Article 5 of the Constitution of India deals with citizenship at the commencement of the Constitution. It determines who was considered a citizen of India when the Constitution came into force on 26 January 1950.
- Constitutional Text of Article 5
- Meaning of Article 5
- Citizenship and Domicile
- Conditions Under Article 5
- The Structure of Article 5
- Article 5 and the Commencement of the Constitution
- Article 5 and the Citizenship Act, 1955
- Article 5 and Partition
- Article 5 and Article 6
- Article 5 and Article 7
- Article 5 and Article 8
- Article 5 and Article 11
- Domicile vs Residence
- Important Case Law
- Important Features of Article 5
- Common Confusions
- Exam Relevance
- Important Points to Remember
- Quick Revision
- Conclusion
Article 5 is the first provision in Part II of the Constitution, which deals with Citizenship. It establishes the basic conditions under which a person was recognised as a citizen of India at the commencement of the Constitution.
The provision was particularly significant because India had undergone Partition in 1947, resulting in large-scale migration between India and Pakistan. The Constitution therefore needed to establish who would be treated as an Indian citizen when the new constitutional order began.
Constitutional Text of Article 5
Article 5 provides that, at the commencement of the Constitution, every person having their domicile in the territory of India and satisfying any one of the specified conditions would be a citizen of India.
The conditions related to:
- Birth in the territory of India
- Birth of either parent in the territory of India
- Ordinary residence in India for at least five years immediately preceding the commencement of the Constitution
The provision therefore used domicile as the basic requirement and then provided alternative conditions relating to birth or residence.
Meaning of Article 5
Article 5 establishes the constitutional basis for determining citizenship at the commencement of the Constitution.
It is important to understand that Article 5 was primarily concerned with the citizenship position on 26 January 1950. It was not intended to provide the complete and permanent law governing acquisition and loss of Indian citizenship for all future situations.
The Constitution subsequently empowered Parliament to legislate on citizenship matters, and Parliament enacted the Citizenship Act, 1955.
Thus, Article 5 is mainly important for understanding the initial constitutional citizenship framework.
Citizenship and Domicile
One of the most important concepts in Article 5 is domicile.
Article 5 requires a person to have their domicile in the territory of India at the commencement of the Constitution.
Domicile is not necessarily the same as temporary residence.
A person’s residence may be temporary, but domicile generally involves a more permanent connection with a particular territory and an intention to make it one’s permanent home.
For Article 5, therefore, mere physical presence in India was not by itself sufficient.
The person had to satisfy the requirement of domicile and at least one of the conditions relating to birth or residence.
Conditions Under Article 5
Article 5 provides three alternative conditions in addition to the requirement of domicile.
Birth in India
A person was eligible for citizenship if they had their birth in the territory of India.
The relevant constitutional provision was concerned with the territorial connection of the person with India at the commencement of the Constitution.
Parent Born in India
A person could also qualify where either of their parents had been born in the territory of India.
This recognised citizenship through a connection with one’s parent.
Residence in India
A person could qualify if they had been ordinarily resident in the territory of India for not less than five years immediately preceding the commencement of the Constitution.
This provided a route to citizenship based on a sufficiently long period of ordinary residence.
The Structure of Article 5
The easiest way to understand Article 5 is:
Domicile in India + any one of the three conditions
| Requirement | Condition |
|---|---|
| Basic requirement | Domicile in the territory of India |
| Condition 1 | Born in the territory of India |
| Condition 2 | Either parent born in the territory of India |
| Condition 3 | Ordinarily resident in India for at least five years immediately before commencement |
The person needed the required domicile along with at least one of these conditions.
Article 5 and the Commencement of the Constitution
Article 5 specifically uses the expression “at the commencement of this Constitution.”
The Constitution came into force on 26 January 1950.
Therefore, Article 5 primarily addresses the citizenship status of persons at that particular constitutional moment.
This temporal limitation is important.
It would be incorrect to treat Article 5 as the general procedure through which a person currently becomes an Indian citizen.
Present-day citizenship matters are primarily governed by the Citizenship Act, 1955, along with the applicable constitutional provisions.
Article 5 and the Citizenship Act, 1955
The Constitution provides the initial framework for citizenship, but it also gives Parliament the power to make laws concerning citizenship.
Article 11 expressly preserves Parliament’s power to regulate citizenship by legislation.
Parliament exercised this power by enacting the Citizenship Act, 1955.
The Act deals with matters including:
- Acquisition of citizenship
- Citizenship by birth
- Citizenship by descent
- Citizenship by registration
- Citizenship by naturalisation
- Incorporation of territory
- Loss of citizenship
Therefore:
Article 5 → Citizenship at the commencement of the Constitution
Citizenship Act, 1955 → Detailed statutory framework for citizenship
Article 5 and Partition
The historical background of Article 5 is closely connected with the Partition of India.
Partition resulted in large-scale movement of people between the territories that became India and Pakistan.
This created difficult questions regarding citizenship.
The Constitution therefore included several provisions specifically dealing with persons affected by migration between India and Pakistan.
Articles 6 to 8 are particularly important in this context.
Article 5 establishes the general rule concerning citizenship at the commencement of the Constitution, while Articles 6 and 7 deal with specific situations involving migration from and to Pakistan.
Article 5 and Article 6
Article 5 deals with the general conditions for citizenship at the commencement of the Constitution.
Article 6 deals specifically with certain persons who migrated to India from Pakistan.
Therefore:
| Article 5 | Article 6 |
|---|---|
| General citizenship provision | Special provision concerning migration from Pakistan |
| Requires domicile in India and one specified condition | Applies to specified persons who migrated from Pakistan |
| General constitutional rule | Partition-related provision |
These provisions should be studied together when understanding the citizenship framework created in 1950.
Article 5 and Article 7
Article 7 deals with persons who had migrated from India to Pakistan after 1 March 1947, subject to the constitutional conditions contained in that Article.
It therefore addresses another category created by Partition.
Article 5 should not be applied in isolation when dealing with migration between India and Pakistan during the relevant period.
Article 5 and Article 8
Article 8 concerns certain persons of Indian origin residing outside India.
It provides a constitutional basis for citizenship in specified circumstances where a person or their parents or grandparents had the required connection with India and the person was ordinarily residing outside India.
Thus, Articles 5 to 8 collectively address different categories of persons at the commencement of the Constitution.
Article 5 and Article 11
Article 11 is important because it gives Parliament the power to make laws concerning citizenship.
It provides that nothing in Articles 5 to 10 shall derogate from the power of Parliament to make provision with respect to:
- Acquisition of citizenship
- Termination of citizenship
- All other matters relating to citizenship
This is why the detailed law of Indian citizenship is primarily found in legislation enacted by Parliament.
Domicile vs Residence
Students often confuse domicile with residence.
They are not identical.
Domicile
Domicile generally refers to a person’s permanent legal home and involves a connection with a territory together with the intention associated with permanent settlement.
Residence
Residence refers more generally to the place where a person lives or ordinarily resides.
Article 5 itself uses both concepts in different ways. Domicile is a basic requirement, while ordinary residence for five years is one of the alternative conditions for citizenship.
Therefore, the terms should not be treated as interchangeable.
Important Case Law
Central Bank of India v. Ram Narain
The Supreme Court has discussed the distinction between domicile and residence in the context of Indian law.
The distinction is useful for understanding why the requirement of domicile in Article 5 cannot simply be equated with physical residence.
Mohammad Raza v. State of Bombay
The case is relevant to questions concerning citizenship and the constitutional provisions relating to citizenship at the commencement of the Constitution.
For examination purposes, students should focus primarily on the requirements of Article 5 and the distinction between domicile and residence.
Important Features of Article 5
1. It Applies at the Commencement of the Constitution
Article 5 concerns citizenship at the commencement of the Constitution.
2. Domicile Is Essential
The person must have their domicile in the territory of India.
3. Three Alternative Conditions
The person must satisfy at least one of the specified conditions concerning:
- Birth
- Parentage
- Residence
4. It Is a Constitutional Citizenship Provision
Article 5 is directly contained in Part II of the Constitution.
5. It Is Not the Present General Citizenship Procedure
Modern citizenship is primarily governed by the Citizenship Act, 1955 and other applicable legal provisions.
6. Partition Is an Important Historical Context
Articles 5 to 8 must be understood against the background of Partition and migration.
Common Confusions
Confusion 1: Article 5 Is the Current General Citizenship Law
Not exactly.
Article 5 primarily determines citizenship at the commencement of the Constitution.
The detailed current statutory framework is principally governed by the Citizenship Act, 1955.
Confusion 2: Domicile Means Residence
Domicile and residence are distinct concepts.
Article 5 specifically requires domicile, while ordinary residence is one of the additional conditions.
Confusion 3: All Persons Born in India Automatically Became Citizens Under Article 5
This is an oversimplification.
Article 5 required the person to have domicile in India and satisfy one of the specified conditions.
Confusion 4: Article 5 Deals With Migration From Pakistan
Article 5 provides the general rule. Specific provisions concerning migration between India and Pakistan are found principally in Articles 6 and 7.
Exam Relevance
Article 5 is important for:
- Constitutional Law examinations
- Judiciary examinations
- Citizenship questions
- Part II of the Constitution
- Citizenship at the commencement of the Constitution
- Domicile and residence
- Articles 5 to 11
- Partition and citizenship
- Citizenship Act, 1955
Students should especially remember the formula:
Domicile in India + birth in India OR parent born in India OR five years’ ordinary residence before commencement
Important Points to Remember
| Concept | What to Remember |
|---|---|
| Article | Article 5 |
| Part | Part II – Citizenship |
| Main Subject | Citizenship at the commencement of the Constitution |
| Date | 26 January 1950 |
| Basic Requirement | Domicile in India |
| Condition 1 | Born in India |
| Condition 2 | Either parent born in India |
| Condition 3 | Ordinary residence in India for at least five years immediately before commencement |
| Related Articles | Articles 6, 7, 8 and 11 |
| Important Statute | Citizenship Act, 1955 |
| Key Concept | Distinction between domicile and residence |
Quick Revision
- Article 5 deals with citizenship at the commencement of the Constitution.
- The Constitution commenced on 26 January 1950.
- A person had to have domicile in India.
- In addition, the person had to satisfy at least one of the specified conditions relating to birth, parentage or ordinary residence.
- Article 5 is part of Part II – Citizenship.
- Articles 6 and 7 deal with specific situations arising from migration between India and Pakistan.
- Article 8 deals with certain persons of Indian origin residing outside India.
- Article 11 gives Parliament power to legislate on citizenship.
- The detailed statutory framework is primarily contained in the Citizenship Act, 1955.
- Domicile and residence are distinct concepts and should not be treated as interchangeable.
Conclusion
Article 5 establishes the constitutional framework for determining who was an Indian citizen when the Constitution came into force on 26 January 1950. It combines the requirement of domicile in India with conditions relating to birth, parentage or ordinary residence.
The provision must be understood in its historical context, particularly the circumstances created by Partition. It should also be studied alongside Articles 6 to 11, which together form the constitutional framework on citizenship.
For present-day citizenship questions, Article 5 should not be treated as the complete law. The detailed rules governing acquisition and loss of Indian citizenship are primarily contained in the Citizenship Act, 1955.
