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Article 35 of the Indian Constitution: Power to make laws giving effect to the provisions of this Part

Part: III
Shorthand Notes: Parliament's exclusive power over certain FR laws & punishments

Article 35 is a pivotal provision within Part III of the Indian Constitution, which guarantees Fundamental Rights. While many fundamental rights are directly enforceable, some require legislative action to be made effective, regulated, or enforced, and Parliament is given the exclusive power to legislate on certain aspects related to these rights. This article ensures that the legislative framework supporting fundamental rights is consistent and uniform across the entire country.

Furthermore, Article 35 empowers Parliament to prescribe punishments for actions that are declared to be offences violating fundamental rights. This is crucial for the effective enforcement and deterrence of violations of these constitutionally guaranteed rights, thereby reinforcing their importance and ensuring they are not merely aspirational but legally binding and protected.

Original Text

35. Legislation to give effect to the provisions of this Part

Notwithstanding anything in this Constitution,—

(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws—

(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and

(ii) for prescribing punishment for those acts which are declared to be offences under this Part;

and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);

(b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters specified in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament.

Explanation.—In this article, the expression “law in force” has the same meaning as in article 372.

Detailed Explanation

Article 35 is a crucial provision that clarifies and consolidates Parliament’s exclusive legislative power regarding specific aspects of Fundamental Rights (Part III). It effectively overrides other provisions of the Constitution, such as those delineating legislative powers between the Union and States in Part XI, for the matters specified within this article.

The article essentially deals with two main aspects:

  1. Exclusive power of Parliament to make laws on certain matters in Part III: Clause (a)(i) specifies four distinct areas within Part III where only Parliament, and not the Legislature of a State, can make laws. These matters are explicitly mentioned in other articles as subjects that “may be provided for by law made by Parliament.” These include:

    • Article 16(3): Empowering Parliament to make laws prescribing any requirement as to residence within a State or Union territory or prior to employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory in relation to employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory. Article 16 generally prohibits discrimination on grounds including residence, but 16(3) is an exception allowing Parliament to make laws requiring residence for certain jobs.
    • Article 32(3): Empowering Parliament to by law confer on any other court power to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2) of Article 32 for the enforcement of any of the rights conferred by Part III. Article 32(2) grants the Supreme Court power to issue writs; Article 32(3) allows Parliament to extend this writ power to other courts (like district courts), supplementing the powers of High Courts under Article 226.
    • Article 33: Empowering Parliament to by law determine to what extent any of the rights conferred by Part III shall, in their application to the members of the Armed Forces or the Forces charged with the maintenance of public order, or persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter-intelligence, or persons employed in, or in connection with, the telecommunication systems set up for the purposes of any force, bureau or organisation referred to in the preceding clauses, be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.
    • Article 34: Empowering Parliament to by law indemnify any person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

  2. Power of Parliament to prescribe punishment for offences against Fundamental Rights: Clause (a)(ii) gives Parliament the exclusive power to make laws prescribing punishment for those acts which are declared to be offences under Part III. For instance, the Constitution declares untouchability (Article 17) and forced labour (Article 23) to be offences. Article 35 enables Parliament to enact laws like the Protection of Civil Rights Act, 1955 (originally Untouchability (Offences) Act, 1955) or laws related to bonded labour, providing penalties for contravention of these rights. The clause also mandates Parliament to make such laws as soon as possible after the commencement of the Constitution.

  3. Continuation of Existing Laws: Clause (b) provides that any law in force immediately before the commencement of the Constitution relating to the matters specified in clause (a)(i) or prescribing punishment for acts mentioned in clause (a)(ii) shall continue in force. This ensures legal continuity. These existing laws remain valid until they are altered, repealed, or amended by Parliament. The explanation clarifies that “law in force” here has the same meaning as in Article 372, which deals with the continuance in force of existing laws.

The significance of Article 35 is that it centralizes legislative power for crucial aspects of fundamental rights implementation and enforcement solely with Parliament. This prevents potential inconsistencies, variations, or undermining of fundamental rights that might occur if individual states had legislative authority over these specific matters. It ensures a uniform approach across the nation regarding residence requirements for state jobs, extending writ jurisdiction, modifying rights for forces, indemnifying acts during martial law, and punishing acts violating fundamental rights.

Detailed Notes

  • Article 35 falls under Part III of the Indian Constitution (Fundamental Rights).
  • It grants exclusive legislative power to Parliament concerning specific matters within Part III.
  • This exclusivity is “Notwithstanding anything in this Constitution,” emphasizing its overriding nature over other legislative distribution provisions.
  • State Legislatures do not have the power to make laws on the matters listed in Article 35(a)(i).
  • Matters exclusively reserved for Parliament under Article 35(a)(i):
    • Prescribing residence requirements for employment/appointment under Article 16(3).
    • Conferring power on courts other than the Supreme Court and High Courts to issue writs for enforcing Fundamental Rights under Article 32(3).
    • Modifying or abrogating Fundamental Rights for members of armed forces, police forces, intelligence personnel, etc., under Article 33.
    • Indemnifying acts done during martial law under Article 34.
  • Article 35(a)(ii) gives Parliament exclusive power to make laws prescribing punishment for acts declared to be offences under Part III.
    • Examples of such acts include untouchability (Article 17) and forced labour (Article 23).
    • This power allows Parliament to make laws like the Protection of Civil Rights Act, 1955, and anti-bonded labour laws.
    • Parliament is mandated to make such laws “as soon as may be” after the Constitution’s commencement.
  • Article 35(b) deals with the continuation of existing laws.
    • Laws in force immediately before the Constitution’s commencement regarding the matters in Article 35(a)(i) or prescribing punishment under 35(a)(ii) continue to be valid.
    • These existing laws remain in force subject to their terms, adaptations, and modifications under Article 372.
    • They continue until they are altered, repealed, or amended by Parliament.
  • The Explanation clarifies that “law in force” has the same meaning as defined in Article 372.
  • The primary purpose of Article 35 is to ensure uniformity and consistency in laws relating to certain fundamental rights and their enforcement mechanisms across India.
  • It prevents state legislatures from enacting disparate laws on these specific, sensitive matters related to fundamental rights.

Additional Comments

  • Article 35 plays a critical role in defining the scope of legislative power concerning fundamental rights, specifically vesting certain powers solely with the Union Parliament.
  • This concentration of power aims to prevent the fragmentation of laws related to key aspects of fundamental rights and their enforcement, which could arise if states had concurrent or exclusive jurisdiction over these matters.
  • The power under Article 35(a)(ii) to prescribe punishments is essential for making fundamental rights judicially enforceable and providing a legal deterrent against their violation, transforming constitutional declarations into actionable legal provisions.
  • Article 35, read with the specific articles it references (16(3), 32(3), 33, 34), highlights Parliament’s exclusive domain in carving out exceptions or creating specific legislative frameworks related to these rights.
  • The continuation of existing laws under Article 35(b) ensured a smooth transition and avoided a legal vacuum immediately after the Constitution came into effect, while still allowing Parliament the ultimate authority to modify or replace them.

Summary

Article 35 of the Indian Constitution grants Parliament exclusive power to legislate on specific matters mentioned in Part III (Fundamental Rights), overriding the general distribution of legislative powers. These matters include prescribing residence requirements for employment (Article 16(3)), conferring writ jurisdiction on other courts (Article 32(3)), modifying fundamental rights for armed forces and similar groups (Article 33), and indemnifying acts done during martial law (Article 34). Article 35 also gives Parliament the sole power to prescribe punishment for acts declared as offences under Part III, such as untouchability or forced labour. Existing laws covering these matters or prescribing punishments continue until Parliament alters or repeals them, ensuring national uniformity and effective enforcement of these particular aspects of fundamental rights.
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