Doctrine of Basic Structure : The Constitution of Bangladesh

Doctrine of Basic Structure 

In every constitution there are some fundamental elements those are considered as the main components of the constitution. If those elements are changed, contradicted or violated, the main purpose of the constitution can be hampered.

Therefore, in most of the constitution there are provisions those are ousted from amendment and are specially protected by the constitution itself. Those provisions are considered as the basic structure of the constitution. 

In Golaknath v. State Of Punjab (AIR 1967 SC 1643) the Court held that the parliament has no right to amend the fundamental right. The decision was given on the 24th Amendment to their constitution which provides that, “With the executive and constitutional power government can amend any provision of the constitution”. 

But in Kasabanka Bharati vs State of Kerala, it was held that “Parliament can amend any provision including fundamental rights of the constitution but it cannot amend the provisions of the constitution which strikes the basic structure.” 

In Bangladesh, by the 8th amendment, the legislative among other changed Article 100 of the constitution which decentralized the judiciary by setting up six permanent benches of the High Court Division outside Dhaka. This amendment to art 100 of the Constitution resulting establishment of permanent seats of HCD was questioned and challenged in the case of Anwar Hossain Vs Bangladesh, 41 DLR (AD 130).  The case finally reached to the appellate division of the Supreme Court of Bangladesh and finally, the court recognized article 100 of the Bangladesh Constitution as part of the Basic Structure and the basic structures of the constitution cannot be amended. This is the first judgment whereby the Supreme Court of Bangladesh stroke down an amendment to the constitution made by the parliament.

Following the decision of Anwar Hossain Vs Bangladesh, 41 DLR (AD 130), by the fifteenth amendment in 2011 article 7B was inserted in the Constitution to end the takeover of power through extra-constitutional means. Article 7B of Constitution says that Preamble, Part I, II subject to provisions of Part IXA (Emergency provisions) and Part III and other provisions of articles relating to the basic structures of constitution including article 150 of part XI shall not be amendable by way of insertion, modification, substitution, repeal or by any other means provided by article 142 of the constitution of Bangladesh.

Categories: Articles Constitutional Law

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