Article 5 of Indian Constitution

Article 5 of the Indian Constitution holds a very important place in the framework of India’s citizenship laws. It lays down the rules to identify who would be recognised as a citizen of India at the exact moment when the Constitution came into force — that is, on 26th January 1950. This article ensured a smooth transition from British India to the Republic of India by clearly stating who would be considered Indian citizens from day one.

In this article, we will explore Article 5 in detail. We will explain its meaning, scope, historical background, and legal significance. We will also look at how the judiciary has interpreted it and how it interacts with other constitutional provisions and statutes.

What Does Article 5 Say?

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.

In simple terms, Article 5 tells us that anyone who had their domicile (permanent home) in India on 26th January 1950 and met any one of the following three conditions automatically became an Indian citizen on that day:

1. They were born in India.
2. Either of their parents was born in India.
3. They had been living continuously in India for at least five years immediately before 26th January 1950.

Understanding the Key Terms

Before analysing the article further, it is important to understand some key terms used in Article 5.

Domicile

Domicile means the place which a person treats as their permanent home. It is different from temporary residence or mere physical presence. To be domiciled in India means that India was the permanent and settled home of the person on the day the Constitution commenced.

For example, a person working in India for a few months but whose permanent home is abroad would not be considered domiciled in India.

Born in the Territory of India

This means a person who was physically born within the boundaries of India before or on 26th January 1950. This is the principle of jus soli (right of soil), where citizenship is based on place of birth.

Parentage

If either of a person’s parents was born in India, the person would qualify under Article 5 even if they themselves were born outside India. This is based on the principle of jus sanguinis (right of blood).

Ordinary Residence

This means habitual residence or living in India in a settled manner. The person should have lived in India continuously for at least five years immediately before the commencement of the Constitution. Short visits abroad or temporary absence might not affect this status, but long or frequent absences could.

Historical and Political Context on Article 5 of Indian Constitution

Article 5 was crucial in the context of India’s transition from British colonial rule to an independent Republic.

• Partition and Migration: The period around 1947–1950 saw massive population movements between India and the newly created Pakistan. Many people migrated across borders based on religion, community, and security concerns. The framers of the Constitution needed clear criteria to identify who would be Indian citizens on the day the Constitution came into force.
• Avoiding Confusion and Disputes: Without clear rules, millions of people might have faced uncertainty about their citizenship status. Article 5 aimed to avoid this by automatically recognising certain people as citizens, based on objective criteria.
• Rejecting Religious Criteria: During the Constituent Assembly debates, there were suggestions to base citizenship on religion, such as granting it automatically to Hindus and Sikhs. These proposals were rejected. Instead, the framers chose domicile, birth, parentage, and residence as fair, secular, and inclusive bases for citizenship.

Why Article 5 is Important

Article 5 did not just set citizenship rules for 1950. It also laid the foundation for India’s citizenship laws thereafter. Here is why it is significant:

• Automatic Citizenship: Unlike citizenship acquired later by registration or naturalisation, Article 5 granted citizenship automatically to those meeting its criteria. There was no need for them to apply or register.
• Defining the Initial Citizenry: Article 5 created the “first generation” of Indian citizens — the people who would have the right to vote, hold office, and enjoy all fundamental rights.
• Combining Jus Soli and Jus Sanguinis: The article recognised citizenship both by birth within the country and by descent through parents. This was a balanced approach catering to India’s diversity.
• Setting a Clear Threshold: The requirement of domicile ensured that temporary visitors or migrants who had not settled in India would not be counted as citizens.

Relationship with Other Citizenship Provisions

While Article 5 deals with citizenship at the start of the Constitution, other articles in Part II of the Constitution deal with citizenship in different situations:

• Article 6: Rights of certain migrants to India from Pakistan.
• Article 7: Rights of persons who migrated to Pakistan but returned to India.
• Article 8: Rights of persons of Indian origin residing outside India.
• Article 9: Termination of citizenship on acquiring foreign nationality.
• Article 10: Continuance of citizenship unless otherwise provided by law.
• Article 11: Parliament’s power to make laws regulating citizenship.

Thus, Article 5 is a one-time provision, applicable only at the commencement of the Constitution. From 26th January 1950 onwards, citizenship matters have been governed mainly by the Citizenship Act, 1955 and its amendments.

Landmark Judgements on Article 5 of Indian Constitution

The Supreme Court and High Courts have considered Article 5 in several cases to clarify its meaning.

• Domicile: Courts have held that domicile is a question of fact and law, requiring both physical presence and intention to reside permanently. For example, a person who left India for good before 1950 would not be domiciled.
• Ordinary Residence: It requires a settled residence for the continuous five years before commencement. Temporary absences are allowed if the person intends to return.
• Parentage: Proof of the parent’s birth in India must be clear and credible.
• Interaction with Partition Migration Laws: Article 5 citizenship could be lost if a person voluntarily migrated to Pakistan or acquired foreign citizenship, as per Articles 6, 7, and 9.

Some important cases include:

• Firoz Meharuddin vs. Sub-Divisional Officer (1960): The Court held that Article 5 provides the first basis for citizenship but can be overridden by other Articles dealing with migration and citizenship termination.
• Kulathil Mammu vs. State of Kerala (1966): The Court observed that persons who migrated to Pakistan after 1st March 1947 lost their citizenship under Article 5, even if they met its criteria.
• Rashtriya Mukti Morcha vs. Union of India (2006): The Supreme Court emphasised that Article 5 only determines citizenship at commencement, and Parliament’s citizenship laws apply thereafter.

Citizenship Act, 1955 and Amendments

After Article 5 defined the initial citizenry, the Citizenship Act, 1955 was enacted to regulate acquisition, termination, and deprivation of citizenship.

• Citizenship by Birth, Descent, Registration, and Naturalisation: The Act detailed procedures and conditions for acquiring citizenship after 1950.
• Amendments: Over the years, amendments have introduced stricter conditions, such as requiring both parents to be Indian citizens for citizenship by birth (1986), and fast-tracking citizenship for persecuted minorities from neighbouring countries (2015 and 2019 amendments).

These laws complement and expand upon the foundation laid by Article 5.

Conclusion

Article 5 of the Indian Constitution is a simple yet powerful provision. It defined who would become Indian citizens when India became a Republic. By combining domicile with birth, parentage, and residence, it set a clear, fair standard.

Though it operated only on the Constitution’s commencement date, Article 5’s legacy lives on. It created the foundation on which India’s citizenship laws and policies are built. It ensured that millions of people could start their new lives as Indians without confusion or delay.