Abstract

Citizenship represents the most fundamental legal relationship between an individual and the state. It determines who belongs to the political community and who does not. This article examines how the world’s largest democracies have progressively moved away from birthright citizenship based on jus soli toward a model in which birth alone no longer establishes belonging. The United States reinterpreted the Fourteenth Amendment through executive action in 2025. Since independence, India has amended its citizenship laws multiple times. Moreover, it also implemented the National Register of Citizens and the Citizenship Amendment Act in Assam. These developments reveal a common pattern in which states restrict citizenship through ordinary legislation and administrative processes without formally altering their constitution. Millions of long-term residents now find themselves excluded from citizenship registers with no country willing to take them in. This article argues that birth is being replaced by bureaucracy as the basis of belonging and that this shift is unconstitutional, classist and stateless. It further argues that international law establishes minimum standards that no state may descend to, and that India’s obligations under the ICCPR, CRC, and CEDAW require judicial intervention to protect people excluded by the NRC process.

Keywords: Jus soli, National Register of Citizens, Citizenship Amendment Act 2019, statelessness, International human rights law.

Introduction

Citizenship includes a wide range of legal rights and obligations. It determines whether a person can vote, own property, access public services, or remain in the country of their birth. The modern conception of citizenship implies membership in a political community and defines the boundaries of both inclusion and exclusion. That question has no settled answer in India today.

Two competing principles have historically governed the acquisition of citizenship at birth: Jus soli and Jus sanguinis. Jus soli grants citizenship to every person born within the territorial limits of a state, regardless of the nationality of their parents.  Jus sanguinis grants citizenship based on descent from a citizen parent. Most nations have adopted a combination of these two principles. However, a clear global trend has emerged where states have narrowed jus soli and replaced it with conditional and documentation-based models of citizenship.

The United States issued an executive order in January 2025 seeking to limit birthright citizenship under the Fourteenth Amendment. The order proposed limiting citizenship to children born to at least one parent who is a citizen or lawful permanent resident. India reflects a more gradual but systematic shift. Through amendments to the Citizenship Act in 1986, 2003, and 2019, and through the NRC process in Assam, the Parliament dismantled the universal jus soli framework that the Constitution originally promised. What makes both developments significant is not the scale of the change alone but the method used to achieve it. Neither country formally abolishes jus soli (birthright citizenship). Instead, both countries narrowed its scope through ordinary legislation and executive action without amending the constitution.

The constituent assembly debated the question of citizenship extensively during the drafting of the constitution. Members who favoured an ethno-religious nationalist conception of citizenship argued that Hindus and Sikhs should get citizenship by default. Sardar Vallabhai Patel and Jawaharlal Nehru rejected this approach, and the framers adopted an individualist liberal and universal conception of citizenship.^[i]. The original vision has been hollowed out not through constitutional amendment but through the accumulation of ordinary legislative changes. This article traces the legislative development and argues that both constitutional principles and international law impose limits on the state’s power to regulate citizenship.

How India Contracted Jus Soli Without Amending The Constitution

The Indian Constitution originally adopted an inclusive approach to citizenship. Article 5 granted citizenship to every person born in the territory of India, while the Citizenship Act 1955 established a comprehensive framework for citizenship by birth, descent, registration and naturalisation. Under this framework, birth in India was sufficient to confer citizenship, subject to limited exceptions. The original framework reflected the liberal and universal values that the constituent assembly had adopted, rather than the ethno-religious model.

The first major contraction came through the Citizenship (Amendment) Act, 1986. Following the Assam Accord of 1985, the Parliament inserted Section 6A into the Citizenship Act to address migration from Bangladesh to Assam. This provision applied exclusively to Assam, and it created a hierarchical model of citizenship based on the date of entry from Bangladesh. Persons who entered before 1 January 1966 were deemed citizens. Those who entered between 1966 and 24 March 1971 received conditional status and faced deletion from the electoral rolls for ten years after being declared a foreigner. Persons who entered after 24 March 1971 were treated as illegal migrants, subject to detention and deportation. By introducing this classification through ordinary legislation, parliament altered the statutory framework governing citizenship without amending the constitution.

The Citizenship (Amendment) Act, 2003, further narrowed the scope of birthright citizenship. Parliament introduced the category of illegal migrantsmigrant into the Citizenship Act and barred such persons from acquiring citizenship through registration or naturalisation simultaneously. The Citizenship Rules 2003 created a framework for a nationwide NRC (National Register of Citizens). This amendment also introduced a provision that a person born in India wouldn’t be a citizen if either parent was an illegal migrant at the time of birth. The 2003 amendment, therefore, made birth alone insufficient to establish citizenship. Instead, parliament linked citizenship to parental status and documentary evidence.

The Citizenship (Amendment) Act 2019 introduced a further distinction by making religion a criterion for citizenship. It created a pathway to citizenship for Hindus, Sikhs, Buddhists, Jains, Parsis, and Christians who entered India from Afghanistan, Bangladesh, and Pakistan before 31 December 2014. It explicitly excluded Muslims from this benefit. The constitutional challenge to the Citizenship (Amendment) Act (CAA) rests on three principal grounds. First, the classification is manifestly arbitrary because it discriminates between migrants based on religion. Second, it violates the secular character of the constitution by making religion a basis for citizenship restoration.  Third, it contradicts India’s obligation under international human rights law. The UN High Commissioner for Human Rights filed an intervention application before the Supreme Court, arguing that CAA is inconsistent with ICCPR AND ICESCR. Read together, the NRC and the CAA place Muslim migrants in a categorically inferior position within India’s citizenship framework. The NRC excludes Muslim migrants, whereas the CAA provides no corresponding remedy. Together, these measures produce statelessness along religious lines.

What the amendments of 1986, 2003, and 2019 share isn’t just a legislative method but a political direction. Each amendment restricted access to citizenship and placed a greater burden on individuals to prove their legal status. As a result, the constitutional promise of birth-based citizenship has gradually given way to a conditional framework that depends on documentary proof. Although the constitutional text remains the same, these legislative changes have significantly altered the practical implementation of citizenship.

The NRC as A Document Trap: Class, Gender, And The Architecture of Exclusion

The National Register of Citizens (NRC) for Assam was originally prepared in 1951. In 2015, the Supreme Court directed the modification of the NRC in response to petitions that alleged large-scale illegal immigration from Bangladesh.^[ii] As per the modification, the residents were required to establish their presence in India before 25 March 1971, or to demonstrate their lineage through legacy documents showcasing ancestry to persons included in the 1951 NRC or in electoral rolls prepared before that date. The final NRC, published in August 2019, excluded more than 19 lakh people from 3.29 crore applicants.

The central legal problem lies in the reversal of the burden of proof. Section 9 of the Foreigners Act, 1946, places the burden on the person alleged to be a foreigner to establish that they are not a foreigner. In Sarbananda Sonowal v. Union of India, the Supreme Court upheld this approach, reasoning that proof of citizenship lies within the personal knowledge of the individual.^[iii] That assumption does not reflect reality. The NRC has shown that a significant number of people neither possess nor preserve official records over decades. Many have never had such documents because they never felt the need for them, while others possess records containing spelling mistakes, clerical errors, or other inconsistencies. The authorities have often treated these errors as grounds for exclusion. This case made paperwork the arbiter of belonging. 

The class dimension of NRC remains underexplored in the existing commentary. Individuals with land records, electoral rolls, birth certificates and school records dating back to 1971 can establish their citizenship without difficulty. The position is very different for daily wage labourers, seasonal agricultural workers and those who moved across districts in search of employment. Maintaining a continuous documentary record over several decades is often beyond their reach. Studies estimate that illegal Muslim migrants constitute around two per cent of Assam’s population.^[iv] Still, the NRC excluded more than 19 lakh applicants on documentation grounds. At some point, the question has to be raised whether the NRC was ever really about illegal migration at all. At the same time, many illegal migrants obtain citizenship-related documents through informal networks and secure inclusion in the NRC.^[v] The NRC therefore excludes many genuine long-term residents without fully achieving its stated objective.

The NRC places women at a particular disadvantage because of historical patterns of record-keeping. Land records and electoral rolls in rural India were historically maintained in the name of male heads of households. After marriage, many women moved to their husbands’ residences and lost the documentary trail connected to their parental home. Women engaged in informal employment rarely possess employment records. Moreover, the women who practised purdah had limited interaction with public authorities. As a result, many lacked the official records needed to establish their residence before 1971.

India has ratified the Convention on the Elimination of All Forms of Discrimination Against Women, which protects women’s right to acquire and retain nationality on an equal basis with men.^[vi] The NRC’s documentation requirements overlook the historical barriers that have limited women’s access to official records. In practice, many women cannot meet the documentation standard despite having the same legal claim to citizenship.

The legal consequences of exclusion extend beyond the NRC itself. A person excluded from the register and subsequently declared a foreigner by the foreign tribunal may face indefinite detention. The Indian government has informally assured that the NRC will not result in large-scale deportation. Bangladesh has consistently denied large-scale illegal migration to India and has refused to accept the deportees. Those excluded are therefore caught between the two states. Neither recognise nor accept them. In Dattatraya Moreshwar Pangarkar v. State of Bombay, the Supreme Court recognised that indefinite detention is incompatible with democratic values and individual liberty.^[vii]

Conclusion

The sections above reveal that not a single dramatic rupture, but a slow legislative drift away from birth as the basis of belonging. Parliament has narrowed the scope of citizenship through successive legislative amendments without altering the constitutional text. The executive has implemented these changes through administrative processes such as NRC, while the courts accepted parliament’s power under Article 11. The constitution continues to recognise citizenship, but the conditions for proving it have changed substantially.

 The documentation standard does not operate neutrally across Indian society. Communities that have existed outside of the record-keeping system bear a disproportionate burden under the document-based citizenship regime. The NRC has demonstrated it in practical terms.  It risks excluding long-term residents whose ties to India are genuine but not always documented.

India’s obligations under the ICCPR, CRC, and CEDAW remain binding regardless of the domestic legislative position. The Supreme Court has drawn on these instruments in prior decisions. In the Vellore Citizen Welfare Forum^[viii] and the Chandrima Das case^[ix]The court recognised that international law forms part of domestic law. These precedents have not yet been applied systematically in citizenship cases, although they provide the doctrinal foundation for doing so.

The State retains the authority to regulate citizenship, but this authority isn’t unconditional. Birth in India and long residence create a connection that the law cannot ignore. The Constitution guarantees equality and personal liberty under Article 21, and secularism forms its basic structure. Moreover, India’s international obligations reinforce these constitutional commitments. In the Nottebohm case, the International Court of Justice described nationality as a legal bond based on a genuine and effective connection.^[x] The NRC doesn’t recognise this connection and focuses on documentation. Citizenship now turns on documentary compliance rather than birth and genuine social attachment. A person who has farmed the same land in Assam for fifty years and cannot produce the 1971 electoral roll is, in the eyes of this system, less Indian than someone who can. That is not a citizenship framework. That is a documentation filter dressed in constitutional language.

^[i] Constituent Assembly Debates, Vol III, 423

^[ii] Assam Sanmilita Mahasangha v. Union of India (2015) 3 SCC 1

^[iii] Sarbananda Sonowal v. Union of India (2005) 5 SCC 665

^[iv] Vani Kant Borooah, ‘The Killing Fields of Assam: Myths and Reality of its Muslim Immigration’ (2013) 48(4) Economic and Political Weekly 43

^[v] Kamal Sadiq, Paper Citizens: How Illegal Immigrants Acquire Citizenship in Developing Countries (Oxford University Press 2009) 61

^[vi] CEDAW Committee, General Recommendation No 32 on the gender related dimensions of refugee status, asylum, nationality and statelessness of women, CEDAW/C/GC/32 (2014)

^[vii] Dattatraya Moreshwar Pangarkar v. State of Bombay AIR 1952 SC 181

^[viii] Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647

^[ix] Chairman Railway Board v. Chandrima Das (2000) 2 SCC 465

^[x] Nottebohm Case (Liechtenstein v. Guatemala) 1955 ICJ 1