic and unrealistic.
In the contemporary neo-Roman account of republicanism, active political participation is still considered as a good and a matter worth pursuing, but not valuable as such. Individuals want to be independent and live in peace enjoying life, and democratic participation is only a way of guaranteeing this position for them. There is nothing intrinsically valuable in political participation; it only has value as a tool helping to achieve a better life. However, on the one hand there are also other types of republicanism that emphasise more the value of political participation in itself, for instance Italian Mauricio Viroli. Viroli’s account could probably be put under the label of the Aristotelian strand of republicanism. Viroli’s version of republicanism is more patriotic and concentrates on the virtues required for the citizens of a republic, primarily meaning a commitment to the way of life of the republic. Viroli’s patriotism is not, however, connected with ethnicity. Instead, he separates between nationalism and patriotism and connects the latter with the political body and the culture. “Democratic politics do not need ethno-cultural unity; they need citizens committed to the way of life of the republic”. However, Viroli’s ideas about the religion of state and patriotic virtues might sound a little curious for most people. On the other hand, there are theorists such as David Miller, who connects republican citizenship with nationalism.
In contrast, the contemporary neo-Roman republicans emphasising the concept of law want to make it clear that they are not promoting common good in a way that would turn it into oppressive practices at the expense of individual freedom. As Philip Pettit states, the republican conception of liberty is not a positive one. Instead, the republican tradition is said to oppose arbitrary interference. This is only understandable in relation to the republican concept of freedom. The most important concept in contemporary republicanism is the concept of freedom as non-domination. Freedom is understood as opposite to slavery. From those grounds, Pettit argues that the main focus of the republican tradition has been on avoiding interference and living in security and peace, rather than achieving participation. Pettit argues that under the republican conception of liberty, it is possible to lose liberty without actually being interfered with, as in the case of a slave who is never actually interfered with but has to live in the fear of the master all his or her life. Therefore he defines the republican conception of liberty as non-dominance, not liberty as non-interference.
Under the republican conception of liberty, there can be domination without interference and equally there can be interference without domination. As mentioned, republicans do not see law as compromising people’s liberty. Rather, the properly constituted law is essential for the realization of freedom. Only under a regime of law that guarantees status as a citizen can people be free from domination. According to Pettit, the status of citizenship can only exist under a well-constructed law. The republican understanding about law seems to be overly positive. Pettit does not seem to be concerned about the possibility that the law could turn to a source of domination, or that there could be so many laws that they would eventually swallow the individual. Instead, Pettit argues that as long as the lawmaker considers the interests and opinions of the ones affected by law and there are suitable checks and balances controlling the political authorities, the society will be just.
2.4. The Concept of Common Good
The concept of common good is central to the republican project. Pettit argues that common goods need to fulfil two criteria: they need to be social and commonly shared. A good is social when its “realization presupposes the existence of a number of people who display intentional attitudes and perhaps intentional activities” and common when it “cannot be increased for other members of the groups”. Pettit mentions clean air and external defence as examples of the common good. Honohan argues that there are several common goods – things that are widely recognised as matters worth striving for, even if there would be disputes on how to reach these goods. They are not however, prepolitically determined as in some communitarian accounts, but open to contestation. According to Honohan, the idea that citizens should be interested in common goods and take responsibility for their realisation has always been central to republicanism. In achieving common goods civic virtues are needed. The argument used to justify the idea of civic virtue is that “the freedom of interdependent citizens ultimately depends on their active commitment to the collective goods they share”.
Honohan defines common good as all the common goods that are important and make living possible and easier. Some of these common goods have for a long time been taken for granted and are now under threat. Other examples of common goods are education and health care services provided by the state. Republicans argue that in order to work, all states need a certain degree of civility or commitment to the common good. “Without a commitment to some common interests, willingness even to obey laws and pay taxes comes under strain”. Institutions and laws without people’s commitment to them are not enough to keep the society together and working. Honohan argues that if political debate is structured around individual needs, the idea of common goods starts to seem odd.
In order to realise common good, citizens need to be active and watch that their rulers keep the common good in mind. Pettit argues that the polity should be arranged so that electoral and all major groupings would be statistically represented. There must be the possibility of contestation and appeal, too, so that citizens can watch what the people in the positions of power do. According to Pettit, there are multiple possible channels of contestation. Pettit argues that the people in power need to consider public opinion, and in order to avoid shame and to build a good reputation for themselves in the eyes of the public, the decision-makers choose to make good decisions rather than bad ones.
“The fact that those in power are required, and required as a matter of common knowledge, to base their decisions on considerations of the public good means that there is a standard in relation to which they are bound to be judged in the opinion of the public”.This view clearly shows the assumption behind Pettit’s thinking that most people pay much attention to the opinion of others and take that into account in their actions. I am not sure whether this actually holds up.
In Pettit’s view, democracy has to be inclusive and deliberative in a sense that everyone will have the chance and the means to contest the decisions made, and make the decision-makers accountable for their actions. The authorities have to be properly checked and balanced. As a way of checking the actions of those in power, Pettit lists three complier-centred principles: screening, sanctions, and the escalation of sanctions. It seems that Pettit is arguing that the solution to the problems of society is technical: with the wisely constructed rules and system of decision-making, most problems of government would be solved.
Pettit argues that people are generally responsive to the idea that concern for the common good should be taken as a norm in decision-making. Therefore the interests and ideas of people should be tracked and their differences appreciated, and therefore “a politics of difference” and “a politics of common concern” are needed. The sign of a good polity is that the power of the state is constrained “so far as possible to track the common interests — of its citizens”. Pettit defines the common interests as politically relevant and distinct from the special interests. As a matter of fact, the common interests might be in contradiction with someone’s special interests. Nevertheless, the common interests are those that all will benefit from, and therefore it is rational for all to pursue these interests jointly. The idea is similar to the one of common good, and Pettit seems to use the terms interchangeably. Pettit seems to think that freedom as non-domination is the best example of common good or common interest.
Nevertheless, republicans have been criticised for not being very clear when talking about the common good or common interests. Therefore it seems that the concept is so loosely defined that the interpretation of what constitutes common good changes depending on the context and the speaker. How are the common interests defined, and what makes them good?
2.5. The Analogy of Colleagues
The concept of citizenship is contested and disputed, and there are several different analogies in political philosophy that are used to understand the meaning of the concept. Neo-Roman republicans argue that their concept of citizenship is more participatory than the liberal one, but still not as exclusive as the nationalistic concept of citizenship. In order to capture what this means, Honohan argues that the relations between citizens should be understood more like the relations between colleagues, and less like relations between friends, strangers, family members or countrymen. She argues that citizens do have special obligations towards each other that go beyond the duty to obey law. Honohan’s account also presumes that there is a distinction between co-nationals and citizens.
According to Honohan, the discussions about the relations between citizens often concentrate on one or two polarities, such as when discussing about citizens through the analogy between family members and strangers. However, the relations can be complex and different from each other, and therefore there might be several different concepts that can be used to explain these relations. Many of the models used to describe and explain the community require “intimacy or shared values between members” and can also be hierarchical ibid. In the civic republican account of politics and citizenship, it is important to notice that the relations between citizens are not based on exclusive or hierarchical models nor on the shared culture of like-minded people ibid.
Honohan argues that most of the analogies offered to explain the relations between citizens carry undesirable implications. For instance, depicting fellow citizens as strangers can also mean that the responsibility towards them is understood to be minimal. Instead, Honohan argues that the analogy of citizens as colleagues offers a different way of grasping the relations between citizens. According to her, colleagues are related involuntarily and are “interdependent roughly as equals in a practice or institution”. But many work communities still have rigid hierarchies. According to Honohan, not all the people working in the same institution are colleagues, but only those “who meet more or less as equals”. Usually, colleagues do not choose each other, and are therefore together involuntarily, though they may leave the group by changing a job. That goes also for citizens: citizens cannot choose each other but “are thrown together by the fact of birth or living within the same political boundaries”.
Colleagues may have very different backgrounds and religious and political beliefs, but still they are connected with each other and relatively equal. The connectedness is not as close as the connection between family members, but it is considerably closer than that of between strangers. People expect more from colleagues than from strangers, and they are also prepared to give more back. According to Honohan, the relations between colleagues are characterised by “three main categories: consideration, communication and trust”. These categories are also important in the relations between citizens, though the degrees of participation required of citizens vary according to situations.
Even if these ideals are not met in real life collegial relations, Honohan argues that the ideal of collegiality is one that is widely recognised. The relation is, however, not one that cannot be overridden by other obligations, such as considerations of justice. While being relatively exclusive, the relations between colleagues are not defined in opposition to some out-group but rather as the interdependence of the group. Also these collegial groups can be extended without losing the meaning of being colleagues.
According to Honohan, the republican concept of citizenship is best understood through the analogy of colleagues, although the analogy naturally has its limits: it is easier to leave a job than citizenship, since citizenship is usually acquired by birth. Also one can be unemployed and live quite a comfortable life but a life without the status as citizen is far more difficult. Still, both citizens and colleagues can be members of a larger group of people, in contrast to the more intimate relationships such as those of friends or family members that cannot be extended to larger groups of people without problems.
The republican concept of citizenship is grounded on interdependence. Honohan argues, that while being more intimate than the thin liberal concept of citizenship, the existence of relationships and obligations between citizens does not exclude the responsibilities and obligations also towards more distant people. According to her, citizenship entails mutual obligations that may also be extended beyond the boundaries of the local polity. The problem with the aforementioned close-knit, non-extensible and hierarchical models of community, such as nationality, is that clinging to them as grounds for the special obligations towards others may undermine the obligations towards more distant people obligations that may be differently justified. Also the analogy of strangers has its problems; it seems to give an unrealistic image of the relations between citizens, magnifying the distance between them. Instead, when the relationship between citizens is understood through the analogy of colleagues, it becomes apparent that the relations are non-voluntary in character, do not require strong emotional attachments or shared beliefs. The citizens are “subject to the jurisdiction of a common sovereign authority” and therefore share something in common: the concerns of everyday life and a fate. According to Honohan, the state structures and regulates citizenship more than nationality.
However, the analogy of colleagues makes only sense if the citizens are equal. Honohan argues that in both contemporary republican and liberal accounts the citizens share “equal legal, political and often social rights”. They do not need to share a single view of common good. Instead, there are and will be conflicts over how the polity should be governed. In describing what then connects the citizens with diverse opinions of good, Honohan follows Arendt: it is the common world and participation in the public realm is the core of civic republicanism. There is something appealing in describing the relations between citizens through the analogy of colleagues. However, the analogy does not succeed fully. Family relations are mostly excluded from work life, or they should not matter. However, they do matter when it comes to the relations between citizens since there are all kinds of regulations that give different preferences to people belonging to different types of families. Despite being attractive the analogy of collegiality as an example of the relations between citizens has its problems. On the one hand Honohan seems to think that collegiality is a descriptive concept in the sense that it depicts the nature of relations between citizens better than analogies between relations of friends or family members and the relationship between citizens. On the other hand, Honohan admits that many work communities do not fit in with her description of collegiality. As most people know from their own experiences, in some cases the relations between colleagues might be more accurately described through envy and struggles for power. Therefore it also seems that Honohan uses collegiality as a normative concept as she argues that even if it never comes true in the work community, everyone still knows the ideal of collegiality. Honohan answers that while the concept of collegiality may be a normative term, it is still less normative than other analogies. For a critic, that is hardly a satisfying answer. The same could be argued about the other possible analogies as well; even if the reality is sometimes disappointing, everyone knows how the relationships between family members or friends could be like. As with other analogies, this, too, has weaknesses as well as strengths.
2.6. Corruption, Virtues and the Role of Passions: Self-love and the Love of Riches
In general, human nature in the republican tradition is considered good. However, there is one exception; when individuals get into positions of power they get easily corrupted. Institutions might also get corrupted: when an institution ceases to further the rights of citizens and rather tends to preserve itself and to gather benefits for a certain group of people, we might speak of the corruption of that institution. The danger of corruption is always present; corruption is decline and degradation, whereas a well-functioning society will only be a result of constant exertion. Restraining the corruptive elements of power has though been one of the main topics in the history of the republican tradition. There is always a possible conflict between the common good and what is good for a single individual. That is the reason why a society should be well organised and its institutions transparent; in order to ensure the misuse of power would not be a temptation. Since corruption is so important in order to understand the republican account of citizenship, I will present a short account of corruption and its meaning in the development of republican thought.
Republicans have proposed different strategies for fighting corruption. One is that institutions should be organised so that their actions would be as transparent as possible. There should be sanctions and screening that work as checks and balances. According to Pettit, it should not be assumed that power will corrupt all people, but it has to be kept in mind that there is always the danger that at least some of will be. However, Pettit opposes “deviant-centred regulation”, which, according to him, would only worsen the behaviour of those who act virtuously. Instead, the people in decision-making positions should be screened to ensure that they do not have commitments that would disqualify them from decision-making.
Pettit offers the following strategy for solving the issue of corruption: getting caught from the corrupted actions should be made shameful and at the same time doing the right thing should give a person glory and honour. This way of positing two contradictory urges – an urge to benefit one’s position at the expense of others, and an urge to be a respected and recognised member of the community – has a long history: the classical republican virtue of striving for honour and glory has its roots in antiquity, as also the idea of setting passions against each other. In The Economy of Esteem Pettit and Geoffrey Brennan explore the history of
social esteem and the workings of an intangible hand in the modern society. They argue that the desire for status or esteem is a motivational force behind the actions of individuals. The idea is largely left unnoticed in contemporary political philosophy, but has a long tradition behind it (2004, p.23).
The desire for status and the historical transformation of the idea of self-love from a vice to a virtue has had an important role in defining the relation between the republican concept of citizenship and the perpetual danger of corruption. In Medieval Times passions, such as anger, striving for glory, or sexual desire, were thought to be negative, something hard to control and easily leading to destruction if not somehow restrained. Among the passions, avarice or cupidity was considered one of the deadliest vices. Lust for money and possessions was considered as one of the three cardinal sins of a fallen man, lust for power and sexual lust being the other two. Medieval thinkers Augustine and Calvin thought that the prevention and repression of passions were the tasks of the state. The possible injustices in society were considered not the responsibility of the state but rather consequences of the sins of a fallen man. Nevertheless, Augustine mentions that in the case of ancient Roman heroes, the love of glory or libido dominandi could be seen in a positive light; the love of glory and patriotic devotion of the heroes repressed the power of the other deadly passions.
The idea of taming a passion by embracing another one, which Augustine indicated only cautiously, was later embraced since it fitted well with the medieval chivalric ethos. By the time of Renaissance, the idea that striving for glory and honour was good in itself gained the status of a dominant ideology, and the pursuit of glory was considered as good in itself by the Renaissance republicans. Nevertheless, this dominance of the aristocratic ideal of glory-seeking did not endure for long. Instead, letting passions against each other so that they would counteract each other became the dominant idea. The deliberation about countervailing passions started in the seventeenth century. It had a background in the belief of the danger of passions and a dark and negative view of human nature, promoted by medieval churchmen like Augustine. During the eighteenth century both human nature and passions were rehabilitated, and the discussion of countervailing passions with a more positive tone became common in the writings of contemporary thinkers.
Already in 17th century philosophy there were mentions of turning the private passions into benefits for the whole society. Especially the writings of Giambattista Vico and Bernard Mandeville contemplated the issue. In The Fable of Bees Mandeville ironically explains how the vice of avarice and love of luxury turns into prosperity. Mandeville describes how individuals seeking their own benefit will actually benefit the whole community by increasing the general welfare, so that even the poorest live “…better than the Rich before”. Though Mandeville did not offer a specific account of how this transformation from a private vice to a public benefit actually happened, the idea became a very powerful one. Adam Smith distanced himself from the ironic account of Mandeville. However, in The Inquiry to the Nature and Causes of the Wealth of Nations, Smith called vices rather ‘interests’ Smith 1920, Book 1, Chapter II, p.16; Hirschman 1977, pp. 18-19. These developments had an enormous effect on how passions, interests and virtues were conceived.
Some republicans, such as Pettit, clearly draw their solution for fighting corruption from the idea of countervailing passions. If individuals were rewarded with respect and honour for doing the right thing, it could work as an adequate incentive for them not to engage in corruptive actions. According to Pettit and Brennan, “people are deeply attached to the esteem of others”. Corruption often links to benefiting materially from one’s position. However, the desire to seem good in the eyes of others is, according to Pettit, even more tempting to most people. Pettit seems to follow the age-old tradition by emphasising how counteracting the love of riches with the love of glory and honour could be an achievable solution to the trouble of corruption. What is important is that the people accepting the positions of power should not be treated as knaves since that would easily make them behave like expected, turning them into bad rulers. The assumption that everyone will cheat whenever possible would undermine the whole republican enterprise. After all, the society is built on trust. Counteracting the love of riches with the love for glory is naturally not enough to root out corruption as a phenomenon altogether. There should be checks and balances and the decision-making process should be as transparent as possible. Balancing of rival interests is also needed, as well as resisting and fighting the expansion of interest-group politics at the expense of public debate on common concerns. Still at the individual level it is obvious that the old idea of ‘countervailing passions’ has had an impact on the solution contemporary republicans offer to the problem of corruption. Next I will turn to the relation between republicanism and nationalism.
2.7. The Relation between Nationalism and Republicanism
On the one hand, the republican tradition has historically offered more grounds for exclusion of groups of people than liberal theory. The republican concept of citizenship has been accused of being masculine and militaristic, concentrating only on activities that take place in the public realm. On the other hand, the republican model for society concentrates more on social needs of people. Emphasising the importance of participation and the significance of community to the welfare of people is something that many view as lacking from the thin liberal account of political rights and citizenship. Within the republican tradition, there are different opinions about the relation between nationalism and republicanism. Some of the accounts are openly exclusive and therefore do not take interest in the question of group rights. Some of those accounts are briefly referred to in this chapter, but a greater emphasis is on more inclusive contemporary accounts of republicanism. Next I will present the account that Honohan takes towards nationalism.
Since republicanism concentrates on the social dimension and the participation of the members of body politic, there is always a possibility that the republican society is identified with an idea of a nation-state. Nationalism presupposes that “…those who share a nationality should be self-governing”. At the same time, the basic idea of republicanism is that people should be self-governing. But these two ideas are not two sides of the same coin. Nowadays, nationalism is often connected with the idea of a shared cultural base. Cultures and their recognition in society are important in the construction of identities. Nevertheless, that does not mean that cultures should be self-governing. People are not necessarily a group that shares the same cultural heritage. The concept of citizenship can be separated from nationality, although these are often merged together in discussions. Honohan argues that contemporary republicanism does not presuppose that there should exist a unified homogenous culture into which different groups should assimilate. Rather the account of republican citizenship requires that citizens share some kind of a public culture. However, that is not the core of contemporary republicanism, since it is not defined in terms of culture. “If there are common cultural values in a republic they are not its foundation, but the outcome of political interaction, provisionally embodied and open to change”. According to Honohan, it seems that the contemporary republicanism emphasises the civic version of nationalism.
However, there are thinkers within the republican tradition that argue that the nation is the only enduring basis for the republican society. For instance, Miller argues that “the mere fact of being subject to the same political system is not sufficient” to create commitment in citizens towards each other. According to Honohan, the counterargument of republicans defending nationality as the basis for a republic is that “in practice, people will recognise the relationships and community of republican citizenship only if it is based on some kind of common culture”. The problem with this stance is that it assumes that shared ethnicity would be the strongest force in defining the politics of a certain state. However, there are many examples that show this is not the case. For instance, albeit being culturally homogenous, there might be strong divisions and tensions within the communities when it comes to how welfare should be distributed. Another practical problem for the nationalistic republicanism is that states often contain more than one nation. Reorganising the state boundaries so that each would contain only one national group does not seem to be a believable strategy.
It is problematic to assume that people would self-evidently identify strongly with their nation. Also what the nationalistic republican view does not take into account is that individuals might identify themselves with more than one nation. The way that identities develop is complex and there are a lot of different factors affecting it. Nevertheless, the idea of a nation is a powerful myth. Despite the rhetorical force of nationalism, Honohan argues that it cannot replace the participation in politics: mere national identity does not create responsibility in the areas where responsibility is the most important. Instead of shared values and one national culture the consciousness of shared fate and interdependence is a sufficient basis for the formation of political community. Political communities create cultural meanings, but cultures do not create political communities. Kymlicka agrees and argues that nations are created by states through conscious nation-building policies, rather than states being created by nations. From the point of view of the contemporary republicanism, the formation of political community comes before the cultural meanings attached to it. Honohan argues: “The substance of republican politics is based on interdependence rather than communality, is created in deliberation, emerges in multiple publics to which all can contribute, and is not definitive but open to change”.
David Miller argues that the only guarantee the citizens have against arbitrary oppression is “the willingness of citizens themselves to defend their own freedom, whether from external or internal enemies”, and that willingness “depends on their principled commitment to each other”. Miller states that this kind of commitment needs something more than a political system to be realised: that is, shared national identity. In Miller’s view, in order to identify with each other, people need a shared history, common language and shared cultural practices. He argues that it is easier to feel responsible for the people that are close and with whom a person identifies, and this makes trusting one another possible too. Miller goes on to argue that the examples of states containing a minority nation that does not share the culture of the majority and which “make competing claims to control the state itself, or some portion of its territory” proves his argument that mere co-existence under the same political system cannot by itself create a shared identity that would make republican state possible. Unfortunately, Miller does not give any examples of the states of that kind, and seems to forget that usually in cases where a minority nation does not identify with the majority culture despite residing within the same area, there tends to be a long history of oppression and violations of the rights of the minority nation. In these kinds of cases, it is not surprising that the minority does not identify with the majority. But that is not enough to say that the simple co-existence could not in any cases give rise to shared identity that would enable republican citizenship.
Maurizio Viroli offers another viewpoint on the relation between republicanism and nationalism. Viroli argues for republican patriotism, which he sees as unifying power. For Viroli, patriotism is totally different from nationalism; patriotism allows cultural pluralism, freedom of religion and endorses the rights of minorities Viroli 1995. Viroli argues that throughout history, patriotism was a separate idea connected with liberty, and only during the eighteenth century when nationalist ideas arose did patriotism become conflated with nationalism. According to Viroli, nationalism took the rhetoric of patriotism, and that is the reason why patriotism is nowadays difficult to capture without references to nationalism. Viroli does not seem to think that nationalism is, however, entirely bad; he just seems to think that there are certain tendencies in nationalist ideologies that may easily lead into aggression and excluding some groups of people, and that patriotism as he defines it does not have the same tendencies 1995. He identifies patriotism with love for and the pursuit of liberty. In Republicanism, Viroli argues: “Republicanism is capable of crossing national boundaries. It is stronger than cultural and religious differences”. Viroli argues for passionate, patriotic republicanism in a very different way than Pettit does. The core of his thinking is love, meaning love for one’s country defined as a republic and fellow citizens Viroli 1995. According to Viroli, political theory should rather be understood in Machiavellian spirit as a rhetorical pursuit than a department of philosophy or law or science. For Viroli, political theory is about passion. The passionate patriots love liberty and republican patriotism encourages the citizens to consider common liberty as the highest good. In Viroli’s thinking, republicanism, though not attached to a particular nation, is still clearly more attached to a particular place compared with Pettit’s account of instrumental republicanism.
The history of republicanism is based on the existence of small communities, in which participating in the decision-making was easier relatively than in modern-day states. How does the republican model work in contemporary communities that are substantially bigger in size? Honohan argues, that instead of understanding republican sovereignty as a single undivided matter, it can be divided into different activities and degrees. Representatives of contemporary republicanism argue that in this way the decision-making also fits better with the interdependencies of the international community. Honohan defines republican citizenship in relation to the versions of liberal theory and nationalism:
“Unlike liberal cosmopolitan citizenship, republican citizenship is not based on the assumption that the division of human beings among states is merely a matter of administrative necessity. Unlike nationalist citizenship, it does not assume that the world can ever approximate units of similar or ‘like-minded’ people”.
According to Honohan, the republican concept of citizenship is more inclusive than the liberal one, and manages still to avoid the traps of inward nationalism. Does it really succeed in that, and how?
2.8. The Challenges and Critique of the Republican Account
The contemporary republicanism has been criticised for duplicating the problems of the old republicanism by expecting in people active involvement and participation in the dealings of society, and a will to make personal sacrifices for the good of the republic. Republicanism has been accused of being oppressive, intolerant towards others and militaristic. The project of contemporary instrumental republicanism has tamed these aspects of republicanism, and relies on the ideas of non-domination and the inherent goodness and interdependence of all people. The republican concepts of law and human nature are very optimistic. Despite the attractiveness of the republican project of opposing subordination, there are some inherent problems in the theory. The concept of domination of the neo-Roman strand of republicanism is a challenging one. Pettit defines domination as arbitrary interference 1997. His account of domination requires not just absence of arbitrary interference with a person’s choices, but also that no one has the capacity to conduct actions that would amount to arbitrary interference Pettit 1997.
Pettit’s argument for the third concept of liberty has been criticised for misinterpreting the concept of negative liberty in favour of liberty as non-domination. Non-domination requires that people do not live at the mercy of others: the mere capacity to arbitrarily interfere is enough to constitute domination. So under the republican concept of liberty, it is possible to lose liberty without actually being interfered, as is illustrated in the case of a slave with a benevolent, non-interfering master Pettit 1997.
Fabian Wendt argues that while the example of a slave seems intuitively appealing, there is, however, a problem: the problem of the slave is that there is someone claiming ownership over him or her, not necessarily the fact of actual interference. Therefore, the relation between the slave and the master is normative and not descriptive. The republican freedom as well as negative liberty is, according to Wendt, discussed in descriptive what people can do rather than in normative what people are allowed to do terms. Wendt does not deny that descriptive accounts of freedom can be used normatively in political philosophy, or that descriptions sometimes can use normative vocabulary. Wendt argues, however, that domination in the case of the slave is a normative relation and independent from what the slave can do. Therefore the case of the slave and the master that Pettit uses to describe what domination is, does not work.
Nevertheless, Pettit’s republicanism needs the dominating relation between the slave and the master to illustrate what domination is: without it, the concept of domination seems unconvincing. If described just as a capacity to arbitrarily interfere, most people would not be free most of the time since most people have capacities to interfere arbitrarily if they want to. I could hit someone on the street: although it is unbelievable that I would do so I have the capacity for it and according to Pettit’s account of non-domination that would make those walking close to me unfree. According to Wendt, “the relation of master and slave cannot be a paradigm of descriptive unfreedom”, and therefore Pettit does not manage to give a plausible account of domination. Following, therefore, also Pettit’s argument against the negative concept of liberty is not adequate. Kramer has also focussed on the same issue.
Others have criticised Pettit’s account of domination for being too demanding. Marilyn Friedman argues that people might have all kinds of capacities they could use for arbitrary interference, but the state that would try to control all these would soon turn into a totalitarian “imperium”, an excessively controlling state, which Pettit wants to avoid. Pettit argues that by restraining the capacities for arbitrary interventions and thus removing insecurity, the state would be protecting individuals. Friedman disagrees and argues that the state should not seek to constrain unused powers. The idea of battling against the status of domination is on the one hand appealing as it seems to take the asymmetrical power relations between those in positions of power and those in disadvantaged positions into account. On the other hand, it is a difficult concept to define since it seems to be misleadingly wide and provide potential for state domination. Pettit does not define clearly how the constraints on capacities would work. If someone does not exercise their capacities for arbitrary interferences, why and how should they be constrained or controlled?
It is not evident what kind of model of society would be suit most suited for republicanism. Republicans are vague when it comes to defining the ideal society that would fulfil the republican vision. As mentioned in the previous chapter, it is not clear whether republicans support nationalism or not, and if they do, what kind of nationalism is supported. Different strands of republicanism treat the subject in different ways:
The contemporary republicans who rely on the neo-Roman tradition of thought such as Pettit want to distance themselves from communitarianism. In the old republicanism, the committed citizens made sure that the state would not turn to an oppressive regime. However, in the contemporary instrumental version the demand for participation is partially substituted by well-designed institutions. Citizenship and political participation are treated instrumentally and not as goods in themselves. Again those republicans stressing the importance of belonging and shared values based on nationality, demand greater commitment from the citizens. The contemporary republicans, such as Pettit and Honohan, and also Miller, argue for deliberative democracy and equality of all citizens. However, the actual propositions for how to arrange the institutions of society are rather abstract. That might give an impression that the republican project is more about sketching the big picture of a fair society, and not concentrating on the decisions about the details.
Depending on the point of view, the contemporary accounts of republicanism are either very close to egalitarian liberalism, or very far from it. Without deeper treatment of the problematic issues, it is nevertheless hard to say how much the republican society would actually differ from the society of egalitarian liberals. The same critique of vagueness applies to the republican concept of good. The concept has not been clearly defined, although it seems evident that there is some kind of concept of good behind the theory.
Pettit admits that: “Electoral institutions are vulnerable both to majoritarian and to manipulative control”. Within a polity, there are always two dangers: that the government turns into an oppressive one, or that some groups of people start dominating others. The image of law in the republican project is perceived as positive and quite unproblematic. However, it might happen that the law turns into a dominating device, and it seems that the republican project at this stage is not answering what should be done with these difficulties. The republican freedom as non-domination needs institutional safeguards and therefore can only be realised within the society. The society should protect citizens against domination of other citizens as well as against domination of the state. Early republicans favoured mixed government, just laws and active participation of citizens as guards against the arbitrary power. The contemporary republicans argue for the dispersion of power into legislative, executive and judicial in the spirit of Montesquieu.
Pettit argues that laws should be “general and apply to everyone, including the legislators themselves”. Laws should also be known in advance and be consistent, and the government should always prefer to act on a legal rather than on a particular basis. Pettit calls this the “empire-of-law condition”. Pettit distinguishes three elements of constitutionalism essential for a republic: the already mentioned “empire-of-law condition”, the “dispersion-of-power condition” and the “counter-majoritarian condition”. As mentioned earlier, Pettit argues that when making decisions, the state should always be tracking the relevant interests of those affected, and there should be institutional forums for contestation where citizens can challenge the decisions made. According to the third condition, laws should not be too easily changeable by the majority will, since that could potentially lead to unequal distribution of power and domination of some groups within society. Miller criticises the counter-majoritarian principle for expressing distrust in citizens: the principle implies that the citizens would not be public-spirited enough to “defend the rights of their fellows”. It seems that Pettit is at the same time holding two contradictory views: that people are inherently good while also being capable and willing to oppress others if they have a chance.
These conditions are, according to Pettit, prerequisites for the well functioning, republican society. However, they cannot once and for all prevent every possibility for arbitrary power, since some decisions always remain in the hands of some individuals or groups. According to Pettit, that is the reason why deliberative, contestatory democracy is needed 1997. The decision-making should be transparent and follow formal procedures known to all, the decision-makers should present reasons for their decisions, and there should be institutionalised forums to contest the decisions made. Consensus is probably not achieved in every decision, but the possibility of contestation is actually more important for Pettit than achieving consensus. Nevertheless, the republican project seems to lack an overall view of the legal dimensions of republicanism and how the republican society would be constructed. What would be the goals and principles of law in the republican ideal state?
The contemporary republicanism is divided into two strands that give different interpretations on the central issues of republican thought: What are the prerequisites for citizenship? Who are to be counted as citizens and what is required of them? How should corruption be fought that threatens to degrade the state and make it unfree? What is the relationship between republicanism and nationalism? Are nationalist ideas needed in the construction of a republican state? The representatives of the neo-Roman strand of republicanism argue that their interpretation of republican tradition of thought adapts better to the present-day world and is better able to take minority issues and questions of identity into account. At the same time, the representatives of the neo-Aristotelian strand argue against granting special rights for minorities. Compared with other theories of political philosophy, republicanism perhaps acknowledges better the social needs of people and the importance of participation in
constructing a good society. At the same time, the rights and choices of individuals get maybe less attention than in the liberal tradition of thought. Both republicanism and liberalism answer to questions of great importance. These questions, however, differ from each other and make the theories in some aspects incommensurate, which makes comparing them challenging.
Next I will consider recognition and the rights of groups within liberalism and republicanism.
3. The Social Dimension of Citizenship: Recognition and Groups
Citizenship is not merely about legal status or rights and duties; it is also about being recognized as an equal member of one’s community. Participation and recognition are essential elements in all kinds of groups. What then makes citizenship so important? Phelan argues that what makes citizenship so unique is its scope. Citizenship is thought to cover the fair treatment both in the home country and the protection abroad. That makes it the most important category of membership in the contemporary world. The social dimension of citizenship concerns the ways in which the polity decides who is eligible for these rights, duties and offices.
What kinds of “structures of acknowledgement” define who is entitled to what is calledcitizenship rights? Phelan argues that citizenship status is “the basic indicator of membership”. Recognition as a member is a prerequisite for having all the rights and duties connected with citizenship. Why is the social dimension so important in understanding citizenship? The thin understanding of citizenship has concentrated mostly on the legal questions connected with the issue.
According to Phelan, citizenship is however not identical or reducible to the rights and institutions connected with citizenship, but rather it is “the emergence into publicity as an equal with other citizens”. Social acceptance is an important part in the realisation of citizenship. Without recognition as a member of the body politic the rights of a citizen will not be fully realised. Acknowledgement by other citizens is the “establishment of a particular political relation”. It does not mean just a silent toleration for the rights, claims, authority and status of others, but also the willingness to respect and recognise them in public. Phelan argues that acknowledgement is not fully realised, unless it is accompanied with the respect and willingness to recognise and defend the rights of others. Like the system of money, citizenship is a social phenomenon. There are laws and provisions that regulate both matters; but it is also a question of shared social meanings. That is what makes the citizenship of each citizen dependent upon the citizenship of others. One cannot fully participate in the functioning of society without having the status as a citizen. A good example is the experiences of indigenous peoples all over the world. While having the legal status as citizens, the discriminating practices used by both governments and fellow citizens have deprived the possibility to seriously improve their life conditions and have a say in policy decisions concerning them. Another example is the position of sexual minorities. In these cases, the principle that everyone should be treated as equals clearly is not met. There are resemblances in the processes and the discourses that produce racial exclusion and those producing the exclusion of sexual minorities, but there are also some crucial differences. Sexual minorities are not similar to cultural or indigenous groups, since most of them grow up without knowing anyone else in their community with similar sexual orientation, believing that they are the only ones. Some of them have to keep their sexual orientation hidden from their families in the fear of being abandoned by them. Also the racial and national minorities trying to prove the majority that they are fully members of the society often condemn homosexuality fiercely.
If laws exclude some groups of people from having the same rights that all the other citizens have, claiming the rights for that group is a way of trying to correct the issue. However, the question of citizenship is not just a question of rights Phelan 2001. Rights reflect the values and practices of the body politic Dworkin 1977. In situations where a group of people is deprived of protection by law, the exclusion might be incidental, or a matter of particular circumstances. However, sometimes the exclusion is considered constitutive to the identity of the mainstream and the excluded group of people are considered “second-class” citizens or totally lacking the status of citizens. In these kind of cases, the question is not just about correcting the laws, but also about aiming to change the values embraced by the majority.
Even in situations where the political rights are the same for the various minorities, be they sexual, religious, cultural, or indigenous, the membership in the group might be stigmatizing. “Political membership does not require the elimination of all stigma”. It might seem that when the discriminating laws have been removed, all the exclusive practices are abandoned as well. However, when the position of the group is viewed from the social point of view, it gives a different image of the situation. The exclusive practices are often deeply rooted in the customs of the community. Although the change of these practices starts with the demand for a rejection of discriminating laws, it does not end there. For example, representatives of minorities are often not included in the “national political imaginary”. By national political imaginary Phelan means the shared associations and images that are generally perceived to represent the polity. Naturally there are several different, competing images, but there are always some that are more dominant than others. If images representing a minority group are not included, that means that there are no positive examples of the representatives of that group among those shared mental impressions. Since social acceptance is as important to the realisation of full citizenship as legal support, a question of how different, non-dominant groups are portrayed in public is important. Sometimes, the problem is not the invisibility of the group, but rather stereotypical images attached to them. The stereotypical images are often associated with the invisibility of individuals representing the group. When people are seen as stereotypes, their uniqueness as individuals is forgotten, and that may have implications for the implementation of their rights as well.
Also legal institutions such as marriage or army service have social impacts, and often they enforce the exclusive practices of the community. Law regulates these institutions, but they also have a social dimension. They shape the lives of individuals by setting norms for behaviour and in some cases, excluding some part of the citizens from participating in these institutions. Especially military service has been conceived as a central element in the construction of citizenship. From this background it is worth noting how some groups of people have been excluded from military service. For a long time, military service was not available to women and the US army policy that excluded individuals who are openly gay from serving in the army has only recently been overruled.
A good example of the importance of citizenship in the modern-day world is the human rights discourse. In principle most actors in world politics, be they states or ministries or companies, say they are committed to respecting human rights. Nonetheless, if the example of the situation of illegal immigrants from the so called third world countries to Europe or the United States or Australia is taken into consideration, the reality of the actions might give a very different picture about the values of the actors. Human rights are in many ways linked to civil rights; the people lacking citizenship status are often exposed to discrimination and even violence. That shows how important citizenship is as a legal and a political category. Individual rights are often subject to disputes, even though a few would deny their existence. At the same time, rights possessed by groups are even more disputed: there is disagreement about their very existence, and even among those who speak about the group rights, some disagree about the definition and some about what kind of groups can be entitled to them, etc. Next I am going to introduce some viewpoints on the rights of groups.
3.2. Group Rights: Collective and Corporate
The existence of group rights is a disputed issue. First, there is a question of the subject of the group rights:
What kinds of entities are groups, and can they bear rights? Second, there is a question about the object of group rights: what are they rights to? There are also questions of the correspondent duty; who bears the responsibility? If a person or in this case, a group is said to possess a right, it means that someone else has a duty to respect that right. Generally, a group right can be defined as a right that no individual could enjoy alone: the character of the right is collective. A right to national self-determination is often stated as an example of a right of this kind. Most would admit that groups can have legal rights as corporate entities, however, the claim that groups can be entitled to moral rights stirs doubts in many. In this chapter, I follow Peter Jones’ account on group rights. In his article published in 1999 Jones separates between a corporate model and a collective model of understanding group rights. There are lots of possibilities for confusion: different writers use similar terms in different meanings. For instance, there is a difference between group rights and group-differentiated rights, the latter term used by Kymlicka to describe the special rights a society may accord to an indigenous group in order to preserve their existence; however, sometimes the group-differentiated rights are referred to merely as group rights. Jones argues, that it would be “arbitrary to insist that people can have rights only to goods that they can enjoy individually and never to goods that they can enjoy collectively”. According to Jones, determining whether the right in question is a collective or an individual right is often “a matter of moral substance”. Depending on the viewpoint, the group rights are sometimes seen as an instrument for demanding an equal status and freedom for a group, or as a device of oppression of individuals.
In the traditional definition of group rights, a group is assumed to be a moral entity on its own: something more than the individuals forming the group, something that is not reducible to the characteristics of the individual members of the group. If a group is considered as a moral entity, it can bear rights and duties in a way similar to individuals. This is a traditional way of understanding group rights, often called the corporate model. The problem of the corporate model is that it does not allow the members of the corporate to have conflicting interests; it is assumed that the interests of the group members can be derived from the interest of the group. The corporate model works best when it is used to describe groups that have certain structures and are constituted as an institution, such as university. However, there are debates about whether institutions that have a formal character should be defined as groups at all. Jones 2008. The critics of the corporate model argue that the group can have no moral standing that could not be reduced to the moral standing of its members.
However, there is another way in which group rights have been conceptualized in recent years: the collective account of group rights. That means that the group does not form a moral entity as such, but rather the right is understood as a collectively shared right. The members of the group possess the right together as collective and not as separate individuals. Jones holds that a shared interest regarding a specific issue can in some cases be a sufficient ground for a collective right or a right qua group 1999. The group holding the collective right may not have anything else in common except one certain interest. The interest theory of rights is therefore important for the collective account of group rights, because it can be the only thing that is holding the group together. Both the advocates and the critics of the corporate model would oppose this way of conceptualising group rights, since it seems to give group rights to groups that they would rather describe merely as sets of people. Jones argues that usually it is thought that only entities that bear moral standing can be entitled to rights. The question is whether other entities besides persons can be ascribed the moral standing. Jones argues that there is no need to assume that the group would form a separate entity holding a moral standing separate from its members.A corporate model is demanding since it requires a strong identity and integrity of the group. A collective account of group rights accounts more effectively for changes in the group and the fact that groups might be parts of bigger groups or contain several smaller ones themselves Jones 1999.
The issue of collective versus corporate rights concerns the question how the ‘group’ is defined. It also has implications for how the objects of rights are grasped, i.e. what are the group rights, rights to? Under the collective model the right to clean air might constitute a group right, when under the corporate model this would not be possible. On the other hand, the nations’ right to land or the right to preserve culture over time probably suits the corporate model more. Jones 1999. There are also other aspects: in the corporate model the rights of different groups are equal in weight, whereas in the collective model the size of the group matters. According to
Jones, the two models need not be mutually exclusive. Instead one can consistently hold that some group rights are collective, some corporate. However, many treat the concept of group rights with suspicion: there seems always to remain the danger that the rights of groups are used to oppress individuals, both inside and outside the group. Next I will introduce an account of group rights by Seumas Miller.
3.3. A Liberal Account of Group Rights by Seumas Miller
There are several examples where minority groups claim for special treatment and protection of their rights from the rest of the society. The traditional liberal approach has been suspicious of these claims. Indeed, the cases raise many questions. As mentioned earlier, law should be applied consistently, so that everyone is treated under the principles of equality and fairness. That means that also the claims for special rights should be treated in equal manner. This has raised concerns that if a certain minority group is granted special treatment, it might provoke similar claims by groups that would abuse the policy. Should every group that demands special rights or treatment be granted what they want or not, and on what grounds? Another issue is whether there is such a thing as group rights. First, what is needed is to define what constitutes a group. Seumas Miller distinguishes between ‘a category of persons’ and ‘a group proper’. A category of persons means people fitting in a certain description, such as all people ‘having red hair’, when a proper group is formed by ‘a set of people who by virtue of their shared characteristics think of themselves as forming a distinct group’. So, a proper group cannot be formed on an arbitrary basis; the members of the group have to think that they belong to the group. The common feature uniting the group can vary; it might be physical disability, shared beliefs or something else.
According to Miller, the experience of discrimination is what often turns a category of people into a group proper. However, not all groups, even if described as proper groups or collectives, are entitled to special group rights. According to Miller, the distinction between a category and a proper group is not precise, but it is important to make this separation in order to understand the issue. If a category of people is in question, all people belonging to that category may share rights, such as a right to a pension for all the people older than 65 years or a right to get study grants for students. All these rights are enjoyed by a single person. When it comes to group rights, the difference is that the members identify themselves with the group, and if all the members of the group are not enjoying the same rights, it will hurt them all. Groups also tend to preserve themselves; another difference is that a certain right granted to a group may be essential for the group to survive. It is the collective interest that separates group rights from the rights of the categories of people. However, these remarks cannot form a basis for demanding group-specific rights. As Miller puts it, if there is a group-specific disadvantage the members of a group suffer from, they might need some specific rights. The thing is that the specific rights have nothing to do with the group as such; the members of the group would have the same right even if they were just a category of people. If one wants to defend specific group rights, they have to show that the counter-arguments against group rights are mistaken. Group rights are claim-rights against the rest of the world. Like in a case of indigenous groups, the rights can be claims against the state, or in some cases, against the international community. Kymlicka describes these as ‘external protection rights’. These differ from ‘internal restriction rights’, which describe the rights of a group to restrict the behaviour of its members. The latter are hard to justify since they do not fit in with liberal or contemporary republican values, such as the respect for liberty and individual choices. Group rights can, according to Miller, be exercised by individuals who belong to a group as well as by a group as a whole. Miller separates between different levels of justification: justified legal rights are at the lowest level, and human rights are at the highest level. “Human rights are rights to those conditions that are universally necessary for human beings to lead minimally adequate lives”. Human rights belong to everyone, but they are not just individual rights since they cannot be realized without the company of other people. According to Miller, group rights can easily be justified at the level of justified legal rights. Showing that group rights can be human rights is much more difficult. Miller says that there is nevertheless “no conceptual or logical reason to believe that group rights cannot qualify as human rights”.
In the taxonomy of rights, between justified legal rights on the lowest level and human rights on the highest level, there are middle-level rights. At the intermediate level of rights there are “rights that are justified by appeal to the principle of citizenship”. Citizenship rights can vary in different societies, but the common thing is that they are considered as ‘having priority over other political values’. Citizenship rights include for instance a right to vote, a right to public health care and so on. Miller argues that most of the debates about group rights happen at the intermediate level.
If the debates on group rights are mostly on the ‘intermediate level’, can group rights then be human rights? If a right is reducible to an individual right, it cannot be considered as a group right. For instance, Miller argues that the right to not be subjected to genocide is reducible to the right to life. Miller’s account is that thinking of group rights as human rights lacks the aspect of importance of interests, i.e. rights considered under group rights should be basic or fundamental. Otherwise it may be that a less fundamental interest of a bigger group overrides a fundamental interest of a smaller group. Of the possible candidates for group rights, Miller focuses on self-determination. Self-determination is the ‘right of a group to enjoy some form of political autonomy’. It is important because the members identify with the group, and so the right of the group becomes essential also for the well being of the individual members. The right to political autonomy means that the members of the group make the decisions concerning the group, not someone outside the group. As such, a right to self-determination seems to be an instrumental right. According to Miller, ‘in order to function a right needs a specific content’. What poses a problem is to define what a right to self-determination exactly means. It seems that often in cases where a group states that they have a group-specific right, the solution to the
situation varies depending on the situation. That means that it is hard to define specific content for group rights, and therefore most of the alleged group rights are rather expressed in a language of goals or recommendations for policy. Miller’s point is that therefore in most cases arguing that a group right is a human right is not reasonable, since the human rights are reducible to the individual rights. Some representatives of collective rights might disagree with this, but for instance Jones seems to think in similar way Jones 1999.
Can a group right qualify as a citizenship right, which is a right in a particular society?
Concerning citizenship rights, the question is about the equality of all the citizens. Human rights offer the minimum level of rights, but in certain societies the citizenship rights may go beyond these minimum rights. However, there are some limits too. The equality of citizens is the main object of citizenship rights Dworkin 1977, Miller 2002. Sometimes in order to guarantee an equal status to all citizens the society needs to provide differential treatment for some groups within society, like a taxi service for disabled people. Miller argues that equality is the only acceptable ground for differential treatment. The group in question should be able to show that something in the current politics is disadvantaging them compared with the rest of the society. Without the appeal to treatment as an equal, the claims for group-differentiated rights are harder to justify. In order to realise the rights, those outside that group should accept the claim of the group as a valid claim. The other peculiar thing about group rights is that they are not easily specified. Is something really essential for the preservation of a group, or is it a matter of choice in a way that a certain cultural habit could be interpreted differently? Miller’s account is that all the group rights should be connected with equal citizenship. There might be all kinds of political claims that should be discussed and debated within the society. Nevertheless, acknowledging that these claims should be discussed does not make them justified rights.
The questions concerning the rights of groups do not concern merely claiming for rights. Jeremy Waldron argues that it is important to notice that groups, such as indigenous communities, that claim for special rights have responsibilities towards the larger society they reside in. It is not acceptable to just accept the benefits without participating in the institutions and structures of the wider society, which make possible the life choices of the different groups. The liberal account of group rights therefore presumes that the group seeking special treatment should to some extent integrate into the lifestyle of the society they live in, at least to the extent that they are able to voice their demands in a language that is understandable to the majority as well. The critics have argued that this demand is too restrictive. The promoters of liberal freedom and the ones arguing for the protection of group rights have different conceptions of what it is to be a human, and it seems difficult to reconcile these very different worldviews.
3.4. The Liberal Answer to the Question of Incorporating Minority Rights
For various minorities, and especially for indigenous peoples, the discourses of citizenship and political rights have had a different meaning. As James Tully states: “the practical problem is the relation between the establishment and development of western societies and the pre-existence and continuing resistance of indigenous societies on the same territory”. In liberal political theory, the emphasis has been on individual rights; it is thought that as long as everyone has formally the same opportunities, social justice will prevail. The liberal notion of citizenship has been criticised for not taking into account the existing inequalities; the principle of formal equality is not enough to ensure social justice. As Kymlicka puts it: “the protection of a minority culture is often treated as an exception, an issue which rises prior to, or outside the bounds of, liberal theory”. For indigenous peoples emphasising individualism has meant that their concepts of society, justice and membership have been ignored by majority culture, which sees its language as universally applicable.
Most liberal thinkers oppose the granting of ‘special rights’ to one group. Brian Barry states that it is not necessary; liberal society allows certain acceptable amount of diversity, which is constricted by the just institutions of liberal society. It is worth noticing that discrimination or disadvantage is often not merely legal in character, and not solved by merely enacting new laws or redefining theories. In many cases where discriminating laws have been abandoned, the prejudices and the racist attitudes held by the majority of citizens continue to ensure the maintenance of discriminatory practices in everyday life. It is not enough to have equality in principle, if the institutions and people behind them are not paying attention to the problem of inequality. The incorporation of minority rights into law is effective only when it goes together with the recognition and acknowledgement of the status of a minority culture. What are considered fundamental rights in liberal theory, such as a right to be treated as equals, are abstract. In everyday life, the abstract rights need to be put into practice. From the point of view of liberal theory, if a minority cannot show that their claim relates to the realisation of their fundamental rights, then the question seems to be not about rights but a different kind of political debate. Therefore rights and claim-rights should be separated from each other. If a group is said to have a right, it means that it would be wrong for the society / government not to ensure them
the conditions in which the right would be realised: it might violate their right to be treated as equals. If a claim for special treatment does not constitute a right as such, then it can be called a claim-right. Claim-rights are used as a tool in political discussion, and sometimes it is hard to separate between a right proper and a claim-right. It may be fair of the society to acknowledge the claim-right of a minority group, but if it does not, that does not automatically constitute a violation of rights Miller 2002. This argument has, however, a peculiar aspect to it:
The assumption is that the minority can voice their concerns in the language of the majority in order to be heard. There have been heated debates on the issue of cultural differences and whether the identities of individuals should be supported by public support for the different cultures. The cultural pluralists argue that equal treatment is not enough, and that different identities should be equally recognised regardless of whether or not they are based on sexual orientation, culture, ethnicity or religion. Some liberals, like Will Kymlicka, accept this and argue that liberal democratic states should guarantee some special rights for minority groups, as long as these are compatible with the liberal ideal of individual freedom, i.e. special rights may not violate the individual rights of anyone Kymlicka 1995. Nevertheless, there are problems with this approach. For example, it would be impossible to embrace all the different cultures simultaneously; some cultures embrace values that are a serious challenge to the values of others. Nevertheless, the question of recognition is important, since it has an effect on how people belonging to different groups can take part in political decision-making. It is good to notice also that the struggles over recognition affect not just the minority in question. As Tully puts it:
“Rather, a struggle for recognition of a ‘minority’ always calls into question and if successful modifies, often in complex ways, the existing forms of reciprocal recognition of the other members of the larger system of government of which the minority is a member.” The struggles over recognition are not centred on polarities, such as minority versus majority or minority versus the state. Instead, in addition to the struggling party, there are almost always a greater number of parties that are affected. Therefore the issue of minority rights should not be seen merely as ‘their business’, since the demands for recognition or special treatment, if successful, often have an effect on the whole society, changing the power relations and the ways of behavior Tully 2004.
Certain groups within society are more privileged than others. By leaving the power relations untouched the idea of formal equality can be considered as maintaining the division between privileged and dispossessed groups. Because liberal theory is based on the protection of the individual, liberal theorists have been suspicious about or even hostile towards an idea of minority rights. These kinds of demands have been seen as dangerous; they are seen as the matters of privilege and not of equality. Kymlicka argues that the liberal notion of citizenship can also incorporate minority rights, and that indigenous rights “will only be secure when they are viewed, not as competing with liberalism, but an essential component of liberal political practice”. He wants to show that the status of cultural membership is already implicit in liberal theory, and because members of cultural minorities often face “particular kind of difficulties with respect to the good of cultural membership”, in order to solve these difficulties, the recognition of minority rights is needed.
On the other hand, there is a danger that the recognition of the group rights of a certain group by the government may create injustices towards some members of the group or other minority groups. According to critics, these adjustments of liberal theory, despite offering some benefits, have created further problems: the failure to protect minorities within minorities, freezing the minority culture “in a specific configuration of recognition”, favouring some minorities over other, etc. For instance, the powerful majority within the group might want to define the identity of the group without taking into account that not all the members of the group conceive their identity in a similar way. Or it may happen that only the most powerful and loud minorities get recognition for their culture and practices, while the less powerful ones are left without attention. These are legitimate worries, but it does not change the fact that some kind of policy of recognition is needed in contemporary multicultural societies. According to Kymlicka, in order to avoid the dangers related to recognising minority rights, a liberal theory of minority rights should be connected with human rights and “limited by principles of individual liberty”. The problem with the suggestions is that they tend to be handed down to the members from theorists or politicians, and therefore imposed on them rather than having been born in the communities and owned by them.
The interpretation of the liberal political theory does not seem to be able to fully incorporate the demands for recognition of special groups, such as indigenous minorities, sexual minorities or minority cultures. Nevertheless, a demand that all cultures should be equally recognised does not solve the problem. Cultures are not never-changing wholes, and neither are individual identities fixed or “determined by a single culture; people negotiate their ways between sub-cultures, more encompassing cultures, and across cultures”. One should be cautious with the issue of fixed cultural identities. It might be the case that already privileged individuals within a certain group are actually defining the needs and identity of the group, while weaker members do not have any say on the issues.
As long as the situation remains the same, there are people who do not have the same rights as citizens despite the fact that they have the legal status as citizens. To solve this pactice, an account of incorporating group rights into political theory and practice is needed. Another whole problem is that there are also people who are totally excluded from the status of citizenship, and therefore do not seem to have any rights – or very limited rights indeed.
Next I will concentrate on what republicanism has to say about the issue of group rights.
3.5. The Republican Tradition and the Incorporation of Group Rights
How well does contemporary republican political theory take into account the existence, the oppression and the demands of the minority groups? As noticed earlier, there are inherent problems in the concept of group rights. Defining a group is not easy, since most groups are not clear-cut. Do the group members themselves define who they are, or is it done by outsiders? Some cultural groups might embrace values that are in contradiction to the values of the rest of the society. Some groups would prefer to control the behaviour of their members in a way that would not be accepted by the wider society. There is also a question of who actually has the power to decide within the group. Does the group have a rigid hierarchical structure that silences some of the weaker members?
In the republican tradition of thought, the membership in a body politic is crucial. Without the political community there can be no freedom in a sense that republican tradition defines it. Since political participation is the means to achieving freedom and equality, there needs to be a polity that makes participation possible. What kind of model of society is supported by the republican theory? What is the relation between the republican model for society and the existence of nation-states? What does it mean for the viewpoints of minorities and different groups? Can the republican tradition incorporate group rights into its political theory and what kinds of problems exist? There are some features in the republican thought that may cause problems for the incorporation of minority rights. That depends on how strong the republican view is that is adopted. Does contemporary republicanism see political participation as a duty of every citizen? If not, will it differ much from liberalism? If yes, is it then a communitarian theory, is it based on duties such as Kant’s categorical imperatives or rights such as liberalism? Most contemporary republicans argue that their interpretation of the republican tradition does not require that the already existing values and preferences of a community should be taken for granted Honohan 2002. They argue that nothing in the republican theory requires that the existing hegemonic values should be normalised: republicanism does not presume prepolitical cultural values that would form the basis for the republic. Cultures and identities are not fixed entities, and values and cultural practices can be contested. Instead, contemporary republicanism presupposes recognition not just on the legal level, but also on the deeper level where the identities and actions of citizens are validated and accepted by others in the political realm. In order to achieve a just society, republicans argue that mere legal equality is not sufficient. The identities of citizens also need to be confirmed at the social or political level. Nevertheless, it has to be remembered that the political identity as a citizen is neither the only nor the primary feature of identity.
How does the contemporary republicanism handle the issue of group rights? The solutions seem very different depending on which features of republicanism are supported. David Miller argues that giving the disadvantaged groups formal recognition in political arenas and adopting group specific policies constitutes a threat to the republican society by eroding the commitment to the common, national identity. According to him recognition politics might actually be counterproductive from the viewpoint of minorities as well Miller 2000. If the position of republicanism that requires a strong community is adopted, does a republican state then necessarily become a community that easily excludes a part of the people, such as those who are not citizens but still live in the community, or different group such as sexual minorities? Honohan argues that even though the republican community presumes that there are special obligations between citizens, the community does not have to be defined in relation to the external enemy or the existence of an out-group 2002, p.285. Instead, the community is defined by the interdependence of its members and their consciousness of their shared fate. In contrast to Miller’s account, Pettit offers a different, albeit somewhat vaguely stated view in his article “Minority Claims under Two Conceptions of Democracy” 2000.
Pettit separates between two conceptions of democracy: a thin conception meaning the “popular electoral control of government” and a richer conception that he calls the “electoral-cum-contestatory control”. Although it is not very clearly stated in the article, Pettit seems to associate the first one with liberal democracy and criticises it for not being extensive enough. Instead, he states that minority rights go better with the rich conception of democracy that combines the electoral system with the possibility of contesting the decisions made. The rich conception refers to Pettit’s neorepublicanism that combines the concept of freedom as non-domination and the idea that the actions of government “should be guided by all and only the common perceived interests of people”. Pettit argues that the question of minority rights does not simply fit in with the idea of democratic society, but instead:
“special minority rights are inherently countermajoritarian in character”. Therefore the justification of the special minority rights is problematic in the first model of democracy. Special minority rights also differ from the other, regular countermajoritarian rights, such as the right of free speech, since they are addressed only for the members of a minority group, not for all members of the society. Regular countermajoritarian rights are easier to justify, since they seem to be essential for the functioning of the democracy: it is hard to see how an electoral democracy could function if the freedom of speech would be overridden by electoral will. According to Pettit, these constraints set the boundaries for the electoral democracy, and therefore are essential for it.
Pettit argues that special minority rights are, however, incompatible with the electoral democracy, though they “might have a powerful moral appeal”. The electoral model requires first free periodic elections, second full and equal electoral standing for all, and third a collective sovereignty of the people. According to Pettit, the claims for special rights are incompatible, because they seem to conflict with the principle of equal treatment of all citizens, as well as the sovereignty of the people. Special minority rights look like “democratically unmotivated constraints on majority will”.
Instead, Pettit argues that his model of two-dimensional democracy or “electoral-cum-contestatory” model can better accommodate group rights. Under the two-dimensional model, there is “no difficulty in seeing special minority claims as a natural part of the broad democratic package”. Pettit argues that special minority rights are actually essential for the electoral-cum-contestatory model of democracy. According to him, there must be certain common interests shared by both the majority and the minority or minorities, such as interests in defence, economic prosperity, law and order and so on. It is nevertheless not a given that despite having the same common interests, the interests of all groups would be satisfied in the same way. In order to make sure that every member of society will be treated as equals, minority claims should be recognised. Not all minorities are similar: there can be various different minorities even within the same state, and there may be great variations in their status and position in the society. In some cases, the minority culture is respected and valued in a society, but there are also numerous cases where the minority culture is suppressed by the rest of the society. Pettit argues that by adding one principle to the criticised electoral model: the equal contestatory standing, the problem of incorporating minority claims is solved, and despite the fact that special minority rights are counter majoritarian in principle, they are not antidemocratic.
Interestingly, Pettit speaks most of the time about “special minority rights”, but when he comes to the conclusion, he actually speaks about “minority claims”. What kinds of rights are in question here? Does Pettit consider some of the minority rights not as rights in a strong sense, but rather claim-rights, i.e. expressed in the language of rights to make the claims stronger, or does he think that the claimed right is reducible to a more fundamental right, such as the right of being treated as an equal? He does not expand on this issue more. Pettit does not talk much about how group rights could be connected with his republican project; however, non-domination is, according to him, only enjoyed within society, in connection with other people. Non-domination cannot be achieved in isolation. According to Pettit, non-domination means the “absence of domination in the presence of other people”. Pettit argues that though an individual is always the subject of domination, domination is still group-based in character; it often tends to occur on the basis of being a member of a group. Besides Pettit, republicans haven’t paid much attention to the issue of group rights. There are mentions of minorities and specific vulnerable groups of people within societies and how a society should be treating everyone as equals, but few go deeper or present a theory of minority rights; mostly the issues handled are different conceptions of freedom or common interest. Nevertheless, if the analysis stays at a very sketchy level, then republicanism does not have anything very interesting to say about the issue of group rights, at least not yet.
Republicans have, however, opposed the widening differences between income levels. That offers another viewpoint on the issue of minorities, since the minority groups are often poorer than the average majority and might live in the rural areas where the income level is lower than among the majority. Distribution of wealth connects with the power relations within society and therefore affects the status and position of minorities too. As Tully states: “…identity-related struggles have effects on the realm of distribution of power and resources below, and, conversely, struggles over distribution are also always struggles for recognition”. In order to achieve equality, republicans argue that material conditions for equality need to be taken into consideration as well. Since freedom is not just the absence of interference, but a status as an equal citizen, in order to work republicanism requires that the material inequalities between citizens remain relatively small. Compared with liberalism, republicanism seems to allow less diversity in income and social rankings within society.
However, this view does not say anything about the political claims of the minority groups and cannot therefore fully answer the question of minority rights. Also, it is difficult to say how exactly this would differ from the account of egalitarian liberalism. It seems that the project of contemporary republicanism is still in its early stages, and there remains many unanswered questions. The issue of minority rights and the form of the republican state are good examples. The existence of different groups within polities sets challenges to the theories of political philosophy. The power relations between different groups and also within them are often intricate and require a certain amount of delicacy. Concerning recognition of groups, on the one hand there are the individual rights that should be protected, and the rights of individuals as members of certain groups on the other. Both aspects capture something interesting in the discourses of the construction of a good society. However, it seems that conversation between these two viewpoints is difficult because the starting points are so different.
Chapter IIICRITICAL ANALYSIS OF CITIZENSHIP ACT
A brief overview of the contemporary Indian political landscape
This report has so far concentrated on the context of citizenship laws in India from the time of formal independence in the middle of the twentieth century till the 1980s. During this entire period, the politics of India was dominated by the Congress party. The Congress was the leading vehicle for the anti-colonial, nationalist movement, and had also been the sheet anchor of the drafting process of the Constitution. In the post-independence phase, Congress governments under Prime Ministers Nehru, Shastri and Indira Gandhi had broadly adopted modernist and secular forms of governance. This changed from the 1970s onwards under Prime Minister Indira Gandhi who began to adopt strategic policies to court constituencies among religious minorities such as Muslims, Sikhs and other groups in particular regions and states. Several commentators expressed alarm at the overt or covert communalization of politics which, they argued, would invite a backlash from Hindu majoritarian groups which had remained marginal in the legislative sphere since Independence. In the 1990s, this came to pass and the Bharatiya Janata Party (BJP) became a significant party representing the interests of the Hindu majority at the national level. From having a mere 2 seats in the 540 member lower House of Parliament in 1984, the BJP became the single largest party in general elections held in 1996, 1998 and 1999, securing more seats than the Congress nationwide. It formed the government at the Centre in 1996, but governed only for 13 days. In 1999, the BJP-led coalition government was more successful and lasted for its full five year term, the first non-Congress government in India to do so. From 2004 to 2014, India was governed by a Congress-led coalition. In general elections held in 2014, the BJP was returned to power at the head of a coalition government. What is striking, however, is that Prime Minister Narendra Modi’s government, although formally a coalition, can govern on its own as the BJP has a majority in the lower house of Parliament. At the time of writing in mid2017, the BJP has been remarkably successful in state elections and is in power in 17 out of the 29 states in India. Since 2014, the BJP and Hindu majoritarian policies have clearly been on the ascendance in Indian politics, a context which frames the policy changes in the sphere of citizenship that we examine in this section.
An overview of recent changes in citizenship law in India
Some broad trends can be noted in successive attempts at amending citizenship laws by BJP governments (which have been in power in 1999-2004 and 2014-present) and in the case-law emanating from the Indian judiciary in recent years:
a hostile attitude towards ‘illegal migrants’ who, it is argued, have swamped states neighbouring Bangladesh including Assam and Arunachal Pradesh since the 1960s and must be reined in through changes to citizenship laws. Paradoxically, the same attitude is not exhibited towards a similar trend in Western India where people from Pakistan have similarly run afoul of citizenship laws while crossing the border from Pakistan. As Jayal carefully documents, the difference may be that of religion. The ‘illegal migrants’ in East India are mostly Muslim while those in West India are largely Hindu.
An increasingly open and sympathetic attitude towards claims of citizenship advanced by Hindus, Buddhists, Jains, Sikhs and Christians, especially when made from the South Asian region, on the ground that being religious minorities, they face persecution in Muslim-majority societies. The same sympathy is not extended to persecuted groups like Ahmaddiyas and Shias or, for that matter, to Tamils from Sri Lanka. There is an actively hostile approach to claims advanced by Muslims generally (Gauba-Singh, 2017).
an active pursuit of policies aimed at the eventual goal of dual citizenship for people of Indian origin (or the Indian diaspora). Though aimed at the overall diaspora, these policies seem aimed at benefiting groups located in particular regions of the world, including North America and the United Kingdom, which are more affluent and better placed to aid political parties and policies of foreign investment.
These trends are reflected in the body of two recent attempts at amending the Citizenship Act of 1955, introduced in 2015 and 2016. The Citizenship Bill of 2016 was introduced in the Lok Sabha (the lower House of Parliament) and is pending before a Parliamentary committee.
The 2016 Bill has been criticised as being discriminatory against Muslims. One would be remiss however, in characterising this issue purely as one of religious bias. As mentioned, this Bill is also silent on the Tamil refugees from Sri Lanka, who are predominantly Hindu and constitute one of the largest refugee groups in India. Tamil refugees have not only been at the receiving end of the government’s indifference but have also been subjected to differential treatment. As per the rules of a new fee regime of citizenship that was implemented in 2016, Hindus from Bangladesh and Pakistan, who were eligible to apply for Indian citizenship have to pay a nominal fee of Rupees 100.58 Hindus from Sri Lanka, i.e. Tamil refugees however, are required to pay Rupees 10, 000.59 Prima facie there seems to be no discernible rationale for this differential treatment.
These are but a couple of illustrations of the government’s attitude towards Tamil refugees. The purpose of these illustrations of legislative and policy measures that exclude or allegedly discriminate against the predominantly Tamil refugee population legally residing in India was to complicate the claim that the shift in citizenship laws in India is shaped by religious and communal considerations alone. The story of the sustained neglect of Tamil refugees indicates religion, while undoubtedly an important factor, is not the only factor at play.
Beyond this, in the broader political landscape, the issue of nationalism has come to the fore in recent years. Right wing groups have charged that various groups of people harbor ‘anti-national’ sentiment. Typically, these charges are levelled at Muslims and other minority groups, but also at members of the Hindu majority who are academics, writers, artists, public intellectuals and anti-superstition activists who do not subscribe to other than citizenship. However, if we view citizenship as being about deeper issues of identity, including about what individual citizens can eat, read, think or do, then these laws do implicate aspects of citizenship. This is equally true about laws which seek to make the ‘Unique Identification Document’ or ‘Aadhaar card’ mandatory for all banking and tax transactions and for being able to use a cellphone. The latter promises to embed in the Indian legal regime, the largest system of State surveillance ever conceived and will undoubtedly have implications for the enjoyment of broader rights and privileges. the views of these right wing idealogues. What is worrying is that very often, these charges of fringe groups have resulted in state-sponsored charges of sedition and other criminal proceedings. Traditional symbols of nationalism, such as the national flag and the national anthem are being elevated in their symbolism by both state and non-state actors, and people who object to this trend are subjected to forms of abuse, from psychological to physical to murder in extreme cases. To understand these trends, one has to adopt a broader perspective. Laws that seek to prohibit cow slaughter and secure the banning of beef may seem, at first blush, to be about issues
Bill to amend citizenship act, 1955
The government is also likely to introduce a Bill in the monsoon session of Parliament to amend the Citizenship Act, 1955
Amendment:Definition of “illegal migrants” to be changed that will enable the government to grant citizenship to minorities
The minorities aimed are at mostly Hindus, from Pakistan, Bangladesh and Afghanistan, who have fled their country fearing religious persecution
The Citizenship (Amendment) Bill, 2016 was introduced in the Lok Sabha in July this year. The Bill has been referred to a Joint Parliamentary Committee of both the Houses, under the chairmanship of Dr Satyapal Singh for examination and presenting a report to the Parliament.
The Bill amends the Citizenship Act, 1955 to make illegal migrants who are Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan, eligible for citizenship.
Under the previous Act, one of the requirements for citizenship by naturalisation is that the applicant must have resided in India during the last 12 months, and for 11 of the previous 14 years. The Bill relaxes this 11 year requirement to six years for persons belonging to the same six religions and three countries.
The Bill provides that the registration of Overseas Citizen of India (OCI) cardholders may be cancelled if they violate any law.
Who is an illegal migrant?
The 1955 Act defines an illegal migrant as a foreigner who enters India without a valid passport or travel documents or stays beyond the permitted time.
How does the law treat them?
Illegal migrants may be imprisoned or deported. They and their children are ineligible for Indian citizenship under the Citizenship Act of 1955.
However, certain benefits have been granted to some groups of illegal migrants. In September 2015 and July 2016, the central government exempted certain groups of illegal migrants from being imprisoned or deported. These are illegal migrants who came into India from Afghanistan, Bangladesh or Pakistan on or before December 31, 2014, and belong to the Hindu, Sikh, Buddhist, Jain, Parsi or Christian religious communities. Illegal migrants from this group cannot be imprisoned or deported for not having valid travel documents.
Why is it being opposed?
According to the Assam Accord of 1985, illegal migrants who had entered Assam from Bangladesh after March 25, 1971, were to be detected and deported. But, the new Bill contradicts the terms of the Accord.
Besides, the Bill seeks to grant citizenship to non-Muslim minorities from Muslim majority countries, namely, Hindus, Sikhs, Buddhists, Jains, Parsis and Christians from Afghanistan, Bangladesh and Pakistan. Some term this move as “communally motivated humanitarianism.”
Also, the Bill seeks to protect only non-Muslim minorities while Muslims who migrated would continue to be harassed as illegal migrants.
The new Bill also violates Article 14 of the constitution, say activists. Since Article 14 of the Constitution guarantees equality to all persons, citizens and foreigners, differentiating between people on the grounds of religion would be in violation of the constitution.
Legal fallacies of the proposed law:
The proposed law violates India’s long-standing refugee policy. Although India does not have a codified refugee policy, the basic tenants of the scheme were listed by Jawaharlal Nehru during the Tibetan refugee crisis. One of the primary conditions given then was that refugees would have to return to their homeland once normalcy prevailed. The proposed law not only provides citizenship rights to such refugees, but greatly relaxes the procedure to avail of them.
From reducing the registration fees to Rs 100 from Rs 3000 to delegating the authority from the Union government to district magistrate for speedy processing of applications, the proposed law serves citizenship to illegal immigrants on a platter.
The Bill provides wide discretion to the government to cancel OCI registrations for both major offences like murder, as well as minor offences like parking in a no-parking zone or jumping a red light.
The Citizenship (Amendment) Bill also fails on the tenets of international refugee law. Although India is not a signatory to the 1951 UN Refugee Convention, granting refuge based on humanitarian considerations is arguably a norm of customary international law. There are two fallacies with the proposed law in this regard:
First, the Bill terms minority religious people as migrants, when they are not migrants but refugees. The word migration refers to the voluntary movement of people, primarily for better economic prospects. In contrast, refuge is an involuntary act of forced movement. The concerns of refugees are human rights and safety, not economic advantage. The purpose and intention of the Bill, as stated by the home minister, is to provide shelter to vulnerable, religiously persecuted people whose fundamental human rights are at risk. The correct terminology is important because the laws and policies for migrants and refugees are entirely different.
Second, shelter to individuals of a select religion defeats not only the intention but also the rationality of refugee policy. If the motive of the government is to protect Persecuted people in the neighbourhood, the question of why they are ignoring the Muslim community is inevitable.
Notwithstanding the tampering of domestic law with religious markers, the proposed Bill, if passed, will put our international relations in jeopardy. The Bill will stamp these countries as institutions of religious oppression and worsen bilateral ties in an already skewed regional socio-political atmosphere. The new law will also act as a push to the movement of India’s citizenship policy on jus soli to the racially manifested jus sanguine principle, something which was actively avoided by our constitution makers.
Special rights enjoyed by citizens
Fundamental Rights provided in Indian constitution are available to citizens of India only; some of the fundamental rights which are not enjoyed by a non-citizen of India are:
Right to be discriminated on the basis of religion, race, sex, cast or birth of place
Equal opportunities in public employment
Right of six democratic freedoms (Article 19) + Cultural & educational rights
Only citizens of India have the right:
To hold civil office
Right to vote
Right to be judges of courts
Again, citizens alone have the right to hold certain high offices such as those of the President, Vice-President, Governor of a State, Judge of Supreme Court and High Courts, Attorney General, etc. the right to vote to elect a member of the Lok Sabha and a Vidhan Sabha and the right to become a Member of the Parliament and a State Legislature are reserved for citizens only.
3.1 Legislations in this regard
The legislation related to this matter is the Citizenship Act 1955, which has been amended by the Citizenship (Amendment) Act 1986, the Citizenship (Amendment) Act 1992, the Citizenship (Amendment) Act 2003, and the Citizenship (Amendment) Act, 2005.
Acquisition of Indian Citizenship as per Citizenship Act 1955: Indian Citizenship can be acquired under the following ways:
Citizenship at the commencement of the constitution of India
Citizenship by birth
Citizenship by descent
Citizenship by registration
Citizenship by naturalization.
Termination of Indian Citizenship as per Citizenship Act 1955: One can lose citizenship of India in 3 ways – Renunciation, Termination and Deprivation
There are 3 situations under which a citizen of India may lose his Indian Nationality.
By Renunciation: If any citizen of India who is also a national of another country nounces his Indian citizenship through a declaration in the prescribed manner, he ceases to be an Indian citizen of registration of such declaration.
By Termination: Any person who acquired Indian citizenship by naturalisation, registration or otherwise,, of he or she voluntarily acquired the citizenship of another country he shall have ceased to be a citizen of India from the date of such acquisition.
By Deprivation: The Central Government is empowered to deprive a citizen of his citizenship by possible grounds of a citizenship certificate by means of fraud, false representation, concealment of any material fact; disloyalty of disaffection towards the Constitution shown by act or speech; assisting an enemy with whom India is at war.
Merger of OCI and PIO and how it will help
The government has decided to merge the two cards of PIO and OCI and go ahead in this direction.
Merging PIO and OCI will lead to simplification of the rules under a single umbrella.
It was envisaged that merger of the card would facilitate visa-free travel to India, rights of residency and participation in business and educational activities in the country.
This is aimed at simplifying the visa-free entry for people of Indian origin into India.
The merger of the two cards could make PIO cardholders eligible for benefits already enjoyed by OCI cardholders.
Merging of the two cards will facilitate travel of Indians staying abroad and their participation in various activities in India.
Other changes to citizenship provisions
The Union Cabinet has approved proposals for extending several benefits to ‘persecuted’ minorities from Pakistan, Afghanistan and Bangladesh living in India on long-term visas.Many members of the Hindu, Sikh, Buddhist, Jain, Parsi and Christian communities have come to India fearing persecution in their home countries.
The beneficiaries can buy property for self-occupation or use in self-employment.
They are allowed free movement within the State of their stay, and can get their long-term visa papers transferred from one State to another.
The government has permitted them to apply for long-term visas from the place of their current residence, even if they have moved to the present place without seeking permission.
The government has waived the penalty on late application for extension of their short- or long-term visas. The registration fees for citizenship will be reduced to Rs. 100 from Rs. 3,000-15,000.
Soon, the Citizenship Rules, 2009, will be amended to help such persons get citizenship.
Legislation to give citizenship to minorities
In other legislation People belonging to minority communities of Pakistan, staying in India on a Long Term Visa, will soon be able to get citizenship.
The Centre will set up a 4-day camp here to grant Indian citizenship to those who migrated to India from Pakistan between 1971 and 2009. The application process is divided into three categories to bucket them according to their year of migration.
State of Gujarat v Yakub Ibrahim
The appeal, was by special leave, against the acquittal of the appellant, from a charge framed on 21-9-1967 as follows :On 31st day of March 1967 at about 9:30 p.m. were found in State Transport Corporation Workshop at Naroda in Ahmedabad, and you are a foreigner and you had come from Pakistan and you had been permitted to stay in Indiatill 20th September, 1958, by Assistant Secretary to the Government of Bombay and did not depart from India before expiring of that permit issued to you by No. 19904 dated 6-12-1967 before the date 20th September 1958 and remained in India and thereby you contravened the provisions of Clause 7(iii) of Foreigners Order 1948 and thereby committed an offence punishable under Section 14 of Foreigners Act 1946 and within my cognizance.
2. The above mentioned charge was supported by the statement of Mahmadmiya, P.W. 2, Sub Inspector, Special Emergency Branch, Ahmedabad, showing that the appellant was working in Baroda Central State Transport Workshop when he was arrested as a consequence of the information that he was a Pakistani national who had come to India in 1955 on a Pakistani passport. The accused had produced his Pakistani passport (Ex. 11) dated 8th September, 1955. The prosecution had also relied upon an application for a visa made by the accused to the High Commissioner for India in Pakistan on 10th October, 1955, in which he had, inter alia, stated that he had migrated from India to Pakistan in 1950. Undoubtedly, the prosecution was handicapped in producing evidence to show when and how and with what intention the appellant had gone to Pakistan. It could only show how and when and on what passport he returned to this country.
3. The accused-respondent had produced credible evidence to prove : that, he was born at Dhandhuka in the State of Gujarat on 15th May, 1936; that, he was living at Dhandhuka and attended school there until 1952 when he moved to Ahmedabad with his father; and, that he had gone to Pakistan in a state of anger while he was a minor, after a quarrel with his father who had driven him out of his house. The respondent denied that he had the intention of settling down in Pakistan. He asserted that within six months of his arrival in Pakistan he regretted having left India and tried to come back to his home. He alleged that, as he was unable to come home without a Pakistani passport, he had to apply for and get one. The respondent asserted that he was an Indian citizen when the Constitution came into force on 26th January, 1950, and that he had continued to be an Indian citizen thereafter as he had never migrated to Pakistan. His explanations about the passport and the visa application implied that he had obtained the passport by making false declarations and that the statement in the visa application, that he had migrated to Pakistan in 1950, was one of those untrue declarations which had been made only to obtain a passport. Probably he had to show under the law in Pakistan that he had settled down in Pakistan and become a Pakistani national before obtaining a Pakistani passport.
4. The judicial Magistrate had acquitted the respondent after examining the cases set up by the two sides and holding that the respondent had proved that he was an Indian citizen who had never, in fact, migrated to Pakistan. In an appeal against the acquittal the High Court of Gujarat had upheld the acquittal and confirmed the finding that the appellant was an Indian citizen when the Constitution came into force on 26th January, 1950. It had also held that the appellant was a minor when he visited Pakistan. It had found it unnecessary to record a finding on the question whether the appellant’s visit to Pakistan could be held to be one made under compulsion or for a specific purpose so as to come within the class of those exceptional cases mentioned in Kulathil Mammu v. The State of Kerala : 1966CriLJ1217 in which a ‘migration’ would not take place even if the wider test of the term migration were adopted. That wider test would apply to those who had gone to Pakistan in the period between 1st March, 1947, and the commencement of the Constitution. It has to be remembered that Article 7 of the Constitution was held, in Kulathil Mammu’s case (supra), to contain an exception to the operation of Article 5 of the Constitution for conferring citizenship of India on persons who at the commencement of the Constitution, had Satisfied the test of Indian domicile.
5. The general principle laid down by Article 5 was that citizenship followed domicile at the commencement of the Constitution. But the ‘migration’ as contemplated by Article 7 was held, in Kulathil Mammu’s case (supra), to have a wider meaning than change of domicile. Hence, the view of this Court in Smt. Shanno Devi v. Mangal Sain : 19611SCR576 was overruled. It has, however, to be remembered that in Kulahil Mammu’s case (supra), where the alleged migrant, who was also a minor at the time of the alleged migration, had gone to Karachi an 1948 which was before the commencement of the Constitution. In the case before us the finding of the Trial Court as well as the High Court, on the evidence before them was that the appellant had, as he asserted, gone to Pakistan in 1953-54 which was after the commencement of the Constitution. Hence, the case of the respondent could not fall within the classes to which Article 7 was especially intended to apply. Article 7 had necessarily to be read with Articles 5 and 6 of the Constitution and not in isolation.
6. The High Court had come to the conclusion that as the only case set up by the prosecution was that the respondent had migrated before the 26th January, 1950, it need not consider and decide the question whether he had gone to Pakistan after 26th January, 1950, and thus had voluntarily acquired Pakistani nationality and lost Indian citizenship. If, as it rightly held, it had been proved that the respondent went to Pakistan after 26th January, 1950, Article 5 of the Constitution would still operate in his favour. The High Court rightly pointed out that, as the respondent was an Indian citizen on the date of the commencement of the Constitution, entitled to the benefit of Article 5 of the Constitution, the further question whether he had lost Indian citizenship after that date or not, could only be decided by the Central Government as laid down in Section 9 of the Indian Citizenship Act. It acquitted the respondent because it thought that the prosecution had not proved the only case set up by it. We have, therefore to examine the charge framed against the respondent so as to determine whether the view of the High Court that the only question which need be considered by it was whether the respondent was an Indian citizen on 26th January, 1950, was correct.
7. The charge set out above, that the prosecution case was not confined to the determination of the citizenshipof the respondent at the time of the commencement of the Constitution. We also find that the respondent had himself raised the question whether, on the facts set up by him, the prosecution could proceed at all in view of Section 9 of the Citizenship Act. The Trial Court had observed :The lawyer of the accused argued that under Section 9 of the Citizenship Act 1955 the question whether any citizen of Indiahad any time between the 26th day of January, 1950 and the commencement of the Citizenship Act 1955 acquired the citizenship of another country was to be determined by the Central Government. A court should not decide whether an Indian citizen had acquired the citizenship of another country. The police prosecutor argued that as the accused had gone to Pakistan and he obtained Pakistani Passport the accused must be held to be national of Pakistan and so a citizen of Pakistan and so is foreigner in India and so the accused must be convicted of the offence under Section 14 of the Foreigners’ Act read with Clause 7(3), Rule (iii) of Foreigners’ Order 1948. The Court had jurisdiction to decide whether the accused is a foreigner. If the accused wanted to get it decided that he is yet citizen of India, the accused should apply to the Central Government and get decision under Section 9(2) of the Citizenship Act 1955. The Clause (3) of Schedule III of the Citizenship Rules 1956 provides that the fact that a citizen of India has obtained on any date a passport from the Government of any other country shall be conclusive proof of his having voluntarily acquired the citizenship of the country before that date As this accused has come from Pakistan to India, the Police Prosecutor argued, the accused should be convicted of the offence under Section 14 of Foreigners’ Act read with Clause 7(3)(iii) of Foreigner’s Order.
The grounds of appeal against the acquittal of the respondent, the appellant’s application for certificate of fitness for appeal to this Court under Article 134 of the Constitution, and from the special leave petition under Article 136 of the Constitution in this Court, that the prosecution had been inviting a decision on the question whether an order of acquittal could be passed without deciding a question which fell within the purview of Section 9 of the Indian CitizenshipAct.
8. It was not proper for the prosecuting authorities to have proceeded with the case against the respondent, when, upon the facts set up by the respondent, it became clear that the respondent could not be prosecuted or convicted without a determination under Section 9 of the Citizenship Act, 1955, that he had voluntarily acquired the citizenship of Pakistan between 26th January, 1950, and the commencement of the Citizenship Act on 30th December, 1955. This Court has repeatedly laid down that if such a question arises in the course of a trial, it must be left for decision by the appropriate authorities. It may be that the rules framed by the Central Government under Section 30, Sub-section (2) of the CitizenshipRules, under Section 18 of the Citizenship Act, had provided that the passport shall be conclusive proof that its holder has acquired the citizenship of the country whose passport he holds. We, however, do not know whether the Central Government has modified such a rule. When the validity of that rule came up for consideration before a Bench of seven judges of this Court, an assurance was given on behalf of the Central Government that a suitable modification of the relevant rule would be made. However, that question is not under consideration before us now. All we need consider here is whether the acquittal of the respondent was, in the circumstances disclosed above, justified.
9. In view of Section 9(2) of the Citizenship Act, which has been subject-matter of several decisions of this Court (See : State of Andhra Pradesh v. Abdul Khader; Abdul Sattar v. State of Gujarat; and Akbar Khan v. Union of India, the question whether a person voluntarily acquired the citizenship of Pakistan during the specified period, could only be determined by the Central Government. In Akbar Khan’s case (Supra) it was observed by this Court
If it was found that the appellants had been on January 26, 1950, Indian citizens, then only the question whether they had renounced that citizenship and acquired a foreign citizenship would arise. That question the Courts cannot decide. The proper thing for the court would then have been to stay the suit till the Central Government decided the question whether the appellants had renounced their Indian citizenship and acquired a foreign citizenship and then dispose of the rest of the suit in such manner as the decision of the Central Government may justify.
10. On principle it does not matter whether the question which can only be determined by the Central Government under Section 9 of the Citizenship Act arises in a civil suit or in a criminal prosecution. If the real question which arises for determination is whether a person, who was an Indian citizen when the Constitution came into force, had acquired the citizenship of another country or not during the specified period, the proper thing to do for a Court where the question arises is to refuse to adjudicate on that question. In the case before us it appears that the issue was raised but not decided either in the Trial Court or in the High Court. Indeed, the judgment of the High Court shows that probably for this very reason the prosecution had tried to obtain the conviction of the respondent on the ground that he had acquired Pakistani citizenship before the commencement of the Constitution. That question had been rightly decided against the appellant. On that short ground the acquittal of the appellant could have been upheld if the prosecution case was confined to that question. But, after having examined the charge framed, the cases set up by the two sides, the contentions advanced in the Trial Court, the grounds of appeal to the High Court, and those given in the special leave petition in this Court, we think that a question of Jurisdiction of the criminal courts to record either a conviction or acquittal in the case of the respondent had properly arisen. Indeed, the real and decisive question to be considered and decided was not whether the respondent possessed Indian nationality and citizenship on 26th January, 1950, but whether he had lost that nationality at the time when he entered this country on a Pakistani passport. The respondent has been charged for overstaying contrary to the terms of the permit issued on 6th December, 1957, by which he was allowed to stay until 20th December, 1958. Therefore, it was clear that the decisive question which the Courts should have considered was whether, at the time when permission was given, and when the alleged overstay, contrary to the provisions of Clause 7(iii) of the Foreigners’ Order, 1958, took place, the respondent was a foreigner. Without a decision of an appropriate authority on that question neither an acquittal nor a conviction could be recorded. As no finding can be given by criminal or civil Courts, in a case in which an issue triable exclusively by the Central Government has properly arisen, the question of burden of proof, dealt with in Section 9 of the Foreigners’ Act, 1946, is immaterial.
11. However, in view of the erroneous procedure adopted on behalf of the State in pressing for a conviction when it was clear that the charge could not succeed at all without obtaining a decision from the appropriate authority, we think that the correct order to pass in this case is not just to stay further proceedings after quashing the acquittal so as to await the decision of the appropriate authority but to quash the charge itself so that the accused may be discharged. This would leave the State free to prosecute the respondent if and when a decision is obtained against him from the appropriate authority in accordance with the law. That authority will no doubt consider all the relevant facts, including the total period of the respondent’s stay in this country as compared with the short period of his stay in Pakistan and the circumstances in which the respondent alleges having obtained a Pakistani passport and made a false statement in the visa application relied upon by the prosecution.
12. The result is that we allow this appeal and set aside the acquittal of the respondent. We also quash the charge framed against the respondent and order that he be discharged.
DP JOSHI VS STATE OF MADHYA PRADESH
There was a medical college in Indore known as the Mahatma Gandhi Memorial Medical College, it was under the control of a private enterprise but later on it was taken over by the Government of State of Madhya Bharat. When the Medical College was taken over by the State Government, it brought a rule under which all students who were having domicile of the State of Madhya Bharat i.e. were “Bonafide Residents of Madhya Bharat”, were exempted from “capitation fees” and all other students who were not having domicile of Madhya Bharat were charged capitation fees which was Rs. 1300 for nominees and Rs. 1500 for others. For the purpose of rule a person was termed as a “Bonafide Resident” if (a) a citizen of India whose original domicile is in Madhya Bharat, provided he has not acquired a domicile elsewhere, or (b) a citizen of India, whose original domicile is not in Madhya Bharat but who has acquired a domicile in Madhya Bharat and has resided there for not less than 5 years at the date, on which he applies for admission, or (c)a person who migrated from Pakistan before September 30, 1948 intends to reside in Madhya Bharat permanently, or (d) a person or class of persons or citizens of an area or territory adjacent to Madhya-Bharat or to India in respect of whom or which a Declaration of Eligibility has been made by the Madhya Bharat Government”. The writ was filed, before the Honourable Supreme court of India under Article 32 of the Constitution of India, against the above mentioned rule of the Madhya Bharat Government claiming that the rule was violative of the right to equality enshrined under the Constitution of India.
Question of law?
The question to be determined by the court was whether the above mentioned rule violated and infringed the Fundamental Rights guaranteed by Articles 14 and 15(1) of the Constitution of India.
JudgementThe court consisted of five judges in which Justice(s) Mukherjee, C.J, Bose, Ayyar and Sinha gave assenting judgement and Justice Jagannadhas gave a dissenting Judgement.
It was held by the Court in majority that the above mentioned rule was not violative of the Fundamental rights enshrined under article 15(1). The court held by majority that “Place of Birth” and “Place of Residence” are two different and distinct things both in facts and law and the imposition of capitation fees was based on “Place of Residence” rather than “Place of birth” and article 15(1) deals with discrimination based on “Place of birth” and it can’t be read as “Place of residence”. The court further held that the rule was also not violative of Article 14 because the classification was just and reasonable because it was based on a ground which was a primary duty of state i.e. to encourage education within its geographical boundaries. But a dissenting judgement was given by Justice Jagannadhas, who held that though “place of birth” and “place of domicile” were two different things but there is no such place for regional domicile in Indian law and under the given circumstances the phrase original domicile in Madhya Bharat is meant to convey the “Place of Birth” and thus this rule primarily offends Article 15(1) of the Constitution and such distinction can also be not termed reasonable under article 14 of the constitution. Thus by majority the writ was dismissed and it was held by majority that the rule of the Madhya Bharat government was not in contravention with the constitutional norms.
Akbar Khan Vs Union of India AIR 1962 SC 70
This is a case in which a civil suit was filed by the appellant in District Court of Jhabua, Madhya Pradesh for a declaration that he was a citizen of India. In the pleading it was mentioned that he was citizen of India at the commencement of the Constitution. He went to Pakistan for temporary visit. He was forced to take Pakistan Passport against his will to enter into India. Given the background of the case, defense was taken of the provision of Section 9(2) of the Citizenship Act, 1955 alleging that civil court’s jurisdiction is barred. The trial court as well as the MP High Court dismissed the suit as barred. In SLP, the Be the first of your friends to like this by Category Business Law Civil Law Constitutional Law Criminal Law Family Law Labour & Service Law Legal Documents Intellectual Property Rights Property Law Taxation Students Others Supreme Court has made the interpretation of the section in its proper context. As any provision affecting jurisdiction of court has to be strictly construed, the proper interpretation is that only the matters which is subject to determination by the Central Government, civil court has no jurisdiction. Only the question whether, how and when the citizen of India voluntarily acquired citizenship of foreign country, are subject to determination by the Central Government. The question whether the person is an Indian citizen or not is within the civil court’s competence. In deciding the suit, if any such issue comes, then it should be referred to the Central Government for its decision which would be final.
State of Gujarat Vs Yakub Ibrahim AIR 1974 SC 645
In this case, the Respondent was charged with Foreigners’ Order, 1958 for overstaying in India. He was there in India on a Pakistani Passport. In the trial court, plea was taken that he was citizen of India at the commencement of the Constitution. He went to Pakistan and against his will he had to take Pakistan Passport to enter India. One of the questions in this case was whether during the material point of time he was a foreign national. As a corollary to it one issue was whether he lost Indian citizenship. The trial court and High Court acquitted on the ground that no decision of Central Government was produced by the prosecutors u/s 9(2) of Citizenship Act, 1955. On SLP by the State, the Supreme Court held that the prosecution has to be based on the determination of the issue by the Central Government under Section 9(2). Criminal court has no jurisdiction to determine the same. As no charge can be framed without the determination, the court can neither convict nor acquit.
Bhagwati Prasad Dixit Vs Rajeev Gandhi
This is an Election Petition in which the election of Rajeev Gandhi from Amethi Parliamentary Constituency was challenged on various grounds- one of which was that he voluntarily acquired citizenship of Italy by marrying one Italian National and acquiring property there. The Supreme Court
dealt with the issue by making strict interpretation of the provision of Section 9(2) of the Act. There was no dispute that the Respondent was a citizen of India. In the system of law provided by Section 9, the question of acquisition of foreign citizenship has to be decided by the Central Government. In the absence of such determination, it has to be presumed that the Respondent is a citizen of India. The High Court acting as an Election Tribunal has only limited power. No power to determine such question which by law, is conferred on the Central Government, can be made by the High Court.
The three cases, mentioned above, show how the Section 9 (2) of Citizenship Act, 1955 has been construed under different situations. The age-old judicial wisdom to construe such provisions affecting the jurisdiction of courts strictly and only in the context in which it is enacted is very much visible
The Supreme Court in State Trading Corporation v Commercial Tax Officerheld that company or corporation is not a citizen of India and cannot claim fundamental rights. The court said that citizenship is concerned with natural persons only. The court said that citizenship cannot be conferred upon the juristic persons.
However, the Supreme Court in Cooper v Union of India, also known as Bank Nationalization case, held that a shareholder of a company should be considered as an Indian citizen and is entitled to the protection given under Article 19 of the Indian Constitution. The Fundamental rights of the shareholders as citizens should not be violated by any state action.
In Bennett Coleman Case, the Supreme Court again said that the State Action not only affects the right of newspapers companies but also of the editors, readers and shareholders. These individuals do have freedom of speech and expression which should be protected against any unreasonable State action.
In Godhra Electric Co. Ltd v State of Gujaratthe court held that a managing director of a company had right to carry on business through agency of company. The court said that he had right to challenge the constitutional validity of the concerned enactment.