The legal systems under which citizenship is acquired | Explained Premium

Analysis of citizenship principles in the U.S. and India, including recent legal changes and implications for minorities.

The story so far: U.S. President Donald Trump issued an executive order stating that U.S. citizenship will be granted in the future only to children with parents holding U.S. citizenship or a U.S. green card.

Citizenship is defined as full and equal membership of a country. In the words of Hannah Arendt, citizenship is the ‘right to have rights’. There are two important legal systems based on which citizenship is acquired in various countries. One of them is ‘jus soli’ which means ‘right of soil.’ Under this principle, a child’s citizenship is determined by his or her place of birth irrespective of the citizenship of their parents. Many North American and Latin American countries like Canada, Mexico, Brazil, Argentina etc., follow this principle while granting citizenship for children born within their country. The other is ‘jus sanguinis’ which means ‘right of blood.’ Under this principle, a child’s citizenship is determined by the citizenship of parents. Many African, European and Asian countries like Egypt, South Africa, Germany, India etc., follow this principle.

The U.S. has practised the grant of citizenship based on the ‘jus soli’ principle. The 14th amendment to the U.S. Constitution, adopted in 1868, states that ‘all persons born or naturalised in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ The U.S. Supreme Court in 1898 reaffirmed that the 14th amendment extended to all children born in the U.S., irrespective of the parents’ citizenship. The current executive order issued by President Trump titled ‘Protecting the meaning and value of American citizenship’ decrees that American citizenship would be granted only to children with parents holding U.S. Citizenship or a U.S. Green card. This order is to be implemented from February 19. However, a federal court in the State of Washington has temporarily stayed the order stating that it is ‘blatantly unconstitutional.’

Citizenship in India is governed by the Citizenship Act, 1955. Till June 1987, India followed the ‘jus soli’ principle granting automatic citizenship to anyone born in India. Subsequently, the law was amended to introduce the ‘jus sanguinis’ principle. Between July 1987 and December 2004, it was required that either of the parents of a child born in India was a citizen of India for granting citizenship. Since December 2004, the requirement was further restricted wherein both the parents had to be citizens or one parent is a citizen and the other not an illegal immigrant. This was primarily to restrict citizenship to children born to illegal immigrants from Bangladesh. The Citizenship Amendment Act, 2019 (CAA) provides accelerated citizenship to Hindus, Christians, Sikhs, Jains, Buddhists, and Parsis from neighbouring countries of Pakistan, Afghanistan and Bangladesh who have entered India before December 31, 2014. India has differentiated on the basis of religion, by excluding Muslims, for grant of accelerated citizenship for the first time through CAA, 2019. Critics argue that this is against the basic structure of secularism under the Indian Constitution. The argument made by the government is that it is only to grant accelerated citizenship to religious minorities of these three neighbouring countries who have migrated to India owing to religious persecution in these countries and hence not discriminatory. The Supreme Court will decide on the constitutional validity of this law. Meanwhile, the government should ensure that implementation of this law does not create undue hardships for Muslim citizens.

Rangarajan. R is a former IAS officer and author of ‘Polity Simplified’. Views expressed are personal.