CHAPTER 3

CONCEPT OF CITIZENSHIP
3.1 Introduction
Who is the citizen? What it takes to be one? Debate on citizenship has come into highlight, on
both the Global as well as the National level. With middle Europe facing refugee crisis and
Donald Trump trying to raise the wall on Mexico border to stop the trespassers from entering
the United States of America and the Indian state of Assam preparing a list of eligible citizens
in its territory excluding the foreign immigrants, citizenship has become a topic of debate in
both National and international arena. Used to assess the question of citizenship rather
seriously.
The concept of citizenship is complex and is often left undefined. It is a powerful political ideal
that defines how a person is treated depending upon whether he is a citizen or non-citizen. A
status of being a citizen bestows upon an individual many rights and liberties and certain duties.
It grants an individual legal, political and social status within the society and gives him an
opportunity to participate in the affairs of society fulfilling the essence of a democratic society.
The earliest model of citizens can be found in ancient polis of Greece and city republics of
Rome where only few individuals who were essentially male and property or slave owners
enjoyed the privilege of being a citizen and excluded all females along with slaves and poor
and immigrants were excluded from the fold of citizenry. These people were stateless and had
no right to enjoy any power or privilege that an ordinary citizen enjoyed.
The Dark Ages in Europe saw largely pluralistic societies where an individual was a part of a
legal system to which his interests lied. A spiritually or religiously motivated individual will
give his adherence to the laws of the church whereas a trader or a businessman would be
interested in the mercantile law giving his adherence to the mercantile legal system which
expects him to honor his contractual obligations. Loyalty of an individual to these particular
legal systems would often result in these legal systems coming in conflict with each other. One
of the major and constant struggle occurred between the church and the prince in relation to
control over territories and subjects residing in those territories. This conflict transpired into
the Thirty Years war (1618-1648) and other battles. These struggles were concluded by Treaty
of Augsburg (1555) and Treaty of Westphalia (1648) between the Holy Roman Church and
various Rulers from regions of France, Germany and Austria. These treaties granted the prince
status of the sovereign who enjoyed limitless power over its subjects living in a defined
territory. But even after the Renaissance, not all people were considered the part of citizenry.
Women and slaves never made it to citizenry neither did the landless and the poor. The
citizenship status was granted to the only few who had the prescribed parentage or those who
were the owners of private property. It took years of struggle between the members of civil
society and the state to achieve what we now term as Universal Adult Suffrage. Civil rights
movements in USA lead by activists like Martin Luther King Jr. (1929-1968), Malcolm X
(1925-1965) and Black Panther Party played significant role in securing political and social
rights from the state including ‘Right to vote’ and ‘Right to be equally treated’ and removing
social discrimination on the basis of color of the skin of an individual.1 The women achieved
there right to Vote only in 1920 after the Nineteenth Amendment of the US constitution by the
efforts of women activists like Alice Paul. But the Afro-American women were denied the
voting rights for decades after 1920 and it was only after the passage of Voting Rights Act in
1965 that they attained their voting rights. The voting rights for Indian Women were not
granted till 1924 and Chinese women in United States won right to vote in 1943 and other
Asian women winning right to vote in 1953.2 The modern Adult citizenry is the result of various
civil rights movements lead by different groups that fought for attaining their citizenship rights.
Aristotle, the Greek philosopher defined ‘Citizen’ who possessed certain characteristics like
Parentage, ownership of property, ownership of slaves etc. and had the capacity to participate
in the affairs of the state and the society.3 With the advent of the nation states, citizenship is
the prime relationship which is used to define how the individual and the state deal with each
other. Citizenship is an intersection between an individual and the law, where nationalism and
constitutionally recognized membership in the state play an important role. Citizenship is a
form of civic membership which grants access to rights, liberties and privileges allocated and
protected by the social institutions.
Citizen has political, civil and social rights.4 Political rights allow him to participate in the
affairs of political system in the state. Civil rights grant him power to approach courts to gets
his rights enforced and social rights which allow individual to use some social gains. In modern
democratic nation states, the citizenry is developed over a long period of time and it takes
political struggles of various groups to become part of the citizenry. Nationalism has become
one of the major driving forces to define citizenry. The conception of citizenship within the

1
Charles Black Jr., State Action, Equal Protection and California’s Proposition 14, FACULTY SCHOLARSHIP
SERIES 70 (1967).
2
NORMAN LOWE, MASTERING MODERN WORLD HISTORY 212 (Palgrave Master Series, 2013).
3
RUSSEL. Supra note 1, at 169.
4
T.H. MARSHALL, CITIZENSHIP AND SOCIAL CLASS 6 (Cambridge University Press, 1950).
nation state is not fixed and can vary at any time: one can become citizen by birth or by
naturalization or even by registration. But the question in regard to people’s attitude towards
nationality as well as answered in polar views, either in favor of it or against it. For instance,
Jeremy Waldron states the idea of nationality is a product of our civilization and not the eternal
truth. “We are not the self-made atoms of liberal fantasy, certainly, but neither are we
exclusively products or artefacts of single national or ethnic communities. We are made by our
languages, our literature, our cultures, our science, our religions, our civilization – and these
human entities that go far beyond national boundaries exist, if they exist anywhere, simply in
the world.”5
The contemporary understanding of nationalism focuses around the idea of having a cultural
membership and national identity built on common cultural connection. For highly pluralistic
societies, it is not easy to establish the ethno-culture grounds to establish citizenship status.
These societies have seen mass migrations from time immemorial. They have transformed into
multicultural societies sharing common interests and sharing territory and resources available
in the territory. These modern nation states which are essentially plural and respectful towards
various cultures and subcultures, now do not define citizenry on the basis of religion or
ethnicity or race. All it takes is that the member of citizenry plays his role in the society,
exercise his rights, perform his duty and abide by the law. The politics in the nation states has
also started using citizenship and ethno-culture differences to attain political gains. Western
European Countries like Germany, Italy & France are facing refugee influx from Middle East.
United States of America is trying to ‘make America great again’ under their current president,
Donald Trump by advocating for a wall on the Mexican border to stop Mexicans from entering
the United States.6 The state of Myanmar has been criticized by civil society, on the methods
they are adopting to deal with Rohingya Muslims which includes genocide of innocent
civilians.7 Irony is that the Head of government of the state of Myanmar is Aung San Suu Kyi
is also a Nobel Peace Prize Winner. These new kinds of development in regard to definition of
citizenship and how modern states define their citizenry have called that the question of
citizenship of an individual should not be handled lightly and needs severe scrutiny.

5
Jeremy Waldron, Minority Cultures and Cosmopolitan Alternatives, 25 UNIVERSITY OF MICHIGAN JOURNAL OF
LAW REFORM 751, 778 (1992).
6
Eric Lutz, Trump’s New Border Plan: Make the Military Pay for the Wall, VANITYFAIR (MAY 22, 2019, 02:23
AM), https://www.vanityfair.com/news/2019/05/trumps-new-border-plan-make-the-pentagon-pay-for-border-
wall.
7
UN admits its failure to stop Rohingya crackdown in Myanmar, DAILY SABAH (May 20, 2019, 12:47 AM),
https://www.dailysabah.com/asia/2019/06/19/un-admits-its-failure-to-stop-rohingya-crackdown-in-myanmar.
Now that the modern democratic nation states have established themselves as an absolute
reality, the questions of ‘who is a citizen’, ‘who is a good citizen’ and ‘who is an outsider’ have
become highly relevant. The whole concept of citizenship and its components has become
hugely important and is warranted to be inspected from a different lens.

3.2 Ronald Dworkin’s Liberal Theory of Citizenship

Traditionally, citizenship has been defined in the realm of public rights and duties. These public
rights and duties deal in public space, which excludes all the spheres of private realm and
include in itself rights like right to vote and right to hold public office. These public rights can
also be called political rights as these rights define power dynamics within the state. But where
do these rights and duties come from?

The work of Ronald Dworkin (1931-2013) Taking Rights Seriously (1977) can be quoted as
one of the authoritative texts defining these rights and duties and therefore, constructing an
effective citizenship theory. According to Dworkin, the legal practice of society contains
principles, rules and policies. Rules, such as a rule to keep the vehicle under a certain speed
limit, are fairly simple and easy to understand. Policies are standards that set out a goal to be
reached, concerning economic, political or social problem within the society. Principles are
standards to be observed because they are the preconditions necessary for ‘justice or fairness
or some other dimension of morality.’8 To distinguish between principles and rules, Dworkin
uses an example of a principle: ‘no one should take advantage of his own wrong’. 9 Dworkin
argued that if the man has received something because of his illegal action, then the law may
take into consideration the above mentioned principle, though there might exist a rule that
justifies the enrichment of the man by illegal means. He says that principles differ from rule as
they may differ because of their weightage or importance10 and this might result in sometimes
clashing of one principle with another. He argues that the principles exist to justify the rules by
identifying moral or political issues and customs of the community. According to Dworkin, the
ideals and rules of the society are reflected in its legal system.

In order to understand a legal system, it is not necessary that a list of values and rules are
prescribed as the values and rules vary from time to time and society to society. There cannot
exist an exhaustive list of values and rules. But nevertheless, there needs to be a justification

8
RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 22 (Indian Reprint, 2010)
9
Id. at 23.
10
Id. at 27.
for existence of a political system. The rights and duties of citizen must have a source of
inspiration. According to Dworkin, “principle and policy are major ground for political
justification.”11 Policy arguments justify political actions that are taken to advance collective
good of society whereas arguments for principles are used to justify struggle for securing some
individual or collective right. 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.”12

In order to be complete, political theory needs to define the character of its legal system
practiced in the society. Dworkin differentiates between rights, goals and duties. A political
theory can choose any of them to define itself. Goals are identified as targets of some collective
interest like, attaining certain economic growth rates. In order to be called a right, political aim
must be weighed against collective good. Similarly, a duty is a duty only if it is independent
from the pursuit of collective aims of the society. What are treated as rights, goals, or duties
depend upon the choice of political theory society decides to adopt.

Dworkin himself seems to believe in a right-based theory of society. According to Dworkin,

judicial decisions are based on ideals of principles rather than on arguments of policy. It doesn’t
matter what the society is based upon, be it right-based, goal-based or duty-based, in order to
be adequate, there must exist in theory, a difference between background rights and
institutional rights, and abstract and concrete rights and principles.

3.2.1 Dworkin on Fundamental Background Rights

According to Dworkin, equality is a fundamental background right. Every other right can be
reduced to this one right of equality of all individuals. Equal treatment of every individual is
treated as one of the integral feature of every modern democratic legal system though there
might exist certain practical difficulties to achieve this aim of equality. Dworkin differentiates
between ‘right to equal treatment’ and ‘right to be treated as equal’.13 The first is the derivative
of the latter. Sometimes right to equal treatment might result in enactment of certain special
provisions for minorities like reservations for backward classes14 and cultural and educational

11
Id. at 83.
12
Id. at 87.
13
Id. at 92.
14
INDIA CONST. art. 15, cls. 5.
rights of minorities15, however this cannot be done on the cost of an individual’s right to be
treated as equal.

In western constitutional system, it is believed that individual holds certain moral rights against
the state. According to Dworkin, these moral rights are special judgements about what actions
of government can be considered as right or wrong. If someone is considered to be a holder of
certain right, it would be expected of the government to not abrogate that right of the holder.
These moral rights can be used to judge the actions of the government on a scale. Dworkin
argues that individual’s moral rights are based on the principle of human dignity and equal
value of life of every human. He states “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…”16

3.2.2 Citizenship Rights versus Background Rights

Citizenship rights are different from human rights or ‘background rights’, as Dworkin would
call them, which are ambiguous and fundamental. Citizenship rights, also called ‘institutional
rights’, are special rights bestowed upon members of a certain society. Their character and
implementation varies from society to society. However what importance do citizenship rights
hold? What about the position of fundamental rights that are awarded only to the citizens? As
modern nation states have established themselves and long term change in the working of legal
system is not going to change, rights associated with membership of a community, that is,
citizenship rights needs to be revisited.

The main guarantors of the basic rights are still the nation-states as they do so by guaranteeing
citizenship rights. However many transnational organizations like United Nations and Amnesty
International exist that try to secure basic human rights for individuals across the globe. But
this may be seen as problematic to actualization of the rights. Hannah Arendt through her work
the Origins of Totalitarianism (1951) in the aftermath of World War II tried to address this
problem. Arendt argued that basic rights of an individual can be guaranteed only by the state

15
INDIA CONST. art. 29.
16
DWORKIN. Supra note 57, at 198-199.
and if the state disappears, no mechanism will exist to protect basic human rights of individuals.
“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.”17 Arendt suggested that in order to avoid this situation one must
acknowledge that everyone has ‘right to have rights’, which means that there shall not be any
discrimination made upon the external factor like race, religion, color and that they shall be
judged upon their actions and opinions and that one shall be afforded with an opportunity to
become member of an organized society. Depriving a person the status as a member of a
community constituted a crime against humanity in Arendt’s opinion.18However, 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?

‘Right to have rights’ contain two different senses of right. The first sense in which right can
be explained is general humanistic approach that everyone has a right to human dignity and
evokes a moral imperative to treat other individuals with dignity. The other sense of rights
builds upon the first one. It can also be called as juridico-civic usage of the term. These rights
spheres of actions in which an individual can act without causing any damage to interest of
other individual.

The citizenship rights can be seen to be working independently from the human rights at the
same time ensuring that certain other special basic rights are granted to the citizens which are
exclusive members of the community. Citizens enjoy special privileges that immigrant or
foreign citizens do not enjoy. Citizen has a right to vote and right to participate in the affairs of
the state whereas an immigrant enjoys no such right. A citizen might enjoy certain social
benefits which a foreign citizen might not enjoy. But the world is coming closer now more than
ever. People are moving from one place to another, either in search of better opportunities or
in order to protect their life and liberty. Nation states are seeing influx of migrants and refugees
and are facing the problem of providing them basic human rights and citizenship rights.
Citizenship has now become an important question for modern democratic liberal nations.

17
HANNAH ARENDT, ORIGINS OF TOTALITARIANISM 341 (Schocken Books, 2004).
18
Id. at 376.
3.3 T.H. Marshall’s Theory of Citizenship

Thomas Humphrey Marshall (1893-1981) was a British sociologist who gave the theory of
citizenship keeping in center the concept of class in his work Citizenship and Social Class
which was published in 1950. According to Marshall, citizenship can be divided into three
parts or elements, civil, political and social. By citizenship, Marshall meant ‘full membership
of the community’ where by membership it is meant participation by the individuals in defining
the conditions of their own association. According to Marshall the civil element of citizenship
consists of rights that are necessary for an individual's freedom like liberty of the person to
move, freedom of speech, thought and faith, right to own property, right to make valid contracts
and the right to justice. Political element of citizenship include right to exercise political power
like right to vote and right to contest in elections for public offices. Political rights determine
the power dynamics in a legal system. Social element of citizenship includes right to economic
welfare and right to share in full social heritage and to live life like a civilized being like right
to basic health care, right to education. In earlier times, these rights were wounded in a single
thread as the institutions that secured and protected these rights were amalgamated. The further
back we trace our history the more impossible itis for us to draw strict lines of demarcation
between the various functions of the State: the same institution is a legislative assembly, a
governmental council and a court of law. Everywhere, as we pass from the ancient to the
modern, we see what the fashionable philosophy calls differentiation.19In above lines, Maitland
speaks of amalgamation of political and civil institutions and rights. Even the social rights of
an individual were part of the similar institutions and his status as a member of society that is
being a citizen or non-citizen would determine ‘the kind of justice he could get’ and ‘where he
could get it’.20

But Marshall point that there was no such uniform collection of rights and duties in the feudal
societies. There, was in this sense, no principle of equality of citizen to set against the principle
of equality of classes.

He points that modern notion of citizenship is a double process, of fusion and of separation.
The fusion of these rights was geographical whereas the separation was functional. He points
that after the twelfth century, when royal justice was established that had the power to construct
and protect civil rights of individual within the particular territory, develop in itself the feeling

19
MAITLANDS, CONSTITUTIONAL HISTORY OF ENGLAND 105 (1919).
20
MARSHALL. Supra note 53, at 12.
of nationalism. Parliaments embodied in themselves into more of a central national image and
finally organized themselves into some ‘sort of constitutional protoplasm out of which will in
time be evolved the various councils of the crown, the houses of parliament, and courts of
law.’21 Finally, the social rights which were essentially part of membership of village or town
or gild community dissolved by development of more liberal notion of society where trade and
commerce and affairs of an individual’s life were free from the interference of the state.

Marshall pointed out that after the development of first form of the modern democratic nation
states, the divorce between the three elements of the citizenship rights was so complete that
their incorporation within the legal system can be attributed to different centuries- Civil rights
to Eighteenth Century, Political Rights to Nineteenth Century and Social Rights to Twentieth
Century.22 Marshall argued that the concept of citizenship is one of the greatest driving force
of modern era. There has been a long, uneven but consistent movement towards the expansion
of sphere of citizenship rights. He also maintained that the reform of political nature in each of
these domains, that is civil, political or social rights, can be used to address the worst aspects
of economic inequality diluting the ill effects of modern capitalist system and making the
liberal polity more just and fair, without any revolutionary activity.

Marshall argued that there is no universal principle that determine what rights and duties shall
be incorporated within the purview of citizenship rights. He stressed upon the point that the
image of ‘ideal citizenship’ can be identified as the goal that the community wants to achieve.
He argued that in these modern societies, the urge to attain this ideal citizenship includes within
its purview an urge towards a fuller measure of equality- enrichment of the rights of which
citizenship is constituted of and increase the number of people on whom this status of
citizenship is bestowed.

In his work, Marshall questioned the very position that the class occupies in the society.
According to him, class functions to erode and limit the extent to which citizenship promotes
equality in the society.23 Citizenship, according to Marshall, promotes equal distribution of
resources and opportunities in the society whereas Class, on the other hand, promotes
inequality and leads to unequal distribution of resources. Class and citizenship are contrary
principles in the society which results in contradictory influences.

21
AF POLLARD, EVOLUTION OF PARLIAMENTS 25 (Longmans Green and Co, 2nd ed., 1926).
22
Supra note 69, at 14.
23
HELD. Supra note 2, at 190.
In regard to what Marshall called different eras of development of citizenship rights, he
concedes that his discussion is explicitly focused on England and claims that his theory might
not have a universal application. With respect to Britain, he sought to show that civil rights
were first to develop and the early traces can be seen in the form of great Reform Act of 1832
which lead to formation of 130 new seats for parliament in England. Earlier the most member
in the parliament represented boroughs which was an ineffective civil system. Political Rights
developed next, he argued and it was only in the nineteenth century that we saw the expansion
of political rights. It was not until 1928 in England that the principle of universal adult suffrage
was accepted through which all adults attained right to vote and right to participate in political
process. Franchise on the basis of ownership of property was dissolved. Social Rights, he
pointed, almost vanished in the eighteenth century and only its traces could be seen in the
Elizabethan poor laws of 1601. By the act of 1834, the Poor law renounced all the claims of
power to intervene in the matters related to wage system in modern factories and power to
interfere in the matters that could shift the balance in the free market. Their revival an
expansion began with the radical changes that were brought in public elementary education
system,24 but it was not until twentieth century that social rights attained the final form that we
see them in. social rights in that regard are the phenomenon of the twentieth century. Marshall’s
principal evidence for this is the development of modern welfare state. The measures that were
adopted by the western European nation after the World War II were essentially redistributive
in nature like introduction of new form of health service, social security, system of progressive
taxation and so on, which created better living conditions in the society and lead to greater
equality of vast majority which could not exist in modern free market. These measures provided
for greater security and greater equality conditions for the vast majority who were closes to fall
into or already lying into ‘poverty trap’. Marshall pointed that the social rights forms the vital
elements of the society which is still full of hierarchies like class in England or caste in India.
He pointed that there do exist inequalities in various dimensions in the society, the social rights
function to mellow down the tensions that exist because of these inequalities in the society.

Marshall pointed that development of modern citizenship rights was an uneven process but also
conceived that each bundle of rights acted as a formative stone for development of other forms
of rights. The eighteenth century was the formative period for civil rights where the liberty of
an individual and full and equal justice before law became established principles in the legal
system. Initially these new freedoms created by civil rights were only available to property

24
MARSHALL. Supra note 53, at 20.
owning male individual. These new freedoms allowed the male citizen to sever his ties from
the place of his birth and occupation that customs or statutes prescribed for him. While these
freedoms were radical in this regard that they challenged the already existing inequalities in
the feudal society, they did not address the new forms of inequalities that started developing
due to new modern competitive market society; on the contrary, Marshall argued that they were
‘indispensable to it’.25 The fundamental reason for this is that the new civil rights gave each
man a capability to get involved as an individual unit in the economic struggle of the free
market. These rights created individuals who were free and equal in status- a condition which
was primordial to modern contract. Paradoxically, this single uniform form of citizenship
which lead to formation of the society which has ‘the foundation of equality on which the
structure of inequality could be built.’26

The progressive achievement of these civil rights was a precondition required to secure the
establishment of liberty of an individual. These civil rights also established the base for demand
of political rights as Giddens explains it by saying that only if an individual is recognized as an
autonomous agent of himself does it is reasonable to regard an individual as politically
responsible. The political rights belong to nineteenth century and revolved around the idea of
equality which was applied to various other domains. It involves an appreciation of the tension
between recognition of an individual as a free and equal person in civil matters and on the other
hand, liberty of an individual to pursue interests free from political pressure. Political rights
were recognized as an indispensable condition for guaranteeing freedom of an individual. It
was established that those who are in the government are bound to act in the way that will
fulfill their interests, it must be ensured that the government be made directly responsible to
the citizens and brought in front of the electorate to be judged in order to avoid abuse.

The establishment of political liberty was a process in which the political rights, which were
earlier in the monopoly of privileged few, were extended to whole of the adult population of
the country. The rise of trade-union movement and of labor movement was critical in
development of what we conceive as political citizenship. The citizenship implied to be an
entitlement to full political membership of society. Thus, the quest for citizenship became a
search for conditions under which individual could see himself someone of equal worth and

25
MARSHALL. Supra note 53, at 20.
26
MARSHALL. Supra note 53, at 22.
someone who is provided with equal opportunity. This became the stage for struggle for both
political as well as social rights.

The growing influence and control of industrial capitalism in modern democratic nations lead
to development of massive disparities in status of wealth, income and life conditions. Those
who could not find the luck in the market economy found themselves in profound inequalities
in matters of wealth and income. With the advent of political rights for all, that is universal
suffrage, working class was able to consolidate itself and organize and influence the power
structures in such a way that they could secure for themselves welfare or social gains as rights.
By the inclusion of political and social rights in citizenship rights, the labor class was able to
secure modifications in the capitalist class system. In twentieth century, demands for social
justice became more prominent. Social inequalities were seen as an obstacle in the idea of
achieving an ideal account of citizenship and it was demanded by various developments that
classes be disbanded.The expansion of social rights, Marshall argued, ‘no longer merely an
attempt to abate the obvious nuisance of destitution in the lowest ranks of society. It has
assumed the guise of action modifying the whole pattern of social inequality. It is no longer
content to raise the floor-level in the basement of the social edifice, leaving the superstructure
as it was. It has begun to remodel the whole building, and it might even end by converting a
sky-scraper into a bungalow.’27 The philosophy of Marx which was brought to its life form by
Lenin even professed for destruction of class society even by force and violence. The
preservation of inequalities became more difficult in the twentieth century with the expansion
of social rights element in citizenship. But with the current picture of modern capitalism
developing, social inequalities have occupied the mainstage again. Movements like Occupy
Wall Street are popping up against the rising wealth inequalities in the society.

3.4 Giddens’ Theory of Citizenship: Beyond Social Citizenship

Anthony Giddens (1938- ) is a British sociologist who is well known for his theory of
structuration, through series of essay criticized Marshall’s theory of citizenship and tried to
devise a theory of citizenship entailing a rejection of the relevance of concept of social
citizenship in a reconceptualization of citizenship as the ‘making real’ of civic and political
rights of citizenship.

27
MARSHALL. Supra note 53, at 28.
Giddens puts in his account two propositions in regard to criteria of recognition: ‘no rights
without responsibilities’28 and ‘no authority without democracy’.29 The first is a substantive
demand that is expected to be fulfilled by a citizen. On the other hand rights must accompany
with themselves some duties which are supposed to be performed by an individual. This is
different from the idea -of social citizenship which bring with itself attainment of certain rights
without performance of some duty. Rights that come with social citizenship, Giddens argued,
were unconditional. He argued that these rights were passive in nature as they could be
determined by the state and does not require any active criterion to be fulfilled by an individual
to become a beneficiary of these rights. One obtained these rights by the virtue of just being
born within the territory of the state. Giddens argued that citizenship rights should seek to
establish some individual efficacy in action and must hold citizen accountable for his or her
actions. He argued that social welfare rights have resulted in formulation of a class of passive
recipients of these rights and this passivity has resulted in generation of an ‘underclass’.30 The
second proposition refers to the means to formulate a legitimate binding value standard, be it
religion, nationalism or class. The concern is with the establishment of criteria of recognition
of the elements that constitutes the whole paradigm of citizenship. The legitimacy of duty is
determined by democratic participation of individuals in structuring of the power dynamics
which will be affecting them.31A similar argument is evident at the level of the personal.
Freedom is possible only to the extent that one's agency is evident in the individual
determination of the values of action.32
Giddens identified the significance of Marshall’s theory of citizenship, but he also had his
reservations on his theory. Giddens criticized Marshall over the idea of treating development
of citizenship rights to occur in different phases by some inherent logic which is hard to explain.
He also sees in Marshall’s account an oversimplification of the role of the state and politics
that plays in the modern society. He argues that Marshall showed the more benevolent side of
the state which helped in achieving the political rights. Marshall ignored the amount of struggle
that was made to achieve these rights and how, sometimes, the state had acted against the right
activists during these struggles. Giddens also points that Marshall underestimated the degree

28
ANTHONY GIDDENS, THE RENEWAL OF SOCIAL DEMOCRACY 65 (Cambridge Polity Press 1998).
29
Id. at 66.
30
ANTHONY GIDDENS, BEYOND LEFT AND RIGHT: THE FUTURE OF RADICAL POLITICS (Cambridge and
Blackwell, 1994)
31
Supra note 77, at 41.
32
ANTHONY GIDDENS, NEW RULES OF SOCIOLOGICAL METHOD 79 (Hutchinson Publishers, 1976)
to which the balance of power was tipped against the under-privileged and in favor of the
aggressors.
Giddens also did not agree with the three-fold classifications of rights made by Marshall, that
is, civil, social and political rights. Giddens argues that the civil rights that provided for
individual liberty and equal protection of law were fought for and achieved by the rich and
dominant class as these rights were necessary to develop the modern capitalist system and
modern representative state. He argues that these rights shall be treated differently from what
he called ‘economic civil rights (or industrial citizenship rights, as Marshall would’ve put it)
which were fought for and achieved by working class and trade-union activists. These
economic civil rights were not easily achieved and the working class had to relentlessly
struggle to achieve these rights. The right to unionize, right to strike and right to collective
bargaining can be seen to develop on the similar lines. This implied, according to Giddens,
‘something awry in lumping together such phenomenon with civil rights in general.’ If the
individual civil rights lead to development of liberal capitalist system and free market,
economic civil rights tended to threaten the very crucial aspects in the functioning of the
modern capitalist system and free market.
More fundamentally, Giddens maintained that each category of citizenship right shall be
viewed like a fruit of a conflict; something that had developed in the area of contestation
between the rights activists and a distinctive type of regulatory or surveillance mechanism,
where this surveillance is necessary to maintain the power of a dominant group (the state or the
politics or the rich) and to establish a circumference around which groups can control their own
lives. For instance, he writes, “Civil rights are intrinsically linked to the modes of surveillance
involved in the policing activities of the state. Surveillance in this context consists of apparatus
of judicial and punitive organizations in terms of which 'deviant' conduct is controlled . . . (Like
the other kind of rights) civil rights have their own particular locale. This is to say, there is an
institutionalized setting in which the claimed universality of rights can be vindicated- the law
court. The law Court is the prototypical court of appeal in which the range of liberties included
under civil rights can be both defended and advanced.”33
3.4.1 Giddens Scheme of Rights
Giddens devised his own scheme of rights which have been put in a tabular form below for
easy interpretation.

33
HELD. Supra note 2, at 195.
 Types of right

Civil Economic Civil Political Social

Type of regulatory Policing Control of Political Management of

power on
Work-place Population
surveillance

Institutional center or Law courts Work-place Parliament or State

locale where rights legislative administrative
are contested chamber offices

3.4.2 Giddens on Citizenship

According to Giddens, the roots of citizenship can be linked to the expansion of state
sovereignty or build-up of administrative power in late 16th century. He argues that the
development of state apparatus was possible only to the extent of state's capacity for
surveillance; that is, storing and collecting of information about members of society and ability
to regulate the actions of subject population. In earlier stages, state needed an element of
physical force to maintain its authority but as the state's sovereignty expanded and state got
equipped with the strong centralized, administrative structure, the dependence on physical
force by the state decreased significantly. Accordingly, a greater reciprocity was achieved
between the government and the governed and through development of democratic process,
opportunities by generated for subordinate groups to influence their rulers.
Giddens argues that the establishment of state sovereignty led to development of an identity of
citizens which were political subjects of the state. The expansion of state sovereignty resulted
in a virtue that subjects started to get aware about their political membership in the society and
about the rights and duties that membership bestowed upon them. Giddens contended that
nationalism was a crucial factor in development of this identity and call nationalism as 'the
cultural sensibility of sovereignty'. Nationalism is based on administrative unification of state
and required the similar kind of surveillance to develop as the state needs and that citizenship
mediates this process of development of nationalism. Giddens credits development of
citizenship to be intimately bound up with structuration of political power and the politicization
of social relations.
Giddens argues that the quest for or membership in the political process lead to reconstitution
of the shape of the modern state itself. He maintains that the class conflict of the bourgeois
against the remaining holders of feudal privileges and class conflict of working classes
against the bourgeoisie's hold on politics and state, were most important conflicts that
changed the dimensions of citizenship. These two conflicts resulted in two massive
institutional changes in the character and nature of the state. The first institutional change was
a progressive step of separation of state from the economy, that is, the principle of laissez
faire. It was the establishment of Civil and economic rights which led to the development of
the free market and civil society free from the interference of the state. The new rights and
prerogative should not be seen as being created outside the sphere of the state but as part and
parcel of the emergence of the public domain separated from privately organized economic
activity. Civil rights thus have been, from the early phases of capitalist development it, bound
up with the very definition of what counts as political. Civil and political citizenship rights
developed together and remain, thereafter, open to range of divergent interpretations which
may directly affect the distribution of power.34
The second massive institutional change was witness as a result of conflict between the
working class and bourgeois dominance, in the late 19th and 20th century, which led to the
development of social rights or what Giddens would call economic rights. This second set of
struggle helped in the development of modern welfare state order which allowed the state to
intervene in economics for larger welfare of the society. Giddens argues that social or
economic rights can be seen as an extension of Civil and political rights.
In Giddens' assessment, class conflict has been and remains the medium by which citizenship
rights, which are essentially political and civil rights according to Giddens, can be extended
to individuals and is the basis of creation of modern democratic welfare state.
3.5 Indian Citizenship Scheme and its view from the accounts of Dworkin,
Marshall and Giddens
Indian citizenship model is inspired from the British citizenship model. India calls itself a
union of States.35 It is different from the United States of America which calls itself the
federation of States. USA offers its citizens with dual citizenship in the form of state
citizenship and national citizenship. India on the other hand offers only single citizenship
which is national citizenship. The provisions for citizenship in Indian framework provided in

34
HELD. Supra note 2, at 197.
35
INDIA CONST. art. 1.
 part 2 of the constitution from article 5 to article 11 and Indian citizenship act 1955. The
provision of the constitution only identifies the person who became a citizen of India at the
commencement of the constitution that is 26 January 1950. It does not deal with the problem
of acquisition or loss of citizenship subsequent to the commencement. The detailed
provisions regarding the citizenship are provided in the citizenship act which was enacted by
Indian parliament in 1955 and which has been subsequently amended in 1957, 1960, 1985,
1986, 2003, 2005 and 2015 (proposed amendment).
According to the constitution of India, following four categories of people gained the status of
Indian citizen:-
a) Any person who had his permanent residence in India and fulfilled one of the 3 conditions
which are, if either of his parents was born in India; if an individual has been ordinarily resident
in India for 5 years immediately before the commencement of the constitution; and if one was
born in India, becomes a citizen of India.36
b) Any person who has migrated to India from Pakistan and if the individual or either of his
parents or any of his grandparents, was born in undivided India. Prepare any one of the
following conditions we shall be fulfilled: before 19 July, 1948, he had been ordinarily resident
in India change the date of his migration or in case if he has migrated after 19 July, 1948, had
been registered as a citizen of India. One could register for citizenship only if we had stayed in
India for at least six months. The date 19 July, 1948 holds special significance has the permit
system for migration was introduced on the same date.37
c) Any person who is migrated to Pakistan from India after March 1, 1947 but migrated back to
India for resettlement could become an Indian citizen by registration.38
d) Any person who or any one of whose parents or any one of his grandparents were born in
undivided India but who has been ordinary residing outside India shall become an Indian
citizen by registering with diplomatic or consular representative of India in the country of his
residence. One can register with the counselor representative before or after the commencement
of constitution.39

The following are the remaining provisions of Indian Constitution concerning the area of
citizenship:

36
INDIA CONST. art. 5.
37
INDIA CONST. art. 6.
38
INDIA CONST. art. 7.
39
INDIA CONST. art. 8
 The one shall lose his Indian citizenship if one has voluntarily acquired the citizenship of some
foreign country.40
 Every person who is ore is deemed to be a citizen of India shall remain to be a citizen of India
subject to provision of law enacted by the parliament.41 This provision provides the Parliament
the power to enact any law defining citizenship status in India's territory
 Parliament was provided to the power to enact any law pertaining to provisions of acquisition
and termination of citizenship along with other provisions related to citizenship.42
The provisions provided under article 10 and article 11 brands the power to the parliament to
enact laws that can define the various aspects of citizenship like how one can acquire or lose
citizenship. Using these provisions the Parliament of India enacted The Indian citizenship act
of 1955. The act in its object clause provides for the acquisition and termination of citizenship.
That has been amended eight times since commencement. That originally provided for
Commonwealth citizenship as well but the provision was repealed by the amendment in
2003.The Citizenship Act was amended in 1985 to include in itself the demands that were
mentioned in the Assam Accord of 1985. Section 6A was added in the citizenship act at which
provided for the exclusion of illegal immigrants from the territory of Assam.
Indian citizenship mechanism is based on the traditional notion of modern liberal nation theory.
It describes for its citizens certain rights and duties in the form of fundamental rights, directive
principles, legal rights, fundamental duties, duty to pay taxes and so on and so on.
If one goes by Dworkin's analysis, the rights provided to Indian citizenry can be divided in two
categories: fundamental rights and citizenship rights. Fundamental rights or Human rights are
the rights that are available to all the humans within the territory of India. From the part III of
the constitution which expressly provide for rights for all humans like equal protection of law,
protection in respect to conviction for offences, right to life and personal liberty, right to
elementary education, protection in cases of arrest and detention, rights for children and
cultural and religious rights. These bunch of rights do not differentiate between citizens and
non-citizens and are provided to every individual. Shiv rights according to Dworkin, are the
rights which enables a citizenIf one goes by Dworkin's analysis, the rights provided to Indian
citizenry can be divided in two categories: fundamental rights and citizenship rights.
Fundamental rights or Human rights are the rights that are available to all the humans within
the territory of India. From the part III of the constitution which expressly provide for rights

40
INDIA CONST. art. 9
41
INDIA CONST. art. 10
42
INDIA CONST. art. 11
for all humans like equal protection of law, protection in respect to conviction for offences,
right to life and personal liberty, right to elementary education, protection in cases of arrest and
detention, rights for children and cultural and religious rights. These bunch of rights do not
differentiate between citizens and non-citizens and are provided to every individual. Shiv rights
according to Dworkin, are the rights which enables a citizen to participate in political process
and makes citizen a beneficiary of various social schemes like beneficiary of public distribution
system or insurance schemes for farmers.
One should notice that there do not exist any right it that protects an individual from active
form of racism that exist around the globe. People of African origin became a victim of racism
in Delhi, the capital of India. People of color face discrimination and racist slurs in
metropolitans like Delhi, Mumbai and Bangalore. Also the foreigners in India cannot access
the social schemes directly. Social schemes are designed in a way that only a citizen could
access them.
If one goes by Marshall's analysis, citizenship rights exist in three different forms: civil rights,
political rights and social rights. Is Martial attributed different areas to development of these
rights keeping England in mind, similar development can be traced in Indian history. Storm of
civil rights if one goes by western scheme, India score establishment of court system when the
imperialism started spreading in Indian subcontinent. Courts was settled by English in there
presidencies to effectuate Western governing style in India. Revenue courts were established.
The police system and the criminal courts were established. Ordinary individuals got access to
courts in cases of conflict both of criminal and civil nature.
Political rights were granted to Indians by various acts before independence which provided
for representation in legislative wing of government. The first of these acts were the Indian
councils act of 1861, 1892 and 1909 providing for the first time provisions for or nomination
of Indians as non-official members of legislative council of the viceroy. The then viceroy Lord
canning nominated 3 Indians in his list of non-official members of legislative council - the Raja
of Banaras, the Maharaja of Patiala and Sir Dinkar Rao. The first form of direct democracy
was seen after Montague-Chelmsford reforms of 1919 which took the form of the Government
of India Act 1921. The Indian legislative council was replaced by a bicameral system consisting
of an upper house (the Council of States) and a lower house (the Legislative Assembly). The
majority of members of both the houses were chosen by direct elections but Indians got the
opportunity to participate in administrative process long before direct elections were
introduced. The Charter Act of 1853 introduced in open competition system of selection and
recruitment of civil servants. Accordingly the committee on Indian Civil services under the
chairmanship of Lord Macaulay was appointed in 1854. When the constitution was enacted in
1950, it provided with the universal adult franchise granting voting rights to every citizen. The
voting rights enabled every citizen to participate in political process at various levels.
The journey of social rights in India is still not concluded and is ever expanding. When the
British left India, they left it in ruins. The country was left extremely poor, suffering with all
forms of tensions, from religion to caste to language to region. The economy was largely
unorganized and the major industries were under the control of the state. The abolition of
zamindari system led to land redistribution which was carried out all over the country. The
migrants who chose to be a citizen of India word provided with land in different regions. The
reservation policy for backward classes in appointment in government jobs43 and admissions
in higher education institutions44 was granted as a fundamental right. Later poverty eradication
schemes were launched by various government unemployment schemes like Mahatma Gandhi
National Rural Employment Guarantee Act 2006 (MNREGA) were enacted to guarantee
employment. Trade- unions flourished in India during the decades of 1950s and 60s in the early
stages of Indian industrialization. But one cannot say that the journey of citizenship rights has
concluded in India. The Civil rights are expanding at its own pace, the latest development being
establishment of right to privacy45, decriminalization of gay sex46 and equal rights of women
to enter certain religious places47. New dimensions of equality are being approached using
courts as a medium. The social rights are facing their own reshaping and remodeling. The
subsidy schemes are changing their character. Right to health care has now acquired new shape
in the form of Ayushman Bharat which provides health insurance to individuals, with the state
becoming just an intermediary. Right to elementary education was only provided in 2009. The
state is also promoting autonomous working for public universities on the pretext of allowing
better functioning of universities. But this also make University e financially independent and
on its own to generate funds resulting in higher fees at educational institutions. The latest
developments in the scheme of social rights is announcement of schemes for farmers like
Nyuntam Aay Yojana (NYAY) by Indian National Congress (INC) in its election manifesto
for 2019 Indian Parliamentary elections which is a minimum income guarantee scheme for the
poorest in the society which are roughly estimated to be around 20% of the total population.48

43
INDIA CONST. art. 16
44
INDIA CONST. art. 15
45
K.S. Puttaswamy v. Union of India, (2018) 2 SCC 1.
46
Navtej Singh Johar v. Union of India, Writ Petition (Criminal) No. 76 OF 2016.
47
Indian Young Lawyers Association v. State of Kerala, Writ Petition (Civil) No. 373 OF 2006
48
Poverty in India, ASIAN DEVELOPMENT BANK (May 25, 2019, 04:23 AM),
https://www.adb.org/countries/india/poverty.
The political rights, which according to Marshall developed in Britain in the 19th century, are
still shaping themselves in Indian context. India has seen its fair share of struggle in
consolidating itself as a territorial unit. The issue of Khalistan which saw its darkest and most
violent days in the 1980s, has shown its shadow over and over again with the chief minister of
Punjab, Captain Amrinder Singh raising concerns about the presence of pro-Khalistani
elements in Punjab. The Kashmir issue is far from settlement with the last few years turning to
be the most bloody. Also the state of Assam is witnessing the process of updating of register
of citizens. The process was initiated after the judgement of Supreme Court has still not been
concluded and a draft list pointing that 4.4 million residents of Assam accused of being non-
citizens. Final list has still not been released, the fate of so called non-citizens hanging in
balance. These non-citizens have been stripped of their political rights and are excluded from
the sphere of social schemes with some being even placed in detention centers.
Citizenship for Indians is still not a clear concept. It is an undergoing process which reorders
and rearranges itself with the political system holding its reins. The current state government
of West Bengal has been accused of motivating illegal cross-national migration from
Bangladesh to make electoral gains. The citizenship amendment Bill of 2016 which provided
for citizenship for illegal immigrants of Hindu, Sikh and Jain denomination after being tabled
in the Parliament led to large scale protests in Assam which is going through turbulent times.
The Citizenship has become a communal issue and not an issue of social welfare.