This article, authored by Harshit Kumar, provides an in-depth analysis of Article 35 of the Constitution of India. It explores the legislative framework that empowers Parliament to enact laws essential for implementing the fundamental rights enshrined in Part III of the Constitution. The article discusses the purpose, scope, and significance of Article 35, along with key case laws that highlight its practical implications and judicial interpretation. Additionally, it examines the role of Article 35 in addressing the constitutional and legislative challenges related to fundamental rights and the ongoing evolution of legal principles in India.

Introduction 

Article 35 of the Constitution of India is a crucial provision that grants the legislature the authority to enact laws essential for the effective implementation of the fundamental rights enshrined in Part III of the Constitution. It specifically empowers Parliament to legislate for any part of India, or the whole of India, guaranteeing the effective implementation of the fundamental rights. It emphasises that these fundamental rights are not just theoretical declarations but are crucial rights that must be actively upheld and protected while also being made available for every citizen. 

This Article underscores the principle that the mere declaration of rights is not sufficient without the backing of additional laws. There is a need for laws that can enforce and safeguard these rights. By empowering Parliament to create such laws, Article 35 plays a critical role in transforming constitutional principles into tangible legal protections that uphold justice and protect individual freedoms. 

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In this article, we will explore the mechanisms of how Article 35 works and examine key case laws that discuss the importance of Article 35 in detail.  

Historical background 

Article 35 was initially included as Article 27 in the Draft Constitution of 1948. The provision of Article 27 stated that, notwithstanding anything written elsewhere in the Constitution, Parliament would have the power to make laws, while the state legislatures would not have that power as listed under Parts I and III of the First Schedule.

It further provided that Parliament could legislate on any matter in this Part requiring a law and prescribe punishments for acts declared offences under Part III. After the commencement of the Constitution, Parliament would need to enact laws prescribing such punishments. The provision read as follows:   

  1. Related to any of the matter in this Part which requires any law by the Parliament; and 
  2. Prescribe punishment for those acts which are declared offences under this part, which the Parliament, may be after the commencement of the Constitution, requires to make law for prescribing the punishments for those acts.

Provided that if there is any law existing in India which is related to any of the matters referred to in clause (a) or provides for any punishment for any act which is declared to be an offence under this part, shall continue in force until it is amended, repealed, or altered by the Parliament or any other competent authority.

The term ‘this Part’ in the above provision referred to Part III of the Draft Constitution, which enshrined the fundamental rights.

Article 27 was discussed during the Constitutional Assembly debates on December 9, 1948, during which Dr. B.R. Ambedkar introduced some amendments to the draft provision, which were as follows:

  1. The phrase ‘any of the matters in this Part’ in clause (a) was to be amended to ‘any of the matters under Clause (2a) of Article 10, Article 16, Clause (3) of Article 25, and Article 26’.
  2. Clause (b) was to be amended to include the phrase ‘requires to make law for prescribing the punishments for the acts prescribed in clause (b)’.
  3. The proviso was also amended to include ‘any of the matters discussed in clause (a) of this Article or providing for punishment for any act referred to in clause (b)’.
  4. An explanation was added: ‘In this Article, the expression “law in force” has the same meaning as in Article 307 of this Constitution.’         

The amendments were questioned by Hari Vishnu Kamath, who argued that the inclusion of specific provisions under Clause (a) restricted the legislative power of Parliament. However, Dr. B.R. Ambedkar clarified that the inclusion was not intended for the purpose of restricting the Parliament’s legislative power but rather to identify particular areas where only Parliament had the authority to legislate. The amendments were accepted, and in the final draft, the same Article 27 became Article 35 of the Indian Constitution of 1950. 

Explanation of current provision of Article 35 of Indian Constitution

Article 35 reads as ‘Legislation to give effect to the provisions of this Part,’ which means that this Article emphasises the legislation necessary to put into action the provisions discussed in Part III of the Constitution—namely, fundamental rights. Part III of the Constitution is an essential section that enshrines the fundamental rights provided to the citizens of India (some of which are also available to non-citizens). These fundamental rights are classified into six broad categories:

  • Right to equality 
  • Right to freedom 
  • Right against exploitation 
  • Right to freedom of religion 
  • Cultural and educational rights 
  • Right to constitutional remedies 

Article 35(a)

Article 35(a) deals with the legislative power of Parliament, clearly stating that Parliament—and not the state legislatures—has the exclusive authority to enact laws on certain matters.

  • Sub-clause (i): This gives Parliament the power to make laws regarding specific matters mentioned in Articles 16(3), 32(3), 33, and 34. These Articles address various important issues, such as the conditions of service for government employees (Article 16(3)), the authority to allow other courts to exercise the powers of the Supreme Court (Article 32(3)), and the regulation of the fundamental rights of members of the armed forces, police forces, and intelligence agencies (Articles 33 and 34).
  • Sub-clause (ii): This sub-clause empowers Parliament to prescribe punishments for acts that are considered offences under Part III of the Constitution, which contains the fundamental rights.

In essence, Clause (a) of Article 35 grants Parliament the power to make laws on certain critical matters related to fundamental rights. At the same time, it also states that this power is not with the state legislature and is restricted to the hands of the Parliament. It ensures that the creation of laws on these issues remains consistent across the entire country. This provision is crucial because it makes sure that only Parliament can make laws on these important topics, thus maintaining uniformity and protecting the fundamental rights of citizens. 

Explanation of the provisions mentioned under Article 35 

Article 16(3) explains that Parliament has the power to make laws related to the residence requirement of any person who is employed in any state or Union Territory for any government job. This means the Parliament can enact laws or establish rules about where a person must live in order to qualify for a certain government position.

Article 32(3) provides the power to the Parliament to make laws authorising any court other than the Supreme Court to exercise the powers given to the Supreme Court under Articles 32(1) and 32(2). These provisions empower the Supreme Court to issue writs for the enforcement of fundamental rights. Parliament can extend this power to other courts through a law. 

Article 33 gives Parliament the authority to restrict or modify the fundamental rights for certain groups of people, including:

  • Members of the Armed Forces,
  • Other members of forces charged with maintaining public order,
  • Any person employed in any bureau or in an intelligence or counter-intelligence agency of any organisation established by the state,
  • Any person employed or involved in connection with the telecommunications systems set up for these forces or bureaus.

This is done to ensure that these people are performing their duties effectively and maintaining discipline.  

Article 34 provides indemnity to individuals, particularly those in service of the Union of India, for any action taken during the implementation of martial law. This means that the Article addresses the restriction of fundamental rights during martial law and ensures that any person working under the Union of India is not legally liable for any action taken, as long as they were taken to maintain or restore order during such period.

Offences and protection under Part III of the Constitution

Article 20 addresses protections against ex post facto laws, double jeopardy, and self-incrimination. This provision safeguards individuals against conviction for an act that was not an offence when it was committed, protects against double conviction, i.e., being tried or punished twice for the same offence, and ensures that no person is being forced to become a witness against themselves.

Article 21 guarantees the protection of life and personal liberty. It is a cornerstone of every individual’s rights in India. It provides that no person shall be deprived of any of these rights except according to the procedure established by law.

Article 21A, which was introduced by the 86th Amendment in 2002, protects the right to education for children aged six to fourteen years by mandating the state to provide free and mandatory education.

Article 22 provides that anyone who is arrested has the right to be informed of the reasons for their arrest and the right to consult and be represented by a legal practitioner of their choice. It also provides that the person arrested must be presented before a magistrate within 24 hours of arrest. However, these protections do not apply to those who are arrested as enemy aliens or those who are arrested or detained under preventive detention laws.

Article 23 prohibits human trafficking, forced labour, and other forms of exploitation. It also empowers the state to impose compulsory service for public purposes, provided there is no discrimination on the basis of caste, race, religion, or class.

Article 24 prohibits child labour. It specifically prohibits the employment of any child below the age of fourteen in factories, mines, or hazardous occupations.  

Article 35 (b)

Article 35(b) states that if any law was in force before the commencement of the Constitution and relates to any matters under sub-clause (i) or provides punishment for offences coming under sub-clause (ii) of Article 35(A), such laws will continue to be valid. These laws will remain in force until they are altered, repealed, or amended by Parliament, but they will be subject to any modifications and adaptations made under Article 372.

Article 372 deals with the continuation of pre-constitutional laws until they are altered, repealed, or amended by a competent authority. It further gives the President of India the power to adapt and modify existing laws to align them with the Constitution. This power of adaptation is restricted to three years after the commencement of the Constitution. The President can specify the date from which these adaptations will take effect. After this three-year period, only a competent authority can make substantial changes to existing laws. These adaptations by the President cannot be challenged in a court of law.

Explanation 

The term ‘law in force’ in Article 35 has the same meaning as defined in Article 372. This means it includes any law that was in existence before the commencement of the Constitution and had not been repealed by the date. Essentially, it covers all laws that were still valid when the Constitution commenced.      

Purpose and scope of Article 35 of Indian Constitution

Article 35 serves to establish the framework for enacting and enforcing laws related to the fundamental rights enshrined in Part III of the Constitution.  

Purpose

  • Legislative authority: This provision grants exclusive power to the Parliament to enact laws concerning fundamental rights, including their implementation, defining offences under and enacting laws related to offences under Part III, and prescribing penalties. This authority is not extended to state legislatures.
  • Detailing and enforcement of specific provisions: Article 35 outlines the specific provisions for which Parliament can create special laws, such as:
    • Laws related to the residence requirements of government employees posted in any state or Union Territory (Article 16(3)).
    • Providing powers to courts other than the Supreme Court to issue writs for the enforcement of fundamental rights (Article 32(3)).
    • Modifying fundamental rights for certain categories of individuals to ensure effective performance of their duty and maintain discipline (Article 33).
    • Providing indemnity for actions taken by any person in service of the Union during martial law (Article 34).
  • Continuation and adaptation of existing laws: This provision ensures that pre-constitutional laws related to fundamental rights remain valid until they are modified, repealed, or amended by Parliament. It integrates these pre-constitutional laws into the current constitutional framework, aligning them with the present Constitution.

Scope

Article 35 has a broad scope; it is not restricted to the specific provisions mentioned within it. Instead, it empowers Parliament to enact and implement laws related to all the fundamental rights outlined in Part III of the Constitution. This authority allows Parliament to address any gaps or inadequacies in the protection of fundamental rights, ensuring that these rights are effectively enforced in practice.

Significance of Article 35 of Indian Constitution

Article 35 is a cornerstone for the effective implementation of fundamental rights. It holds great significance in the Constitution and plays a very important role. The functions of Article 35 are listed below:

  • Empowers Parliament: Article 35 gives exclusive authority to the Parliament to make laws concerning fundamental rights, ensuring a centralised approach to safeguarding the rights of the citizens across the country.
  • Ensures practical implementation: By providing power to the Parliament to address gaps and ambiguities in the protection and enforcement of rights through legislation, Article 35 helps make fundamental rights to be implemented practically by converting them from theoretical guarantees into reality.
  • Maintains continuity: Article 35 also focuses on the adaptation and continuation of the pre-existing laws related to fundamental rights until they are either repealed or amended by the Parliament; this ensures legal consistency and stability.
  • Adaptability: The provision ensures that the laws can be adapted to align with changing interpretations and requirements of fundamental rights, which supports ongoing legal and social progress.
  • Protects fundamental rights: Article 35 plays an important role in maintaining the integrity and effectiveness of fundamental rights by facilitating legislative actions to uphold and implement them.

Case laws on Article 35 of Indian Constitution

Satyajit Kumar vs. State of Jharkhand (2022)

The case of Satyajit Kumar vs. the State of Jharkhand (2022) addressed the issue of a 100% reservation given to local residents of Jharkhand belonging to Scheduled Tribes (ST) for the post of government teacher. There were 13 districts in Jharkhand notified as scheduled areas under Schedule V of the Constitution by the President. Later, the Jharkhand Government issued a notification providing 100% reservation in Class 3 and Class 4 posts for local residents from the ST community in those 13 districts. The legality of this notification was challenged in the Supreme Court of India through a writ petition, claiming that it violated Articles 14 and 16 of the Constitution.

The Supreme Court quashed the notification, observing that as per Article 35(a)(i) read with Article 16(3), any reservation for local residents can only be made by an enactment made by the Parliament and not by the state legislature. Since this notification was not issued by the Parliament but by the state legislature, it was deemed ultra vires Article 35(a)(i) read with Article 16(3). 

Chebrolu Leela Prasad Rao vs. State of Andhra Pradesh (2020)

The case of Chebrolu Leela Prasad Rao vs. State of Andhra Pradesh (2020) dealt with the issue of 100% reservation to the candidates of Scheduled Tribes (ST) for the post of government teacher in scheduled areas of Andhra Pradesh. A government order G.M.Os No. 275 dated 05/11/1986 was issued under para 5(1) of Schedule V. This reserved 100% of the seats for ST candidates for the post of government teacher in the scheduled area. This order was first challenged in the Andhra Pradesh Administrative Tribunal, where the tribunal quashed the notification. This order was then challenged in the High Court of Andhra Pradesh, where a three-judge bench upheld the validity of the notification by the Governor and the reservation of 100% seats. This decision was further challenged in the Supreme Court, arguing that the reservation of 100% of the seats for ST candidates violated Articles 14 and 16 of the Constitution of India.

The Apex Court set aside the judgement of the High Court of Andhra Pradesh and quashed the notification reserving 100% of the seats for ST candidates in the scheduled area of Andhra Pradesh, holding it unconstitutional and in violation of Articles 14 and 16 of the Constitution. The court referred to Article 35(b) to discuss and decide the legislative framework and power of the governor concerning the reservation of seats. The Apex Court, taking reference to Article 35(b), highlighted the need to ensure that any legislative action, including those taken by the Governor, must align with the fundamental rights enshrined in Part III of the Constitution. Therefore, the reservation of 100% of seats violated Articles 14 and 16, making the notification invalid.   

State of Sikkim vs. Surendra Prasad Sharma (1994)

The case of the State of Sikkim vs. Surendra Prasad Sharma (1994) revolves around the applicability of a rule that was in effect in the State of Sikkim before it officially became a part of the Union of India and its validity after Sikkim’s integration into the Union. Sikkim became a part of the Union of India through the 36th Amendment in 1975 and was given a special status under Article 371F, which included the continuation of laws in force before it merged into India. 

In this case, the main issue was that the non-locals in Sikkim were terminated on the ground of being non-local residents as per Rule 4(4) of the Sikkim Government Establishment Rules, 1974, where preference was given to the locals of Sikkim. This termination was challenged, claiming that it was unconstitutional. The Supreme Court of India observed that the termination of non-locals on the basis of Rule 4(4) of the Sikkim Government Establishment Rules, 1974, was not unconstitutional, as the Rule was in alignment with the special status granted to Sikkim by the Constitution under Article 371F. The court emphasised that Article 35, along with Article 371F, provided the necessary legal framework to take into account the unique historical framework and political circumstances surrounding Sikkim’s accession to India. These Articles allow for certain exceptions and special provisions that were essential to maintaining and protecting the rights of the locals of Sikkim. Therefore, the actions taken by the authorities as per Rule 4(4) of the Sikkim Government Establishment Rules, 1974 did not violate any constitutional or fundamental rights of any individual who was a non-local.  

Conclusion 

Article 35 of the Indian Constitution plays a crucial role in the legislative framework for enforcing and implementing fundamental rights. By giving power to the Parliament to make laws concerning these rights, this provision fills the gap between the guaranteed rights and their practical enforcement. It ensures that the laws enacted align with the fundamental rights detailed under Part III of the Constitution and provides a proper mechanism for their effective implementation. 

Moreover, Article 35 allows for the adaptation and continuation of pre-existing laws related to fundamental rights, ensuring legal continuity while incorporating the necessary reforms. Article 35 is a cornerstone of the Indian legal system that ensures that fundamental rights are not only declared but also practically implemented through legislative actions. Its significance lies in its ability to provide a powerful framework for the continuous protection and practical implementation of fundamental rights, showcasing the growing and evolving nature of legal and social norms in India.

Frequently Asked Questions (FAQs)

What is ex post facto law, and under which Article of the Indian Constitution is it explained?

An ex post facto law is a law that retroactively changes the legal consequences of any action committed before the law was enacted. Under this law, no one can be convicted for an act if it was not an offence or illegal at the time it was committed. Further, no one can be given harsher punishment than what was allowed by the law at the time the offence was committed. Article 20(1) deals with these issues; this provision prohibits the retrospective use of criminal law and prevents the conviction of any offence that was not an offence at the time it was committed.

What does Article 20(2) of the Indian Constitution explain?

Article 20(2) deals with the issue of double jeopardy. This provision provides that no person can be tried and punished twice for the same crime. This means that if a person has already been cleared of a crime by a court of law or has already served their sentence awarded for a crime, they cannot be prosecuted for that same crime again.  

What is protection against self-incrimination? 

Protection against self-incrimination means a person cannot be forced by anyone to testify or provide evidence against themselves that would incriminate them or make them guilty of a crime. This right ensures that a person cannot be forced to give a statement or provide any document that could be used against them in a court of law. Article 20(3) of the Indian Constitution provides the right against self-incrimination.

Article 21 provides protection against actions by whom?

Article 21 provides protection against the action of the State. It excludes any violation by private individuals because these matters are usually covered under criminal laws and civil laws.

What are the offences under Article 21A?

Article 21A, which deals with the right to education for children between the ages of six to fourteen years, does not include any specific offences directly. However, it relates to violations of any of the provisions of the Right to Education Act, 2009, which includes violations such as denying admissions to children, holding back or expelling children from school, physical punishments or mental harassment, poor infrastructure, etc.

Which two Articles cannot be suspended during an emergency, and why? 

Article 20 (Protection in respect of conviction of offence) and Article 21 (Protection of life and personal liberty) can not be suspended during an emergency. The reason behind this is that Article 20 provides protection against unfair legal practices and preserves justice and fairness, and Article 21 protects the life and personal liberty of an individual, which cannot be compromised during an emergency. These Articles ensure that basic human rights and legal principles remain intact and prevent any potential misuse of power during an emergency.

How long can a person be detained under preventive detention law? 

As per Article 22(4), an individual cannot be held in preventive detention for more than three months unless an Advisory Board has reported that there are sufficient grounds for keeping that individual in detention. 

What is the difference between fundamental rights and constitutional rights?  

Fundamental rights are enshrined under Part III of the Constitution. These are the basic rights provided by the Constitution that ensure freedom, justice, and equality for every individual. These rights are justiciable, meaning an individual can approach a court of law to enforce these rights if they are violated.  

Constitutional rights are the mixture of all the rights provided in the Constitution. This includes the rights under Parts I, II, IV, and other specific provisions, including the rights in Part III. These rights are both justiciable (enforceable by law) and non-justiciable (not directly enforceable by the court).  

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