– Prakhar Raghuvanshi
Yuval Noah Harari once wrote ‘humans think in stories rather than facts, numbers or equations, the simpler the story the better.’[1]. Indeed when one discusses justice there are several stories, viz Utilitarian, Libertarian, Egalitarian and so on. One such story/theory is Communitarianism which, in contrast to the centrality of individuals, aims at emphasizing the importance of society in articulating the common good.[2] I aim to use the Citizenship Amendment Act, 2019 [hereinafter “CAA”] to argue how theories are merely a matter of construction. The essence of this article is derived from Michael Walzer’s- Spheres of Justice[3].
The CAA, passed mid-December 2019, sparked protests across India.[4] These protests emanated from a single core, Section 2 of the CAA.[5] The said section seeks to provide citizenship to immigrants who belong to Hindu, Sikh, Buddhist, Jain, Parsi or Christian community from Afghanistan, Bangladesh and Pakistan (all Muslim majority countries). As a result of such explicit exclusion of Muslims, the CAA was being seen as a draconian Act which stood in violation of Article 14 and was anti-thetic to the secular character of the constitution of India.[6] However, what I aim to discuss is something beyond the constitutional values, viz answering the questions – Is a country under any obligation to accept immigrants? If yes, then under what circumstances? And more importantly, if there exists any such obligation under the present Indian scenario? Finally, I would answer the question – is there a specific true answer to these questions.
Communitarianism works on the premises that one’s place in the economy, standing in the political order, reputation among fellows and holdings: all of these come from other men and women.[7] It strives to weigh particularism against universalism and argues that the search for a common point of unity for everyone leads to misunderstanding and misleading distributive justice.[8] Thus, the principles of justice are not universal and vary from society to society. When we aim to achieve common good, we cannot act as independent selves unbound by moral ties, if we do so we cannot make sense of any political or moral obligation.[9]
Among the common goods, the most important one is membership/citizenship because membership structures out all the other distributive choices.[10] Any common good is distributed in a society considering the value of that good in that particular society, i.e. the idea of the common good is relative.[11] Since citizenship is a common good which the members of the society, unlike other common goods, don’t distribute among themselves but to strangers, the decision of granting citizenship must be balanced with our relationship with the stranger. Thus, when we judge the moral worth of the CAA we have to consider India’s relationship with the immigrants involved, and immigrant here means the community of the immigrant.
There are three arguments to defend the CAA. Firstly¸ the national political community, for the purpose of citizenship, is presumed to be a bounded community.[12]As described by Michael Walzer, they are bounded territorially as well as in the essence of their membership. Thus, citizenship is in pith and substance a nationally bounded membership, which is exclusive and unavailable to national outsiders.[13] In other words, the distribution of the good of citizenship is a national project undertaken by the states. To reject their right to distribute this good is to undermine their capacity to preserve their integrity.[14] Furthermore, since every distribution of common goods takes place within a bounded community, it becomes indispensable to give away or dilute the idea of citizenship. The states, thus, get a moral basis for reluctance in distributing this good.[15] They have a special obligation for the welfare of their own citizen by virtue of the common life and history they share.[16]
Secondly, with regards to refugees who are persecuted or oppressed, the Nation-state has an obligation to grant citizenship if the reason the concerned group of people turned into refugees is related with the state directly or indirectly, an example would be the influx of refugees in India during partition.[17] The underlying principle is that in a moral sense, the injury done by a state is responsible for an affinity between them.[18] However, this obligation to grant citizenship is limited so long as the influx of refugees is small.[19] Once the number increases, the state is forced to choose among the victims, the state cannot offer asylum let alone citizenship to anyone and everyone who claims a need for it.[20] In the present scenario, India is not morally bound to offer citizenship to anyone from Pakistan/Bangladesh/Afghanistan. If it chooses to do so, it can limit the influx of refugees and choose among the victims.
Thirdly, Walzer’s idea of membership and distributive justice gives the final authority to the states to decide whether to take in strangers or not. In his paradigm, they are as free as anyone is to leave aside the claims of the needy and share their wealth and power for leisure purposes. The idea goes to the extent of drawing analogy between states and neighbourhoods/clubs i.e inclusion or exclusion are their effective and absolute right.[21] The states should have the final say as admission or exclusion of strangers to the community suggests one of the deepest meaning of self-determination. Therefore, the CAA is a question of self-determination which cannot be based on egalitarian grounds. Equality is the governing principle for the existing members of the community only and not for strangers i.e. immigrants/refugees.
However, there is always a different side of the story. Authors like Tally Kritzman criticize this idea primarily on two fronts. Kritzman claims that Walzer’s perception of mutual aid is too minimal and abstract.[22] Walzer holds the responsibility of the state to admit immigrants equivalent to charity and thereby the idea fails to give any consideration to the hardships experienced by the immigrant.[23] It is further claimed that the pluralism offered by Walzer suffers from vagueness[24] as it makes an exception for refugees but only to the extent when they are small in numbers[25]. In addition to that, the analogy between state and neighbourhoods has been criticised and is often called inaccurate.[26] Favouring a member or discrimination is morally frowned upon or arbitrary even in neighbourhoods.[27]
This might bring a lot of people back to square one. Such is the nature of human, as soon as the story becomes complex we lose track. What one should consider is the inherent uniqueness in the immigration concept derived by Walzer. It embraces the idea of the ever-evolving immigration law by relying on history and the value of the good of membership as understood by the community.[28] The gives the scope for change, a state might change its perception of itself and its interests over time.[29]
A very fundamental reason why we find the CAA antithetic to equality is because we consider a liberal perspective i.e. giving preference to ‘politics in rights’ over ‘politics in common good’.[30] We prefer a thought experiment from the perspective of abstract citizens rather than a thought experiment from the perspective of situated self, embedded in a political community.[31] This is a transcendental approach to achieve a just society.
The success or failure of a theory inter alia is a matter of judgment by those who debate on it.[32] Perhaps we are sometimes too clouded by that judgment that we lose the inherent good quality of a human being i.e. disagreeing with respect. Something similar to this happened in the debates revolving around the CAA.[33] Throughout this article, my aim has been to bring arguments from both sides to the table and reinforce the idea that theories are neither correct nor wrong. We support a theory, it reaches the crest and then trough. This has happened time and again from the fascist idea which declined with the end of second world war to the communist idea which declined with the disintegration of USSR.[34] What we need to do is avoid the state of disillusionment where we start losing hope in a theory/story and have no other perspective available. In a nutshell, pluralism is the key to a just society in the 21st century. In my opinion, the simplest way to do this is by accepting the true nature of theories as contemplated by Brian H. Bix[35] –
“Theory construction, especially where the theory is not anchored by falsifiable predictions, is often more a matter of persuasiveness, rather than a matter of truth. And if…[a] theory seems less sustainable than it once did, that may say as much about us, and what concerns us…” (emphasis supplied)
The author, Prakhar Raghuvanshi, is currently a 2nd Year B.A. LLB. (Hon.) student at the National Law University, Jodhpur.
[1] Y. N. Harari, 21 Lessons for the 21st Century, 19 (1st ed. 2019).
[2] A.Etzioni, Communitarianism, Institute for Communitarian Policy Studies, 1 available at https://icps.gwu.edu/sites/g/files/zaxdzs1736/f/downloads/Communitarianism.Etzioni.pdf last seen on 19/04/2020.
[3] M.Walzer, Spheres of Justice, (1st ed. 1983).
[4] India’s protests against citizenship law: All the latest updates, Aljazeera, available at https://www.aljazeera.com/news/2019/12/protests-india-citizenship-law-latest-updates-191219055259724.html, last seen on 19/04/2020.
[5] S.2, The Citizenship (Amendment) Act 2019.
[6] P. Baruah, Not Just Equality, the CAA Betrays Constitutional Values of Dignity, Integrity, The Wire (27/12/2019), available at https://thewire.in/rights/caa-constitution-equality, last seen on 19/04/2020
[7] Supra 3, at 3.
[8] Ibid, at 4
[9] M. Sandel, Justice: What’s the Right Thing to Do?, 220 (1st ed. 2009)
[10] Supra 3, at 31.
[11] Ibid, at 8-9.
[12] L. Bosniak, The Citizenship of Aliens, 56 Social Text, 29, 34 (1998), available at www.jstor.org/stable/466764 last seen on 19/04/2020.
[13] Ibid.
[14] Citizenship, Standford Encyclopedia of Philosophy available at https://plato.stanford.edu/entries/citizenship/ last seen on 19/04/2020.
[15] Supra 9, at 232
[16] Ibid.
[17] Supra 3, at 49.
[18] Ibid.
[19] Ibid.
[20] Ibid 49-51.
[21] G. Stassen, Michael Walzer’s Situated Justice, 22 (2) The Journal of Religious Ethics, 375, 287 (1994), available at www.jstor.org/stable/40015189 last seen on 19/04/2020.
[22] T. Kritzman, Looking behind the Protection Gap: The Moral Obligation of the State to Necessitous Immigrants, 13 U. Pa. J.L. & Soc. Change 47, 61 (2009).
[23] Ibid.
[24] Ibid.
[25] Supra 21.
[26] A. Gewirth, Ethical Universalism and Particularism, 35(6) The Journal Of Philosophy 283, 292-93 (1988).
[27] J. M. Carens, Open Borders and Liberal Limits: A Response to Isbister, 34 International Migration Review 636 (2000).
[28] K. Johnson, Theories of Immigration Law, 46 Ariz. St. L.J. 1211, 1229 (2014).
[29] Ibid.
[30] W. R. O’Nell & W. C. Spohn, Rights of Passage: The Ethics of
Immigration and Refugee Policy, 59 Theological Studies, available at http://cdn.theologicalstudies.net/59/59.1/59.1.5.pdf last seen on 19/04/2020.
[31]Ibid.
[32] Brian H. Bix, John Austin and Constructing Theories of Law, 24 Can. J. L. & Jurisprudence 431, 440 (2011).
[33] See Priyanka Deo, CAA, NRC Need to be Debated Objectively, The Indian Express (28/12/2019) available at: https://indianexpress.com/article/opinion/columns/librals-on-caa-librals-on-nrc-caa-protest-nrc-protest-caa-nrc-protest-caa-nrc-violence-nrc-violence-caa-violence-citizenship-amendment-bill-protest-6188099/ last seen on 24/04/2020; But see Kanika Rai Dhandha, Why it’s Wrong to Say Liberals are Intolerant; Asian Age (09/01/2020) available at: https://www.asianage.com/opinion/oped/090120/why-its-wrong-to-say-liberals-are-intolerant.html last seen on 24/04/2020.
[34] Supra 1, at 9-10.
[35] Supra 32.
The Journal of Indian Law and Society 