Article 5 of the Indian Constitution: Citizenship at the Commencement of the Constitution

Article 5 of the Indian Constitution is the foundational provision dealing with citizenship in India at the specific time the Constitution came into effect, which was January 26, 1950. Unlike subsequent articles that allow for the acquisition and termination of citizenship after this date, Article 5 focuses solely on defining who were the initial citizens of the newly formed Republic of India.

This article is crucial for understanding the basis upon which Indian citizenship was granted to individuals residing within or connected to the territory of India at that pivotal moment in history. It laid down the initial criteria, primarily based on domicile and connection to India, which determined an individual’s status as an Indian citizen from day one of the Republic.

Original Text

5. Citizenship at the commencement of the Constitution- 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.

Detailed Explanation

Article 5 of the Constitution defines who became a citizen of India at the commencement of the Constitution on January 26, 1950. It lays down a fundamental condition and then provides three alternative criteria.

The fundamental condition is that the person must have their domicile in the territory of India at the commencement of the Constitution. Domicile signifies a permanent home, where a person resides with the intention of remaining indefinitely. It is a legal concept distinct from mere residence. A person might reside in a place without being domiciled there, and vice-versa, though domicile generally requires a physical presence coupled with the necessary intention.

In addition to having domicile in India, a person must also satisfy any one of the following three conditions:

Born in the territory of India: The person themselves must have been born within the geographical limits of India as defined at the commencement of the Constitution.
Either parent born in the territory of India: If the person was not born in India, they could still be a citizen if either of their parents (father or mother) was born in the territory of India. This provision extended citizenship to individuals born outside India but having a direct parental link to the territory.
Ordinary residence for five years: If neither the person nor their parents were born in India, they could acquire citizenship at commencement if they had been ordinarily resident in the territory of India for at least five years immediately preceding January 26, 1950. ‘Ordinarily resident’ implies a regular, settled residence, not merely a temporary stay.

Therefore, to be a citizen of India under Article 5, a person must meet the domicile requirement and one of the three additional criteria related to birth or long-term residence in India or parental birth in India.

It’s important to note that Article 5 dealt with the situation at the commencement and did not provide for the acquisition of citizenship after this date, which is governed by subsequent legislation like the Citizenship Act, 1955.

Detailed Notes

Article 5 defines citizenship only at the commencement of the Constitution (January 26, 1950).
It does not provide for the acquisition or termination of citizenship after this date.
A person must satisfy two main requirements to be a citizen under Article 5:
- Requirement 1 (Mandatory): Must have their domicile in the territory of India at the commencement of the Constitution.
  - Domicile is the place where a person has their permanent home or resides with the intention of staying indefinitely.
  - It is a legal concept combining residence (factum) and intention (animus manendi).
- Requirement 2 (Alternative): Must satisfy any one of the following three conditions:
  - (a) Birth in India: The person themselves was born in the territory of India.
  - (b) Parental Birth in India: Either of the person’s parents was born in the territory of India.
  - (c) Five years’ Ordinary Residence: The person had been ordinarily resident in the territory of India for not less than five years immediately before the commencement date (January 26, 1950).
    - ‘Ordinarily resident’ implies a settled, usual place of abode, not temporary or casual.
Satisfying the domicile requirement alone is not sufficient; one of the three alternative conditions must also be met.
This Article is a transitional provision designed to identify the initial body of Indian citizens.
It does not account for persons migrating to or from India after the commencement date, which is covered by Articles 6, 7, and 8.
The Parliament retains the power under Article 11 to make further laws regarding citizenship, including matters not covered by Articles 5 to 10.

Additional Comments

Article 5 is a snapshot in time, defining citizenship only at the exact moment the Constitution came into force.
The concept of ‘domicile’ used in Article 5 was interpreted by courts, emphasizing the importance of intention to reside permanently in India.
Persons who migrated to Pakistan after March 1, 1947, generally lost their claim to Indian citizenship under Article 7, overriding Article 5 in certain cases.
Persons of Indian origin residing outside India could claim citizenship under Article 8, provided they registered with Indian diplomatic representatives, linking with Article 5’s principles.
The criteria in Article 5 were inclusive, aiming to cover a broad range of people connected to India at independence and partition.

Summary

At the commencement of the Indian Constitution on January 26, 1950, every person who possessed domicile in the territory of India became a citizen if they were born in India, or if either of their parents was born in India, or if they had been ordinarily resident in India for at least five years immediately prior to that date. This article established the initial basis for Indian citizenship for individuals present within or connected to the territory at the time the Republic was founded.