Citizenship Rights and the ‘CAA’ Controversy: A Jurisprudential Analysis

Rhea L Vinay

Introduction

‘Citizenship,’ in India, has been awarded through Part II of the Indian Constitution and the Citizenship Act of 1955. While not ingrained as fundamental right under Part III of the Constitution, it has been recognized as a legal right/ claim conferred upon individuals that are deemed citizens of the country. It is pertinent to note that discussion regarding ‘citizenship rights’ do not end there, rather in the current scenario, they have taken the form of a discriminatory and arbitrary nature under the Citizenship Amendment Act, 2019 (“CAA”), which was passed by the Parliament on 11^th December 2019. The CAA amended the Indian Citizenship Act and prevents current illegal immigrants from obtaining Indian citizenship. The Act altered a clause that states that a person cannot seek citizenship unless they have worked for the federal government for at least 11 years or have resided in India from which the following six (6) religious minority groups will stand exempted: Christians, Sikhs, Buddhists, Jains, Parsis, and Hindus, provided they can provide documentation proving they are native to Bangladesh, Pakistan, or Afghanistan. Members of the above categories will need to reside or work in India for six years. The CAA has garnered attention and has been infamously typified with a negative connotation. It has been called out for being discriminatory and prejudicial on religious grounds, that is, virtue of the exclusion of Muslims from the Act, thus violating the principles of secularism, equality before law, and equal protection of the law. While this relates to the core concept of the ‘Law,’ a jurisprudential analysis of the same may be conducted.

It is undoubted that the CAA is a controversial move from both the political and legal lenses, however, in this piece, the author makes case of a jurisprudential analysis of the amendment. Philosophy of and the study of jurisprudence provides a similar understanding of the law just as economics does – something of an ex-ante approach to the law. That is, it aids in revealing the guiding ideas, precepts, and moral standards that influence legal systems further aiding us in recognising and resolving discrepancies to direct the development of legal standards so that they more closely represent justice and societal ideals. As John Austin said “the existence of law is one thing; Its merit and demerit another. Whether it be or not be is one enquiry; Whether it be or be not comfortable to an assumed standard, is a different enquiry.”

Analysis of ‘Legal Rights’

One of the very first aspects to such an analysis is that if it qualifies as a legal right from the viewpoint of the famous scholar – Salmond. According to Salmond in his famous work ‘Salmond on Jurisprudence,’^[1] a right is an interest recognised and protected by a rule of right. It is any interest, respect for which is a duty, and the disregard of which is a wrong. A demarcation between legal and moral rights is further drawn by Salmond who also highlights that if something is rightfully mine, then I have a right to own it. All rights are those of the person for whose benefit they exist, and all wrongs are those of the person whose interests they affect. It is argued that, to the extent of this characterisation, citizenship rights may be jurisprudentially recognised as ‘legal rights’ as the concept of non-residents of India or migrants seeking refuge and eventually citizenship, represents their interest or claim which is legally recognised through the legislations of the Citizenship Act and the CAA in India. Insofar as the claim of those excluded from the categories of entities who may claim citizenship through the CAA, although there exist the interests of Muslims, transgenders, orphans, and other ‘illegal immigrants,’ their claims have not been recognised by the State through a rule of right. However, when conducting a legal analysis of whether a classification made is legal and lawful, it is pertinent to note that the absence of the latter’s legal right stands in contradiction to the assertion of (i) The rule of reasonable classification under Art. 14 of the Constitution which posits the presence of intelligible differentia and rational nexus behind the enactment of a legal provision; and (ii) the doctrine of basic structure which implicitly signals towards the secular and non-discriminatory nature of the State. The reason for such a two-fold analysis In furtherance, if the limited scope and allegedly unconstitutional nature of the CAA is confirmed based on the aforementioned grounds and the entities excluded from the Act are eventually included in the same, the interests of the excluded entities qualify as claims which are enforced through the rule of right enforced by the State. It is pertinent to note that, although the Salmond’s primary definition of ‘legal right’ has been met, the five elements of a legal right as laid down by Salmond have not been completely satisfied. Firstly, there does exist a person of inherence/ a person in whom the right is vested. In this context, the right/ interest of citizenship is vested in the entity to who the same is guaranteed under the Act, but there exists no person of incidence/ a person bound by the right and upon whom a corelative duty lies – it is neither the State nor the people. Moreover, there is no fulfilment of the elements of title, content of the right, and the object of the right. It is thus concluded that the rights of citizenship are not legal rights of the entities according to Salmond’s definition, by virtue of their non-fulfilment of the crucial elements of legal rights.

After having established that citizenship rights, according to an analysis of Salmond’s theory, do not qualify as legal rights, it probes the questions as to what classification the same falls under. It is interesting to explore a Hohfeldian analysis of citizenship rights. Hofhfeld defines eight basic legal concepts and establishes a relation of correlatives between them, meaning that one must exist with another and exist together.^[1] In the instant context, at first glance, the legal relation of citizenship rights may be classified as that of a ‘privilege’ and ‘no-right.’ It implies a situation wherein the legal relation of A and B when A with respect to B is free or at a liberty to conduct himself in a certain manner as he pleases and his is not regulated for the benefit of B by the command of society, and when he is not threatened by any penalty for disobedience. A no-right is the legal relation of a person on whose behalf society is not commanding some particular conduct of another – vested in the entity bearing the co-relative. The author does not stand my such assumption. An analysis of Part III of the Constitution suggests that they are liberties or privileges enjoyed by citizens and the State has a ‘no-right’ to interfere with such enjoyment, nevertheless as pointed out precedents like Kharak Singh v. State of Uttar Pradesh^[2] and A K Gopalan v. Union of India,^[3] Fundamental rights (“FRs”) may be infringed for reasons of public order, interests of the general public, and by a statute that is reasonable in nature, etc. In the present case, although once an entity is awarded the status of citizenship through the CAA or the Citizenship Act and the privilege is exercised by the entity to act in a way free from control of such status by the State, the entity does not function in manner absolutely free from State control. In fact, an individual is named a citizen so that they are given the recognition of and are regulated by the State. The author instead proposes that the jural relation that exists (although none fall squarely into one), is that of ‘power’ and ‘liability.’

The capacity to modify moral or legal relationships is known as ‘power,’ and the relationship between power and liability is that the person under the power – holder’s authority runs the risk of having his or her legal ties changed as a result of the use of power, thus termed as ‘liability.’ In the context of citizenship rights, it is apparent from the text of the legislation that the State regulates and controls the decision and process of awarding citizenship. It provides a medium to fast-track citizenship for a few religious minorities and contains provisions relating to permitting the government to seize people’s Overseas Citizen of India (“OCI”) card, reduction in the qualifying length of residency in India before being eligible for Indian citizenship, barring illegal migrants, and granting certain migrants immunity from legal cases affecting their immigration status, etc. This exemplifies the various bars (reasonable or unreasonable) and limitations the States lays down while conferring citizenship, in other words, affecting an important type of ‘legal relationship’ that gives validity to an individual’s very survival in a sovereign State. Thus, the State wields the ‘power’ to grant and alter the individual’s status while the latter is subject to such power. It goes unsaid that, like other legislations and their impact, this too may be subject to judicial review, but the stepping stone to such a decision lies in the acceptance that bestowment or withdrawal of citizenship and naturalization is subject to the State’s ‘power’ and the synchronous consequence of the individual’s ‘liability.’

Thus, by the application of Fundamental Legal Conceptions Applied to Judicial Reasoning by Hohfeld,^[1] his basic legal concepts and lowest common denominators, citizenship rights of those entities included in the CAA are bound together in a legal relation of correlatives of ‘power’ and ‘liability.’

Analysis of ‘Legal Person’

Unless the rights or legal personality of people are recognized, that is, as citizens, their existence and standing is questionable. Thus, a further jurisprudential analysis of such rights and the CAA may be conducted with respect to the recognition of their ‘legal personality.’ Salmond opines that a person in the eyes of law is one who is capable of holding and exercising rights whether he be a human being or not. He goes a step further to emphasise that no being may possess rights unless they have interests that are vulnerable to being impacted by the actions of others. This is because every right has an underlying interest of this kind. In pursuance of the definition, the entities who are granted citizenship rights and those who have been excluded from the CAA, by applying Salmond’s definition, qualify as individuals who are capable of holding and discharging rights, claims, and duties accruing to the concept of citizenship – firstly, they are capable of holding the rights that flow from being a recognised citizen, for example voting rights and property rights; secondly, they are also capable of discharging duties that are vested in them when they are conferred with citizenship, for example, the duty to abide by the constitution and respect the ideals of the nation, the national flag, and the national anthem. In the context of the chosen socio-legal issue, although only a few religious categories are protected under the Indian Citizenship laws, it is argued that both, the protected religious entities and those who have been blatantly ignored, do possess the capability of holding and discharging duties and rights.

In pursuance to Salmond’s definition of ‘persons,’ it is important to note that the concepts of ‘legal’ and ‘natural’ persons stand differentiated. A natural person is one who has been conferred individuality by the law based on truth and reality. Legal people are entities—real or fictional—to whom the law fictitiously bestows personality when none exists. Summarily, legal persons are persons in law but not in reality, whereas natural persons are persons in both fact and law. When this premise is analysed in the context of the citizenship rights flowing from the Citizenship Act and the CAA, the entities protected by the law (members of the six religious categories discussed above) are not only persons in fact, but are also legal persons by virtue of protection of their citizenship by the law. However, the second class of entities who are excluded from the protection of the Acts (Muslims, etc.), are natural persons by fact and by person. It is further imperative to consider the theory of German writers who lay emphasis on the ‘will theory’ of rights. They opine that the possession of a ‘will’ by entities signifies their categorization as ‘legal persons’ and suggest that personality is the legal capacity of will and that the bodiliness or physical attributes of entities in unnecessary in determining their legal personality. So far it is clear that the CAA exempts certain categories from the enjoyment of Citizenship and although it may be deduced from Salmond’s theory that the entities exempted the CAA only qualify as natural persons, according to German theorists, they very much stand out to be counted as ‘persons’ holding juristic personality by virtue of them holding the will to possess personhood.

Conclusion

After an analysis of citizenship rights from the lens of jurisprudence, it is safe to say that an analysis of citizenship rights as ‘legal rights’ reveals it does not fulfil Salmond’s definition of ‘legal rights’ and its elements, however, a Hohfeldian reveals the satisfaction of the right as a corelative relation of a ‘privilege’ and ‘no-right.’ Given that the topic chosen was that of citizenship which raises questions regarding the recognition and standing of an entity/ person, thus employing Salmond’s criteria of ‘person.’

The author is a third year student at Christ University.