During the last century, the concept of citizenship has witnessed a growing interest after it almost went out of vogue. A plethora of literature during this period has been written during this period which has led to it becoming a ‘cluster concept’ by interaction of other similar concepts. This body of literature runs on the same undercurrent of redefining citizenship owing to the changed circumstances of its return.
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Earlier, the concept of citizenship was state-centric. Previously states attempted to consolidate themselves into a homogenous state in conformity of its ideal of a unitary character. However, owing to the growing presence of cultural diversity within states, they are forced to evaluate the traditional character of its citizenship to accommodate such cultural diversity. National homogenization has often led to violence among countries like in countries like the Philippines, Papua New Guinea, China, Burma, Indonesia, India, Sri Lanka, Pakistan.
This growing sentiment of accommodation and tolerance towards group gave birth to the concept to of multiculturalism in the West. In Asia, due to its unique geopolitical and socioeconomic nature, each indigenous culture has its own recipe of unity among diversity. A common factor among these Asian countries is the legacy of colonialism which continues to shape the cultural and legal discourse in these countries till date. Therefore although originally a Western model, this rhetoric is now widely used in both western and non-western societies all around the world.
This paper focuses on a comparative study of the legal discourse on citizenship of India and Nepal from a multicultural approach. These two particular countries are taken due to a number of similarities share. Both the countries are democracies and have a similar for, of government. The legal system of both these countries are based upon the common law system. Both countries have faced legal issues regarding citizenship owing to the diversity in the composition of their population groups. Asian multiculturalism interconnected with democracy and a democratic state is needed to ensure equality of citizenship to all its members. Kymlicka’s theory is particularly chosen because he is the most influential multicultural theorist. The paper compares the judicial discourse of both the countries to determine whether the legal discourse is sufficiently accommodates the idea of ‘multiculturalism’ as envisioned by Kymlicka in his theories.
Since the mid-1970s, a trend was seen in Western democracies towards the concept of diversity by recognizing multiculturalist policies and minority rights. Earlier the idea of a homogenous nationhood had gained traction. But till 1990s multiculturalism continued to be an appealing concept altogether. Multiculturalist policies were endorsed at both the state and national level as well as by international organizations.
The crux of multiculturalism is based upon the notion of accommodating cultural diversity. This problem was solved to a large extent by Will Kymlicka the most influential multicultural theorist at present. His work is predominantly based upon a liberal account of when and how to accomodate multicultural diversity along with the cultural claims that stem from it. A state becomes multicultural by being either multinational or polyethnic. If the members of the state are from disparate nations then it’s the former. If they have migrated from various nations it is the latter. In both cases such a factor must become a defining element of personal identity and political life.
As per Kymlicka’s theory cultural diversity arises due to ‘national minorities’ and immigrants. These national minorities aim to preserve themselves separately from the majority culture and thrive for autonomy and self-government. National minorities in order to become a part of the society should not be defined by birth alone. Rather, national membership should be open in principle to anyone, regardless of race or colour, who is willing to learn the language and history of the society and participate in its social and political institutions . The other source of diversity consist of the immigrants who associate to form ethnic groups. They do not claim for self-government and instead thrive towards integration into the main society. Membership obtained by the immigrants is different from that given to national minorities. An immigrant may have left his home voluntarily or due to coercion i.e as a refugee.
Due to the difference in the nature of these two groups, Kymlicka differentiates between three types of rights afforded to the minorities. He justifies these rights by arguing that cultural membership ensures free choice. Since free choice is essential to the concept of liberalism, and due to the interwoven connection between free choice and cultural membership[citation needed, Gillian article], it is essential to grant minorities and immigrants rights in order to ensure their cultural membership.
The rights, as per Kymlicka could be divided into self-government rights, special representation rights and polyethnic rights. Self government rights ensure political autonomy to nations. Polyethnic rights are designed to facilitate integration into the society. These are positive measures on part of the state to inculcate the ethnic communities into the large scale society through various ways such as public funding of festivals , so that they are not disadvantaged in the face of the dominant groups. Special representation rights aim to give a say to severely underrepresented minorities in law-making and public policy fora[check for citation from Kymlicka’s book].
Nepal is a multi-ethnic country consisting Nepal consisting of more than sixty ethnic groups, half a dozen religions and a hundred languages has witnessed exclusion in many spheres in the past. Due to variances of culture, ethnic relations have witnessed very little balance amongst themselves. Such diversity in culture coupled with Nepal’s history of migration implies that all inhabitants of the country are originally settlers. Exclusion has been a constant theme in the Nepalese population. For example, the socio-cultural-political hedgemony of Nepal or as Dor Bahadur Bista calls it, ‘Bahunism’ based on the Hindu caste system has led to the exclusion of other non-Hindu groups such as Dalits and other non-Hindu ‘lower’ caste groups. An oppressive form of discrimination faced by Madhesis is in obtaining citizenship which often happened due to the lack of citizenship certificates which could be attributed to such hill nationalism. Nepal has also faced the influx of Bhutanese refugees into its territory in early 1990s owing to state sponsored ethnic tension.
Under the Nepalese Constitution, a citizen is entitled to the enjoyment of certain fundamental rights. However, in this context an understanding of who is a ‘citizen’ is necessary particularly owing to the ethnic diversity in the country. Starting with its inclusion in the 1950’s Constitution, the concept of citizenship has vastly changed since then. During the drafting of the Constitution of 2015, rights of greater state representation along with recognition of language and culture were put forth by marginalized sections. Thus, the Constitution of Nepal which came into force in 2015, through its Preamble recognizes multiculturalism and seeks to establish an egalitarian society through ‘proportional inclusive and participatory principles’.
Article 10(1) of the Constitution of 2015 guarantees citizenship as a right of all Nepali citizens while article 10(2) talks about provision of single federal citizenship with provincial identity. Any person, who has acquired the Nepali citizenship by descent before the commencement of the Constitution 2015 or any person, whose father or mother was a citizen of Nepal at the time of the birth of such a person and has his/her permanent domicile in Nepal, will be deemed to be a citizen of Nepal.A child found in Nepal whose paternity or maternity is not known shall be deemed to be a citizen by naturalization until his/her parent(s) is traced.
Certain articles have been deemed to be discriminatory towards the minorities. For instance Article 11(7) states that citizenship by naturalization will not be granted to child born out of the wedlock of a Nepali woman citizen married to a foreigner. Article 14 is also discriminatory since it denies non-resident Nepali citizenship to members of SAARC countries. Both these provisions have been criticized to be discriminatory towards Madhesis in particular. Persons living near the open border between India and Nepal may be adversely affected since cross-border marriage relations are quite common.
It is interesting to note that the Constitutional provisions is some places contradictory to the previously enacted Nepal Citizenship Act, 2006. There also has been some disputes regarding the obtainment of citizenship certificate. A major number of citizens mostly based upon gender or caste or religion lack access to such certificates. This generally is common among indigenous communities due to lack of ownership over land.
In India the concept of citizenship is closely connected with identity. A brief overview of the identities present in India. As per the census report of 2001, Hindus account for 80% of the population while Muslim, being the second largest minority account for 14.23% of the population. Chirstians, Sikhs, Parsis, Buddhists and Jains are the other numerically important religious minorities. At the commencement of the Republic, citizenship was rooted in the shared identity of sovereign self-governing people coming together as a community of equals with a ‘national identity’ which embraced not only the national community as a whole but also each member of the political community. This identity creation could be attributed to the Partition of 1947 which had a significant effect in framing the Constitution of India. In the words of Dr. Ambedkar the Constitutional Provisions on citizenship were intended to decide an ad hoc law for the time being and had intended to leave other issues concerning citizenship to the Parliament evident from the phrasing of Article 11. Hence the constitutional character of citizenship was intended to only deal with the context of Partition and not citizenship as a whole.
The Constitution came into force on 26th January 1950 and the provisions about citizenship came into force on 29th November 1949. Article 5 of the Constitution deals with citizenship by birth. It highlights the jus soli conception of citizenship that was envisaged during the making of the Constitution. On the other hand article 6 and article 7 were provisions reserved for ‘extraordinary times’. During the debates, the most controversial discussions were held upon issues of migration, domicile and intention to settle. During the framing of the Constitution these became central to its framing. While Article 6 aimed to provide citizenship to those persons who migrated to India from Pakistan, Article 7 was inserted to exclude people who had migrated from Pakistan to India around the time of partition. A religious undertone may also be observed in the Constituent Assembly Debates when the Hindus were referred to as ‘refugees’ while Muslims were referred to ‘migrants’.
Article 9 provides that people who had voluntarily obtained the citizenship of another state cannot be citizens of India. Article 10 deems with the continuation of rights of citizenship for anyone deemed to be a citizen as per the earlier provisions subject to any law made by the Parliament.
The term domicile was subsequently adjudicated in a number of cases owing to its ambiguous nature. In Louis de Raedt V. Union of India the Supreme Court held that residence must be accompanied by intention to make a permanent home i.e the element of ‘animus manendi’ must be there. This view was also reiterated in Central Bank V. Ram Narain where it was held that both ‘factum’ and ‘animus’ must be there to constitute domicile.
The Citizenship Act, 1955 governs the general law relating to citizenship. Under this legislation, a person can acquire citizenship through birth, descent, naturalization, registration and incorporation of territory. This legislation has undergone some very significant amendments owing to the changing socio-cultural scenario of the country. In 1985 in the aftermath of the war of liberation for Bangladesh the influx of migrants increased and continued steadily afterwards. Due to increase in refugees, massive protests by All Assam Students Union took place which culminated into the signing of the Assam Accord. Many people had acquired ‘documentary citizenship’ in the words of Kamal Sadiq via ration cards etc. The amendment inserted Article 6A to ensure that people who came after 1966 would be deleted from the electoral role and would have to wait for 10 years from the date of detection to become legal citizens again. By the amendment in 2003, two sub-clauses were added to section 3 which were also relevant to the immigrants from Bangladesh which excluded those born after the amendment with one parent as an illegal migrant at the time of their birth. In 2004, section 7A inserted provisions for Overseas Citizenship, but it excluded from its purview, citizens/former citizens of Pakistan and Bangladesh.
The Illegal Migrants(Determination by Tribunals) Act, was enacted in 1983 to detect and expel illegal foreigners as a response to the movements in Assam. However the Act was challenged in a writ petition filed by Sabarnanda Sonowal whose plea was that the Act made it impossible to detect the foreigners who were residing there. Consequently, the Act was struck down and the previous procedure of placing the onus on proving citizenship claims upon the accused under the Foreigner’s Act was reverted back to.
Under the Constitution, all citizens are entitled to certain fundamental rights. However certain groups of minorities are given rights to preserve their culture under the Indian Constitution under the aegis of article 29-30. During the Constituent Assembly, this issue was highly debated and finally certain rights are granted to the minorities under this Constitution. Mahajan writes The path that India adopted self-consciously therefore was one that acknowledged persons as citizens of the state as well as members of specific cultural communities. While political rights of participation were extended to all, nevertheless on other matters due consideration was given to community affiliations and membership. The policy adopted by India is said to be two fold: On one hand it tries to prevent exclusion of communities from public sphere. On the other hand it tries to provide autonomy to the concerned communities.
The concept of jus soli has been slowly transforming to the concept of jus sanguinis owing to the changing socio-cultural circumstances in India. While jus soli remains the governing principle the current vision of citizenship in India has come to be shaped by jus sanguinis.Due to the increasing diversity in the population,
This research study is limited in its scope to conduct a varied study between the countries. Hence it will only focus on the multicultural aspect of the Constitutional concept of both countries. In Kymlicka’s terms, both Nepal and India are multicultural states owing to a similar history of co-existence of minorities along with incoming refugees. Undoubtedly this has given rise to the ethnic diversity of both the countries. Both these countries have polyethnic and national identities. Neither of them can be exclusively said to be polyethnic or multinational, since refugees and minorities co-exist in both these states. The umbrella term ‘multicultural’ thus is more suitable in the context if these two states.
As per Kymlicka’s theory on multicultural citizenship ,as discussed in the second section, the nature of rights afforded to citizens of a multicultural nation can be divided into self-autonomy, special representation as well as polyethnic rights. Both the Constitutions fail to guarantee such rights for minorities as well as immigrants in its Constitution although India’s Constitution provides it in a some aspects.
Kymlicka formulated has theory of rights in order to establish that cultural identity is essential in a liberal society for its stability . This is to some extent in true to both countries. Perhaps, owing to the denial of such rights, the majority population hedgemonizes culture and the minority population is victimized. Gramsci had observed: the State renders the ruling group homogeneous, and tends to create a social conformism which is useful to the ruling group’s line of development. This is somewhat tested in both countries. The Constitutional provisions carry firm undertones and fails to secure the rights of any minorities in particular especially in respect to citizenship. As a result a ‘social conformism’ is created where every community adheres to the ruling people’s hegemony. In both these Constitutions, the predominance of on community is thus seen over the recognition of communal groups. Despite the seemingly neutral phraseology of the Constitutional provisions a strong exclusionary attitude can be detected from the constitutional provisions on citizenships towards foreigners. The Constitutions of both the countries are apprehensive of granting citizenship to foreign migratory groups and as such fails to integrate them in the nation-building process.
Kymlicka’s theories were based on a Western model. However in some parts, such theory has been evidenced in India and Nepal as can be seen from the legal discourse of both these countries. Certain modifications in his theories may exemplify its apllicablity in the South Asian context. Betto Van Warden in his work identifies the absence of identity from the works of Kymlicka. He draws upon the concept of participatory rights from Sen’s seminal work on identity pluralism and in the process tries to reconcile the works of Kymlicka with Sen. He argues that a state must promote ‘particpatory rights’ rather than ‘accomodation’ or ‘self-autonomy rights’ for the distinct group of identities. Identity pluralism’ as he says does not mean a rejection of multicultural rights but it would emphasize on participatory rights for all minorities.
It cannot be ascertained for sure whether such a theory with such modifications would be applicable in a multicultural society like Asia. Such a notion exceeds the scope of this comparative work. However identity has played a major role in the nation-building process of both these countries and for any theory of citizenship to be applicable to both these countries would require the due acknowledgement to ‘identity’. In conclusion it can be said that both Nepal and India conforms on some aspects with Kymlicka’s theory but fail to incorporate the entirety of it in their citizenship discourse.
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