Article 5 of the Indian Constitution
The Constitution of India is the supreme law of the country. It came into force on 26th January 1950 and laid down the framework for governance, rights, duties, and the functioning of the State. Among the many important provisions of the Constitution, Article 5 holds a special place because it was the first article under Part II of the Constitution, which deals with citizenship. Citizenship is the legal status that connects an individual to a nation, granting him or her specific rights and duties. Without citizenship, a person cannot fully enjoy the benefits, protections, and participation in the political life of a country.
When the Constitution of India was being framed, the Constituent Assembly faced the important question of deciding who would be considered a citizen of India at the time the Constitution came into effect. The country had just undergone partition in 1947, leading to large-scale migration between India and Pakistan. Millions of people moved across borders, and there were deep uncertainties about nationality and belonging. In this background, Article 5 was drafted to provide clarity and certainty about who would be recognized as citizens of India on 26th January 1950, the day the Constitution came into force.
Article 5 is therefore not about how citizenship is acquired today or how it can be lost; instead, it deals with the initial citizenship at the commencement of the Constitution. It ensured that on the first day of the Republic, there was no confusion about who were Indians in the eyes of the law. This provision was transitional in nature but very significant because it laid the foundation of the idea of Indian citizenship.
Text and Meaning of Article 5
The text of Article 5 reads as follows:
“At the commencement of this Constitution, every person who has his domicile in the territory of India and—
(a) who was born in the territory of India; or
(b) either of whose parents was born in the territory of India; or
(c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.”
This short provision carries deep meaning. It establishes three important conditions for being recognized as a citizen of India at the commencement of the Constitution: domicile in India, and then one of three additional qualifications—either being born in India, having a parent born in India, or residing in India for at least five years before 26th January 1950.
To understand it better, let us break down its components.
The Importance of Domicile in Article 5
The first and most essential requirement under Article 5 was that a person should have a domicile in the territory of India. The word “domicile” is a legal concept that refers to the permanent home of a person and the intention to remain there indefinitely. It is not the same as just living in a place for a short period; it reflects a stronger connection to the country.
There are two main elements of domicile: residence and intention. A person must physically reside in a place, and at the same time, he or she must have the intention to make that place his or her permanent home. So under Article 5, only those people who had their domicile in India were considered for citizenship. This requirement was very important because it excluded people who were temporarily present in India, such as visitors, foreign students, or people who came for short-term employment. It ensured that only those with a genuine and permanent connection to India were granted citizenship.
The inclusion of domicile as a condition also reflected the framers’ desire to distinguish between people who merely lived in India for some time and those who truly belonged here. For example, someone who lived in India for a few years but always intended to return to another country would not qualify as a citizen under Article 5.
Citizenship by Birth under Article 5
The first way of qualifying for citizenship under Article 5 was by being born in the territory of India. If a person had domicile in India and was also born in India, then he or she was automatically considered a citizen at the commencement of the Constitution.
This rule reflected the principle of jus soli, or the “right of the soil,” where place of birth plays a central role in determining citizenship. It was a simple and clear criterion. It also meant that people who were born in India, irrespective of their caste, religion, or region, were entitled to Indian citizenship as long as they had domicile in the country.
For example, a person born in Bombay (now Mumbai) or Madras (now Chennai) who had his permanent home in India would automatically be considered a citizen. This provision gave a wide coverage to people living in India and ensured that most of the population had no difficulty in establishing their citizenship.
Citizenship by Descent under Article 5
The second way of becoming a citizen under Article 5 was by descent, meaning that at least one of the person’s parents was born in the territory of India. This meant that even if a person himself or herself was not born in India, but one of his or her parents was, citizenship could still be claimed, provided the person had domicile in India.
This provision reflected the principle of jus sanguinis, or the “right of blood,” where parentage plays a role in determining citizenship. The inclusion of this principle ensured that children of Indians were also recognized as Indian citizens, even if they were born outside India but later made India their domicile.
For example, if a person was born in Burma (now Myanmar) during the colonial period but later returned to India and established domicile here, and if one of his parents was born in India, then that person could be recognized as an Indian citizen under Article 5. This provision was particularly important because during British rule, many Indians had migrated or were working in different parts of the British Empire.
Citizenship by Residence under Article 5
The third way of qualifying for citizenship was through residence. If a person had been ordinarily resident in the territory of India for at least five years immediately before 26th January 1950, and also had domicile in India, then that person was entitled to citizenship.
The phrase “ordinarily resident” means that the person had been living in India as part of his normal life and not merely as a visitor or for a short temporary purpose. The requirement of five years was chosen to ensure a stable and genuine connection with the country.
This provision was particularly useful for people who were not born in India and whose parents were also not born in India, but who had nonetheless made India their permanent home for several years. For example, a person who migrated to India in the early 1940s and had continuously lived here for at least five years before 1950 would qualify for citizenship under this rule.
The Historical Background of Article 5
The drafting of Article 5 cannot be understood without looking at the historical background of India’s independence and partition. In 1947, British India was divided into India and Pakistan, leading to one of the largest migrations in human history. Millions of Hindus and Sikhs moved from Pakistan to India, while Muslims moved from India to Pakistan. This mass migration raised serious questions about citizenship.
The Constituent Assembly had to decide who would be considered citizens of India when the Constitution came into force. If the rules were too narrow, many genuine Indians might be excluded. If the rules were too broad, people without real connection to India might be included. After much debate, Article 5 was adopted with its threefold criteria of domicile, birth or parentage, and residence.
The choice of domicile as the foundation was deliberate. It ensured that only those who truly intended to make India their permanent home would be recognised as citizens. At the same time, the three alternative qualifications of birth, parentage, or residence gave wide coverage and avoided injustice to people in different circumstances.
Relationship of Article 5 with Articles 6, 7, and 8
While Article 5 laid down the general rules for citizenship at the commencement of the Constitution, it was not the whole story. It had to be read together with Articles 6, 7, and 8, which dealt with special situations arising out of partition and migration.
Article 6 provided for the rights of people who had migrated from Pakistan to India. Article 7 dealt with those who had migrated from India to Pakistan but later returned. Article 8 gave citizenship rights to certain persons of Indian origin residing outside India. These provisions were necessary because partition had created complex situations that Article 5 alone could not address.
Therefore, Article 5 acted as the basic general rule, while Articles 6, 7, and 8 dealt with exceptional cases. Together, they ensured that every genuine Indian had a clear legal status at the commencement of the Constitution.
The Role of the Constituent Assembly Debates
The Constituent Assembly devoted much time to discussing citizenship provisions. Leaders like B. R. Ambedkar, Jawaharlal Nehru, and Alladi Krishnaswami Ayyar debated various models of citizenship. Some members wanted citizenship to be based purely on birth, while others wanted to include descent or residence. There were also strong discussions about migrants from Pakistan and their rights.
Ultimately, the Assembly adopted a balanced approach in Article 5, combining birth, descent, and residence, but all tied together by the central condition of domicile. Ambedkar explained that domicile was essential because it reflected not only physical presence but also the intention to remain in India permanently. He also clarified that citizenship at the commencement of the Constitution was a one-time matter; in the future, Parliament would have the power to regulate citizenship by legislation.
Significance of Article 5
The importance of Article 5 lies in the fact that it provided certainty and clarity about citizenship at the time when India became a Republic. Without such a provision, there would have been confusion and disputes about who were Indians in the eyes of law. Article 5 avoided statelessness for millions of people by giving them a legal identity as citizens.
It also established the idea of Indian citizenship as inclusive and broad-based. By including birth, descent, and residence, it ensured that people in different situations were recognised. The emphasis on domicile also reflected the value of genuine connection and loyalty to the country.
Though Article 5 itself was transitional and applied only at the commencement of the Constitution, its significance cannot be underestimated. It was the starting point for the legal concept of Indian citizenship.
Citizenship after Article 5
While Article 5 dealt with citizenship at the commencement of the Constitution, the framers knew that in the future, issues of citizenship would continue to arise—through birth, migration, marriage, naturalisation, and so on. Therefore, Article 11 of the Constitution empowered Parliament to make laws on citizenship. Using this power, the Parliament enacted the Citizenship Act, 1955, which still governs the rules of citizenship in India today, with several amendments over the years.
Thus, Article 5 served as the initial foundation, while Parliament took over the role of regulating citizenship for the future. Even though Article 5 is no longer directly applicable today, it remains important for historical and constitutional understanding.
Judicial Interpretation of Article 5
Over the years, courts in India have occasionally referred to Article 5 in cases concerning domicile and citizenship. The Supreme Court has explained that domicile requires both residence and intention to remain permanently. Temporary residence is not enough. Courts have also clarified that intention can be inferred from conduct, such as the place of family, property, business, and long-term settlement.
Although most modern citizenship cases are decided under the Citizenship Act, 1955, Article 5 remains a guiding principle in understanding the concept of domicile and the initial citizenship framework.
Conclusion
Article 5 of the Indian Constitution may appear short, but it played a historic role in shaping the identity of independent India. It decided who would be citizens of India on the very first day the Constitution came into force. By requiring domicile in India and then allowing citizenship through birth, parentage, or residence, it ensured that only those with genuine ties to India were recognised as citizens.
In the background of partition and mass migration, this clarity was vital to avoid confusion and injustice. Article 5, along with Articles 6, 7, and 8, gave legal recognition and certainty to millions of people. Though it was a transitional provision and is no longer directly applied, its significance lies in the foundation it provided for Indian citizenship. It also highlighted the values of inclusiveness, loyalty, and belonging that continue to guide India’s approach to citizenship.
In simple words, Article 5 was India’s way of saying to the world on 26th January 1950: “These are our people, and they are citizens of India.”
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