The citizen and the migrant: Postcolonial anxieties, law, and the politics of exclusion/inclusion

Theoretical Inquiries in Law

Volumn 8, Issue 2, 2007, Pages

  Kapur, Ratna ^a,b  

^a Centre for Feminist Legal Research   (India)

^b Geneva School of Diplomacy and International Relations   (Switzerland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34547237684     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1160     Document Type: Review

References (146)

1. SALMAN RUSHDIE, IMAGINARY HOMELANDS 49 (1988).
2. RATNABIR SAMADDAR, THE MARGINAL NATION: TRANSBORDER MIGRATION FROM BANGLADESH TO WEST BENGAL 108-09 (1999).
3. Chantal Mouffe, Hegemony and the New Political Subjects: Towards a New Concept of Democracy, in FROM MARXISM TO THE INTERPRETATION OF CULTURE 89, 90 (Cary Nelson & Lawrence Grossberg eds., 1988).
4. In using the term "subaltern," 1 borrow from the insights of postcolonial theory and the subaltern studies project, which have highlighted the fact that certain voices have been excluded from the dominant narratives and telling of history. The subaltern studies project regards hegemonic history as part of modernity's power/knowledge complex, which, in the context of colonialism, was deeply implicated in the "general epistemic violence of imperialism." See, e.g., Gayatri Spivak, Three Women's Texts and a Critique of Imperialism, 12 CRITICAL INQUIRY 242 (1985);
5. Ranajit Guha, The Small Voice of History, in SUBALTERN STUDIES IX: WRITINGS ON SOUTH ASIAN HISTORY AND SOCIETY 1, 1-12 (Shahid Amin & Dipesh Chakrabarty eds., 1996);
6. Dipesh Chakrabarthy, A Small History of Subaltern Studies, in HABITATION OF MODERNITY: ESSAYS IN THE WAKE OF SUBALTERN STUDIES 3 (Dipesh Chakravarthy ed., 2002). In the context of law, the subaltern project challenges the assumptions about universality, neutrality, and objectivity on which legal concepts are based, exposing such concepts to be products of the ruptures produced in and through the colonial encounter.
7. See, e.g., Dianne Otto, Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference, 5 Soc. & LEGAL STUD. 337 (1996).
8. ELIZABETH THOMPSON, COLONIAL CITIZENS: REPUBLICAN RIGHTS, PATERNAL PRIVILEGE AND GENDER IN FRENCH SYRIA AND LEBANON (2000).
9. The classic account of citizenship is found in THOMAS H. MARSHALL, CITIZENSHIP AS SOCIAL CLASS (1950), examining the emergence of citizenship in the last 250 years in Britain and defining citizens as "a status bestowed on those who are full members of a community. All who possess the status are equal with respect to the rights and duties with which the status is endowed." Id. at 14. There has been a proliferation of scholarship that complicates this account of citizenship, including its embeddedness in claims to territoriality.
10. See, e.g., Will Kymlicka & Wayne Norman, Return of the Citizen: A Survey of Recent Works on Citizenship Theory, 104 ETHICS 352 (1994);
11. Stuart Hall & David Held, Citizens and Citizenship, in NEW TIMES: THE CHANGING FACE OF POLITICS IN THE 1990s 173 (Stuart Hall & Martin Jacques eds., 1989);
12. CITIZENSHIP (Geoff Andrews ed., 1991);
13. DEREK HEATER, CITIZENSHIP: THE CIVIC IDEAL IN WORLD HISTORY, POLITICS AND EDUCATION (1990);
14. THE CITIZENSHIP DEBATES: A READER (Gershon Shafir ed., 1998). For a clear analysis of how citizenship in law has become denationalized, see Linda Bosniak, Citizenship Denationalized, 7 IND. J. GLOBAL LEGAL STUD. 447 (2000).
15. Indian Hotel & Restaurants Ass'n (AHAR) v. State of Maharashtra, paras. 72, 76 (Bombay H.C. 2006) (unpublished, on file with author).
16. Sarbananda Sonawal v. Union of India, (2005) 5 S.C.C. 665, para. 38.
17. See, e.g., DIPESH CHAKRABARTY, PROVINCIALIZING EUROPE (2000);
18. PARTHA CHATTERJEE, NATIONALIST THOUGHT AND THE COLONIAL WORLD: A DERIVATIVE DISCOURSE? 2 (1993).
19. UDAY SINGH MEHTA, LIBERALISM AND EMPIRE: A STUDY IN NINETEENTH-CENTURY BRITISH LIBERAL THOUGHT 46-54 (1999).
20. Tayyab Mahmud & Ratna Kapur, Hegemony, Coercion, and Their Teeth-Gritting Harmony: A Commentary on Power, Culture and Sexuality in Franco's Spain, 33 U. MICH. J.L. REFORM 995, 1012-24 (2000);
21. ROBERT A. WILLIAMS, THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST (1990).
22. Mark Brown, Before Citizenship: Liberalism's Colonial Subjects, Paper Presented at the 16th Biennial Conference of the Asian Studies Association of Australia, Wollongong (June 26-29, 2006), available at http://coombs.anu.edu.au/Special Proj/ASAA/biennial-conference/2006/Brown-Mark- ASAA2006.pdf.
23. MEHTA, supra note 10.
24. RAJESWARI SUNDER RAJAN, THE SCANDAL OF THE STATE: WOMEN, LAW AND CITIZENSHIP IN POSTCOLONIAL INDIA 3 (2003) (arguing that the British imperial project was partly justified as a measure to improve the condition of Indian women and, at the same time, to ensure that the interventions left indigenous patriarchy untouched).
25. See, e.g., LAWS OF THE POSTCOLONIAL (Eva Darian-Smith & Peter Fitzpatrick eds., 1999);
26. ANTHONY ANGHIE, Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law, in IMPERIALISM, SOVEREIGNTY AND THE MAKING OF INTERNATIONAL LAW 32 (2005).
27. Sudhir Chandra, Subjects' Citizenship Dream: Notes on the Nineteenth Century, in CIVIL SOCIETY, PUBLIC SPHERE AND CITIZENSHIP: DIALOGUE AND PERCEPTIONS 106, 107 (Rajeev Bhargava & Helmut Reifeld eds., 2005).
28. SAVITA NARAIN, THE HISTORIOGRAPHY OF THE JALLIANWALLA BAGH MASSACRE, 1919 (1998);
29. HELEN FEIN, IMPERIAL CRIME AND PUNISHMENT: THE MASSACRE AT JALLIANWALA BAGH AND BRITISH JUDGMENT, 1919-1920 (1977).
30. There has been an extraordinary proliferation of scholarship in the area of citizenship studies, suggesting that something new and dynamic has been happening to the subject in the context of multiculturalism and globalization in the late twentieth and early twenty-first centuries. The scholarship is wrestling with the contradictions of citizenship, but these contradictions were in fact an integral feature of subject constitution in the late nineteenth century in the context of the colonial encounter.
31. The colonial encounter in the Asian subcontinent determined identity partly through the demarcation of borders. For an elaborate discussion on how the very notion of national borders was alien to the Asian subcontinent and came into being during the British period of colonization as a method of dividing the "locals" and "migrants" and was the precursor to contemporary contests of over citizenship and identity, see Mayumi Murayama, Borders, Migration and Sub-Regional Co-Operation in Eastern South Asia, 61 ECON. & POL. WKLY. 1351 (2006).
32. Citizenship is defined in Part II of the Constitution, which addresses the central question, "Who is a citizen of India?" INDIA CONST, arts. 5-11.
33. Id. art. 8.
34. Id. art. 9.
35. See Kulathil Mammu v. State of Kerala, (1966) A.I.R. 1614 (S.C.);
36. State of Madhya Pradesh v. Peer Mohammed, (1963) A.I.R. 645 (S.C.);
37. State of Andhra Pradesh v. Abdul Khader, (1961) A.I.R. 1467 (S.C.);
38. Mubarak AH v. State of Bombay, (1957) A.I.R. 857 (S.C.).
39. The Citizenship Act of 1955 made elaborate provisions specifying how citizenship could be acquired by birth, descent, registration, or naturalization or through incorporation of territory. The Citizenship Act, No. 57 of 1955; India Code (1993), v. 2. Subsequent amendments reinforced the emphasis on ethnicity as well as birth and descent. The Citizenship (Amendment) Act, 1986, No. 51, Acts of Parliament, 1986. While the Citizenship Act of 1955 provided that every person born in India on or after January 26, 1950, was to be a citizen of India by birth, from July 1, 1987, every person born in India on or after January 26, 1950, would be a citizen of India if either of "his" parents was a citizen of India at the time of his birth. Similarly, the Citizenship (Amendment) Act, 1992, provides that a person born outside of India on or after January 26, 1950, and before the commencement of the Act would be a citizen of India if either of his parents was a citizen of India at the time of his birth. The Citizenship (Amendment) Act, 1992, No. 39, Acts of Parliament, 1992.
40. Valerian Rodrigues, Citizenship and the Indian Constitution, in CIVIL SOCIETY, PUBLIC SPHERE AND CITIZENSHIP: DIALOGUES AND PERCEPTIONS, supra note 16, at 209, 221-22.
41. The Hindu Right is a contemporary right-wing religious and nationalist movement that is dedicated to the ideology of Hindutva - that is, the establishment of India as a Hindu state. It is a political ideology completely distinct and separate from Hinduism the religion, though the movement has been quite successful in its efforts to blur this distinction. The Hindu Right refers to the main organizations and political parties in the current phase of Hindu communalism in India - namely, the Bharatiya Janata Party ("BJP" - Indian People's Party), the political wing of the Hindu Right, the Rashtriya Swayamsevak Sangh ("RSS" - Association of National Volunteers), which is the main ideological component of the movement, and the Vishwa Hindu Parishad ("VHP" - World Hindu Council), which promotes the religious ideology of the Hindu Right.
42. The Hindu Right has pursued a narrow conception of citizenship, privileging religious identity from its very inception in the early 1920s. It challenged the expansive definition of citizenship proposed during the Constituent Assembly Debates, which included Muslims. One member of the Constituent Assembly, P.S. Desmukh, proposed that "[e]very person who is a Hindu or Sikh by religion and is not a citizen of any other State, wherever he resides shall be entitled to be a citizen of India," thus limiting citizenship to religious identity and clearly excluding Muslims. Rodrigues, supra note 25, at 224. He further argued that citizenship should be limited to territory and not determined by parentage.
43. Sonia Gandhi is currently the leader of the Congress Party, which won the national elections in 2004 and leads a coalition of parties under the banner of the United Parliamentary Alliance at the political Center. She is the widow of Rajiv Gandhi, the late Prime Minister of India assassinated in 1991, and daughter-in-law of Indira Gandhi, who was assassinated in 1984.
44. See Shashi Tharoor, Who Is an Indian?, 20 SCH. ADVANCED INT'L STUD. 103 (2000).
45. Section 5(1)(c) of the Citizenship Act, No. 57 of 1955;
46. India Code (1993), v. 2.
47. WOMEN, CITIZENSHIP, AND DIFFERENCE (Nira Yuval-Davis & Pnina Werbner eds., 1999);
48. Anna Clark, Changing Concepts of Citizenship: Gender, Empire and Class, 42 J. BRIT. STUD. 263 (2003).
49. See the discussion on the controversy around the 1882 Ilbert Bill, which proposed a series of amendments to the Criminal Procedure Code to remove a racially discriminatory clause that did not allow the natives to exercise criminal jurisdiction over British subjects living in certain parts of the colony: The protests by white women, which helped to defeat the bill, were embedded in assumptions about racial and cultural superiority. Elizabeth Buettner, Spaces, Problematic Races: Defining Europeans in Late Colonial India, 9 WOMEN'S HIST. REV. 277 (2000);
50. Mrinalini Sinha, "Chathams, Pitts and Gladstones in Petticoats": The Politics of Gender and Race in the Ilbert Bill Controversy, 1882 - 1884, in WESTERN WOMEN AND IMPERIALISM: COMPLICITY AND RESISTANCE 98 (Nupur Chaudhuri & Margaret Strobel eds., 1992);
51. MRINALINI SINHA, COLONIAL MASCULINITY: THE "MANLY ENGLISHMAN" AND THE "EFFEMINATE BENGALI" IN THE LATE NINETEENTH CENTURY 33 (1995).
52. Gayatri Spivak, Can the Subaltern Speak?, in MARXISM AND THE INTERPRETATION OF CULTURE 271, 297 (Cary Nelson & Lawrence Grossberg eds., 1988).
53. Partha Chatterjee, The Nationalist Resolution of the Women's Question, in RECASTING WOMEN: ESSAYS IN COLONIAL HISTORY 233, 236 (Kum Kum Sanghari & Sudesh Vaid eds., 1989).
54. Id. at 287.
55. SUMANTA BANERJEE, DANGEROUS OUTCAST: THE PROSTITUTE IN NINETEENTH CENTURY BENGAL (1998).
56. ANUPAMA ROY, GENDERED CITIZENSHIP: HISTORICAL AND CONCEPTUAL EXPLORATIONS 172 (2005).
57. Deniz Kandiyoti, Identity and Its Discontents: Women and the Nation, 20 WOMEN LIVING UNDER MUSLIM L. 3 (1998).
58. Indian Hotel & Restaurants Ass'n (AHAR) v. State of Maharashtra (Bombay H.C. 2006) (unpublished, on file with author).
59. Section 33A(1)(a) of the Bombay Police (Amendment) Act, Maharashtra Act No. 35 of 2005, Maharashtra Government Gazette, 2005.
60. Id. § 33B.
61. The state relied on a field study conducted by Prayas, a field action project of the TATA Institute of Social Sciences, funded by USAID. PRAYAS, A STUDY OF THE SOCIO ECONOMIC SITUATION AND REHABILITATION NEEDS OF WOMEN IN DANCE BARS (2005). The Prayas Report concluded that middlemen brought women to the bars without revealing much about the nature of the work, and women were forced to dance under threat of punishment or harm. Id. at 5. The Report concluded that the basic elements of human trafficking were present as defined in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transnational Organized Crime, G.A. Res. 55/25, U.N. GAOR, 55th Sess., Supp. No. 49, U.N. Doc. A/45/49 (Dec. 15, 2000).
62. See Indian Hotel & Restaurants Ass'n (AHAR), para. 86. The ban was also supported by the U.S. State Department in its June 2005 Trafficking in Persons Report. This report spoke in favor of the decision to close down the dance bars, stating,
63. The March 2005 order by the Home Minister of Maharashtra state to close down "dance bars" - many of which served as prostitution and trafficking outlets - may check a new trend of traffickers favoring this more sophisticated and concealed format for selling victims trafficked for the purpose of sexual exploitation over more blatant brothel-based trafficking.
64. U.S. DEP'T OF STATE, VICTIMS OF TRAFFICKING AND VIOLENCE PROTECTION ACT OF 2000: TRAFFICKING IN PERSONS REPORT 123 (2005), available at http://www.state.gov/documents/organization/47255.pdf.
65. Bombay Police (Amendment) Act, pmbl.
66. Indian Hotel & Restaurants Ass'n (AHAR), para. 76. After the controversial Bill was passed, the Deputy Chief Minister of the state, R.R. Patil, triumphantly declared, "I knew that eventually the law will be passed because I was acting in the larger interest of Maharashtra and its youth." Dance Bar Bill Passage Major Boost for Patil, TIMES INDIA, July 23, 2005, available at http://timesofindia. indiatimes.com/articleshow/1180390.cms.
67. Article 14 of the Indian Constitution states, "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." Article 15 prohibits discrimination on the grounds of religion, race, caste, sex or place of birth and states that "[n]othing in this article shall prevent the State from making any special provision for women and children." INDIA CONST, art. 15(3).
68. Id. art. 19(1)(g) states that all citizens shall have the right "to practice any profession, to carry on any occupation, trade or business."
69. Id. art. 21 provides that "[n]o person shall be deprived of his life or personal liberty except according to procedure established by law."
70. Indian Hotel & Restaurants Ass'n (AHAR), para. 2. In contrast to the Prayas Report, a second study, THE SNDT WOMEN'S UNIVERSITY, RESEARCH CENTRE FOR WOMEN STUDIES & THE FORUM AGAINST OPPRESSION OF WOMEN, WORKING WOMEN IN MUMBAI BARS, TRUTHS BEHIND THE CONTROVERSY (2005) [hereinafter SNDT REPORT], reported that none of the 500 women interviewed had stated that they had been coerced into the work or bought or sold in any manner. Therefore, according to the SNDT Report, "the bar dancer is conscious of the implications of her 'choice' or decision. She knows and agrees to the very specific working conditions of this profession." Id. at 12.
71. Indian Hotel & Restaurants Ass'n (AHAR), para. 54.
72. Id. para. 38.
73. Id. para. 5(iv).
74. Id. para. 37.
75. Id.
76. Id. para. 93.
77. Id. para. 17.
78. See RATNA KAPUR, EROTIC JUSTICE: LAW AND THE NEW POLITICS OF POSTCOLONIALISM 51-94 (2005).
79. The Maharashtran state alleged that many of the women had been trafficked or brought in from Nepal and Bangladesh. The SNDT Report states that evidence was found of only 1% of the women being from Nepal and none from Bangladesh. Nevertheless, the Deputy Chief Minister reiterated his claim and stated that no compensation would be given to the Bangladeshi women.
80. Chatterjee, supra note 34, at 236.
81. See also TANIKA SARKAR, HINDU WIFE AND HINDU NATION (2004), for an argument that there was an intense contest over the production of Indian women's subjectivity. While women were cast as preservers of cultural identity, controversies over the treatment of women in the home attested to the extent of violence experienced by girls married off at the age of puberty, challenging the view that the home was in fact a space of honor, dignity, and purity. These internal cultural disputes were, however, marginalized in the broader contests between the political nationalists and the colonial power. For a similar context,
82. see LATA MANI, CONTENTIOUS TRADITIONS: THE DEBATE ON SATI IN COLONIAL INDIA (1998), arguing that the sati debate earlier in the nineteenth century had set the discursive stage on which nationalists later in the century addressed issues of gender and its relationship to nationalism. Mani argues that the early-nineteenth-century debate between social reformers and conservatives over the legitimacy of sati in Indian culture was not about the rights of women as Indian subjects, but a debate over tradition. It was a debate through which social reformers tried to reform Indian culture in order to undermine the legitimacy of Britain's rule, while the nationalists took the position that the colonial power had no role to play in the sphere of tradition and culture. Women's bodies served as the primary site for the re-articulation of tradition and culture.
83. See also SUDHIR CHANDRA, ENSLAVED DAUGHTERS: COLONIALISM, LAW AND WOMEN'S RIGHTS (1998).
84. Chatterjee, supra note 34, at 287. Chatterjee links this transformation of the woman through nationalist ideology with the disappearance of social reform in the late nineteenth century.
85. See also MAITRAYEE CHAUDHURI, INDIAN WOMEN'S MOVEMENT: REFORM AND REVIVAL (1993).
86. While the SNDT Report states that there was no evidence of the presence of poor Bangladeshi women in the bars, the lawyer who visited the police stations to represent those dancers arrested after the ban was imposed found that a large majority of the women arrested were poor "illegal" Bangladeshi migrants: Conversation with Flavia Agnes, Lawyer, at the Consultation on Gender, Migration, and Human Rights Law: Focus on Bangladesh, India and Nepal, New Delhi (Jan. 19, 2007). Agnes claims that considerable tension existed between the Indian bar dancers and those migrating from Bangladesh on the grounds that the rates of the migrant women were lower and hence they were able to attract more customers. When the ban was imposed, these tensions become secondary, and a collective decision was made to refute the allegation of the presence of Bangladeshi migrants for two reasons. There was a concern that acknowledging the presence of the migrants would strengthen the government's case for imposing the ban, especially on grounds of security. The second reason was the desire to protect the Bangladeshi female migrants from being immediately deported.
87. Sarbananda Sonawal v. Union of India, (2005) 5 S.C.C. 665.
88. SANJIB BARUAH, INDIA AGAINST ITSELF: ASSAM AND THE POLITICS OF NATIONALITY (1999);
89. PRAFULLA KUMAR MOHANTA, THE TUSSLE BETWEEN THE CITIZENS AND FOREIGNERS IN ASSAM (1986).
90. The Foreigners Act confers wide-ranging powers to deal with all foreigners, prohibiting, regulating, or restricting their entry into India or continued presence in the country including through arrest, detention, and confinement. The Foreigners Act, No. 31 of 1946; India Code (1993), v. 1.
91. Section 9 of this Act is important and reads as follows: Burden of proof - If in any case not falling under section 8 any question arises with reference to this Act or any order made or direction given thereunder, whether any person is or is not a foreigner or is or is not a foreigner of a particular class or description the onus of proving that such person is not a foreigner or is not a foreigner of such particular class or description, as the case may be, shall, notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), lie upon such person.
92. Sonawal, (2005) 5 S.C.C. 665, para. 57 (citing Chae Chan Ping v. United States, 130 U.S. 581 (1930)).
93. Id. para. 59.
94. Id. para. 17.
95. Id. para. 64.
96. Id. para. 17(22).
97. Id. para 17(24).
98. VINAYAK DAMODAR SARVARKAR, HINDUTVA: WHO IS A HINDU? (1929).
99. TAPAN BASU ET AL., KHAKI SHORTS, SAFFRON FLAGS: A CRITIQUE OF THE HINDU RIGHT 2 (1993);
100. see also Ratna Kapur, Normalizing Violence: Transitional Justice and the Gujarat Riots, 15 COLUM. J. GENDER & L. 855 (2006).
101. MADHAV SADASHIV GOLWALKAR, WE OR OUR NATIONHOOD DEFINED 53-54 (1939). Madhav Sadashiv Golwalkar, who led the RSS from 1940-1973, stated that the '"foreigners' or 'strangers' have to acknowledge the National religion as the State religion and in every other respect inseparably merge in the National community." ID. at 55.
102. The attack on the legitimacy of religious minorities to be full-fledged citizens plays out in a number of sites, including the call of the Hindu Right to enact a Uniform Civil Code to govern the personal affairs of all communities. Currently, each religious community is governed by its own personal laws. The rise of the Hindu Right has produced a fear within religious minority communities that such a Code could be used to impose "Hindu" norms and values on all other communities. Any resistance to such a Code is being cast by the Hindu Right as anti-secular, as well as a way for Muslim men to continue their subordination and discrimination of Muslim women. See Nivedita Menon, Women and Citizenship, in WAGES OF FREEDOM: FIFTY YEARS OF THE INDIAN NATION-STATE 244 (Partha Chatterjee ed., 1998).
103. Cited in Rodrigues, supra note 25, at 225.
104. Biswajyoti Das, Muslim Settlers Fear Persecution in Assam, DAILY TIMES, July 30, 2005, available at http://www.dailytimes.com.pk/default.asp?page=story_30-7-2005_pg4_10;
105. see also Michael Gillian, Refugees or Infiltrators? The Bharatiya Janata Party and "Illegal" Migration from Bangladesh, 26 ASIAN STUD. REV. 73 (2001);
106. Sikata Ramachandran, Of Boundaries and Border Crossings: Undocumented Bangladeshi "Infiltrators" and the Hegemony of Hindu Nationalism in India, 1 INTERVENTIONS 235 (1999).
107. BJP Criticizes Decision to Retain IMDT Act, HINDU, Oct. 30, 2004, http://www.hinduonnet.com/thehindu/2004/10/30/stories/ 2004103015971300.htm.
108. Statement Issued by L.K. Advani, Leader of the Opposition, and Rajnath Singh, Leader of the BJP (Apr. 4, 2006), available at http://www.bjp.org/Press/april_2006/apl_0406_p.htm.
109. Sarbananda Sonawal v. Union of India, (2005) 5 S.C.C. 665, para. 51.
110. WENDY BROWN, POLITICS OUT OF HISTORY 6 (2001);
111. KAPUR, supra note 56, at 21.
112. See, e.g., Martha C. Nussbaum, Patriotism and Cosmopolitanism, in FOR LOVE OF COUNTRY: DEBATING THE LIMITS OF PATRIOTISM 2 (Joshua Cohen ed., 1996) (arguing in favor of a notion of "citizens of the world," challenging the arbitrariness of patriotism and how it can be dangerous, by producing nationalist chauvinism that can lead to an immoral disregard of other people and other cultures);
113. Iris Marion Young, Polity and Group Difference: A Critique of the Ideal of Universal Citizenship, 99 ETHICS 250 (1989) (examining the aspirational goal of universal citizenship, which assumes that citizenship is a progressive concept that has included more and more people over the course of time - blacks and women, for example).
114. See also Mike Featherstone, Cosmopolis: An Introduction, 19 THEORY CULTURE & SOC'Y 1 (2002);
115. Berta Esperanza Hernandez-Truyol & Mattew Hawk, Traveling the Boundaries of Statelessness: Global Passports and Citizenship, 52 CLEV. ST. L. REV. 97 (2005);
116. Andrew Linklater, Cosmopolitan Citizen, 2 CITIZENSHIP STUD. 23, 41 (1998).
117. Hernandez-Truyol & Hawk, supra note 81.
118. Id.
119. Nussbaum, supra note 81;
120. Featherstone, supra note 81.
121. For a critique of the global citizenship position, see Brett Bowden, The Perils of Global Citizenship, 1 CITIZENSHIP STUD. 349 (2003). Bowden argues that the idea of global citizenship is invariably a call made from within the Western academia and "is inextricably linked to the West's long and torturous history of engaging in overzealous civilising-cumuniversalising missions in the non-Western world." Id. at 350. At the same time, the idea of global citizenship raises many of the same concerns associated with the problem of statelessness, "an absence of the guarantee of rights and security that are generally taken for granted by citizens of stable sovereign states." Id. See also COSMOPOLITANISM (Carol Breckenridge et al. eds., 2002) (challenging the notion of cosmopolitanism as a known entity with a clear genealogy stretching from the Stoics to Immanuel Kant and engaging with the limits and possibilities of a non-coercive and egalitarian cosmopolitan politics).
122. MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW, 1870-1960, at 98-178 (2002);
123. ANGHIE, supra note 15;
124. see also DAVID KENNEDY, THE DARK SIDE OF VIRTUE: REASSESSING INTERNATIONAL HUMANITARIANISM (2004);
125. Vasuki Nessiah, The Ground Beneath Her Feet: "Third World" Feminisms, in THE THIRD WORLD AND INTERNATIONAL ORDER: LAW, POLITICS AND GLOBALIZATION 133 (Anthony Anghie ed., 2003).
126. Some scholars have asserted these moments of exclusion as to be profoundly inconsistent with the very basis of liberalism, what the project actually stands for, and how it has operated, for example, in relation to women and other socially disadvantaged groups. These past manipulations can and have been rectified through a gradual process of inclusion of these previously excluded groups. Independence from colonial rule fought and won through the invocation of civil and political rights is used as another example to substantiate this position. See, e.g., MARTHA NUSSBAUM, SEX AND SOCIAL JUSTICE (1999);
127. MARTHA NUSSBAUM, HIDING FROM HUMANITY: DISGUST, SHAME AND THE LAW (2005);
128. Catharine MacKinnon, On Torture: A Feminist Perspective on Human Rights, in HUMAN RIGHTS IN THE TWENTY-FIRST CENTURY: A GLOBAL CHALLENGE 21 (Kathleen Mahoney & Paul Mahoney eds., 1993);
129. Rebecca Cook, Women's International Human Rights Law: The Way Forward, in HUMAN RIGHTS OF WOMEN: NATIONAL AND INTERNATIONAL PERSPECTIVES 3 (Rebecca Cook ed., 1994) .
130. KOSKENNIEMI, supra note 85, at 135.
131. HOMI BHABHA, THE LOCATION OF CULTURE 15 (1994).
132. KAPUR, supra note 56.
133. WENDY BROWN, EDGEWORK: CRITICAL ESSAYS ON KNOWLEDGE AND POLITICS 37-50 (2005) (discussing Foucault's work on governmentality);
134. see also Thomas Lemke, The Birth of Bio-Politics - Michel Foucault's Lecture at the Collège de France on Neo-Liberal Governmentality, 30 ECON. & SOC'Y 190 (2001);
135. Thomas Lemke, Foucault, Governmentality and Critique, 14 RETHINKING MARXISM 49 (2002) [hereinafter Lemke, Foucault].
136. Lemke, Foucault, supra note 90, at 56.
137. Naila Kabeer, Introduction: The Search for Inclusive Citizenship - Meanings and Expression in an Interconnected World, in INCLUSIVE CITIZENSHIP: MEANINGS AND EXPRESSIONS 1, 17 (Naila Kabeer ed., 2005).
138. This is made explicit in section 7A of the Citizenship (Amendment) Act of 2005, which provides for non-resident overseas Indians to become citizens of India. The Citizenship (Amendment) Act, 2005, No. 32, Acts of Parliament, 2005.
139. SEE HIGH LEVEL COMMITTEE ON THE INDIAN DIASPORA, MINISTRY OF EXTERNAL AFFAIRS, REPORT OF HIGH LEVEL COMMITTEE ON THE INDIAN DIASPORA 510 (2002) : "The Committee is of the opinion that the grant of dual nationality will remove for those who have taken foreign passports the obstacles to travel to and from India, promote investments in business ventures and foster a greater space of belonging." The Report further states that dual nationality will "facilitate the contribution of the Diaspora to India's social, economic, and technological transformation and national development." Id.
140. Id. at 2. The Report is replete with statements of fealty and love for the motherland, for example, "Their love for India and their pride in their Indian heritage propels their consistent demand for dual nationality." Id. at 510.
141. Id.
142. Citizenship (Amendment) Act, 2003, § 3C, No. 6, Acts of Parliament, 2003.
143. BROWN, supra note 90, at 16.
144. THE INT'L BANK FOR RECONSTRUCTION AND DEV., THE WORLD BANK, GLOBAL ECONOMIC PROSPECTS: ECONOMIC IMPLICATIONS OF REMITTANCES AND MIGRATION (2006), available at http://www-wds.worldbank.org/external/default/
145. WDSContentServer/IW3P/IB/2005/11/14/000112742_20051114174928/additional/ 841401968_200510327112047.pdf;
146. see also India Gets US$ 21.7 Billion from NRIs in 2005, ECON. TIMES, Nov. 18, 2005, http://ibef.org/artdisplay. aspx?cat_id=60&art_id=8417&refer=i1121.