Article 35 of Indian Constitution

The Constitution of India is widely celebrated for enshrining Fundamental Rights that guarantee essential freedoms and protections to its citizens. These rights, found primarily in Part III of the Constitution, form the cornerstone of Indian democracy. However, simply having these rights written in the Constitution is not sufficient. They must be effectively implemented and enforced through proper laws. This is where Article 35 of the Indian Constitution comes into play.

Though not often discussed in popular discourse, Article 35 performs a crucial role in ensuring that the Fundamental Rights guaranteed by the Constitution are more than just theoretical declarations. It empowers Parliament to legislate on specific matters concerning these rights, giving them practical application and uniformity across the country.

What Does Article 35 Say?

Article 35 is titled “Legislation to give effect to the provisions of this Part” — referring to Part III, which contains Fundamental Rights. The article essentially grants Parliament the exclusive authority to make laws for enforcing certain fundamental rights.

The text of Article 35 can be divided into two important parts:

1. Clause (1) grants Parliament the power to prescribe the manner in which some specific Fundamental Rights shall be enforced. It also allows Parliament to amend or repeal existing laws on these subjects.
2. Clause (2) validates all laws that were already in force before the Constitution came into effect, as long as they correspond to the Fundamental Rights mentioned in the article. These laws remain effective until Parliament decides to amend or repeal them.

Why Was Article 35 Included in the Constitution?

To understand the importance of Article 35, it helps to consider the context of the Constituent Assembly debates and the legal situation at the time of Independence in 1947.

India inherited a complex legal system from the British colonial rulers, including many laws related to the armed forces, public employment, and the judiciary. When the Constitution came into force on 26 January 1950, the framers wanted to ensure that these existing laws did not suddenly become invalid, causing a legal vacuum or confusion. At the same time, they recognised that certain fundamental rights—especially those relating to the armed forces or the power of courts to issue writs—required detailed laws for their effective enforcement.

Article 35 was included to give Parliament the exclusive authority to legislate on these critical matters. It also ensured a smooth transition from pre-Constitution laws to the new constitutional framework by validating existing laws until Parliament chose to amend or repeal them.

What Are the Specific Fundamental Rights Covered by Article 35?

Article 35 does not grant Parliament the power to legislate on all fundamental rights. It restricts this power to a select few, mentioned explicitly in the article. These are:

• Article 16(3): Relates to the residence requirements for holding public employment.
• Article 32(3): Allows Parliament to extend the power to issue writs to courts other than the Supreme Court and High Courts.
• Article 33: Permits Parliament to restrict or modify fundamental rights of members of the armed forces, police forces, intelligence agencies, and other disciplined services.
• Article 34: Enables Parliament to indemnify persons for acts done during martial law or foreign invasion.

Let’s look at each in some detail.

Article 16(3): Residence Requirement for Public Employment

Article 16 guarantees equality of opportunity in public employment. However, Article 16(3) allows Parliament to prescribe the period of residence in a state that may be required to qualify for certain government jobs.

For example, if a government wants to ensure that only residents of a particular state can apply for some positions, it needs legislation from Parliament to enforce that. State legislatures cannot pass such laws themselves because Article 35 gives Parliament exclusive power to do so.

This ensures uniformity in employment laws across India and prevents fragmentation where different states could impose varied and conflicting residency requirements.

Article 32(3): Issuing Writs by Courts Other Than SC and HC

Article 32 is often called the “heart and soul” of the Constitution because it allows individuals to approach the Supreme Court directly to protect their fundamental rights through writ petitions like habeas corpus, mandamus, prohibition, quo warranto, and certiorari.

However, Article 32(3) empowers Parliament to extend the jurisdiction to issue these writs to other courts as well — courts that are neither the Supreme Court nor the High Courts. Parliament alone can enact laws to enable this extension.

This provision is significant because it allows access to justice to be more widespread, reaching people even in smaller towns and districts through lower courts empowered by Parliament.

Article 33: Restriction of Fundamental Rights for Armed Forces, Police, and Intelligence Agencies

Article 33 is a unique provision that allows Parliament to restrict or abolish fundamental rights of members of the armed forces, police, intelligence agencies, and other similar organisations.

The rationale behind this is to maintain discipline, unity, and effective functioning in these sensitive services, which may require certain restrictions not applicable to civilians.

For instance, the Army Act, 1950 and related legislation restrict some rights of military personnel in ways necessary for military discipline and national security. Parliament alone has the authority to enact, amend, or repeal such laws, as provided by Article 35.

This exclusivity ensures that such laws are uniform across the country and handled at the national level, reflecting the critical importance of these services to the nation.

Article 34: Indemnification for Acts During Martial Law

Article 34 enables Parliament to indemnify persons for acts done in connection with maintaining or restoring public order during martial law or foreign invasion.

In exceptional situations such as war or internal emergency, some acts by officials may otherwise attract legal consequences. This provision allows Parliament to protect such individuals by passing indemnity laws.

Again, only Parliament can legislate in this sensitive area, and existing indemnity laws passed before 1950 continue to operate until altered by Parliament, as per Article 35.

Why Is the Power of Parliament Exclusive?

Article 35 grants exclusive power to Parliament over the matters mentioned above, explicitly preventing state legislatures from enacting laws in these areas. This exclusivity is important for several reasons:

• Uniformity: It ensures that laws relating to these fundamental rights are uniform throughout India, avoiding a patchwork of different state laws that could undermine the constitutional guarantee of equality and justice.
• Centralisation of Sensitive Matters: Many of these rights concern national security (e.g., rights of armed forces), judicial authority, or other matters that require a single national approach.
• Legal Certainty and Continuity: It prevents confusion or conflict between central and state laws on fundamental rights.

Validation of Existing Laws Under Article 35(2)

Article 35 also recognises the need for legal continuity. It provides that all laws in force in India immediately before the commencement of the Constitution and corresponding to Articles 16(3), 32(3), 33, and 34 will continue to be valid until Parliament decides to amend or repeal them.

This clause was vital for ensuring a smooth transition from colonial to constitutional law. It avoided any sudden void in critical laws affecting public employment, military discipline, writ jurisdiction, or indemnity for emergency acts.

Some Important Laws Enacted Under Article 35

1. Army Act, 1950: This act governs the discipline and conduct of the Indian Army, placing limits on some fundamental rights of military personnel as authorised under Article 33.
2. Navy Act and Air Force Act: Similar legislation for the Navy and Air Force also flow from Article 35’s authority.
3. Writ Jurisdiction (Extension to Other Courts) Act, 1973: This law extends the power to issue writs to courts lower than High Courts, thus expanding the reach of judicial protection.
4. Indemnity Laws: Various laws granting protection to government officials acting during emergencies or martial law derive authority from Article 34 via Article 35.

Relationship with Article 13 and Judicial Review

Article 13 of the Constitution states that any law inconsistent with or in derogation of fundamental rights is void to the extent of that inconsistency. However, Article 35(1) qualifies this by allowing Parliament to legislate on the enforcement and modification of certain fundamental rights, even if that means amending or repealing existing laws that affect those rights.

Nonetheless, such laws passed by Parliament remain subject to judicial review to ensure they fall within constitutional limits. Courts have maintained that Parliament cannot use this power to arbitrarily or unreasonably restrict fundamental rights.

Landmark Judgements of Article 35

The Supreme Court and other courts have clarified various aspects of Article 35 through their judgements:

• On Writ Jurisdiction: Courts have emphasised that extension of writ jurisdiction to other courts must not dilute the protection of fundamental rights or deny access to justice.
• On Restrictions of Rights in Armed Forces: Courts have held that any restriction under Article 33 must be reasonable, necessary for discipline, and consistent with the Constitution’s basic structure.
• On Indemnity Provisions: The judiciary has ruled that indemnity laws cannot be misused to shield serious violations of fundamental rights or gross human rights abuses.

Importance of Article 35 in the Indian Legal System

Though Article 35 is brief and often overlooked, its role is indispensable:

• It transforms constitutional rights into enforceable laws.
• It maintains uniformity across India on sensitive matters related to fundamental rights.
• It preserves legal continuity by validating pre-constitutional laws until modified by Parliament.
• It places important rights-related matters within national jurisdiction, helping maintain order and coherence.
• It allows Parliament to adapt laws relating to fundamental rights in response to changing circumstances, including new challenges to national security or judicial processes.

Conclusion

Article 35 of the Indian Constitution plays a quiet but pivotal role in ensuring that the Fundamental Rights guaranteed to every citizen are effectively enforced and uniformly applied throughout the country. By vesting Parliament with exclusive law-making power in critical areas such as public employment residency requirements, writ jurisdiction, restrictions on armed forces’ rights, and indemnification during emergencies, Article 35 safeguards the balance between individual freedoms and national interests.

Moreover, by validating pre-existing laws until Parliament intervenes, it provides much-needed legal continuity and stability. Though often overshadowed by the more visible Fundamental Rights themselves, Article 35 serves as the legislative backbone that turns constitutional promises into enforceable realities.