Introduction & Summary
Article 35 of the Indian Constitution is a unique provision within Part III (Fundamental Rights). It plays a crucial role in ensuring uniformity and effectiveness in the application and enforcement of certain Fundamental Rights across the country.
This article grants exclusive power to the Parliament (and correspondingly denies power to state legislatures) to make laws with respect to specified matters related to Fundamental Rights. It also mandates Parliament to enact laws for prescribing punishment for acts declared as offences under the Fundamental Rights part.
This centralization of legislative power for specific FR-related matters underscores the national importance attached to these rights and their consistent application.
(Source: Broad understanding synthesized from Laxmikanth, 'Indian Polity'; D.D. Basu, 'Introduction to the Constitution of India'; Constitution of India (Bare Act - Article 35))
Core Content: Article 35 Dissected
"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 referred to 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and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament.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."
(Source: Constitution of India (Bare Act - Article 35))
6.14.1: Exclusive Power to Parliament
The power to make laws to give effect to certain specified Fundamental Rights shall vest only in Parliament, not state legislatures, ensuring uniformity.
While Article 16(2) prohibits discrimination based on residence in public employment, Article 16(3) allows Parliament to make an exception by prescribing residence within a state/UT as a necessary qualification for certain classes of employment under that state/UT government or local authority. Article 35 ensures only Parliament can do this.
Article 32 grants writ power to the Supreme Court, and Article 226 to High Courts. If other courts are to be empowered to issue directions, orders, and writs of all kinds for the enforcement of Fundamental Rights, only Parliament can make such a law. (No such law has been made yet).
Only Parliament can determine the extent to which Fundamental Rights will apply to members of Armed Forces, Para-military forces, police forces, intelligence agencies, etc., to ensure discipline and proper discharge of duties.
Only Parliament can pass laws to provide indemnity to any government servant or any other person for any act done during the operation of martial law in any area and to validate actions taken during martial law.
- Ensures Uniformity: Vesting this power exclusively in Parliament ensures that laws related to these sensitive aspects of Fundamental Rights are uniform throughout the country.
- National Importance: These matters are considered of national importance and require a consistent national approach.
- Preventing Parochialism: For instance, allowing states to prescribe residence requirements (Art 16(3)) could lead to excessive parochialism if not centrally regulated by Parliament.
- Maintaining Discipline: Uniform restrictions on FRs for armed forces and police across states (under Art 33 made by Parliament) are crucial for national security and integrated command structures.
6.14.2: Punishment for FR Offences
Parliament shall make laws for prescribing punishment for offences declared under Fundamental Rights (e.g., untouchability Art 17, traffic in human beings/forced labour Art 23).
Article 35(a)(ii) states that Parliament shall have (and state legislatures shall not have) power to make laws "for prescribing punishment for those acts which are declared to be offences under this Part [Part III]." The latter part of clause (a) further mandates: "...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)."
This ensures that the declaration of certain acts as offences under Part III (like untouchability) is not merely symbolic but is backed by concrete penal legislation, and the punishment for these offences is uniform throughout India, reflecting their seriousness as violations of fundamental human dignity.
Article 17: Untouchability
Declares untouchability abolished and its practice in any form forbidden. Enforcement of any disability arising out of ‘Untouchability’ shall be an offence punishable in accordance with law.
Article 23(1): Traffic in Human Beings & Forced Labour
Prohibits traffic in human beings and begar and other similar forms of forced labour. Any contravention of this provision shall be an offence punishable in accordance with law.
Parliamentary Legislation Enacted
1955: Untouchability (Offences) Act
Enacted to prescribe punishment for practicing untouchability, in pursuance of Article 17 and Article 35(a)(ii).
1956: Immoral Traffic (Prevention) Act
Aimed at preventing traffic in human beings for prostitution, drawing strength from Article 23.
1976: Bonded Labour System (Abolition) Act
Enacted to abolish the bonded labour system, a form of forced labour prohibited under Article 23.
1976: Renaming of Untouchability Act
The Untouchability (Offences) Act, 1955, was renamed as the Protection of Civil Rights Act, 1955, in 1976, reflecting a broader scope.
Article 35(b) – Continuation of Pre-Constitutional Laws
Clause (b) of Article 35 provides that any law in force immediately before the commencement of the Constitution with respect to matters mentioned in Article 35(a)(i) (like residence for employment) or providing punishment for acts mentioned in Article 35(a)(ii) (offences under Part III) shall continue in force until altered, repealed, or amended by Parliament. This ensured there was no legal vacuum immediately after the Constitution commenced.
Prelims-ready Notes
- Article 35: Deals with legislation to give effect to certain FRs.
- Exclusive Power to Parliament (NOT State Legislatures) for certain FR matters (Art 35(a)(i)):
- Prescribing residence for certain state/UT employment (Art 16(3)).
- Empowering courts other than SC/HC to issue writs for FRs (Art 32(3)).
- Restricting/abrogating FRs for armed forces, police, etc. (Art 33).
- Indemnifying for acts during martial law (Art 34).
- Purpose of Exclusive Parliamentary Power: Ensures uniformity of laws on these national importance matters.
- Parliament's Duty to Prescribe Punishment for FR Offences (Art 35(a)(ii)):
- For acts declared offences under Part III: Untouchability (Art 17), Traffic in human beings & forced labour (Art 23).
- Examples of laws: Protection of Civil Rights Act, 1955; Immoral Traffic (Prevention) Act, 1956; Bonded Labour System (Abolition) Act, 1976.
- Art 35(b): Pre-constitutional laws on these matters continue until Parliament alters/repeals them.
Mains-ready Analytical Notes
- Article 35 and National Uniformity: The primary significance of Article 35 lies in its objective to ensure uniformity throughout India in laws relating to certain critical aspects of Fundamental Rights and in prescribing punishments for their violation. Divergent laws by different states could undermine the national character of Fundamental Rights.
- Centralization of Power for Effective Enforcement: By vesting exclusive legislative power in Parliament, the Constitution ensures a strong and consistent national approach. E.g., uniform restrictions on rights of armed forces (Art 33) for national security, and combating social evils like untouchability (Art 17) requires a determined national legislative effort.
- Mandatory Nature of Legislation for Punishment: The use of "shall" indicates a constitutional directive, ensuring that declarations of offences (like untouchability) are backed by concrete penal legislation, not just symbolic.
- Relationship with Federal Principles: Article 35 represents a specific instance where the Constitution, despite its federal structure, centralizes legislative power in Parliament. This is justified on grounds of national unity, uniformity, and the overarching importance of these rights, overriding normal distribution of powers.
- Effectiveness of Laws: While laws exist (PCR Act, Bonded Labour Act), their effectiveness depends on vigorous implementation, social awareness, judicial activism, and addressing socio-economic root causes. Laws provide the framework, but social transformation is complex.
Current Affairs & Developments
- Implementation of Laws Related to FR Offences: Ongoing monitoring by NHRC, NCSC on PCR Act, 1955, and SC/ST (Prevention of Atrocities) Act, 1989. NCRB data on cases under these acts.
- Debates on Police Reforms: Discussions often touch upon training and sensitization of police forces regarding FRs and laws made under Article 35 (indirectly linking to Art 33).
- Anti-Trafficking Bill Discussions: Progress on the Trafficking in Persons (Prevention, Care and Rehabilitation) Bill would be a significant legislative development related to Article 23 and the mandate under Article 35(a)(ii).
(Note: Article 35 is primarily about empowering Parliament. Direct current affairs usually revolve around the laws made by Parliament under this power, their effectiveness, or calls for new legislation on related matters.)
UPSC Previous Year Questions
Prelims MCQs:
| Question | Answer | Hint/Explanation |
|---|---|---|
| 1. Which Article of the Constitution of India confers exclusive power on the Parliament to make laws for prescribing punishment for acts declared as offences under Part III (Fundamental Rights)? (a) Article 32 (b) Article 33 (c) Article 34 (d) Article 35 |
(d) Article 35 | Article 35(a)(ii) explicitly grants Parliament exclusive power. |
| 2. Under the Indian Constitution, the power to make laws prescribing residence as a condition for certain employments in a State or Union Territory is vested exclusively in: (a) The State Legislature... (b) The Parliament of India. (c) The President... (d) Both Parliament and the State Legislature... |
(b) The Parliament of India. | Article 16(3) allows for such a prescription, and Article 35(a)(i) specifies that power lies exclusively with Parliament. |
| 3. The Protection of Civil Rights Act, 1955, was enacted by Parliament primarily to give effect to which of the following Fundamental Rights? (a) Article 14 (b) Article 17 (c) Article 21 (d) Article 23 |
(b) Article 17 | The Act was enacted to prescribe punishments for untouchability (Art 17) as mandated by Art 35(a)(ii). |
Mains Questions:
Question: What is the significance of Article 35 of the Indian Constitution in relation to the enforcement and uniformity of Fundamental Rights? Discuss with examples of laws made by Parliament under this provision.
Direction/Value Points:
- Introduction: Explain Article 35's unique role in centralizing legislative power for certain FR matters.
- Significance for Uniformity: Ensures consistent application of laws related to specified FR aspects nationwide; prevents states from creating divergent standards.
- Significance for Enforcement: Mandates Parliament to make laws prescribing punishment for acts declared offences under Part III (Art 17, 23).
- Examples of Matters under Exclusive Parliamentary Jurisdiction (Art 35(a)(i)): Art 16(3), Art 32(3), Art 33, Art 34 (e.g., Police Forces (Restriction of Rights) Act, 1966).
- Examples of Laws Prescribing Punishment (Art 35(a)(ii)): Protection of Civil Rights Act, 1955; Immoral Traffic (Prevention) Act, 1956; Bonded Labour System (Abolition) Act, 1976.
- Conclusion: Article 35 is crucial for ensuring that certain FR-related matters are dealt with uniformly at the national level by Parliament, thereby strengthening both the enforcement and the national character of these fundamental guarantees and prohibitions.
Question: "Article 35 reflects a deliberate constitutional choice to centralize legislative power for certain Fundamental Rights matters to ensure national consistency and effective implementation." Elaborate on the rationale behind this centralization and its impact on the federal distribution of powers.
Direction/Value Points:
- Introduction: Article 35 as an exception to normal legislative distribution for specific FR matters.
- Rationale for Centralization: National Uniformity (crucial for national concerns like untouchability, armed forces rights); Effective Implementation (single national law better enforced); Preventing Dilution by States; Sensitivity of Matters (national scope).
- Impact on Federal Distribution of Powers: Unitary Feature (clear instance within India's federal structure); Overrides State Legislative Competence (states explicitly barred); Justification in National Interest.
- Balance: While centralizing, implementation often involves state machinery.
- Conclusion: The centralization of legislative power under Article 35 is a conscious constitutional design choice that prioritizes national uniformity and effective enforcement for certain critical Fundamental Rights matters, even if it means a specific curtailment of state legislative power.
Trend Analysis (Past 10 Years)
Prelims Trend:
- Focus on which body (Parliament) has exclusive power under Article 35.
- Knowledge of the specific articles/matters covered by Article 35(a)(i) (Art 16(3), 32(3), 33, 34).
- Understanding that Parliament is mandated to make laws for punishing FR offences (Art 17, 23).
- Examples of laws enacted under Article 35 (PCR Act, etc.).
Mains Trend:
- Analytical questions on the rationale and significance of Article 35, particularly its role in ensuring uniformity and effective enforcement.
- Its impact on federalism (as a centralizing feature).
- Less frequently asked as a standalone topic, often integrated with discussions on specific FRs (like Art 17, 23, 33) and the laws made thereunder.
Original MCQs for Prelims
| Question | Answer | Explanation |
|---|---|---|
| 1. Which of the following matters related to Fundamental Rights falls under the exclusive legislative power of the Parliament as per Article 35 of the Constitution? 1. Defining 'untouchability' for the purpose of Article 17. 2. Prescribing punishment for traffic in human beings (Article 23). 3. Empowering District Courts to issue writs for the enforcement of Fundamental Rights. 4. Restricting the Fundamental Rights of members of State Police Forces. Select the correct answer using the code given below: (a) 2 and 3 only (b) 1, 2 and 4 only (c) 2, 3 and 4 only (d) 1, 2, 3 and 4 |
(c) 2, 3 and 4 only | 1. Incorrect. 'Untouchability' is not defined; Art 35 is for punishment. 2. Correct (Art 35(a)(ii)). 3. Correct (Art 35(a)(i) for Art 32(3)). 4. Correct (Art 35(a)(i) for Art 33). |
| 2. The primary objective of vesting exclusive power in Parliament under Article 35 to legislate on certain Fundamental Rights matters is to: (a) Enable faster amendment of Fundamental Rights. (b) Ensure uniformity in such laws throughout the territory of India. (c) Give more powers to the Central Government over State Governments. (d) Reduce the burden of litigation on the Supreme Court. |
(b) Ensure uniformity in such laws throughout the territory of India. | The main rationale is uniformity for nationally important laws. |
Original Descriptive Questions for Mains
Question: "Article 35 of the Indian Constitution serves as a key instrument for operationalizing and ensuring the uniform application of certain Fundamental Rights, thereby strengthening their efficacy." Elaborate on this statement with suitable examples.
Key Points/Structure for Answering:
- Introduction: Explain Article 35's role in giving effect to FRs.
- Operationalizing FRs: How laws like PCR Act (for Art 17) and Bonded Labour Abolition Act (for Art 23) provide penalties, making prohibitions effective. How Art 16(3), Art 32(3), Art 33, Art 34 enable specific FR applications/restrictions.
- Ensuring Uniform Application: Exclusive power to Parliament prevents divergent state laws; uniform punishment for FR offences; consistent approach to restrictions on armed forces/police.
- Strengthening Efficacy: Uniformity and clear provisions enhance effectiveness and predictability of FRs.
- Conclusion: Article 35 is vital for consistently and effectively translating specific Fundamental Rights into legal reality, reinforcing their efficacy.