Article 35

Article 35 of the Indian Constitution delineates the exclusive legislative powers of Parliament with respect to certain matters relating to fundamental rights. It ensures that the authority to make laws for the implementation and regulation of specific provisions in Part III of the Constitution remains centralised with Parliament. This article is crucial in maintaining uniformity across the nation in matters that directly affect the enforcement and scope of fundamental rights, thereby preventing inconsistencies or conflicts arising from state legislation.

Background and Constitutional Context

The Constitution of India, while embodying a federal structure, vests certain powers exclusively in the Union Parliament to maintain national coherence. Article 35 belongs to this category of provisions that safeguard the uniform application of fundamental rights throughout the country.
The framers of the Constitution were conscious that matters such as the modification of fundamental rights for the armed forces, indemnity during martial law, or prescribing qualifications for public employment are of national importance and cannot vary from one state to another. Therefore, Article 35 ensures that only Parliament has the authority to legislate on these subjects, even though they may ordinarily fall within the State List.

Scope and Key Provisions

Article 35 confers upon Parliament exclusive legislative competence to make laws with respect to certain matters specified in other provisions of Part III. These include:

• Article 16(3): Empowering Parliament to prescribe residence requirements for public employment in a state or union territory.
• Article 32(3): Allowing Parliament to empower courts other than the Supreme Court to issue writs for the enforcement of fundamental rights.
• Article 33: Granting Parliament the power to modify or restrict the application of fundamental rights to members of the armed forces, police, or intelligence agencies, to maintain discipline and national security.
• Article 34: Authorising Parliament to provide indemnity for actions taken during the imposition of martial law or for maintaining public order.

Through these provisions, Article 35 ensures that sensitive subjects impacting the national interest and the uniformity of rights are governed by a single legislative authority.

Continuation of Existing Laws

Article 35 also preserves laws that were in force before the commencement of the Constitution and that relate to the matters specified above. These pre-constitutional laws continue to remain valid until they are altered, repealed, or replaced by Parliament.
The expression “law in force”, as defined under Article 372, refers to any law or regulation that was operational immediately before the Constitution came into effect. This continuity provision was intended to ensure a smooth transition from colonial and pre-independence governance frameworks to the new constitutional order.

Centralisation of Legislative Authority

One of the primary objectives of Article 35 is the centralisation of legislative power in specific areas concerning fundamental rights. The rationale for this centralisation lies in ensuring:

• Uniformity: To prevent diverse or conflicting state laws that could undermine the consistency of fundamental rights across India.
• Stability: To ensure that matters involving national security, discipline in armed forces, or emergencies are handled with a unified national approach.
• Constitutional Supremacy: To safeguard the integrity of fundamental rights by vesting legislative power in Parliament, which represents the entire nation rather than regional interests.

This arrangement reflects the vision of the Constituent Assembly to create a strong and cohesive Union capable of upholding constitutional values uniformly throughout the country.

Judicial Interpretation and Case Law

The Supreme Court of India has played a pivotal role in interpreting Article 35 and reinforcing its significance in the constitutional scheme.

• Kesavananda Bharati v. State of Kerala (1973): In this landmark case, the Supreme Court articulated the basic structure doctrine, asserting that while Parliament has extensive powers under Article 35, such powers cannot be exercised in a manner that destroys the basic features of the Constitution.
• Maneka Gandhi v. Union of India (1978): The Court expanded the interpretation of Article 21 and its relationship with Articles 14 and 19, thereby emphasising that any law enacted under Article 35 must comply with the spirit of fundamental rights.
• Minerva Mills Ltd. v. Union of India (1980): The Court reiterated that Parliament’s powers, including those under Article 35, must maintain a balance between fundamental rights and directive principles.

These decisions collectively underscore that while Article 35 centralises law-making power, such authority remains subject to constitutional limitations and judicial review.

Legislative and Historical Evolution

Article 35 represents a deliberate design by the framers of the Constitution to maintain continuity with pre-constitutional laws while empowering Parliament to revise or replace them in conformity with the new constitutional order. The Constituent Assembly debates reveal that members considered this provision essential to avoid legislative confusion during the early years of independence.
In the post-independence period, several laws have been enacted or retained under the authority of Article 35, including legislation related to military discipline, residence requirements for public employment, and indemnity provisions during martial law.

Implications and Significance

The constitutional implications of Article 35 are multifaceted:

• Uniform Application of Fundamental Rights: It ensures that the enforcement and modification of fundamental rights follow a uniform legal framework across all states and union territories.
• Prevention of Legislative Conflicts: By reserving the legislative domain for Parliament, it prevents inconsistencies that could arise from state-level legislation on sensitive constitutional matters.
• Protection of National Interests: The exclusive powers under Article 35 allow the central government to maintain control over areas directly related to national security, public order, and the integrity of the armed forces.
• Continuity and Legal Stability: The continuation of pre-constitutional laws until replaced by Parliament provides administrative and legal stability.

Criticism and Debates

Despite its constitutional necessity, Article 35 has occasionally been debated on grounds of federal balance. Critics argue that by reserving these subjects exclusively for Parliament, the article diminishes the legislative autonomy of the states. However, constitutional experts contend that such centralisation is justified due to the nature of the matters involved, which have implications extending beyond state boundaries.
Some scholars have also suggested the need for periodic review of pre-constitutional laws retained under Article 35, to ensure they align with contemporary democratic and human rights standards.

Relationship with Related Articles

Article 35 functions in coordination with several other constitutional provisions:

• Article 16(3): Relates to equality of opportunity in public employment with respect to residence requirements.
• Article 32: Empowers individuals to seek judicial enforcement of their fundamental rights.
• Article 33: Permits Parliament to restrict the rights of armed and security forces for maintaining discipline.
• Article 34: Deals with indemnity during martial law and restoration of order.

Together, these provisions reflect a constitutional design aimed at preserving the supremacy of Parliament in areas of national significance while ensuring the integrity of fundamental rights.

Significance in the Constitutional Framework

Article 35 stands as a cornerstone in India’s constitutional architecture, embodying the principle of national uniformity in the protection and regulation of fundamental rights. By centralising legislative powers on sensitive subjects, it prevents fragmentation in the application of constitutional guarantees and upholds the supremacy of Parliament in maintaining unity and coherence across the Republic.