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COMPARATIVE STUDY OF CITIZIENSHIP IN INDIA AND U.S.A
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COMPARATIVE STUDY OF CITIZIENSHIP IN
INDIA AND U.S.A
AUTHORED BY
- PRADNYA P. DABHADE, LLM 1ST YEAR
INTRODUCTION
Citizenship in India and United States has evolved
significantly over time, shaped by historical, legal and sociocultural factors. In
India, the concept of citizenship is deeply rooted in the struggle
for independence and the aspiration to build a democratic nation.
The modern understanding of citizenship in India
finds its roots in the struggle against colonial rule, where the quest for independence was
inseparable from the aspiration to build an inclusive and democratic nation.
Meanwhile, the
United States, Journey from the Founding Fathers to the present has been marked by the continuous evolution of
citizenship concepts, influenced by the events such as the Civil War, the Civil
Rights Movement, and shifts in immigration patterns.1
In India, the
Citizenship Act of 1955 defines Indian Citizenship and outlines the rights and duties of the citizens. The act also provides for the acquisition and termination of the citizenship.
In the United
States, the 14th Amendment of the U.S. Constitution defines
citizenship and outlines the rights
and duties of citizens. The Naturalization Act of 1790 established the first federal naturalization law, which granted
citizenship to “free white persons” who had resided in the United
States for two years and declared their intention to become citizens.
2
HISTORICAL
BACKGROUND
INDIA:
Though India is a Federation having two levels
of Government, Central
and State- there is only
single citizenship, viz the Indian
citizenship and no separate State Citizenship.
Article 5 to 11 in the Constitution lay down as to who are the citizens of India at the commencement of the Constitution, ie on 26 January 1950.
These citizens has been classified into:
1.
citizens by domicile
2. citizens by migration, and
3. citizens by registration.
Colonial Legacy:
India's historical journey towards defining citizenship is deeply
intertwined with its struggle against British
colonial rule. The colonial period,
characterized by the imposition of discriminatory
policies and the denial of political rights, laid the groundwork for a
reimagined citizenship in post-independence India.3
Independence Movement:
The Indian independence movement,
led by iconic figures like Mahatma Gandhi and Jawaharlal Nehru, was not only a fight for political sovereignty but also a quest
to establish an inclusive and egalitarian nation.
The movement sowed the seeds for the principles of citizenship that would
be enshrined in the Indian Constitution.4
Constitutional Framework:
The adoption
of the Indian Constitution in 1950 was an important moment. Dr. B.R. Ambedkar, the architect of the Constitution, dreamed of a democratic and socially just society. The
3 M P Jain, Indian Constitutional Law,839 (8th ed., 2018)
4 Kaviraj, S., & Khilnani,
M. (Eds.). (2001).
Civil Society: History
and Possibilities. Cambridge University Press.
Constitution recognized the principles of jus soli and jus sanguinis,
laying the foundation for citizenship based on birth and descent.
Partition and Citizenship Challenges:
The partition
of British India in 1947 resulted in mass migrations and the reconfiguration of territorial boundaries. The Citizenship
Act of 1955 addressed the citizenship status of those affected by the partition, reflecting the complexities of identity and
migration.
Evolving Legislation:
Subsequent
amendments and legislation, such as the Citizenship Amendment Act (CAA) in 2019, introduced new considerations, particularly concerning the citizenship status of individuals from neighbouring countries. This highlighted the ongoing evolution
of citizenship laws in
response to contemporary challenges.5
UNITED STATES:
1. Founding Principles:
The United
States, born out of a revolutionary spirit in the late 18th century,
established foundational principles
that emphasized individual rights and liberties. The U.S. Constitution, ratified in 1787, set the stage for the nation's
understanding of citizenship.
2. Constitutional Amendments:
The 14th
Amendment, ratified in 1868 in the aftermath of the Civil War, played a pivotal
role in shaping the modern concept
of citizenship. It granted citizenship to all persons born or naturalized in the United
States and underscored the notion of equal protection under the law.
3. Immigration and Nationality Act of 1952:
The Immigration and Nationality Act, also known as the McCarran-Walter Act, overhauled
U.S. immigration policy in 1952. It introduced the concept of quotas,
reflecting the changing dynamics of immigration and influencing citizenship criteria.
5 M P Jain, Indian Constitution Law,(8th ed., 2018)
4. Civil Rights
Movement:
The Civil Rights Movement
of the 1950s and 1960s sought to dismantle racial segregation and discrimination. This period led to legislative changes, reinforcing the principles of equality and non-discrimination in the application
of citizenship rights.
5. Contemporary Challenges and Reforms:
Ongoing
debates on immigration policy, Deferred Action for Childhood
Arrivals (DACA), and calls for comprehensive immigration reform
underscore the dynamic
nature of U.S. citizenship. Legal developments and societal shifts continue
to shape the contours of American citizenship.
Understanding the historical contexts of India and the United States is
crucial for unravelling the complexities and nuances that define their respective citizenship frameworks. The trajectories of these nations reflect not
only the struggles for independence and civil rights but also their ongoing
efforts to build inclusive societies that accommodate diverse
populations.
MODE OF ACQUISITION OF CITIZENSHIP
INDIA
Jus Soli (by birth):
According to
Section 03, a person born in India on or after the 26th January,
1950 but before the citizenship
(Amendment) Act, 1986, and those born in India on or after commencement and either of whose parents is a citizen
of India except when they possesses diplomatic
immunity and his father is not an
alien enemy.6
Jus Sanguinis (by descent):
Section 4
states provisions for citizenship by descent. A person born outside India
before January 26, 1950, but after
the commencement of the Indian Constitution, qualifies for Indian citizenship if their father is an Indian
citizen at the time of their birth. Similarly, a person born outside
India on or after January
26, 1950, is eligible for Indian citizenship if either parent is
6 M P Jain, Indian Constitution Law,843 (8th ed., 2018)
an Indian citizen
at the time of birth.
However, if the person born on or after January
26, 1950, is only a citizen of India by descent,
they will not be considered an Indian citizen if their birth occurs
while either parent is serving under the Government of India.7
Registration:
Section
5 deals with citizenship by registration. It allows certain
categories of people
to become Indian
citizens through registration.These categories
include:
a)
People of Indian
origin living in India for at least
five years before applying.
b)
People of
Indian origin residing outside of undivided India.
c)
Women married to Indian citizens.
d)
Minor children of Indian
citizens.
e)
Adults from Commonwealth countries.
The provision
ensures that people from Pakistan who couldn't become citizens under the Constitution can register. It clarifies
that clauses (a) and (e) are separate, with (e) covering Commonwealth citizens.8
Naturalization:
Section 6 deals with Citizenship by naturalisation. Foreign
nationals who have resided in India for a specified duration
and meet other criteria may be eligible
for naturalization, allowing
them to acquire Indian
citizenship.9 The Applicant for the citizenship must be communicated
the grounds for refusing the grant and allowed
to make a representation against
the order.10
Overseas Citizenship of India (OCI):
While not full
citizenship, the OCI status is available to foreign citizens of Indian origin.
It provides certain privileges, including
visa-free travel to India.
7Ibid, at 844
8 Ibid
10 Hasan Ali Raihany v. UOI, (2006)
3 SCC 705
Citizenship Amendment Act (CAA):
The CAA, passed in 2019, introduced a specific pathway
to Indian citizenship for non-Muslim migrants from neighbouring countries
who entered India
before December 31, 2014.11
UNITED
STATES
Jus Soli (Birth
right Citizenship):
The U.S. follows the principle of jus soli,
granting citizenship to individuals born on U.S. soil. This birth
right citizenship is enshrined in the 14th Amendment to the U.S. Constitution.
Jus Sanguinis
(Descent):
Citizenship in
the U.S. can also be acquired through descent. Children born abroad to at least one U.S.
citizen parent may be eligible for U.S.
citizenship.
Naturalization:
Non-citizens
can become U.S. citizens through a process of naturalization. This involves meeting residency requirements, demonstrating good moral character, and passing a citizenship test.12
Dual Citizenship:
The U.S.
generally allows for dual citizenship. U.S. citizens can acquire citizenship in
another country without
automatically losing their U.S. citizenship.
Derivative Citizenship:
Certain
individuals, such as adopted
children or those born to U.S. citizens
abroad, may acquire U.S. citizenship through derivative means.13
The United
States does not officially recognize dual citizenship in the sense that some
other countries do. However, it does not explicitly prohibit
it either. This means that if you are a
13 Schuck, P. S., & Smith,
M. S. (2006). Citizenship without
Consensus: Perspectives on Conflicting Conceptions of Membership in Contemporary America. Yale University Press.
citizen of the United States and acquire citizenship of another country,
you may technically hold dual
citizenship. However, the U.S. government expects its citizens to enter and
exit the United States
using their U.S. passport
and to fulfill all obligations of U.S. citizenship, such as paying
taxes. Additionally, acquiring
another citizenship may have implications for things like security
clearances or eligibility for certain government benefits. It's always
advisable to consult legal experts or immigration authorities for specific advice
on dual citizenship matters.
United States Supreme Court case
in which the Court ruled that a dual U.S./Japanese citizen could be convicted of treason against the United States
for acts performed in Japan during
World War II.14
Special Cases:
The U.S. has specific
provisions for granting
citizenship to individuals in special circumstances, such as military service
or the conferment of honorary
citizenship.
Both India and
the U.S. employ a combination of jus soli and jus sanguinis, with additional provisions for registration, naturalization, and special circumstances, reflecting the complexities of contemporary
migration and global dynamics.
14 Kawakita v. United States,
343 U.S. 717 ( Supreme
Court of the United Nations,
1952)
RIGHTS, PRIVILEGES, AND DUTIES OF CITIZENS
INDIA
Rights:
Right to Equality: Indian citizens are guaranteed equality
before the law and equal protection of the laws (Article 14)
Right to Freedom: Includes
freedom of speech and expression, assembly, association, movement, and residence (Article 19).
Right to Constitutional Remedies:
The right to move the Supreme Court for the enforcement of fundamental rights (Article 32).15
Privileges:
Right to Vote: Citizens
above the age of 18 have the right to participate in the democratic process by voting
in elections.
Reservation Benefits:
Certain provisions exist for affirmative action in education
and employment for socially
disadvantaged groups.16
Fundamental Duties: Citizens are expected to uphold the sovereignty, integrity, and unity of the nation.
The Constitution of India includes a list of fundamental duties
(Article 51A).
Civic Responsibility: Participation in civic processes, promoting
harmony, and safeguarding public property are emphasized as civic duties.17
UNITED STATES:
Rights:
First
Amendment Rights: Freedom of speech, religion, press, assembly, and petition.
Second Amendment Rights:
Right to bear arms. Fourth Amendment Rights:
Protection against unreasonable searches and
seizures.
15 Article 14, 19 and 32,
the Constitution of India
16 Article 15, 16 and 326, the Constitution of India
17 Article 51A, the Constitution of India
Privileges:
Right to Vote: U.S. citizens
aged 18 and above have the right to vote in federal elections. Access to
Government Jobs: Certain government positions and elected offices are reserved
for U.S. citizens.18
Duties:
Civic Duties:
Citizens are expected to participate in the democratic process by voting and serving
on juries.
Selective
Service: Males aged 18 to 25 are required to register for selective service in
case of a military draft.19
TERMINATION AND REVOCATION OF CITIZENSHIP
INDIA
Renunciation and Relinquishment:
An Indian citizen can renounce their
citizenship by making
a declaration of renunciation if they acquire
the citizenship of another country.
This is a voluntary act, and the individual loses their Indian
citizenship.
Termination by the Government:
Citizenship in India is determined by domicile or migration. A person who migrated to Pakistan after March 1, 1947, loses Indian citizenship unless
they return under resettlement or permanent return permits. Article 5 and 6,
concerning those who migrated to Pakistan between March 1947 and January 26, 1950. The Indian Citizenship Act governs citizenship for those migrating
to Pakistan after January
26, 1950. Despite
marriage, a woman's
citizenship isn't automatically determined by her husband's, and she retains
her own domicile status.20 Article
7 is pre-emptory
18 https://www.justice.gov/sites/default/files/usao- mn/legacy/2011/09/16/MN%20Civil%20Rights%20FINAL.pdf
19 https://www.archives.gov/files/legislative/resources/education/bill-of-rights/images/handout-3.pdf
20 M P Jain, Indian Constitution Law,842 (8th ed., 2018)
in its scope and makes no exception
in favour of a wife who
migrates to Pakistan leaving her husband in India. 21
Deprivation of Citizenship:
Citizenship can be deprived
if acquired by fraud, false representation, or concealment of material facts (Section
10 of the Citizenship Act).22
UNITED
STATES
Renunciation:
U.S. citizens
have the option to renounce their citizenship voluntarily. This involves a
formal process that includes
renunciation before a U.S. diplomatic or consular officer in a foreign country.23
Relinquishment through Acquisition of another Citizenship:
Similar to India, acquiring
another citizenship voluntarily can lead to the relinquishment of U.S. citizenship. This occurs automatically when a U.S. citizen voluntarily and with the intention of relinquishing U.S. nationality takes
on a foreign citizenship.
Revocation by the U.S. Government:
The U.S. government can revoke citizenship in cases where it was obtained through
fraud, misrepresentation, or other unlawful means.
Loss of Citizenship for Dual Nationals:
While the U.S. generally allows for dual citizenship, engaging
in certain acts, such as serving in a foreign
military, may lead to the loss of U.S.
citizenship for dual nationals
21 State of Bihar v. Amar Singh, AIR 1955 SC 282
CONCLUSION
Both India and the U.S. emphasize equality and non-discrimination
as fundamental principles, ensuring that citizens are treated fairly and without
prejudice. Citizens in both countries have the right to seek legal recourse
if their fundamental rights are violated,
reinforcing the importance of the rule of law. Both nations
stress the importance of civic participation, whether through
voting or other means, as a duty and privilege of citizenship. Citizenship
entails allegiance to the nation,
with citizens expected to contribute to the well-being and prosperity of the country.
Dual
Citizenship is not allowed in India as per the provisions of Article 9 of the
Constitution of India read with
Section 9 of the Citizenship Act. However, the Government of India has enacted laws to grant Overseas Citizenship
of India, commonly known as “Dual Citizenship,” to people of Indian origin
who migrated from India and acquired citizenship of foreign country,
other than Pakistan and Bangladesh, as long as their home country does
not object to it under their respective laws. 24
Dual
citizenship is followed in the American Constitution; that is, people need to
have the citizenship of the state as well as
the country. India’s
Constitution works on single citizenship, which means the resident should be a citizen of the country, no
matter the state they reside in. The
Indian Constitution has picked the best features from various Constitutions
across the world. It has taken its preamble
from the US Constitution. India wrote its Constitution because
it proved what Indian laws
are all about.25
·
Article Information
COMPARATIVE STUDY OF CITIZIENSHIP IN INDIA AND U.S.A
Authors: PRADNYA P. DABHADE
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/04
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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