Constitution of India
Article 5: Citizenship at the commencement of the Constitution
Part II — Citizenship
Article 5 (no sub-divisions — single operative provision with three alternative conditions)
WHAT IT SAYS: At the commencement of the Constitution (26 Jan 1950), every person who has domicile in the territory of India AND satisfies any ONE of three conditions shall be a citizen of India: (a) born in the territory of India; OR (b) either of whose parents was born in the territory of India; OR (c) ordinarily resident in India for not less than 5 years immediately preceding such commencement. WHAT IT MEANS: 1. It determined the initial body of Indian citizens on Day One of the Republic. 2. Domicile (permanent home in India) is the mandatory baseline condition. 3. Clauses (a), (b), (c) are ALTERNATIVE — satisfying ANY ONE is sufficient (Abdul Sattar Haji Ibrahim Patel v. State of Gujarat, 1964). 4. Citizenship under Art. 5 was automatic — no registration or application needed. 5. Art. 5 is a transitional provision — it fixed citizenship only at the moment of commencement, not for all time. 6. Art. 7 overrides Art. 5 — persons migrating to Pakistan after 1 Mar 1947 are NOT citizens even if they meet Art. 5 criteria. 7. Art. 9 overrides Art. 5 — voluntary acquisition of foreign citizenship extinguishes Art. 5 citizenship. KEY DOCTRINE: 1. Jus Soli (right of the soil) — clause (a): citizenship by birth on Indian territory. 2. Jus Sanguinis (right of blood) — clause (b): citizenship by parentage. 3. Single Domicile Doctrine — India recognises only one domicile (national, not state-level) as affirmed in Pradeep Jain v. Union of India (1984).
Constitutional Inspiration
SOURCE(S): 1. No single foreign provision was directly borrowed for Article 5. The concept of citizenship by domicile + birth/parentage/residence is a blend of multiple principles. 2. Jus Soli principle — drawn from common law traditions (UK, USA). The 14th Amendment to the US Constitution grants citizenship to all persons born in the US. India kept: Birth in Indian territory as ONE route to citizenship, but added domicile as a mandatory precondition — stricter than the US model. 3. Jus Sanguinis principle — influenced by Continental European practice (Germany, France). India kept: Parentage (either parent born in India) as an alternative route. INDIA'S SPECIFIC ADAPTATIONS: 1. Domicile as a mandatory precondition — Unlike the US (pure jus soli), India required permanent home in India to prevent casual visitors or transient persons from claiming citizenship. 2. Five-year residency clause (c) — Added to cover long-term residents who were neither born in India nor had Indian-born parents (e.g., Nepalese settlers, Anglo-Indians). 3. Secular, non-religious basis — Framers deliberately rejected religion-based citizenship proposals to uphold secular identity of the Republic. 4. Transitional / temporal character — Unlike most constitutions, Art. 5 only determined citizenship AT commencement, leaving future law to Parliament under Art. 11 — an original Indian contribution reflecting partition-era pragmatism.
Constituent Assembly Debate
DEBATED ON: 10, 11, and 12 August 1949 (CAD Volume IX) KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Chairman, Drafting Committee) — Moved Draft Article 5; clarified it deals ONLY with citizenship at commencement, not a permanent law; permanent citizenship law left to Parliament. 2. P.S. Deshmukh (Central Provinces & Berar) — Proposed religion-based citizenship: every Hindu or Sikh not a citizen of another state should automatically be entitled to Indian citizenship. 3. Pandit Thakur Das Bhargava (East Punjab) — Argued citizenship was being made too easy; proposed increasing residency requirement from 5 to 10 years. 4. Jaspat Roy Kapoor (United Provinces) — Proposed an amendment to cover persons born between commencement and Parliament's citizenship law. 5. Prof. K.T. Shah — Advocated accommodating dual citizenship with countries offering reciprocity. 6. Shibban Lal Saxena — Expressed concern that draft made Indian citizenship too accessible. 7. Alladi Krishnaswamy Ayyar (Madras) — Supported draft; argued Part II cannot deal with all complex citizenship problems, which Parliament should resolve. 8. Brajeshwar Prasad (Bihar) — Supported Ambedkar's secular approach, invoking Gandhian moral principles. MAJOR DISAGREEMENTS: 1. Religion-based citizenship — P.S. Deshmukh and others proposed automatic citizenship for Hindus/Sikhs; this was strongly opposed as communal and rejected. 2. Dual citizenship — Prof. K.T. Shah proposed it; Ambedkar's Drafting Committee rejected it as impractical given international law complexities. 3. Strictness of criteria — Several members felt citizenship was too cheap; Ambedkar countered that India's provisions were stricter than the American Constitution. FINAL OUTCOME: All proposed amendments were either voluntarily withdrawn or defeated by vote; Draft Article 5 was adopted WITHOUT modifications on 12 August 1949. AMBEDKAR'S KEY QUOTE: "This article refers to citizenship not in any general sense but to citizenship on the date of the commencement of this Constitution. The business of laying down a permanent law of citizenship has been left to Parliament." (10 August 1949)
Landmark Judgments
LANDMARK JUDGMENTS: 1. Abdul Sattar Haji Ibrahim Patel v. State of Gujarat (1964) — 5-judge SC bench held: domicile in India is the basic condition; clauses (a), (b), (c) are alternative, not cumulative — satisfying any one suffices for citizenship. 2. Kulathil Mammu v. State of Kerala (1966) — SC held: domicile was deliberately included in Art. 5 but excluded from Arts. 6 & 7; Art. 7's non-obstante clause overrides Art. 5; 'migration' given wider meaning (not just permanent relocation). 3. Pradeep Jain v. Union of India (1984) — SC held: Indian Constitution recognises only ONE domicile — domicile in India, not in any individual state; Art. 5 is 'clear and explicit' on this point. 4. Firoz Meharuddin v. Sub-Divisional Officer (1960) — MP High Court held: citizenship under Art. 5 is not absolute; it can be extinguished retrospectively if the person migrated to Pakistan after 1 March 1947 (Art. 7 overrides Art. 5). 5. Rashtriya Mukti Morcha v. Union of India (2006) — Delhi HC held: Art. 5 was intended only for determining citizenship at commencement; Art. 5 does not override Art. 11 or statutes enacted under it. 6. State of Bihar v. Kumar Amar Singh (1955) — SC held: even if a woman's domicile follows her husband's Indian domicile, Art. 7 still disqualifies her if she migrated to Pakistan after 1 March 1947. 7. Central Bank of India v. Ram Narain (1955) — SC discussed domicile in the context of partition; held domicile means a fixed habitation without intention of moving. NOTABLE DISSENTS (if any): 1. No major recorded dissent on Art. 5 specifically; most citizenship disputes revolved around the interplay of Arts. 5, 6, 7 and 9. SCHOLARS & JURISTS: 1. Durga Das Basu — Observed that Art. 5 represents a unique constitutional response to the unprecedented situation created by partition. 2. Niraja Gopal Jayal — In 'Citizenship and its Discontents', noted the tension between jus soli principle adopted in Art. 5 and the increasingly restrictive jus sanguinis approach Parliament later adopted via amendments to the Citizenship Act, 1955.