· Saint Vincent & the Grenadines: Constitution of Saint Vincent & the Grenadines, Articles 91 and 92.

· Trinidad & Tobago: Constitution of Trinidad & Tobago, Article 15.

2. South America

· Argentina: Act No. 346 of October 8, 1869, Article 1.

· Bolivia: Constitution of Bolivia (2009), Article 141.

· Brazil: Constitution of Brazil (1988), Article 12.

· Ecuador: Article 71 of the Organic Law on Human Mobility.

· Paraguay: National Constitution, Chapter III, Article 148.

· Peru: Article 2, Section 21, and Articles 52 and 53, Title III.

· Uruguay: Constitution of the Oriental Republic of Uruguay, Article 76.

· Venezuela: Constitution of Venezuela, Article 36.

3. Caribbean

· Cuba: Constitution of Cuba, Article 33.

· Grenada: Details referenced under general citizenship laws.

· Jamaica: Jamaica Nationality Act (1962), Part III.

· Saint Lucia: Citizenship provisions under the Constitution.

4. Africa

· Lesotho: Lesotho Citizenship Act (1967), Section 2(1).

· Sao Tome and Principe: Constitution of the Democratic Republic of Sao Tome and Principe, Article 3.

· Tanzania: Tanzania Citizenship Act (1995), Sections 4 and 5.

5. Asia

· Pakistan: Pakistan Citizenship Act (1951), Section 23.

In India, the principle of birthright citizenship has undergone significant evolution over the years. Initially, the Constitution of India under Article 5 provided for citizenship to individuals based on their domicile, place of birth, and descent. However, over time, the legal framework surrounding citizenship has been amended to address emerging challenges, including concerns about illegal migration.

The Citizenship Act, 1955, and its subsequent amendments govern the current legal framework for Indian citizenship. While the act originally recognized birth within India as a basis for citizenship, later amendments have restricted this provision:

1. Before 1987: Any person born in India was automatically granted Indian citizenship, regardless of their parents' nationality.

2. 1987 to 2003: Citizenship by birth was granted only if at least one parent was an Indian citizen at the time of the child's birth.

3. Post-2003 Amendment: The criteria became stricter, requiring that at least one parent be an Indian citizen and the other not be an illegal migrant.

Consequently, India's policy of jus sanguinis now incorporates additional conditions, which differentiates India from other cordon states that apply jus soli more freely. This is indicative of a compromise between the principle of birthright citizenship and the challenges posed by uncontrolled immigration and the preservation of a country's population structure.

India and the United States of America, although democracies, have stepped in a more restrictionist direction in the citizenship and immigration policies of the respective countries. In the same manner with which India sought to curtail birthright citizenship through restrictive amendments to the Citizenship Act of India, the Mr. Trump's government was also moving towards constraining the borders and redefining the immigration policy of the United States. These changes outline a single phenomenon where countries are becoming more protective and less inclusive as a response to globalization, a phenomenon in which the primary inclusivity approach of older democracies is being replaced with stringent responsibilities.

Can Birthright Citizenship Be Changed In America

The Fourteenth Amendment of the Constitution, which expressly declares that all individuals born or naturalized in the United States and within its jurisdiction are citizens, is the foundation of birthright citizenship in the US.

During his presidency, Donald Trump issued an executive order in an attempt to address the birthright citizenship issue. This strategy sought to interpret the Fourteenth Amendment while avoiding Congress. The judiciary is now debating the validity of this executive order, and it is generally anticipated that the courts will conclude that executive action is insufficient to implement such a significant alteration to constitutional rights. The judiciary's interference seems crucial in this, especially when there is a call for an amendment or, at the very least, some form of a law passed that would seek to change legislative birthright citizenship.

This expectation is grounded on the premise of separation of powers, which safeguards the executive branch from having a sole discretion on changing any constitutional provisions or undermining the intent of the Fourteenth Amendment.

The expectation is premised on the executive order principle: while the president has broader rights to issue within the ambit of current law, the court's expected ruling would underscore the fact that the orders do not have power over constitutional provisions.

Because of its constitutional basis, birthright citizenship cannot be changed or eliminated without amending the Constitution. Article V of the Constitution gives Congress the power to propose amendments to the constitution. It cannot, however, use regular legislation to unilaterally alter or supersede constitutional provisions. The Fourteenth Amendment would be immediately violated and any attempt by Congress to enact legislation limiting birthright citizenship would be declared unconstitution. Therefore, the difficult and drawn-out constitutional amendment process is the only acceptable way to alter birthright citizenship.

Safeguard From Driving Away From The Essence Of The Constitution

General enactment of any legislation with no restrictions on the operation of either the legislature is tantamount to putting the cart before the horse in view of the basic order and intent of government. The system was designed by the Constitution to allow Parliament to operate within these confines and ensure that legislation conforms with tenets of democracy. Besides undermining the very structure it should uphold, giving inherent powers to the legislature threatens to convert the Constitution from a guardian of eternal truths to a mere instrument for transitory political intentions.

It is the very rigid process and criteria laid down for amending the Constitution that prevent the erosion of certain basic constitutional values, such as the essence of birthright citizenship. The first step in a proposed amendment to the Constitution is to receive a two-thirds majority in both the Senate and the House. Thereafter, three-fourths (38 of the 50 states) must ratify it, either through their state legislatures or state conventions. This requirement for all significant amendments has provided a fertile ground for the supermajority condition for this to become operative and to avoid any such constitutional amendments that do not command broad support.

However, this protection is much more procedural than substantive. In fact, through stalling and complicating amendment procedures, the supermajority requirement does not make any constitutional provision "untouchable." While certain rights or principles, such as birthright citizenship, are not expressly insulated from modification by the constitution, this means thoughts and ideas concerning fundamental core guarantees could be changed-even if not in the formal sense. Thus, the protection is in the political and practical difficulties of reaching agreement at the required level for amending constitutional rights, rather than their amending capacity.

The Basic Structure : The Solution

Every state must address the limitation of legislative power. In the interest of keeping it outdated but still limiting the authority of the legislature, the Constitution must be flexible. Fortunately, India has been able to work within the framework of the Constitution to solve the dilemma of limiting the power of the legislature through the Basic Structure Doctrine, keeping with the spirit of the Constitution and its ethos.

The basic structure doctrine was laid by the Supreme Court of India in the landmark case of Kesavananda Bharati v. State of Kerala (1973). The Supreme Court of India laid down the concept of the basic structure. It was enunciated that certain fundamental features of the Indian Constitution, such as democracy, secularism, judicial review, and the rule of law, cannot be altered, and this is particularly so given the enormous powers of parliament in Article 368.

The court established this theory as a protection to guarantee that the fundamental principles of the Constitution be upheld regardless of the shifting political climate. This ruling struck a balance between the inviolability of constitutional values and legislative sovereignty.

In the Kesavananda Bharati case (supra), Sikri, C.J. laid down the very first list of features – “discernible not only from the Preamble but from the whole scheme of the Constitution” – that would constitute the “basic foundation and structure” of the Constitution:

1. Supremacy of the Constitution;

2. Republican and Democratic form of Government.

3. Secular character of the Constitution;

4. Separation of powers between the Legislature, the executive and the judiciary;

5. Federal character of the Constitution;

Other judges added the following to the list:

6. The dignity of the individual secured by the various Fundamental Rights and the mandate to build a welfare state contained in the directive principles;

7. The unity and the integrity of the nation;

8. Parliamentary System.

The doctrine is an effective tool to put pressure on the potential abuse of legislative power and the lack of the necessary corrective mechanisms to guard domestic or international aspects of fundamental rights as well as to the principle of democracy. To illustrate, the doctrine may prevent the legislators from changing the Constitution in a way that is not in line with the people's interests or safety or the democratic way of life. The judiciary played a central part in this by highlighting the crucial aspects of the Constitution such as the separation of powers, federalism, and the independence of the judiciary as being the "basic structure" of the Constitution. Thus these cores cannot become bearers of the wish flamed by one party against another or by the majority over the transient parliaments.

In Doctrine of Basic Structure: Contours, Dr. Justice B.S. Chauhan, former Supreme Court Judge stated the following:

“Thus, 'Basic' means the base of a thing on which it stands and on the failure of which it falls. Hence, the essence of the 'basic structure of the Constitution' lies in such of its features, which if amended would amend the very identity of the Constitution itself, ceasing its current existence. It, as noted above is, not a “vague concept” or “abstract ideals found to be outside the provisions of the Constitution”. Therefore, the meaning/extent of 'basic structure' needs to be construed in view of the specific

provision(s) under consideration, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of governance of the country.

Whether a particular feature forms part of the basic structure has to be necessarily determined on the basis of that provision of the Constitution. Further, so far as the power to amend the Constitution under Article 368 is concerned, “one cannot legally use the Constitution to destroy itself”, as the doctrine of constitutional identity requires. “The Constitution is a precious heritage and, therefore, you cannot destroy its identity.” The theory of basic structure is based on the principle that a change in the thing does not involve its destruction, and destruction of a thing is a matter of substance and not of form.”

According to Dr. Justice B.S. Chauhan, "the destruction of an object is a matter of substance and not of form" this statement is reminiscent of Plato's Theory of Forms in which he posits that ideal physical objects are less real than abstract, perfect, and immutable conceptions. The none-material innermost of every object is its conceptual side, or its forms. They are unswerving and eternal. This idea is different from that of the physical world, which is dynamic. This means that some of the fundamental aspects of the Constitution are non-modifiable to regulate the changing demands of the times; doing so would change the Constitution's "form".

On the other side, the essential structure concept has been opposed for its undemocratic character and, widely speaking, its lack of political legitimacy. Besides, opponents argue that constitutional court has actually changed the Constitution through the amendment process. The basic structure doctrine is being criticized, while Sudhir Krishnamurthy argues in Democracy and Constitutionalism in India (2009) that it is "an independent and distinct type of constitutional judicial review which applies to all forms of state action to ensure that such action does not 'damage or destroy' 'basic features of the Constitution.'" Moreover, the legitimation of the concept in the law is derived through the structuralist interpretation of the Constitution which underpins the idea that in order to comply with the constitutional integrity and the lasting vision of the framers, the Constitution ought to be read as a part of the whole and in the context of its spirit and leading philosophy rather than in pieces.

The political morality of such institutions, that the ideology sets up and sustains, as well as the interactions among the three branches of government, are the basis for qualification of its moral legitimacy. While the sociological legitimacy of the doctrine, which is a condition for law to be followed or an amendment to the Constitution to be success, relies on the legal and moral legitimacy of the doctrine, moral legitimacy keeps a balance of popular sovereignty and constitutional sovereignty, so that the Constitution is supreme and any amendment should be on the consent of the three branches of government. Along the lines of Zia Mody in 10 Judgements that Changed India (2013), she said that the idea of the basic structure ensures that the "Constitution is not hijacked".

This concept has resonated with all the countries of the world. The judiciary of Pakistan, our nearest neighbor, had said along the same lines that some restrictions need to be implemented as for constitutional amendments. It has been also applied by other countries, for instance, Thailand, Australia, and Kenya to back their constitutions. Therefore, what we are witnessing now is legal culture that is injecting with the doctrine of which production and advocacy have come from India.

Role Of Foreign Precedents In A Country Legal System

The matter of foreign precedents' utilization in a domestic legal system is indeed one of the most important subjects of discussion in numerous jurisdictions throughout the world, while constitutional adjudication tops the list. The use of foreign legal precedents in a national legal system is a major topic of debate in the courts of various states around the world. In a lecture at Northwestern University, Indian Chief Justice K.G. Blkrisn pointed out that though constitutional courts are not bound by foreign rulings, they can be a useful tool in judicial thinking if used prudently. Balakrishnan also said that qualitative differentiation should be the priority of domestic courts that will ensure such decisions are appropriate for the given situation. He emphasized that when considering the impact of foreign precedents on domestic justice, the judges should take into account the stable legal and political framework as well as the objective they want to achieve. Therefore, it is fair to say that foreign judgments have played a crucial role in changing the substance of constitutional law in India.

At this point, many constitutional systems have invoked doctrine and quoted foreign judgments, especially those of common law countries. One of the reasons explaining the integration of the basic norms and principles of international law into domestic legal orders is that these constitutions have become the top guides to which the international community looks at in terms of corporate responsibility and democracy. The International Bill of Rights, which included, among others, the Universal Declaration of Human Rights (UDHR),and European Convention on Human Right (ECHR) was the main source of legal governance for the newly independent states in the third world. Later, similar processes happened in different Eastern and Western European countries.

Methods of using foreign precedents

Anne-Marie Slaughter's concept of "trans-judicial communication" categorizes the use of foreign precedents into three types:

Vertical Reference: Even if the nation is not a signatory to the pertinent treaty or convention, domestic courts still refer to rulings from supranational or international courts, like the European Court of Human Rights.

Horizontal Reference: Particularly in common law nations where comparative study can aid in the development of jurisprudence, domestic courts draw inspiration from other national jurisdictions.

Mixed Reference: In order to interpret common duties under international agreements that are applicable across jurisdictions, courts rely on judgments from other countries.

Citing precedents from other countries is not without its detractors, either. For instance, opinions on this matter are sharply divided in the United States. Citing worries about judicial overreach and the particular sociopolitical background of the U.S. Constitution, conservative justices such as Justice Antonin Scalia have argued against the use of foreign rulings. Scalia famously referred to this kind of dependence as "judicial elitism," contending that foreign courts are not subject to the same democratic standards or answerable to the American people.

Conversely, people in the field of justice such as Stephen Breyer have conversed with the idea of using foreign precedents as a way to find the answer to a question that is set by the supreme judicial Power, especially in cases involving the fundamental rights. Cases like Roper v. Simmons and Lawrence v. Texas show that international points of view also can count in the interpretation of constitutional guarantees, for instance, the non-implementation of cruel and unusual punishment

When judiciously used, foreign precedents can present themselves as one of the most robust pioneering devices in the legal system of a country. They represent highly rewarding experiments and the opportunity to learn about the ways other jurisdictions have solved similar problems, thus global legal engagement is born. Nevertheless, these tools need to be applied with scrutiny as the legal system should not be marred by an incertitude driving force but respect its distinct constitutional, cultural, and socio-political context. In the words of Justice Balakrishnan, we have to be more creative than imitative but still have a global lens while still maintaining the true nature of the Constitution of the country.

The US Constitution's one thing that it is known for all these years is its being a living and breathing document which can be made to change as society changes. Yet, as political polarization intensifies and the attempts to rewrite or defy the underlying principles, such as birthright citizenship, are discovered, the need for a similar defense like the Basic Structure Doctrine becomes clearer. Although the US Constitution is designed for successful governance and individual rights, the absence of a clear restriction on the amendment powers of Congress makes it possible for majoritarian tendencies or instant political fashions to demolish its principal bases and recalls its origination in the frequent records of the Founding Fathers.

Apart from the constitutional unamendability theory, the United States does not have a comparable position in reality, and its unamendability has rather been debated in philosophical academic circles.

The Indian Constitution's Basic Structure Doctrine is a judicial tool to prevent the core values of the Constitution being weakened by legislative or executive overreach. As far as the doctrine, which is an important thing for keeping everything ok, is concerned it is responsible for the Cela Fait Letat principle which, in practice, means that the constitution is a constantly evolving and self-organizing system. Despite being amendable, the Constitution is grounded in certain fundamental principles that are inviolable, including the rule of law, secularism, judicial independence, and federalism. The Indian judiciary regards these tenets as essential components of the document that should remain beyond dispute. These principles, known as the "basic structure" of the Constitution, indeed serve as a significant barrier against any alterations that could undermine the integrity of the constitution.

United States can also harmonize the issue. Article V is the section of the U.S. Constitution that deals with the amendments, this cumbersome procedure stipulates that a proposal must secure a supermajority from both houses of Congress and a turning point of at least thirty-eight states, but it has no explicit mention of the protection of the main ideas of the Constitution, preventing them from altering. There would be no other way apart from the Indian way that is, birthright citizenship could indeed be amended via the Fourteenth Amendment if the procedure is fulfilled. This protective measure, albeit important, is not sufficient to ensure that the core societal ideas of America are not tampered with.

Frequent debates taking place in the U.S., like birthright citizenship that is in peril through executive orders and the plans for constitutional changes, may show how weak basic principles could be due to political expediency. The Fourteenth Amendment which guarantees equal protection of the laws and birthright citizenship, is the defined democratized bulwark among all pillars.

On the other hand, the current attempts to redefine the scope or to limit the application of this amendment, besides this, do bring on the potential menaces of the loose oversight of the legislator and the broad discretionary powers of the executive.

A Basic Structure Doctrine, or an alternative one, could ensure that principles like equality, due process, and individual liberties stay untouched; even when the political landscape is such that the forces are overwhelmingly pushing for change. This will not only shield the major parts of the Constitution from a complete, fundamental change but also let it keep its status as the barrier to the intrusion of populist and majoritarian thought that might be inclined to violate the unalienable rights.

In a world where the constitution is used for political objectives in most cases, India's Basic Structure Doctrine is an example of how to keep democracy's heart beating healthily. India cleverly guarantees the basic elements, such as equality, liberty, and the rule of law, which cannot be tampered with and has also proven that a constitution can be transformed over time only if the the spirit is kept the same. It is like changing the furniture in your house according to time but not allowing anyone to mess with the foundation. As countries like the United States debate how to protect their own constitutional bedrock, India's example offers a witty reminder: the secret isn't in writing rules that can't change—it's in making sure the rules that matter most never need rewriting. Democracy may be a messy business, but India's approach proves it's possible to safeguard the spirit while weathering the storm.

Therefore, this is the right time for the American judiciary to adopt the Doctrine of Basic Structure.

The Author is an advocate practicing at Supreme Court of India. Views are personal