Article 35 (Power to Legislate to Give Effect to Fundamental Rights)

Article 35 of the Constitution of India closes Part III, the chapter on Fundamental Rights, by reallocating legislative competence over a defined subset of those rights. Where most provisions of Part III restrain the state and are enforced through judicial review under Article 32, Article 35 performs the opposite function: it affirmatively confers and concentrates the power to legislate. It declares that, notwithstanding anything in the Constitution, Parliament alone—and not any state legislature—shall have the power to make laws prescribing punishment for acts declared offences under Part III and to make laws giving effect to specified guarantees. The provision was adopted by the Constituent Assembly to ensure national uniformity in the implementation of rights such as the abolition of untouchability and the prohibition of forced labour, where divergent state-by-state legislation would have undermined a guarantee meant to operate identically across the Union.

The procedural mechanics of Article 35 turn on its two operative clauses. Clause (a) provides that Parliament shall have, and the legislature of a state shall not have, power to make laws with respect to two matters: first, those rights that expressly authorise Parliament to prescribe by law—namely the residence and employment conditions under Article 16(3), the restriction of fundamental rights for members of the armed forces under Article 33, and the indemnity and validation of acts during martial law under Article 34; and second, the prescribing of punishment for acts declared to be offences under Part III, which captures untouchability under Article 17 and traffic in human beings and forced labour under Article 23. Clause (a) further obliges Parliament, "as soon as may be after the commencement of this Constitution," to enact laws prescribing such punishments. Clause (b) is a saving and transitional device.

Clause (b) preserves the operation of any law already in force at the Constitution's commencement that fell within the scope of clause (a), subject to its terms and to any subsequent adaptations and modifications made under Article 372. The combined effect is that legislative authority over these enumerated subjects is removed entirely from the State List and Concurrent List apparatus of the Seventh Schedule and lodged in Parliament regardless of the ordinary distribution of powers. This is the structural significance of the opening non obstante clause: Article 35 overrides the federal allocation in Articles 245 and 246 for the limited field it governs, so that no state can legislate on these matters even where the subject might otherwise touch a State List entry such as public order or police.

Parliament has discharged the mandate of Article 35(a) through several statutes. The Protection of Civil Rights Act, 1955—originally enacted as the Untouchability (Offences) Act, 1955 and renamed in 1976—prescribes punishment for the enforcement of disabilities arising out of untouchability, giving effect to Article 17. The Bonded Labour System (Abolition) Act, 1976 and the Immoral Traffic (Prevention) Act, 1956 operationalise the Article 23 prohibition on forced labour and trafficking. The Armed Forces (Special Powers) framework and service laws restricting rights for military personnel rest on the Article 33 power channelled through Article 35. These enactments are uniform Union statutes precisely because Article 35 forbids parallel state legislation in the same field.

Article 35 is best understood against the adjacent provisions it works alongside. It must be distinguished from Article 32, the right to constitutional remedies, which empowers individuals to approach the Supreme Court for enforcement of rights; Article 35 concerns legislative competence, not the litigant's remedy. It also differs from Article 33, Article 34 and Article 16(3), which contain the substantive authorisations—Article 35 merely directs which legislature exercises them. Practitioners should not conflate Article 35 with Article 35A, a separate provision inserted into the Constitution by the Constitution (Application to Jammu and Kashmir) Order, 1954 under Article 370, which conferred special rights on permanent residents of Jammu and Kashmir; the two are textually and functionally unrelated despite the numerical resemblance.

The principal controversy in this area attached not to Article 35 itself but to Article 35A, which was abrogated when the Government of India issued the Constitution (Application to Jammu and Kashmir) Order, 2019 and Parliament passed the Jammu and Kashmir Reorganisation Act, 2019 on 5–6 August 2019; the Supreme Court upheld the constitutional changes in In re Article 370 of the Constitution on 11 December 2023. Article 35 proper has generated less litigation, though its non obstante effect has been invoked to defeat state legislation purporting to prescribe punishments for Part III offences. A subtle edge case concerns whether a state may legislate incidentally on conduct that overlaps with an Article 23 or Article 17 offence; courts read Article 35 to bar any state law whose pith and substance is the prescribing of punishment for such acts.

For the working practitioner—the desk officer drafting a brief on civil-rights enforcement, the policy researcher mapping Centre–state competence, or the candidate preparing for the General Studies polity paper—Article 35 is the provision that explains why anti-untouchability, anti-trafficking and bonded-labour statutes are uniform Union laws rather than a patchwork of state enactments. It illustrates the constitutional designers' choice to centralise enforcement of the most fundamental of rights, and it remains the textual hook for any analysis of which tier of the federation may criminalise violations of Part III. Understanding its limited but exclusive grant of power is essential to reading the Fundamental Rights chapter as an integrated, nationally enforced scheme.