Comparative Interpretative Analysis of Article 368 & 370 of Constitution of India

1. Article 368 & 370 : Comparative
Interpretative Analysis
By Lomash Bidua

2. Art 368
• Power of Parliament to amend the
Constitution and procedure thereof.
• “Notwithstanding anything in this
Constitution, Parliament may in exercise of its
constituent power amend by way of addition,
variation or repeal any provision of this
Constitution in accordance with the procedure
laid down in this article.”

3. Types of Amendment
• By Simple majority
• By Special Majority
• By Special Majority + Ratification of half of the
States

4. Constitutional Development
• Shankari Prasad & Sajjan Singh-
“Parliament can amend any part of contitution
while exercising powers u/a 368.”
• Golaknath Case
“Overruled previous SP & SS- word Bill was
interpretated as ordinary legislative making
powers & Powers under 368 cannot part III of
constitution”

5. Contd…
• 24th Amendment superseded Golaknath Case by
inserting clause 4 in Art 13 and clause 1 in 368.
Consequently, Amendments made u/a 368 will
not come under the purview of Art 13 or rather it
will override it.
• Keshavanda Bharti case- Overrule Golaknath and
upheld SS and SP.
• 42 Amendment- clause 4 & 5inserted in 368
which were held to unconstitutional violating
Basic Structure, Judicial Review.

6. Limitations
• Procedural
• Substantive
– Basic Structure
– Theory of Implied Limitation
– Justice Khanna decision’s was the
– Constitutional Identity

7. Origin of Basic Structure
• Sajjan Singh by Justice Mudholkar from Fazlul
Chaudhary case.
• Fundamental Basis
– West German Constitution Art 79 (3)

8. Article 370
• Clause 3 – “Notwithstanding anything in the
foregoing provisions of this article, the President
may, by public notification, declare that this
article shall cease to be operative or shall be
operative only with such exceptions and
modifications and from such date as he may
specify: Provided that the recommendation of the
Constituent Assembly of the State referred to in
clause (2) shall be necessary before the President
issues such a notification.”

9. • Dual Citizenship
• Anti-Defection Law inapplicable
• President with permission of Governor of J&K
can exercise its power u/a 356, who is actually.
• J&K is a country within India

10. Comparative Analysis
• Art 368 & 370 are non-obstante clause.
• Art 368- Provisional Constituent Assembly
• Difference Ordinary Law Making Powers or
Legislative power and Constituent Powers.
• 368 and 370 is like “EK MAYAAN ME DO TALWAR”
• 370 – can be amended only by the procedure
prescibed in 370 itself and 368 cannot override it.
• Nature of 2 non-obstante clauses are parallel to
each other.

11. THANK YOU