Article 5 of the Indian Constitution

Article 5 of the Indian Constitution played a foundational role in building the legal identity of Indian citizens at the time of independence. It ensu

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

Citizenship is the foundation of a person’s legal identity within a country. It defines the relationship between the individual and the state. In India, Part II of the Constitution (Articles 5 to 11) deals with citizenship. Among these, Article 5 is the starting point of defining who would be recognized as a citizen of India on 26th January 1950 – the date on which the Constitution of India came into force.

In this blog post, we will provide a detailed explanation of Article 5, its historical context, legal interpretations, and its relevance in shaping post-independence India.

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📜 Text of Article 5 – As It Appears in the Constitution

Article 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.

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🏛️ Historical Background: Why Was Article 5 Necessary?

When India gained independence on 15 August 1947, the country faced several citizenship-related challenges:

• Partition of India led to mass migration between India and Pakistan.

• Millions of people were displaced and stateless.

• There was no comprehensive law to determine who was an Indian citizen.

• People living in princely states or border areas needed legal clarity on citizenship.

Therefore, the Constituent Assembly recognized the need to define citizenship at the inception of the Constitution itself. Article 5 was included to grant citizenship to all those who had a strong and permanent connection with India through birth, descent, or residence.

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🔍 Detailed Explanation of Article 5 – Clause by Clause

Article 5 consists of one main clause with three sub-clauses (a), (b), and (c). Let’s understand each component in detail:

📌 1. “At the commencement of this Constitution…”

This phrase indicates that Article 5 applies only to a specific date – 26th January 1950, when the Constitution of India came into effect. It has no application today, and was intended only to determine citizenship at the time of commencement.

📌 2. “Every person who has his domicile in the territory of India…”

Domicile refers to the permanent home of a person and their intention to reside in that place permanently. It is a legal concept that includes:

• Factum – actual residence in India

• Animus manendi – intention to remain in India permanently

A person must have domicile in India to claim citizenship under Article 5. Mere temporary residence or travel would not qualify.

📌 3. Sub-Clause (a) – “Who was born in the territory of India”

This clause grants citizenship to anyone born in the geographical area that became the territory of India. This includes:

• British India (provinces and presidencies)

• Princely States that joined India before 26 January 1950

Thus, if a person was born in India and had domicile on the commencement date, they were considered a citizen.

📌 4. Sub-Clause (b) – “Either of whose parents was born in the territory of India”

Even if a person was not born in India, they could claim citizenship if either the father or the mother was born in India. This clause recognizes citizenship by descent.

Example: A child born abroad before 1950 to Indian-born parents, but residing in India with domicile, would qualify.

📌 5. Sub-Clause (c) – “Who has been ordinarily resident… for not less than five years…”

This clause provides for those who may not have been born in India, nor had parents born in India, but were ordinary residents in India for at least five years before 26 January 1950. “Ordinary residence” here means habitual, regular, and lawful residence.

This clause ensured inclusion of refugees, migrants, and others who had lived in India and established their roots.

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⚖️ Legal Interpretation of “Domicile” and “Ordinary Residence”

The Supreme Court of India has interpreted these concepts in several important cases:

🔹 Pradeep Jain v. Union of India (1984)

The Court held that domicile implies the intention to make India a permanent home. It is not just physical presence.

🔹 Mohd. Ayub Khan v. Commissioner of Police (1965)

The Court explained that residence must be voluntary and regular, and not under compulsion or coercion.

These interpretations helped establish that domicile and residency are not mechanical terms but depend on the facts and intent of the individual.

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🌏 Who Were Included Under Article 5?

Let’s look at the different categories of people who were granted Indian citizenship under Article 5:

✅ Born in India and residing in India – direct citizens

✅ People with Indian-born parents – granted citizenship by descent

✅ Residents living in India for over 5 years – naturalized by residence

✅ Refugees who had settled in India from areas now in Pakistan and fulfilled residency criteria

This ensured that millions of people affected by the trauma of Partition were not rendered stateless.

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🧭 Difference Between Article 5 and Other Citizenship Articles

Article	Subject Matter	Applicability
Article 5	Citizenship at commencement	Born/residing in India on 26 Jan 1950
Article 6	Citizenship of migrants from Pakistan	Migration before 19 July 1948
Article 7	Citizenship rights of returnees	Migration after Partition with permit
Article 8	Indians residing abroad	Based on registration by consular authorities
Article 9	Voluntary acquisition of foreign citizenship	Loss of Indian citizenship
Article 10	Continuity of citizenship rights	Until Parliament enacts new law
Article 11	Power of Parliament to regulate citizenship	Leads to Citizenship Act, 1955

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📘 Relevance of Article 5 Today

Although Article 5 is no longer applicable for present-day citizenship, it holds immense historical and constitutional significance. It:

• Marks the starting point of Indian nationality

• Establishes legal continuity from colonial to republican India

• Forms the basis of the Citizenship Act, 1955

• Guides judicial understanding of domicile and nationality

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🧾 Citizenship Act, 1955 – The Present Law

After the Constitution came into force, the Parliament enacted the Citizenship Act, 1955, under Article 11, to regulate the acquisition, loss, and termination of citizenship. This Act has been amended multiple times, including:

• 1986, 1992 – based on birth

• 2003 – citizenship register (NRC)

• 2019 – Citizenship Amendment Act (CAA)

So, current citizenship matters are handled through this Act, not Article 5.

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❓ FAQs on Article 5 of Indian Constitution

Q1. Is Article 5 still applicable today?

No, it was applicable only at the time of commencement of the Constitution on 26th January 1950.

Q2. What is the meaning of ‘domicile’ under Article 5?

It means the person’s permanent home and intent to reside in India permanently.

Q3. Can a person claim citizenship today using Article 5?

No. Current claims of citizenship must be under the Citizenship Act, 1955.

Q4. What if a person was born in India but settled abroad before 1950?

If the person did not have domicile in India on 26 January 1950, they wouldn’t qualify under Article 5.

Q5. Does Article 5 give citizenship to Pakistan refugees?

Yes, if they fulfilled the residency and domicile criteria. Those who migrated after Partition fall under Articles 6 and 7.

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✍️ Conclusion

Article 5 of the Indian Constitution played a foundational role in building the legal identity of Indian citizens at the time of independence. It ensured a broad and inclusive approach by recognizing citizenship through birth, descent, and residence. This provision not only protected millions from becoming stateless after Partition but also helped lay the framework for a unified Indian nation.

Although it has served its historical purpose, Article 5 continues to be of great constitutional and academic importance. It reminds us of the complexities of nation-building and the sensitive issue of citizenship in a newly independent country.