Constitution of India
Article 35: Legislation to give effect to the provisions of this Part
Part III — Fundamental Rights
Clause (a) — Parliament's exclusive legislative power
WHAT IT SAYS: 1. Notwithstanding anything in the Constitution, only Parliament (NOT State Legislatures) can make laws on matters under Articles 16(3), 32(3), 33, and 34. 2. Parliament alone can prescribe punishment for acts declared offences under Part III. 3. Parliament shall make such penal laws as soon as may be after the commencement of the Constitution. WHAT IT MEANS: 1. State Legislatures are completely barred from legislating on residence requirements for public employment (Art 16(3)). 2. Only Parliament can extend writ jurisdiction to courts other than the Supreme Court (Art 32(3)). 3. Only Parliament can modify fundamental rights for armed forces, police, and intelligence agencies (Art 33). 4. Only Parliament can grant indemnity for acts done during martial law (Art 34). 5. Only Parliament can define and punish offences against fundamental rights (e.g., untouchability under Art 17). KEY DOCTRINE: Doctrine of Exclusive Parliamentary Competence — certain fundamental-rights matters are reserved exclusively to Parliament to ensure national uniformity.
Clause (b) — Continuation of pre-constitutional laws
WHAT IT SAYS: 1. Any law in force immediately before the commencement of the Constitution relating to matters in clause (a)(i) or providing punishment for acts in clause (a)(ii) shall continue in force. 2. Such continuation is subject to adaptations and modifications under Article 372. 3. These laws remain valid until altered, repealed, or amended by Parliament. WHAT IT MEANS: 1. Pre-1950 colonial-era laws on these subjects did not become void automatically on 26 January 1950. 2. They remained operative until Parliament chose to replace or amend them. 3. The President could adapt such laws under Article 372 for up to 3 years after the Constitution commenced. KEY DOCTRINE: Doctrine of Legal Continuity — existing laws survive the constitutional transition unless Parliament acts to change them.
Explanation
WHAT IT SAYS: 1. The expression 'law in force' in Article 35 has the same meaning as in Article 372. WHAT IT MEANS: 1. 'Law in force' includes any statute, ordinance, regulation, order, or rule having force of law in any part of India before the Constitution. 2. This ensures uniform interpretation across transitional provisions. KEY DOCTRINE: Interpretive linkage — Article 35 borrows definitional clarity from Article 372 to avoid ambiguity.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 — Sections on distribution of legislative powers between Centre and Provinces. Original provision: The GoI Act 1935 divided subjects into Federal, Provincial, and Concurrent Lists with the Centre retaining residuary power. What India kept: The idea that certain sensitive subjects require exclusive central (now Parliamentary) legislative competence. INDIA'S SPECIFIC ADAPTATIONS: 1. Exclusive Parliamentary domain over Fundamental Rights legislation — No foreign constitution had an identical provision; this was crafted to prevent States from creating inconsistent rights-related laws. 2. Transition clause for pre-constitutional laws — Framers ensured that colonial-era laws (e.g., military discipline statutes) would not lapse overnight, ensuring legal stability during the transition to independence. 3. Non-obstante clause ("Notwithstanding anything in this Constitution") — Gives Article 35 overriding effect even over the distribution of legislative powers in the Seventh Schedule, ensuring uniformity in rights enforcement. IF ORIGINAL INDIAN CONTRIBUTION: The framers felt that in a diverse federal polity, permitting each State to legislate on matters like armed forces discipline, public employment residency, or punishment for untouchability would lead to a fragmented patchwork of rights — hence exclusive Parliamentary control was deemed essential for national unity.
Constituent Assembly Debate
DEBATED ON: 1. 23 November 1948 — Draft Article 27 (later renumbered as Article 35) was initially taken up but Dr. Ambedkar requested it to stand over for later consideration (CAD Volume VII). 2. 1 December 1948 — Pandit Thakur Dass Bhargava raised concerns about the proviso in Draft Article 27 keeping pre-constitutional laws alive (CAD Volume VII). 3. 9 December 1948 — Final substantive debate on Draft Article 27 (CAD Volume VII). KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Chairman, Drafting Committee) — Moved amendment to restrict Parliament's exclusive power to specific articles (16(3), 32(3), 33, 34) rather than all fundamental rights as in the original draft. 2. Shri H.V. Kamath (C.P. & Berar) — Argued that Ambedkar's amendment would dilute Parliament's legislative power by narrowing the scope of matters covered. 3. Pandit Thakur Dass Bhargava (East Punjab) — Questioned the necessity of the proviso keeping pre-constitutional laws alive, arguing Article 8 (now Article 13) already dealt with inconsistent existing laws. MAJOR DISAGREEMENTS: 1. Scope of Parliament's exclusive power — Original draft gave Parliament power over ALL fundamental rights matters; Ambedkar's amendment narrowed it to only four specific articles. Kamath opposed the narrowing. 2. Necessity of the transition proviso — Bhargava argued it was redundant given Article 8's (now Art. 13) general provision on existing laws. FINAL OUTCOME: Ambedkar's amendment restricting exclusive Parliamentary competence to Articles 16(3), 32(3), 33, and 34 was accepted; the broader original draft was rejected. Draft Article 27 became Article 35. AMBEDKAR'S KEY QUOTE: "Only in specific matters that Parliament has been given this penal authority" — clarifying the intent was not to restrict Parliament but to identify precise areas of exclusive competence.
Landmark Judgments
LANDMARK JUDGMENTS: 1. State of Sikkim v. Surendra Prasad Sharma (1994) — SC held that Article 371-F(k) protects pre-merger Sikkim laws (including employment rules preferring locals) from challenge under Articles 14 and 16, reading Article 35(b) alongside special provisions for Sikkim's integration. 2. Chebrolu Leela Prasad Rao v. State of Andhra Pradesh (2020) — Five-judge bench struck down 100% reservation for STs in scheduled areas as violative of Articles 14, 15(1) and 16; reaffirmed that legislative or executive action must conform to Part III. 3. Satyajit Kumar v. State of Jharkhand (2022) — SC quashed 100% reservation for local residents in scheduled area posts, holding notification ultra vires Article 35(a)(i) read with Article 16(3) since only Parliament can prescribe residence-based employment requirements. 4. Kesavananda Bharati v. State of Kerala (1973) — While primarily about basic structure, the Court affirmed that Parliament's powers under Article 35 cannot destroy the basic features of the Constitution. 5. Minerva Mills Ltd. v. Union of India (1980) — Reiterated that Parliament's powers, including those under Article 35, must maintain balance between fundamental rights and directive principles. NOTABLE DISSENTS (if any): 1. None specifically recorded on Article 35 interpretation in landmark cases. SCHOLARS & JURISTS: 1. D.D. Basu — Noted that Article 35 creates a unique exception to normal legislative distribution, making certain fundamental-rights matters an exclusive Union subject regardless of the Seventh Schedule. 2. M.P. Jain — Observed that Article 35 reflects the framers' concern for national uniformity in rights enforcement, preventing fragmentation across 28+ States.