`Rights To Have Rights’ In Context Of Citizenship Matrix In India
Shalu Nigam
Much has been said about the controversial Citizenship Amendment Act, 2019 while protestors all
over India demanded to withdraw the law claiming that it is discriminatory. The matter is pending
before the Supreme Court but in this piece, it is added that the amendments made over the years,
in the citizenship law, have changed the very notion and discourse of citizenship by altering the
context of `rights to have rights’. The amended provisions alter the very nature of relationship that
exists between a citizen and the state. The principle of jus soli (citizenship by birth) is being
replaced by jus sanguinis (citizenship by bloodline). At the same time, the law reduces the scope
of human rights while eradicating a person’s entitlements to renders the status of all persons as
stateless. It empowers the bureaucratic state machinery to determine as to who is a citizen.
Therefore, it is essential to reconsider the citizenship matrix to necessarily protect human rights of
citizens.
Exceptional Concept of `Rights to Have Rights’
Hannah Ardent, a political theorist, in her essay titled `Rights of Man: What are They?” published
in 1949, which was later incorporated in the `Origin of Totalitarianism’ in 1951, claimed that the
`universal’ and `inalienable’ rights mentioned in the Universal Declaration of Human Rights are
grounded on the principles of national and territorial sovereignty of the nation state and therefore
are inherently contradictory. Ardent reasoned that to enjoy human rights, individuals must be more
than mere human beings. They must acquire the membership of the nation states. The crux of her
argument was that to enjoy rights such as right to education, to work, to vote, to health care and so
on, an individual must belong to an organized political community. The concept of `rights to have
rights’ therefore, involves preconditions which necessarily are premised on recognition of human
beings as citizens and the reciprocal duties of the state to protect the rights of citizens.
According to this conception, though human rights are intrinsic to very existence of a being but
the basic principle behind all human rights instruments assume that the State is a basic guarantor
of rights to its citizens, therefore, once the state declares a person as stateless, then it does not
perform its duty to guarantee rights to that person. In such a situation, any concept of rights
becomes meaningless. Statelessness, in itself tantamount to loss of nationality status and loss of
rights. Statelessness deprives a person of citizenship rights as well as loss of human rights.
In India, this phenomenon is right now happening in one of the poorest state of Assam, whereas
per the implementation of Assam Accord under the monitoring by the Supreme Court, in
December 2019, a list was made public where 1.9 million citizens were declared as `Doubtful
citizens’ and have been lodged in the detention centers rendering them stateless. Stateless persons
are deprived the rights which they enjoy as citizens. National Register of Citizen made in Assam
erodes the basic rights guaranteed under the UDHR and other international treaties and
conventions by declaring these people as doubtful citizens. The human right apparatus is collapsed
March 2020
Shalu Nigam
Electronic copy available at: https://ssrn.com/abstract=3566904