This article provides a thorough analysis of Article 35 of the Constitution of India. It discusses the legislative framework that allows Parliament to create laws necessary for implementing fundamental rights defined in Part III of the Constitution. This article covers the purpose, scope, significance of Article 35, key case laws that illustrate its implications, and its role in addressing the constitutional challenges related to fundamental rights.
Introduction
Article 35 of the Constitution of India is a vital provision that empowers the legislature to enact laws necessary for the effective implementation of the fundamental rights set forth in Part III of the Constitution. This Article specifically grants Parliament the authority to legislate for any part of India or the entire country, ensuring that fundamental rights are actively upheld and safeguarded for every citizen.
This Article clarifies that merely declaring rights is insufficient without supportive legislation. Laws are required to enforce and protect these rights. By enabling Parliament to create such laws, Article 35 plays a crucial role in transforming constitutional principles into actionable legal protections that promote justice and safeguard individual freedoms.
In this article, we will delve into the functioning of Article 35 and examine significant case laws that elaborate on its importance in detail.
Historical Background
Article 35 was initially included as Article 27 in the Draft Constitution of 1948. The original Article 27 provided that, despite provisions stated elsewhere in the Constitution, Parliament would have the authority to enact laws while the state legislatures did not possess that power as outlined in Parts I and III of the First Schedule.
This Article further stated that Parliament could legislate on any matters requiring law under this Part and use it to prescribe punishments for acts defined as offenses under Part III. The provision read as follows:
- Related to any matter in this Part that requires a law by Parliament; and
- Prescribing punishments for those acts declared as offenses under this part, which Parliament may need to enact laws for after the Constitution commenced.
The term “this Part” referenced Part III of the Draft Constitution, which enshrined fundamental rights.
Article 27 was scrutinized during the Constitutional Assembly debates on December 9, 1948, when Dr. B.R. Ambedkar proposed amendments to the draft provision as follows:
- The phrase “any of the matters in this Part” in clause (a) was amended to specify particular matters under several Articles.
- Clause (b) was changed to include the need for law to prescribe punishments for prescribed acts.
- The proviso was amended to cover matters discussed in clause (a).
- An explanation was added to clarify the term “law in force” as per Article 307.
Despite concerns that the amendments would restrict Parliament’s legislative power, Dr. B.R. Ambedkar clarified that they aimed to indicate the precise areas where only Parliament could legislate. The amendments were accepted, and the final draft saw Article 27 transform into Article 35 of the Indian Constitution in 1950.
Understanding Article 35 of the Indian Constitution
Article 35 states, “Legislation to give effect to the provisions of this Part,” emphasizing the necessity for legislative action to enforce the provisions found in Part III of the Constitution—specifically, fundamental rights. This section is crucial as it outlines the fundamental rights provided to Indian citizens (and some rights to non-citizens). These rights fall into six main 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) clarifies the specific legislative authority of Parliament, asserting that only Parliament (and not state legislatures) may make laws concerning designated matters.
- Sub-clause (i): Parliament can legislate on issues under Articles 16(3), 32(3), 33, and 34, covering essential matters such as government employment conditions, the authorization of other courts to exercise Supreme Court powers, and the regulation of fundamental rights for specific groups, including armed forces and police.
- Sub-clause (ii): This sub-clause empowers Parliament to establish punishments for actions regarded as offenses under Part III of the Constitution.
In summary, Clause (a) of Article 35 grants Parliament exclusive powers to legislate on critical topics related to fundamental rights. This allocation of power ensures consistency across the nation, protecting citizens’ fundamental rights while preventing state legislatures from enacting conflicting laws.
Understanding Article 35 Provisions
Article 16(3) mentions that Parliament can legislate on residency requirements related to government jobs in states or Union Territories. This means Parliament can set rules about where individuals must reside to qualify for specific positions.
Article 32(3) empowers Parliament to allow courts other than the Supreme Court to exercise specific powers related to the enforcement of fundamental rights. This means Parliament can extend such powers to lower courts through legislation.
Article 33 grants Parliament the authority to restrict or modify fundamental rights for specific groups, such as:
- Members of Armed Forces
- Persons in forces maintaining public order
- Employees of state-run intelligence agencies
- Individuals related to telecommunications supporting these agencies
This is vital in ensuring effective performance and discipline among these individuals.
Article 34 provides legal indemnity for actions taken during the implementation of martial law, ensuring that individuals performing their duties under the Union of India are not legally liable for actions taken during such times of unrest.
Understanding Offenses and Protection Under Part III
Article 20 provides protections against ex post facto laws, double jeopardy, and self-incrimination. It prohibits convicting individuals for acts that weren’t offences at the time committed, protects against double prosecution, and ensures no one is compelled to testify against themselves.
Article 21 guarantees the protection of life and personal liberty. This fundamental provision ensures that no one can be deprived of these rights except through lawful procedures.
Article 21A, introduced by the 86th Amendment in 2002, protects the right to education for children aged six to fourteen years, mandating that the state provide free and compulsory education.
Article 22 entitles arrested individuals to know the reasons for their arrest and consult a lawyer of their choice. It also mandates presenting the arrested person before a magistrate within 24 hours but excludes individuals arrested as enemy aliens or under preventive detention laws.
Article 23 prohibits human trafficking, forced labor, and other exploitative practices while allowing the state to impose public service without caste, race, religion, or class discrimination.
Article 24 bans child labor, particularly the employment of children below fourteen years in factories, mines, or hazardous work environments.
Article 35(b)
Article 35(b) states that any law in force before the Constitution commenced, relating to issues under sub-clause (i) or providing punishments for offenses under sub-clause (ii), will continue to be valid until Parliament alters, repeals, or amends it. These laws will, however, be subject to modifications made under Article 372.
Article 372 allows for the continuation of pre-constitutional laws until modified by competent authorities. It grants the President powers to adapt and modify existing laws to align them with the Constitution within three years of its commencement; any substantial changes afterward must be made by a competent authority.
Clarification
The term “law in force” in Article 35 has the same meaning as described in Article 372, encompassing any law that existed prior to the Constitution’s initiation and was not repealed. This ensures that all valid laws remain in effect.
Purpose and Scope of Article 35
Article 35 provides the necessary framework for formulating and enforcing laws related to the fundamental rights detailed in Part III of the Constitution.
Purpose
- Legislative Authority: Article 35 grants Parliament exclusive power to establish laws related to fundamental rights, including their implementation, defining related offenses, and prescribing penalties, which state legislatures cannot do.
- Detailing and Enforcement: Article 35 specifies provisions for which Parliament can draft special laws, such as those concerning residency for government employees, extending enforcement powers to lower courts, or modifying rights for specific groups to ensure they effectively perform their duties.
- Continuation of Existing Laws: Article 35 guarantees that pre-constitutional laws connected to fundamental rights remain valid until modified by Parliament, integrating these laws within the present constitutional framework.
Scope
Article 35 has a broad scope, empowering Parliament to legislate on all fundamental rights outlined in Part III of the Constitution. This authority allows Parliament to address any inadequacies in fundamental rights protection, ensuring effective enforcement.
Significance of Article 35
Article 35 stands as a cornerstone for effectively implementing fundamental rights. Its functions include:
- Empowers Parliament: It grants exclusive law-making authority to the Parliament regarding fundamental rights, ensuring a centralized approach to safeguard citizens’ rights across India.
- Practical Implementation: Article 35 enables Parliament to address existing gaps in protecting and enforcing rights through formulated laws, turning theoretical guarantees into practical realities.
- Maintains Continuity: This Article focuses on adapting and continuing pre-existent laws concerning fundamental rights until they are repealed or amended, establishing legal consistency.
- Adaptability: Article 35 allows for laws to be adapted in alignment with evolving interpretations and needs concerning fundamental rights, encouraging ongoing legal and social advancements.
- Protects Fundamental Rights: This Article plays a critical role in upholding the integrity of fundamental rights by facilitating legislative actions necessary to support and implement them.
Case Laws on Article 35
Satyajit Kumar vs. State of Jharkhand (2022)
The case Satyajit Kumar vs. State of Jharkhand (2022) examined the legality of offering 100% reservation for local Scheduled Tribe residents for government teacher positions across various districts in Jharkhand. This reservation was challenged in the Supreme Court, which quashed the state notification. The Court noted that any local resident reservations must occur through Parliament’s legislation and not state legislature rules, ruling the notification ultra vires Article 35(a)(i) when related to Article 16(3).
Chebrolu Leela Prasad Rao vs. State of Andhra Pradesh (2020)
In this case, the court examined a similar concern regarding 100% reservation for Scheduled Tribes for teaching positions in Andhra Pradesh. The Andhra Pradesh Administrative Tribunal initially annulled the reservation order, which the High Court upheld. Upon challenge, the Supreme Court ruled the complete reservation unconstitutional, highlighting that it violated Articles 14 and 16. The court reaffirmed that any legislative action must be compliant with fundamental rights under Article 35(b).
State of Sikkim vs. Surendra Prasad Sharma (1994)
This case assessed the validity of a rule in Sikkim regarding the termination of non-locals in Government jobs due to preferences given to locals based on the special status conferred upon Sikkim under Article 371F. The Supreme Court concluded that the rule was consistent with the Constitution and did not infringe the rights of any non-locals, thus validating the actions taken by Sikkim’s authorities.
Conclusion
Article 35 of the Indian Constitution is crucial for legislating and enforcing fundamental rights effectively. Parliament’s power to create related laws bridges the gap between guaranteed rights and actual enforcement, ensuring that new laws correspond with the fundamental principles listed in Part III. This Article is essential for maintaining the continuity of existing laws while accommodating necessary reforms. Article 35 is fundamental to India’s legal framework, ensuring that fundamental rights are not merely declared but effectively implemented through legislative action, underscoring the ongoing evolution of legal norms in the country.
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 retroactively alters the legal consequences of actions committed before the law was enacted. The law ensures no one can be convicted for acts that were not offenses at their time of commission. Article 20(1) addresses these issues by prohibiting the retrospective application of criminal law.
What does Article 20(2) of the Indian Constitution explain?
Article 20(2) prevents double jeopardy, which ensures no person can be tried and punished more than once for the same crime, maintaining that if someone is acquitted or has served their sentence, they cannot face prosecution for that same offense again.
What is protection against self-incrimination?
This protection means individuals cannot be forced to testify or provide evidence that might incriminate themselves. Article 20(3) ensures that no one is obligated to provide information that can be used against them in court.
Article 21 provides protection against actions by whom?
Article 21 protects individuals against actions taken by the State, excluding violations by private individuals, which are usually addressed under criminal and civil laws.
What are the offenses under Article 21A?
While Article 21A mandates the right to education for children between six and fourteen years, there are no specific offenses articulated. Instead, it relates to violations of the Right to Education Act, 2009, covering areas such as denial of admissions, expulsion, and harassment.
Which two Articles cannot be suspended during an emergency and why?
Article 20 (Protection against conviction of offense) and Article 21 (Protection of life and personal liberty) cannot be suspended during emergencies. Article 20 ensures fairness within legal practices, while Article 21 protects individual life and liberty, essential even in crises.
How long can a person be detained under preventive detention law?
Under Article 22(4), no individual may be held under preventive detention for more than three months without an Advisory Board determining sufficient grounds for continued detention.
What is the difference between fundamental rights and constitutional rights?
Fundamental rights are explicitly detailed in Part III of the Constitution, aimed at securing freedom, justice, and equality as justiciable rights. Constitutional rights encompass all rights provided by the Constitution, including both justiciable (enforceable) and non-justiciable (not directly enforceable) rights across various Parts.
