Introduction
Citizenship laws are some of the most important provisions in a countries’ legal framework, as they establish a base link for every person to be held accountable by law. Citizenship can be said to have three main components: legal status, political agency, and being a member of the political community[1]. The combination of these three ensure that one who can be classified as a ‘citizen’ of a country is effectively integrated with the affairs of that country, which, in turn, allows people to freely participate in a nation’s political affairs. Being a citizen of a particular nation also serves as a way of asserting one’s identity, and this is often referred to as the ‘psychological’ dimension of citizenship[2]. Therefore, it can be said that it is of the utmost importance to ensure that every country has a proper framework to ensure that one’s citizenship is accounted for.
However, while it is conventionally understood that someone who owes protection to a particular state and who has a right to reciprocal protection from the same state is a citizen of that state[3], in several countries, there exist certain provisions that enable one person to have citizenships of more than one country at the same time. This phenomenon is known as ‘dual citizenship’. Initially, the concept was considered to be a barrier to international relations as it was thought it would lead to diplomatic problems, and as a result, many governments banned it to the extent that by the middle of the 20th century, it was largely prohibited. It was thought to be abnormal[4] and was seen as an example of divided loyalties. However, the attitude towards it began to change due to the changing times, and slowly but surely, the situation changed. By the middle of the 20th century, it was endorsed by many legal experts[5], and restrictions were being lifted on it.
However, India has yet to fully embrace dual citizenship laws, instead choosing to occupy more of a middle ground by introducing a scheme that seems to be dual citizenship at first glance, but is not as complete as it is in other jurisdictions. In this essay, the author aims to compare the provisions of dual citizenship as viewed by India’s constitution and the United States’ constitution. The author will first provide a brief background of citizenship provisions in both countries before elaborating on specific provisions regarding dual citizenship. The author will then directly compare the two countries’ perceptions on dual citizenship by contrasting them and establishing unique features of both jurisdictions.
Citizenship Laws in India & United States
Articles 5-11 of the Constitution of India deal with citizenship law. The wording of the articles gives the law a temporary character as it was framed for a society that had recently been partitioned, which prevented them, from being conclusive. Article 5 gives conditions for citizenship at the time of commencement of the constitution, while Articles 6 and 7 deal with provisions that incorporate migration from Pakistan, allowing for citizens who come back to India from Pakistan with the intent of staying to become citizens. Article 8 talks about citizenship for those who live outside India, and finally, Article 9 established the singular citizenship rule that India has held up to this day.
While the constitution offers the most basic framework for citizenship, the Citizenship Act (hereinafter referred to as ‘the Act’) of 1955 gives much more comprehensive laws regarding the subject. It applies to those who are residing in India as well as those who live outside the country[6]. According to the Act, there are four select methods for attaining citizenship: by birth, descent, registration and naturalization[7]. Each of these processes has a section dedicated to them in the Act. Sections 3 covers citizenship by birth after commencement of the constitution while Section 4 lays down conditions for citizenship by descent outside India[8]. Citizenship by registration is under Section 5 with conditions for people to become citizens, including being a resident for seven years, being married to a citizen, etc. Section 6 deals with naturalization and states that those who fulfill conditions listed by the Third Schedule of the Act or render distinguished service in fields like science, art, literature, etc. can become citizens of India. It is also possible to renounce your citizenship of India, provided that the declaration is done in the prescribed manner and it is registered by the requisite authorities. This registration is withheld if India is at war at the time of the declaration, however.
In the United States, the Fourteenth Amendment of the American Constitution deals with citizenship law. Established in 1868, it is a part of the Reconstruction Amendments that were intended to provide equal rights to all in aftermath of the Civil War. It states that all people who are born within the boundaries of the country are citizens of the United States, and that those who are not could become naturalized. This was the basis for the decision of Dred Scott v Sandford[9], which held that African Americans could not become citizens of the country. The citizenship conferred on an individual by naturalization cannot be taken away involuntarily, as was held in the case of Afroyim v Rusk[10].
The United States follows the principle of jus soli, which means that if one is born within the territory of the United States, then that person is automatically a citizen of the country. In the case of United States v Wong Kim Ark[11], the court held that a man born within the country to foreigners who had a permanent domicile and residence in the United States was a citizen and that the opening line of the amendment was a broad interpretation of the citizenship doctrine. If both parents of a child are citizens, then even if the child is not born in the physical confines of the country, he is a citizen. Birthright citizenship is simple and does not offer much room for debate on who can be a citizen or not. Complications are also minimal in such cases because place of birth is a simple question to answer. There is a separate clause for naturalization that specifies conditions that a person must fulfill.
Dual Citizenship Provisions
Dual citizenship is defined as being a lawful citizen of more than one country at a time. Despite being a very normal provision to have in a countries’ legal framework, there are countries that still do not offer dual citizenship, and among these, India is unique in that while it does not offer dual citizenship, it offers a middle ground that is a higher status that is ascribed to a tourist, but is still noticeably less than that of a citizen[12]. This is unlike the United States, who has no restriction on dual citizenship. The unique stance taken by India with regard to dual citizenship is what makes it an interesting case study.
Position in India:
Section 9 of the Act details the possibility of termination of citizenship of India in the event of someone voluntarily acquiring the citizenship of another country. This was supported in the case of Izhar Ahmad Khan v Union of India[13]. The Report of the High Level Committee on the Indian Diaspora said that they found that dual citizenship should be included as an amendment to the Act as such a provision would allow for people who want to be closer to India could do so without any concerns, calling it a ‘higher form of acknowledgment of their linkage with Mother India[14]’. One of the major factors of the advent for dual citizenship was the ‘emotional bond’ that existed between overseas citizens and India[15]. People have complained that there are several Indians who have chosen to settle abroad in pursuit of better opportunities and thus it is not fair of the government to deny them citizenship in their homeland. The Executive Director of the Highly Skilled Migrants Permit Forum and Association of Immigrants has even said that such a move is in clear disregard of India’s democracy as majority of the democratic countries allow for such a provision to exist[16].
The outcry from Indian diaspora eventually forced the government to alter its stance and introduce the Persons of Indian Origin (hereinafter referred to as PIO) scheme in 2002. The scheme was meant to stand in as a dual citizenship scheme for those who had ties to India but lived in other countries. The benefits of owning a PIO card included visa free entry to India, removal of the need to register for residence, and the ability to hold immovable property. However, the conferment of a PIO card was still not on par with the status of a citizen, as these groups of people did not have the right to vote or the right to occupy government offices[17]. In 2005, the government scrapped PIO cards in favor of a more elaborate and fleshed out scheme in the form of Overseas Citizen of India (hereinafter referred to as OCI) cards. They functioned in a similar fashion to PIO cards in that they granted a permanent visa and entitlement to all rights that a normal citizen held, barring the right to vote or hold governmental posts, putting them at the same level as Non-Resident Indians (hereinafter referred to as NRI). Provisions including these cards were added to the Act in the forms of Section 7A, which dealt with conditions that a person needs to fulfill to be registered as an OCI[18], and Section 7B, which gives some clarity on what rights OCI cardholders are not privy to. In 2015, the government merged the two schemes, with OCI cards now being the only necessary document for such citizens.
The main benefit of this provision is that it allowed people who were not living in India permanently to still enjoy rights that were on par with one who held an Indian passport. As it was brought in at a time where dual citizenship was already an established provision seen in many other countries, it is very much an evolution of citizenship rights and the opening of India’s doors to a whole host of new people.
In United States:
By heavy contrast, there is currently no provision, nor has there ever been a provision, that explicitly bans dual citizenship for American citizens. While there was hostility from the government in the initial stages of the country against the provision, there is now an extensive list of countries whose citizenship can be conferred on an individual after U.S. naturalization[19]. The U.S Department of State Regulation 7 FAM 082 refers to the case of Kawakita v United States[20], which held that any U.S. citizen, by obtaining another citizenship, does not automatically forfeit their original citizenship, and that dual citizenship is a status ‘long recognized by law[21]’. Schneider v Rusk[22] upheld this viewpoint and stated a naturalized citizen held the right to return to their native country and keep their citizenship of the same.
In 1967, the Supreme Court struck down most laws forbidding dual citizenship. Furthermore, the Oath of Allegiance that is taken by all U.S. citizens does not contain anything that would require a person to renounce their already existing citizenship; it allows the person to keep it. According to regulation 7 FAM 083, the Department has to look at acts committed by a person along with their intention to commit them to determine renunciation of citizenship. Mere facts are not enough, and authorities need to ascertain that there was intent to renounce the nation, as it is normally presumed that intent to retain citizenship is present. In Lehmann v Acheson[23], the court held that the evidence to relinquish citizenship must be clear and unequivocal, and that burden of proof lay on the government[24].
Despite the seemingly open attitude towards dual citizenship, however, it is not encouraged as a matter of policy because there is a possibility of conflicting obligations, which in turn could hamper assistance to citizens abroad[25]. However, from existing case law and the wording of the relevant provisions, it is evident that the United States government has a very liberal view on dual citizenship, as it does not actively seek to prevent people from being citizens of other countries as well as their own. Given the country’s position in global affairs, this makes sense as rejecting such a provision would turn away many immigrants[26] and reduce the overall benefit to the country.
Comparison and Analysis
It is fairly obvious that dual citizenship is a provision that India has borrowed in some fashion from other jurisdictions, as the PIO and OCI card provisions came into existence after most jurisdictions had some form of dual citizenship, and the reason for this is that the outcry for representation of diaspora was too great to ignore. In addition, India was quickly establishing itself as a nation in the modern age, and it seemed very archaic to have such stringent laws of citizenship. However, the middle ground that India has offered separates it from the United States’ framework in a variety of ways.
One of the prima facie differences between the dual citizenship provisions is that the Indian constitution actively prevents dual citizenship while the constitution of the United States does not mention any restriction on it. This is an important point, as since the provision is silent on it, the United States government neither approves of nor disapproves of dual citizenship – they tolerate the provision and allow people to avail of it. The primary reason for this freedom is the fact that the government is not concerned with the allegiance to other countries that a person may be a part of as long as he/she is loyal to the United States[27]. This is in stark contrast to Indian citizenship law, where Section 9 of the Act terminates citizenship of anyone who naturalizes in a country after attaining Indian citizenship. The response to this restrictive provision was the scheme of PIO and later OCI cards, but this is a flawed understanding of what dual citizenship entails as compared to what is generally understood.
There is a common misconception that the conferment of OCI cards onto certain diaspora is in fact dual citizenship. While it seems markedly similar, it should be noted that its conferment is not dual citizenship in its truest sense; rather, it is conferment of a special status on a class of individuals. It is different from dual citizenship in who can avail of it and what it means for the holder. Firstly, it is only available to people who are or have been in some way integrated or formerly integrated in the framework of the government of India, which makes it very different from dual citizenship offered by United States. In order to obtain an OCI card, a person must have been a citizen of India from the date of commencement of the constitution, been related to a citizen of India, or marry a citizen[28]. Therefore, it can only be conferred upon those who have close ties to India, which makes it unnecessarily restrictive. In the United States, there is no requirement that is directly linked to national ties to the country to apply for naturalization. The conditions include residence for 5 or more years, reasonable knowledge of English, understanding of United States history, good moral character and well disposed to good order[29]. As such, it is more to do with your character rather than your background, which makes it a more accessible provision than its counterpart in Indian law.
Another important difference between the two laws is the rights that dual citizens of the United States are privy to. In Indian law, Section 7B of the Act lists rights that OCI cardholders are not allowed to exercise. This gives the impression of an OCI card being nothing more than an elevated status that is still not on par with a normal citizen. However, U.S. dual citizens are treated as full members of the country, and as such, there are almost no restrictions on the rights that they can avail of. The United States is very permissive of dual citizens’ right to vote in other countries[30], which makes it very different from the OCI cardholders of India.
The right to vote, in particular, has been a point of contention in India. In 2015, a PIL was filed by a reporter seeking for voting rights to be given to those who held OCI cards, and the principal argument was that for those who held a status similar to that of a resident, excluding the right to vote was a violation of fundamental rights and did not appreciate the rights of representation of the Indian diaspora[31]. The PIL was rejected as the bench dismissed it as not representative of the people who actually required its benefits[32]. The argument advanced by the PIL has some merit at the current juncture as OCI cards merely serve as a special status that is conferred on certain people. Voting is an essential right for a citizen as if one is to be a resident of a country, then they should have a say as to how the government runs the country. One could argue that voting is something that is not essential for living a proper life in a country, but this assertion is weakened by the fact that OCI cards grant a holder with all the fundamental rights that a normal citizen has within India. While it gives one the rights of a citizen, it only opens some doors for overseas citizens while denying them the master key to India.
The middle ground that has been taken up feels like a positive step in the right direction, but there’s no denying the fact that India is still behind other provisions due to their reluctance to allow Indian citizens to fully take up citizenships of other countries as well. In the modern era, there are many Indians who leave the country and settle abroad in search of jobs and opportunities, and who wish to retain some solid link to their home country. These Indians are left stranded, as there is no way to be both a citizen of their adopted country and a citizen of India. When there is evidently a way for one to have loyalty to both countries, as the USA has demonstrated, what is stopping India from implementing the same?
Conclusion
When the provisions of an OCI card are compared to that of dual citizenship in the US, the former seems to be a pale imitation of what ideal dual citizenship should consist of. Indian law regarding citizenship is restrictive in and of itself, and when it is compared to U.S. citizenship law, it becomes extremely limited. OCI cardholders do not have as many rights and freedoms in India as those who have U.S. dual citizenship and this provides an interesting comparative study as to the different ideologies these provisions embody vis-à-vis the countries they are applied to.
However, this may not be the status quo
moving forward. In June of 2019, a bill was introduced in Parliament to amend
Article 9 of the Constitution of India in order to allow for proper dual
citizenship. Essentially, if this bill is passed, it would mean that people can
retain their Indian citizenship while simultaneously gaining the status of
‘citizen’ in other countries. Shashi Tharoor pointed out in his statement of
objectives for the bill that such a provision would allow for Indians who have
risen to positions of significant importance to come back to India and provide
expertise and guidance to our system[33].
It would prevent Indians from feeling cut off from their country of origin and
allow them to establish a proper link with India[34].
It remains to be seen if this bill will actually be passed, but the fact that
there is some movement towards dual citizenship for Indians is a good thing as
it would allow India to finally be on par with most democratic institutions in
the world, and it would allow for more opportunities for the country to grow.
[1] Citizenship, Stanford Encyclopedia of Philosophy, July 17th 2017, https://plato.stanford.edu/entries/citizenship/#DimeCiti
[2] Joseph Carens, Culture, Citizenship and Community, Oxford University Press (2000).
[3] VK Dewan, Law of Citizenship, Foreigners and Passports, 3rd edition, published in 1997 reprinted in 2001.
[4] T Faist, (2001), “Dual Citizenship as overlapping membership”, Willy Brandt Series of Working Papers in International Migration and Ethnic Relations, School of International Migration and Ethnic Relations, Malmo University.
[5] David Martin, Dual Nationality: TR’s Self-Evident Absurdity, University of Virginia, School of Law, October 27th 2004,
[6] Jacqueline Chandini v Dy. Director, Enforcement Directorate AIR 1991 Kant 194.
[7] Mohd. Khan v Government of Andhra Pradesh 1962 AIR 1778.
[8] The Citizenship Act, 1955, Section 4.
[9] 60 U.S. 393 (1857).
[10] 387 U.S. 253.
[11] 169 U.S. 649 (1898).
[12] Sreenidhi Srinivasan, The C in OCI May Stand for ‘Citizen’ but Overseas Indians Should Read the Fine Print, The Wire, 16th August 2015, https://thewire.in/law/the-c-in-oci-may-stand-for-citizen-but-overseas-indians-should-read-the-fine-print
[13] 1962 AIR 1052.
[14] Pratap Bhanu Mehta, The Oxford Handbook of the Indian Constitution, 217, (Sujit Choudhry, Madhav Khosla, Oxford University Press, 2016).
[15] G. Kudaisya, (2006), “The Encyclopedia of Indian Diaspora, Part V: Indian Leadership & the Diaspora”, Brij V. Lal et al ed., Oxford University Press.
[16] NRIs say not allowing dual citizenship is unfair, The Economic Times, December 22nd 2009,
[17] Ministry of External Affairs, PIO and OCI Cards, available at https://www.mea.gov.in/Portal/CountryQuickLink/703_PIO-OCI.pdf
[18] “Overseas Citizenship of India (OCI) Cardholder – Introduction”, Ministry of Home Affairs.
[19] List available at https://www.immihelp.com/citizenship/dual-citizenship-recognize-countries.html
[20] 343 U.S. 717 (1952).
[21] Ibid.
[22] 377 U.S. 163 (1964).
[23] 206 F.2d 592.
[24] Ibid.
[25] US State Department Services Dual Nationality, click here
[26] Dual Citizenship, https://web.archive.org/web/20090201180006/http://newcitizen.us/dual.html
[27] Supra Citation 26.
[28] Section 7A, Citizenship Act 1955.
[29] Path to U.S. Citizenship, U.S. Citizenship and Immigration Services, click here
[30] Stanley Renshon, Reforming Dual Citizenship in United States, Center for Immigration Studies, October 1 2005, https://cis.org/Reforming-Dual-Citizenship-United-States
[31] Press Trust of India, Supreme Court Dismisses Plea for Voting Rights of Overseas Citizens, NDTV, April 20th 2015, Click here
[32] PTI, Supreme Court dimisses PIL for voting rights of overseas citizens, DNA, April 20th 2015, http://www.dnaindia.com/india/report-supreme-court-dismisses-pil-for-voting-rights-of-overseas-citizens-2079127
[33] Mohammed Zeeshan, Why India Should Allow Dual Citizenship, Freedom Gazette, July 13th 2019, http://www.freedomgazette.in/2019/07/why-india-should-allow-dual-citizenship/
[34] Shamsher Kainth, Bill introduced to allow dual citizenship for Indians, SBSPunjabi, July 18th 2019, https://www.sbs.com.au/language/english/bill-introduced-to-allow-dual-citizenship-for-indians
This article is written by Arvind Pennathur.
Disclaimer: This article is an original submission of the Author. Lex Insight does not hold any liability arising out of this article. Kindly refer to our Terms of use or write to us in case of any concerns. This article is the WINNER of the 1st National Essay Competition, 2019.
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