Article 35 of the Indian constitution

Article 35: Ensuring Uniformity in the Application of Fundamental Rights

Article 35 of the Indian Constitution is a unique and conclusive provision within the chapter on Fundamental Rights. Unlike the preceding articles that grant rights to individuals, Article 35 deals with the legislative power required to make these rights effective. It serves a crucial function by vesting exclusive authority in the Parliament of India to make laws on certain specific matters related to fundamental rights, thereby ensuring uniformity in their application and enforcement across the entire country.

The Constitutional Mandate: Centralizing Legislative Power

The essence of Article 35 is to create a centralized and uniform legal framework for some of the most critical aspects of the Fundamental Rights. It deliberately curtails the legislative power of State Legislatures in these specific areas to prevent legal diversity that could undermine the universal nature of these rights. The article begins with a “notwithstanding” clause, giving it an overriding effect over any other provision in the Constitution, including the distribution of legislative powers between the Centre and the states.⁵

The provisions of Article 35 can be broken down into two main parts:

Clause (a): Parliament’s Exclusive Authority

This clause explicitly states that only the Parliament, and not the State Legislatures, has the power to make laws on two sets of matters:⁶

1. Matters specified in other articles of Part III [Article 35(a)(i)]:

This provision grants Parliament exclusive legislative competence over four specific areas where other articles in the Fundamental Rights chapter anticipate the need for legislation.7 These are:

• Article 16(3): Prescribing residence as a condition for certain public employment within a state or union territory. Although employment in a state is a state subject, only Parliament can lay down a residency requirement.
• Article 32(3): Empowering any court other than the Supreme Court and High Courts to issue the powerful writs (like habeas corpus, mandamus, etc.) for the enforcement of fundamental rights.
• Article 33: Modifying or restricting the fundamental rights of members of the Armed Forces, Paramilitary Forces, Police Forces, and intelligence agencies to ensure discipline and the proper discharge of their duties.⁸
• Article 34: Indemnifying government servants or any other person for acts committed during the operation of martial law in any area.⁹

2. Prescribing Punishment for Offences under Part III [Article 35(a)(ii)]:

This second limb grants Parliament the exclusive power to make laws that prescribe punishment for acts declared to be offences under the Fundamental Rights chapter.10 This includes:

• Untouchability (under Article 17): Parliament has enacted the Protection of Civil Rights Act, 1955, and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, under this power.
• Traffic in human beings and forced labour (under Article 23): Laws like the Immoral Traffic (Prevention) Act, 1956, and the Bonded Labour System (Abolition) Act, 1976, derive their authority from this provision.

Clause (b): Continuation of Existing Laws

This clause acts as a saving provision. It states that any law that was already in force in India immediately before the commencement of the Constitution, dealing with any of the matters mentioned in clause (a), will continue to be in force until it is altered, repealed, or amended by Parliament. This ensured that there was no legal vacuum upon the adoption of the Constitution and that existing laws governing these matters would remain valid until Parliament chose to legislate on them.

The Rationale: Why Exclusive Power to Parliament?

The decision of the Constituent Assembly to vest this exclusive power in Parliament was deliberate and strategic. The framers believed that certain fundamental rights were so essential to the unity and integrity of the nation that their application could not be left to the varying legislative wisdom of different states.

• Ensuring Uniformity: If each state were allowed to define the punishments for untouchability or the restrictions on its police force, it would lead to a confusing and unequal patchwork of rights across the country. A person’s fundamental rights could differ significantly from one state border to another. Article 35 prevents this by creating a single, national legal standard.¹¹
• Promoting National Interest: Matters concerning the Armed Forces, martial law, and residency requirements for employment are of national importance. Centralized legislation ensures a coherent and unified approach that prioritizes the interests of the nation as a whole.
• Preventing Local Prejudices: By taking away the power to legislate on sensitive issues like punishments for caste-based discrimination, the framers sought to prevent local prejudices and political pressures from weakening the enforcement of these critical social reforms.

Conclusion: The Unifying Force of Fundamental Rights

Article 35 is the final, reinforcing bolt in the structure of the Fundamental Rights. While other articles define the rights, Article 35 ensures that the legal machinery to enforce them is strong, consistent, and uniform throughout India. It is a testament to the framers’ foresight, recognizing that for fundamental rights to be truly fundamental, they must apply equally to every citizen, irrespective of their geographical location within the republic. By entrusting the Parliament with this exclusive power, Article 35 acts as a powerful unifying force, ensuring that the core civil liberties of the Indian people are protected by a single, national will.