Meaning of citizenship
Jurisprudentially, the term ‘citizenship’ is an abstract concept which has carried various interpretations that have evolved over 5 time. In ancient Greek society, philosophers like Aristotle distinguished citizens from other members of society – such as residents, children, slaves, and the elderly. According to Aristotle, citizens were individuals who held judicial or legislative authority within a state.
Hence, society was divided into citizens and mere subjects, where being a citizen was a matter of privilege. Called the ‘republican model’, this was also seconded by other philosophers such as Tacitus, Cicero, Machiavelli, Harrington and Rousseau.
With the growth of the Roman Empire, the notion of ‘citizen’ was broadened to encompass individuals in conquered territories. This eventually transformed the meaning of citizenship, where instead of granting access to political office, the term ‘citizen’ meant acquiring legal status of being part of a community and receiving protection under law. Over time, the term citizenship thus moved from the ‘republican model’ to a ‘liberal model’, which diluted the status of citizenship from a political privilege to a more egalitarian right based upon the similarity of legal status shared by a common populace.
The meaning of citizenship in India
In the domestic context, citizenship was ascertained by a 9-Judge Bench of Supreme Court in State Trading Corpn. of India Ltd. v. CTO,[1] as the ‘right to have rights’. It was held that citizenship is the pre-requisite that leads to gaining legal status and other socio-political rights in a country. However, although there is broad consensus on the fundamental concept of citizenship, the specific rights and privileges associated with citizenship vary from one jurisdiction to another.
Additionally, countries differ in the mechanisms and criteria for acquiring citizenship. These variations reflect the unique historical, cultural, and legal contexts of each nation. In India, various rights are exclusively conferred upon citizens. These include the right to vote, the right to move freely, the right to form unions, the right to hold public office, the freedom of speech and expression, equality in public employment, etc. However, there are certain rights that are also made available to non-citizens, including the right to equality before the law, the prohibition of forced labour, etc.
Additionally, the category of Overseas Citizen of India (OCI) represents a unique position within the spectrum of citizenship and non-citizenship since they have more rights than non-citizens (such as a lifelong visa for visiting India) but have fewer rights in comparison to citizens (such as the absence of the right to vote).
The bundle of rights accompanying ‘citizenship’ differs in other countries. For instance, in the United Kingdom, the British Nationality Act, 1981 creates six different classes of people: British Citizen, British Overseas Territories Citizen, British Overseas Citizen, British Subject, British National (Overseas), and British Protected Person. These classes are based on varying levels of association with the United Kingdom and its overseas territories, former colonies, and protectorates; and they carry different sets of rights. For instance, while British citizenship bestows the right to vote, it is also available to some Commonwealth citizens.
Similarly, Mexico establishes two distinct categories of “national” and “citizen”. A citizen is defined as a national who is 18 years of age and has an “honest way of life”. Once a national becomes a citizen, they get the right to vote, the right to assembly, the right to join the army, etc. Hence, while nationals and citizens can live in Mexico, only citizens get the extra right to vote.
The situation is also similar in the United States of America (USA). Here, the residents of certain territories like American Samoa are only granted nationality and not citizenship of the USA. Like Mexico, such nationals can reside freely in the USA but cannot vote or hold certain elected offices. Further, while the residents of some other territories, like Puerto Rico, are granted citizenship, they still do not get the right to vote.
The trans-national comparison examined above aids by providing three definite conclusions.
FIRST, globally, citizenship can be conceptualized as the right to be a member of a society. In that sense, citizenship is essential to one’s identity since it determines whether that person would be perceived as an alien or as ‘one of us’. This is particularly true given the historical context of the partition and subsequent relations among the nations and people in our subcontinent.
In addition to such identification by fellow members of society, citizenship is also a key determinant in enabling an individual to achieve their aims and objectives; since citizenship grants access to certain exclusive rights in society. Additionally, citizenship provides a sense of belongingness and esteem, apart from furthering the self-actualization needs of individuals.
Collectively, citizenship provides an ‘identity’ to individuals, which has a significant impact on the quality of their lives and their individual psyche.
SECOND, beyond the conceptual understanding that citizenship grants an assemblage of certain rights in a community, the rights that may be conferred depend on the municipal policies of that country. While some countries like India reserve the right to vote exclusively for citizens, countries like the United Kingdom also extend it to Commonwealth citizens. Further, countries such as the USA do not bestow the right to vote even to some citizens.
THIRD, most nations have multiple classes of citizenship or nationality instead of a rigid dichotomy of citizens and non-citizens. In addition to this division, countries also have categories such as overseas citizens, nationals, subjects, etc. However, while the basket of rights differs inter-se such categories, citizenship is generally the highest basket a person can be classified under.
Hence, though citizenship is one sub-set among many possible ways of being a member of a polity, it is the most significant one. Nonetheless, reality is often more nuanced, with numerous exceptions, caveats, entrenched inequalities and discriminatory legal regimes.
Approaches for Granting Citizenship
The conditions to acquire citizenship also vary across jurisdictions. Broadly, there are three approaches for granting citizenship:
(i) jus soli, i.e., on the basis of birth within that particular country;
(ii) jus sanguinis, i.e., citizenship by blood/descent; and
(iii) through special recognition by law, such as citizenship by registration, naturalization, incorporation of a foreign territory, etc. Globally, countries have adopted different models for constructing their citizenship regimes. While most countries in North America follow a jus soli regime, a majority of European nations follow a jus sanguinis regime. In contrast, Australia and the African nations follow a mixed regime.
There are varied academic perspectives deliberating as to the reasons why a country chooses one mode of conferring citizenship over another. As per one perspective, countries that wish to grant citizenship to immigrants who do not have familial links in the country choose the jus soli model. However, from another perspective, the choice of mode is often based on the significance of ethnicity for the citizen’s identity resulting in adoption of a jus sanguinis model. Hence, if a nation emphasizes ethnic continuity through descent and lineage, it tends to choose the jus sanguinis model over the jus soli model.
However, where the cultural identity is tied to the territory of the nation, the jus soli model is preferred. Beyond these considerations, citizenship models can also be justified on the basis of inter-state relations (by which citizenship is granted based on historical links or treaties between nations), or on economic considerations (which are instantiated by countries that allow citizenship by investment).
Citizenship is purely a creation of law, which, in turn, is an instrument of policy based on different prevailing circumstances of each country. While some nations insist on connections in terms of descent and territory, some even grant citizenship for purely economic reasons. Further, since the policy reasons underlying a citizenship regime are bound to remain in flux, constitutions around the globe are wary of setting citizenship norms in stone.
For instance, a country’s demographic pattern might change, it might want to effect interstate arrangements, it might be engaged in a war, there could be international treaties granting rights to certain classes of people, etc.
Therefore, rather than imposing rigid norms on citizenship, it is desirable for constitutions to grant the government the flexibility to determine laws regarding membership in the country’s community. For this, either the constitutions such as the Australian Constitution, remain silent on the conditions of acquiring citizenship, or they prescribe the overarching norms for the time being and give the power to make and change specific conditions to the Parliament.
Reference
In Re: Section 6A of the Citizenship Act, 1955
[1] 1963 SCC OnLine SC 3, para 13.