The Constitution of India
Article 35
Legislation to give effect to the provisions of this Part
Notwithstanding anything in this Constitution,—
(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws—
(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and
(ii) for prescribing punishment for those acts which are declared to be offences under this Part;
(b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament.
Explanation.—In this article, the expression “law in force” has the same meaning as in article 372.
Why this exists
The Constitution-makers wanted certain fundamental-rights-related subjects—like special employment rules, enforcement mechanisms, and rights of soldiers or people under martial law—to be governed uniformly across the country, not differently by each state. They also wanted serious rights violations, such as untouchability (made an offence under Article 17), to carry punishments set nationally rather than varying state to state. Article 35 centralizes this lawmaking power in Parliament and preserves pre-existing laws on these subjects so there would be no legal vacuum at the Constitution's start.
How courts read it
Courts have treated Article 35 mainly as a division-of-power provision rather than a rights-creating one, confirming that states cannot legislate on the listed matters even if they wish to. Judicial discussion often arises alongside cases under Articles 16, 17, 32, 33, and 34 themselves—for instance, litigation over the Protection of Civil Rights Act (originally the Untouchability (Offences) Act, 1955), which Parliament enacted using its exclusive power under Article 35(a)(ii) to punish the offence of untouchability recognized in Article 17.
Common misconceptions
- Myth: Article 35 itself creates a fundamental right.
Fact: It does not create any right; it only decides who—Parliament or state legislatures—has the power to legislate on certain rights-related matters. - Myth: States can pass their own punishment laws for offences declared under Part III, like untouchability, as long as they're stricter.
Fact: Article 35 gives that power exclusively to Parliament; state legislatures have no power to legislate on it at all, regardless of strictness.