Comparative study of the Indian and US citizenship Laws.

INTRODUCTION

Citizenship plays an important role in determining the rights and responsibilities of an individual. It is the declaring of identity of a person as a member of the sovereign state. It is the legal right that bestows membership of a national political community upon an individual. A nation has to be clear and limited in making its citizenship laws as it has to balance between the human capital belonging to the nation and the overgrowing population. A very stringent citizenship policy may deny the rights of the residents and a very liberal policy would increase the population and lead to insufficiency of resources to its citizens. In recent times there has been a huge number of immigrations in the United States and most of them are of Indian origin. The Donald trump regime has also made it very difficult for foreigners to get citizenship status in the States. It is noted that many women come to the United States just to deliver their babies to make themselves an United States citizen. Trump has mentioned these babies as “anchor babies” and has ordered not to give visa to such women. Thus the citizenship laws are very important and are to be reviewed by time to ensure the rights and status of a person. In this article, we will be making a comparative study of the citizenship laws of the Indian nation and the United States of America.

PRINCIPLE OF CITIZENSHIP OF INDIA AND USA

All nations differ by the principle they choose for the citizenship laws. The principles of citizenship is based on how and by what basis citizenship is being granted to a person. The two main principles of citizenship are the jus soli and the jus sanguinis. Jus soli is the right by birth on the soil and jus sanguinis is the right of the blood or descent. The United States of America follows the principle of jus soli as it gives citizenship to a person born in the United States. India is partially inclined to both the principles. India doesn’t give absolute birth right citizenship to everyone. People born between the 26th day of January, 1950, but before the 1st day of July, 1987 are given absolute birth right citizenship1. A person born or after the 1st day of July, 1987, but before the commencement of the Citizenship (Amendment) Act, 2003 gets birth right citizenship only if either of his parents is a citizen of India at the time of his birth2.  If a person was born after the commencement of the Citizenship (Amendment) Act, 2003 both the parents of that person has to be an Indian citizen or one citizen and other not a illegal immigrant3.

DUAL CITIZENSHIP POLICY

The United States of America allows dual citizenship to its citizens. That is, any American citizen can have dual passports and be a citizen of another country too. The Immigration and Nationality Act (INA) of the United States neither defines dual citizenship nor takes a position for it or against it. The United States government recognizes the existence of dual citizenship and completely tolerates the maintenance of multiple citizenship by U.S. citizens. A U.S. citizen may lose his or her dual citizenship by obtaining naturalization in a foreign state, by  formal declaration of allegiance to a foreign state , by serving in the armed forces of a foreign state, or by performing certain other acts, but only if the act was performed “voluntarily and with the intention to relinquish U.S. nationality”4

But India doesn’t have a policy of dual citizenship. India follows single citizenship and thus an Indian citizen cannot hold the passport of any other nation or have citizenship in any other country. Once an Indian citizen takes the citizenship of any other country by voluntary means, his Indian citizenship will be terminated5. But there is an exception for minor children who are citizen of India by descent but is also a citizen of another country, until he attains the age of 186.

POLITICAL RIGHT TO HOLD PUBLIC OFFICE

The United States government distinguishes the citizens by birth and the citizens by naturalisation for holding the post of president and vice president of the nation. Only the citizens by birth can hold the highest position of the nation. Thus there is a classification persisting within the citizens. On the other hand, In India, there is no disparity between the citizens of the nation as such to hold the highest political post like Prime Minister or Council of ministers7.

ACQUIRING CITIZENSHIP

BY BIRTH

In the United States any person born in the country and having parents that have permanent domicile and residence in the country, and not foreign diplomats, are citizens by birth in the States8. While in India there are further requirements. Even if a person is born in India , there is a requirement that either of his parents must be a citizen of India( if born after 1st july 1987).

Thus U.S they require the parent’s domicile and residence but in India the law requires the parent to be a citizen of India(not required if a person is born after the 26th day of January, 1950, but before the 1st day of July, 1987).

BY DESCENT

Section 1 of the Fourteenth Amendment to the United States Constitution provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

Even though there is no special mention of citizenship by descent in the United states Constitution, a person born to United States citizen abroad can get U.S citizenship. But an essential condition for citizenship in such a case is that the parents of the person must be married at the time of the person’s birth. In Indian law there is no special requirement of the parents to be married. As per Immigration and Nationality Act of 1952 (INA) of U.S , the citizen parent must have resided in the States for a fixed period before the birth of the child9 (fixed period varies by the date of birth of the child). In India, there is classification of citizenship by descent based on how the person’s parent got his citizenship. If the citizen parent itself got his citizenship by way of descent, then his child will not be a citizen of India unless certain conditions are followed. The conditions are that his birth must be registered in the Indian consulate or the parent must be a government servant.

BY NATURALISATION

For being a citizen by naturalisation in United States, that person must be a legal permanent resident of the United States (green card holder) He must have been physically present for at least 30 months of 60 months prior to the date of filing their application. Also during those 60 months if the legal permanent resident was outside of the U.S. for a continuous period of 6 months or more they are disqualified from naturalizing. 

Citizenship of India by naturalization can be acquired by a foreigner (not illegal migrant) who is ordinarily resident in India for twelve years (throughout the period of twelve months immediately preceding the date of application and for eleven years in the aggregate in the fourteen years preceding the twelve months)10

Unlike India, in the United States a citizenship test will be conducted for the people who are willing to be citizens of United States by naturalisation.

TERMINATION OF CITIZENSHIP

If a citizen of India voluntarily acquires the citizenship of any other nation, his citizenship is said to be terminated11. In the United States, as there is dual citizenship , the citizen can voluntarily acquire citizenship of any nation which permits dual citizenship. But if he voluntarily does any act to relinquish the U.S citizenship, then his citizenship will be terminated.

END NOTES

1. The Citizenship Act 1955, sec 3(1) (a)

2. The Citizenship Act 1955, sec 3(1) (b)

3. The Citizenship Act 1955, sec 3(1) (c)

4.. Advice about Possible Loss of U.S. Nationality and Dual Nationality 2018< https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/Advice-about-Possible-Loss-of-US-Nationality-Dual-Nationality.html&gt;

5. The Citizenship Act 1955,sec  9 (1)

6. The Citizenship Act 1955, sce 4 (1A)

7. The Constitution of India 1950, Article 84

8.  “United States v. Wong Kim Ark”. United States Reports. 169: 649–732. 1898

9. The Immigration and Nationality Act of 1952 ,sec 301 (g)

10. The Constitution of India 1950, The Third Schedule

11.  The Citizenship Act 1955,sec  9 (1)

AUTHOR: R Divyashree, Research Board Member.

REFERENCES

1. https://en.wikipedia.org/wiki/United_States_nationality_law#cite_note-13

2 .https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/Advice-about-Possible-Loss-of-US-Nationality-Dual-Nationality.html

3.https://www.indiacode.nic.in/bitstream/123456789/4210/1/Citizenship_Act_1955.pdf

4.https://en.wikipedia.org/wiki/Green_card#:~:text=Green%20card%20holders%20are%20statutorily,persons%20of%20good%20moral%20character.

5.https://web.archive.org/web/20150907004823/http://travel.state.gov/content/travel/english/legal-considerations/us-citizenship-laws-policies/citizenship-child-born-abroad.html

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