In 2021, Citizenship for Some: “It’s Such a Cruel Question.”

By Ravi Batra
(Twitter @RaviBatra)

A Citizen of the United States by Birth, Amendment XIV, §1 vs. India’s Ministry of Home Affairs March 4 Notification Limiting OCI Card Holders Privileges in India.


A. Preamble. Is Citizenship monogamous or polygamous?

Jessie Yeung wrote a piece for CNN: “Anna was born with the right to dual citizenship, because she has a Japanese mother and American father. She spent her life traveling between both countries, and says she felt deeply connected to the two cultures. But Japan requires those with multiple passports to pick one by the age of 22 — an impossible choice for Anna, who requested a pseudonym for privacy reasons. ‘I’m mixed race, I’ve lived both in Japan and the US, I speak both languages, I am completely split down the middle in terms of my identity,’ she said. ‘It’s like asking someone whether they love their mother or father more. It’s such a cruel question [in 2021].’” (Please read).


India’s Home Ministry notification says: “…the OCI cardholder shall be required to obtain a special permission or a Special Permit, as the case may be, from the competent authority…to undertake research; (ii) to undertake any Missionary or Tabligh or Mountaineering or Journalistic activities; [etc]….”


B. Legal history from WWII.

Tomoya Kawakita, a Japanese-American dual citizen, was charged with treason in the United States and sentenced to death for inter alia cruelty to American prisoners of war in Japan during WWII, and sentenced to death. {Tomoya Kawakita v. United States, 343 U.S. 717 (1952)}. This 4-3 Order of the Supreme Court of the United States was delivered by one of my heroes, Justice William O. Douglas, with a 3-member Dissent by Chief Justice Vinson, joined by another one of my heroes, Justice Hugo Black (even as Justice Douglas and Black were the best of friends), with the legendary Justice Felix Frankfurter, due to illness did not hear the argument, and hence, didn’t participate in the disposition, and Justice Clark took no part. This case is illuminating beyond the space here, and instructive to governments and citizens alike.

A brief rendition: Almost 18 year old Kawakita was born in the United States, took his Oath and on a US Passport traveled to Japan in 1939. In 1943, he took a job as an interpreter with Oeyama Nickel Industry Co., Ltd., a private supplier for Japan’s war effort, where he worked until Japan’s surrender on September 2, 1945 on the teak deck of the USS Missouri, with General Douglas MacArthur, Supreme Commander of the Allied Forces officiating. In 1945 he went to the US Consul in Yokohama and applied for registration as an American citizen and swore he had done no wrong. In 1946 an American POW recognized him, and he was arrested, indicted and tried for treason, convicted and sentenced to death. “The jury found Kawakita guilty of eight overt acts. … Each of these related to his treatment of American prisoners of war at the Oeyama camp. These prisoners …were in weakened condition on their arrival. All were below normal weight; many of them were suffering from disease; most of them were unfit for work. They were assigned to work either in the factory or at the mine of the Oeyama Company. They were under the supervision of the Japanese army. … [Kawakita] had no authority and no duties, as respects the prisoners, except as an interpreter. Yet the record shows a long, persistent, and continuous course of conduct directed against the American prisoners and going beyond any conceivable duty of an interpreter.

… A part of petitioner’s conduct was swearing at the prisoners, beating them, threatening them, and punishing them for not working faster and harder, for failing to fill their quotas, for resting, and for slowing down.”


The Court held (without citations) that:

“[o]ne who has a dual nationality will be subject to claims from both nations, claims which at times may be competing or conflicting. The nature of those claims has recently been stated as follows: ‘A person with dual nationality may be subjected to taxes by both states of which he is a national. He is not entitled to protection by one of the two states of which he is a national while in the territorial jurisdiction of the other. Either state not at war with the other may insist on military service when the person is present within its territory. In time of war if he supports neither belligerent, both may be aggrieved. If he supports one belligerent, the other may be aggrieved. One state may be suspicious of his loyalty to it and subject him to the disabilities of an enemy alien, including sequestration of his property, while the other holds his conduct treasonable.’

Dual nationality, however, is the unavoidable consequence of the conflicting laws of different countries. One who becomes a citizen of this country by reason of birth retains it, even though by the law of another country he is also a citizen of it. … But American citizenship, until lost, carries obligations of allegiance as well as privileges and benefits. For one who has a dual status, the obligations of American citizenship may at times be difficult to discharge. An American who has a dual nationality may find himself in a foreign country when it wages war on us. The very fact that he must make a livelihood there may indirectly help the enemy nation. …In short, the petitioner was held accountable by the jury only for performing acts of hostility toward this country which he was not required by Japan to perform.

If he can retain that freedom and still remain an American citizen, there is not even a minimum of allegiance which he owes to the United States while he resides in the enemy country. That conclusion is hostile to the concept of citizenship as we know it, and it must be rejected. One who wants that freedom can get it by renouncing his American citizenship. He cannot turn it into a fair-weather citizenship, retaining it for possible contingent benefits but meanwhile playing the part of the traitor. An American citizen owes allegiance to the United States wherever he may reside.”


C. Be Happy: PIO & OCI Means USA Citizenship is Monogamous.

The GOI Home Ministry’s notification says “ the Central Government hereby specifies the following rights to which an Overseas Citizen of India Cardholder (hereinafter referred to as the OCI cardholder) shall be entitled, with effect from the date of publication of this notification in the Official Gazette, namely: (1) grant of multiple entry lifelong visa for visiting India for any purpose: Provided that for undertaking the following activities, the OCI cardholder shall be required to obtain a special permission or a Special Permit, as the case may be, from the competent authority or the Foreigners Regional Registration Officer or the Indian Mission concerned, namely:- (i) to undertake research; (ii) to undertake any Missionary or Tabligh or Mountaineering or Journalistic activities; (iii) to undertake internship in any foreign Diplomatic Missions or foreign Government organizations in India or to take up employment in any foreign Diplomatic Missions in India; (iv) to visit any place which falls within the Protected or Restricted or prohibited areas as notified by the Central Government or competent authority;…” It ends with a much helpful clarification: “Explanation. For the purposes of this notification, (1) The OCI Cardholder (including a PIO cardholder) is a foreign national holding passport of a foreign country and is not a citizen of India.”


While the West has permitted citizenship to be polygamous, to help its citizens while exposing sovereignty to injury, “the times, they are a-changing” to paraphrase Bob Dylan. Japan has kept citizenship tight, and birth was no benefit. China, with Hong Kong, is constricting citizenship as part of domination. India and the United States look to citizenship with greater freedoms, but still have a nation’s sovereignty to protect.


Any ethnic group in the United States has the First Amendment “freedom of association.” American Citizenship by birth permits dual citizenship. However, a naturalized citizen has no such right, having taken the Oath of Allegiance to our Flag alone and sworn to uphold our Constitution. Any and all who decry India’s right to protect herself from cross-border terror, foreign agents serving foreign masters, and other misconduct, including, money laundering etc., ought to remember – no matter your citizenship status – especially if you are serving a foreign government or a foreign political party in the United States, you must register with the Department of Justice under FARA: Foreign Agent Registration Act.


While people make decisions about citizenship, some as if it were mere clothing, a nation’s sovereignty is absolute, immutable and non-negotiable. With the recent foreign cyber-hacking of SolarWinds caught by FireEye, and ever-present foreign espionage, particularly folks in the IT sector need to honor their Oath: See Something, Say Something.

Eminent attorney Ravi Batra is Chair National Advisory Council for South Asian Affairs

Images courtesy of . and thesatimes |

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