foundational quality of legal citizenship was signalled most eloquently in Hannah Arendt’s reflections,
in the shadow of the Second World War, on the predicament of the millions of people rendered homeless
and stateless as a result of religious persecution and war. When these millions lost their membership in
the nation-state, they also lost all their rights, leading Arendt to argue that human rights, in and of
themselves, are no protection of any kind, and cannot be defined separately from the rights of citizens.
She highlighted the irony of the fact that the very rights that had been declared as inalienable, appeared
to be imperilled as soon as there was no authority, no institution, no government to guarantee and enforce
them (Arendt, 1958, p. 292). It is only citizenship—membership in a political community—that can
provide such a guarantee. The holding of rights is thus a condition that obtains only within the framework
of citizenship, with citizenship in turn being something that is enriched by the practice of rights as
citizens engage in public-spirited political activity.
Thinking about citizenship in this ‘thin’ legal sense of the status of membership in a political
community receded somewhat in the aftermath of the Second World War. Even as recently as the 1990s,
it was simply taken for granted, as it was the task of building ‘thick’ citizenship, through, for instance,
multicultural policies, that engaged societies, especially in the Global North (Kymlicka & Norman,
1995, p. 285). It was in the context of globalization, accelerated population flows and immigration, that
the question of legal citizenship came to acquire renewed significance, finding acknowledgement as a
necessary precondition for any other kind of citizenship.
Recent decades have seen animated debates among political theorists as to what rights accrue to new
entrants into a political community, such as immigrants, as also the question of whether it is the
prerogative of a state to admit immigrants without necessarily committing to accord them citizenship
rights. While few advocate, as Joseph Carens has done, the idea of open borders, or even the moral
importance of the length of stay (even if unauthorized) within the borders of a nation-state (Carens,
1995), it has been widely recognized, both in theory and in international law, that statelessness is a
violation of human rights. Michael Walzer’s theory of just membership, for example, rests on the
argument that political rights are important for aliens because of their participation in the economy and
the fact that they are governed by laws in the making of which they do not have a voice. While states
have, he argues, the right to determine first admission, once people are admitted, they must have the right
to naturalize as citizens (Walzer, 1983). Seyla Benhabib seeks to extend the scope of cosmopolitan
theories of justice to cover just membership, asserting first admittance as a moral right for refugees and
asylees (Benhabib, 2004).
In most theoretical discussions on this issue, it is the immigrant non-citizen or the undocumented
alien who is seen as the putative claimant and potential bearer of citizenship rights. Most of these
discussions also assume that the recognition of their legal status as citizens places immigrants and
undocumented aliens on par with other citizens, in terms of their relationship to the state as well as to
each other. In other words, once citizenship is granted, there is a presumption of universality and equality,
with no hierarchies or gradations of citizenship.
Recent legislative developments in India bring these assumptions into question in two distinct ways.
First, the latest amendment to the citizenship law offers privileged access to citizenship to migrants
belonging to particular faiths, thus introducing a distinction on the basis of religion that is seen to violate
the right to equality under the Indian Constitution. Second, the proposal to put into effect the National
Register of Citizens (NRC) seeks to administer a test of citizenship to those who have been residing,
sometimes for generations, within its borders. Underlying such an exercise is the official presumption
that, whether or not they are in possession of the documentary accoutrements of citizenship, not everyone
is actually a citizen, and that illegal immigrants masquerading as citizens need to be sifted and sorted