Primesia University

Doctrine of Basic
Structure
Adv. Abdul Matin Bhuiyan, Assistant Professor.

Sumi Akter
9/14/2020
Student Name: Sumi Akter
Student ID: 193003053

Introduction

The Constitution of Bangladesh is the highest ruling of Bangladesh. It represents Bangladesh as a

democratic republic nation where all the power is in the hands of Bangladeshi people and characterizes
basic political principles of the state and stands for the fundamental rights of citizens. It was approved
by the Assembly of Bangladesh on November 4, 1972; it was exercised from December 16, 1972. The
constitution stands as the most powerful evidence to state Bangladesh as a unitary, independent and
Republic, founded on a struggle for national liberation, and that is how we achieve the People’s Republic
of Bangladesh. It lays a strong foundation of nationalism, secularity, democracy and socialism as the
essential ethics that stands for the Republic and declares the quest of a society that gives its citizens- the
rule of law, fundamental civil rights and independence as well as fairness and evenhandedness, political,
economic and social.

The Constitution of Bangladesh was written by international personals and other experienced people.
However, amendments during socialist one party and military rule in Bangladesh drastically changed the
material and moderate democratic character of the constitution. In August, 2005, the Bangladesh High
Court approved a pointer finding that states constitutional amendments in military ruling as unlawful
and also unconstitutional, so completely invalid. In January, 2010, after several protest the Bangladesh
Supreme Court eventually agreed that the famous judgment of the High Court will be upheld.

Throughout this whole paper I will try to explain all the amendments of the constitution with their
timely significance while give appropriate weight to all of the 14 amendments. Here I will also try to
draw a blue print of its basic structure.

Amendments

The Constitution of the People’s Republic of Bangladesh is been amended 14 times. Most of the
amendments are will always be under deliberate because of the dirty nature of the Bangladeshi politics
significantly 4th, 5th, 7th, 8th and 14th amendment. What actually happens is whatever change one
political party in power makes the other political party instantly starts searching a loop hole not for the
betterment of the country but just to fool the illiterate people of the county with irrational logics for
their supports. It is also true that many times different political parties just only looked for their own
advantages by amending the constitution. But still this issue should be analyzed for the betterment of
the nation not to fool the illiterate people for their supports.
Student Name: Sumi Akter
Student ID: 193003053

Basic Structure Doctrine

The basic structure doctrine is the judge-made rule that some features of the Constitution of India are
beyond the limit of the powers of amendment of the Indian parliament. The doctrine was first expressed
in ‘Kesavananda Bharati v. The State of Kerala’ reflects judicial distress at the perceived danger to the
moderate constitutional order caused by the Indian National Congress, in particular under Indira Gandhi.
The basic structure doctrine is only applicable to the constitutionality of amendments and not to
ordinary Acts of Parliament, which must match to the whole of the constitution and not just to its basic
structure.

On April 24, 1973, the Supreme Court ruled in Kesavananda that even though the Twenty-fifth
Amendment of 1971 was suitable, the court still kept back for itself the judgment to reject any
constitutional amendments passed by Parliament by asserting that the amendments cannot modify the
constitution’s “basic structure”.

Anwar Hussain .Vs. Bangladesh or 8th Amendment Case:

The case of Anwar Hussain .Vs. Bangladesh widely known as 8th Amendment case is a famous judgment
in the constitutional record of independence Bangladesh. This is the earliest judgment whereby the
Supreme Court of Bangladesh as salient down an amendment to the constitution ready by the
parliament. By two court order appeal the amended Art 100 & the notification of the Chief Justice were
confronted as mega vires. A division bench of the HCD discharged the appeal instantly. Leave was
established by the Appellate Division by a majority of 3 to 1 striking down the amendment.

The standard argument of the judgment is that, the constitution rests on some fundamental main
beliefs which are its structural supports which the parliament cannot amend by its amending power for;
if these supports are discharged or damaged then the entire constitutional configuration will lose its
validity.

Basic structures are:

Some crucial parts of the constitution only belongs to the people of the state like, Supremacy of the
Constitution Democracy, Republican government, Independence of Judiciary, Unitary state and
Separation of powers Fundamental rights.

These structural pillars of the constitution are place outside any change by amendatory procedure. If by
implementing the amending power these principles is shortened more than one stable seat of the
Supreme Court thus destroying the unitary quality of the Judiciary? The amended Art 100 is ultra vires
for the reason has destroyed the vital limb of the judiciary by setting up adversary courts to the HCD in
the name of permanent Benches presenting full jurisdiction, power and role of the HCD.
Student Name: Sumi Akter
Student ID: 193003053

This amended Art 100 is conflicting with Art 44, 94. 101 & 102 also compact Art 108, 109, 110 & 111 of
the constitution. It directly sullied Art 114 this amended is illegitimate since there is no provision of
transfer which is essential obligation for relaxation of the rules of justice.

If any provision can be identify the ‘pole star’ of the constitution, then its Preamble. The impugned
amendment is to be observed on the sandstone of the preamble including or not including re-
establishment to the doctrine of basic structure. The preamble is not only a component of the
constitution; it now provides a well-established provision that cannot be amended by the parliament.
Though this amendment it basically destroying the objectives of rule of law which is articulated is our
preamble. These passages from the judgment build it clear that the main point, on which the greater
parts relied to state the amendment illegal, which was the basic structure of the Constitution. The
Doctrine of Basic Structure is not fine established opinion of the constitutional law; rather it is new drift
in and a rising principle of constitutional jurisprudence. The idea of basic structure of the Constitution
can be originate in the Sub-Continent, as Dr. Kamal Hossain proposed in the 8th amendment case, in a
judgment of the Dhaka High Court. This result was persistent by the Pakistan Supreme Court in Fazlul
Quder Chowdhury .Vs. Abdul Hague. But in its growth phase in Indian jurisdiction the earliest proper
judicial formulation of this doctrine came out in Golak Nath. Vs. State of Punjab case, 1967. Where it
was determined that parliament has no influence to amend fundamental right so as to take away any of
them. The Indian Parliament approved 24 Amendment, 1971.Which was a lay down, the parliament
might in the exercise of its constituent control amend any condition of the Constitution be it of
fundamental right or of any other one. The validity of the amendment which shortened the power of
judicial reviews was tested in Kesavananda .Vs. State of Kerala case, 1973.The court by preponderance
overruled the Golak Nath’s case, apprehended that parliament had the authority to amend any or all the
provision of the constitution. Following Kesavananda rule, the court in the case of Indian Nehru Gandhi
.Vs. Raj Narayan, 1979 held that the 39 amendment exaggerated and ruined certain structure of the
constitution.

The range of the application of the doctrine of basic structure once more came up for argument in the
case of Minerva Mills Ltd .Vs. Union of India, 1980. Thus proposal that parliament cannot amend the
Constitution so as to destroy its fundamental features was again repeated and applied by the Supreme
Court in Woman Rao .Vs. Union of India, 1980. The Doctrine of Basic Structure effectively approved the
acid test in 5 cases in India. And Bangladesh court in the 8th Amendment case followed the Indian
conclusion as consider the Doctrine of Basic Structure. Court seized that the Constitution Eighth
Amendment shattered one of the essential features of the Constitution, namely the agreement and
freedom of the Supreme Court (High Court Division), and thereby weakened the basic structure of the
Constitution and was stated unconstitutional.
Student Name: Sumi Akter
Student ID: 193003053

Other incites

In the context to our constitution there are two doctrines on prejudice most countries completely or
unambiguously keep an article in the Constitution to rule against other articles. And in other cases,
Judiciary within its legal power to provide motives to Constitutional Articles, rules a number of articles
to have such prime power.

For another example, Article 7 and 26 of Bangladesh constitution exercise authority over Article 142
(even though it says in spite of anything contained in this Constitution, because many other articles
employ such phrase too and if there is a disagreement, you know who has the precise to clarify).

This is why, under Article 142, if you make an amendment that disagrees with Article 7 or 26, which will
be invalid.

In USA the president always says after each speech “God Bless America” . In Bangladesh we will say
“Secularity Bless Bangladesh”. Before, “high ideals of absolute trust and faith in the Almighty Allah …
Fundamental principles of the Constitution” could not flatten our politicians from crime, corruption and
exploitation of the nation.

I didn’t find any control on amending fundamentals of Constitution in a good number of countries. The
only numerous situation made by our Judiciary in 1988 and in 2005 was India’s Basic Structure doctrine
that came following “Kesavananda Bharati v. State of Kerala”.

Even argument on US constitutional amendment says–

“Its power derives from the people; it was adopted by the people; it functions at the behest of and for
the benefit of the people. Given all this, if the people, as a whole, somehow demanded a change to the
Constitution, should not the people be allowed to make such a change? As Wilson noted in 1787, “… the
people may change the constitutions whenever and however they please. This is a right of which no
positive institution can ever deprive them.”

And I agree.
Student Name: Sumi Akter
Student ID: 193003053

Conclusion

It is seen from the above abstract, that a few Amendments ended at one time under certain forceful
situation were consequently detached by another Amendment, and also that numerous of these had a
nationwide harmony. But a only some of the Amendments were endorsed without appropriate
arguments and thorough discussions concerning all the pledge holders including people adhering to
diverse, sometime differing, ideological or opinionated views. Amendments that were the consequence
of unsophisticated thought, lack of esteem for democratic practices or suitability have clearly come
under severe disapprovals, sometimes for suitable motives and sometimes for sectarian political ideas.

In conclusion, we have no hostility in enacting a new Amendment by the present or upcoming

governments, but if and when this is complete, there must be occupied debates and contribution by all
the political parties, intelligentsia and apprehensive citizens.

Reading the doctrine of basic structure for this research proposes various models by which the doctrine
may be identified and evaluated came up. The three molds used to examine the doctrine are Basic
Structure and the theory of Originalism, Basic Structure acts as balancing tool, and Basic Structure as a
tool of growth. The tool is used to examine some of the limitations of the basic structure doctrine in the
background of weak societies and proposes a deviating and progressive approach in judicial appliances
of constitutional main beliefs.