[Un]certainty of Basic Structure PREFACE

Un[certainty] of Basic Structure

1

[Un]certainty of Basic Structure

Syeda Nasrin, Advocate, Supreme Court of Bangladesh

PREFACE

The motivation amongst others leads this paper to be essentially inquisitive for examining the concept

of basic structure is the certainties and uncertainties relating to this concept. Basic structure is largely

considered as a constitutional concept and straightly characterized as ‘basic structure of the

constitution’. This is simply narrow downing and delimiting the area and scope of basic structure. This

is mostly a misunderstanding about basic structure. ‘Retaining original constitution’ but ‘upholding its

dynamism by keeping it amended according to the necessity of time and people’s expectation’- this

forever dichotomy of the constitution within is easily solved by the judiciary using basic structure as a

tool of making bridge between these ‘change’ vs ‘stability’. Approach of judiciary in adopting basic

structure is very literal and subjective. It causes confusion and gives birth several complex questions

e.g. who will determine what are the basic structure of the constitution?, who will give the certainty that

today’s basic structure will not be changed tomorrow?, who will ensure future will not demand

changing the basic structure of constitution what we have declared today as basic structures of the

constitution?, can judiciary be the proper authority to set out the basic structures of the constitution?, is

not overruling in judicial decisions make basic structure more uncertain and make the judges arbitrary

and more powerful than parliament?. This trepidation leads for searching something in details about

basic structure. After going into the past deeply what is found really very interesting and unique but not

new about basic structure doctrine. What is found has already been discovered since long back by Prof.

Hans Kelson but there is little practice of it now and very few have experienced with that. For that

reason reference to that recourse about basic structure is barely seen to be used today. Adding emphasis

on that issue this papers neither complimented or criticized the erstwhile motive of using basic structure

doctrine nor analyzed to what extent Kelson’s Grundnoms was right or wrong in erstwhile socio-legal

context, good or bad in our socio-legal context, and to what extent this is applicable or inapplicable in

Bangladesh, this paper just presents Grundnoms as the ground of rules for making a clear distinction

between subjective verification and the objective verification of the basic structure as the ground of

rules. Despite, some courageous attempts have been noticed which are elaborated hereunder. This

approach of basic structure relieves it from being misused or materialized by error hands. This

emphasizes on objective verification of basic structure having its origin into the value creating norms of

the society coming from expectation, practice and demand of the people at large. To that effect several

cases laws of Bangladesh have been examined and analyzed here including minute examination of

Keshavananda Bharti Case, 8th Amendment Case and other cases. It has also examined the approach of

judiciary and political government in understanding and applying the basic structure and thereafter,

how the certainties and uncertainties relating to the basic structure leave the scope for its being

materialized. Almost all reported cases of Bangladesh where the concept of basic structure/feature of

the constitution is either slightly or strongly argued have been brought under close consideration in this

paper. It has made an extensive analysis regarding the approach of judiciary about basic structure (as

reflected in the case laws) how fluctuating and how judiciary and political government materialize it for

fulfilling their ulterior motive. One feature though recognized as basic feature/ structure of constitution

in a case but the same can subsequently be altered and denied in another case as basic structure of

constitution. By the same way some provisions of a Constitutional Amendment Act was declared void

for violating basic structure of the constitution in a case but the similar kind of Constitutional

Amendment Act though subsequently challenged as being violating of basic structure of constitution in

another case, but court technically avoid this issue. This is the judicial politics which is in fact

apprehending. This subjective verification of basic structure ultimately is a dishonor, disrespect and

improper valuation of basic structure. The threat can be more catastrophic in the hands of political

government.

By: Syeda Nasrin, Advocate, Legal Associate of Hoque & Associates, BEL Tower, Level 7, House

No. 19, Dhanmondi 1, Dhaka (Cell: 01717041929, e-mail id: [email protected]).


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INDEX

0.0 Abstract

1.0 Introduction

2.0 Origin of Basic Structure

3.0 Nature of Basic Structure

3.1 Towards having a Structural Definition of Basic Structure

3.2 Basic Structure sets the norms of the Constitution or the Constitution sets the Basic

Structure for itself

4.0 How does Basic Structure Operate?

5.0 Reasons behind Legal Transplantation of Basic Structure in Bangladesh 8th Amendment Case

5.1 Cause Appeared/Shown

5.2 Disguise Cause Motivated

5.2.1 Politics behind Keshavananda Case

5.2.2 Politics behind 8th Amendment Case

6.0 Constitutional Provisions Where the Basic Structure may be rooted in

6.1 Constitution of India

6.2 Constitution of Bangladesh

7.0 The Result of 8th Amendment Case in Absence of the Indian Experience with the Doctrine of Basic

Feature in the Keshavananda Case

8.0 Political Materialization of Basic Structure

8.1 Materialization of Judicial Politics

8.2 Materialization by Government Politics

9.0 Fallouts of the Basic Structure

9.1 Examining Fallouts from the point of Subjective Verification of the Basic Structure

9.2 Examining Fallouts from the point of Subjective Verification of the Basic Structure

10.0 Conclusion


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ABSTRACT

This paper analyzes the nature of basic structure and examines the fluidity of the basic structure concept

of the Constitution. The paper tries to identify the true nature of basic structure, the factors which have

a normative value in shaping the basic structure which ultimately contributes to the construction and

formation of the basis of basic structure of the Constitution. Irrespective of the written or unwritten,

codified or uncodified nature, flexibility or rigidity form, or any other form of the Constitution the

existence of the basic structure of the Constitution is widely accepted. So far the basic structure of the

Constitution is valued or verified objectively chance of political materialization of basic structure barely

remains in slender. There is a little possibility of its being materialized by and condemned with judicial

politics or state power balance politics.

It is undeniable that the basic structure of the Constitution may or may not be reflected in the black

letters of the Constitution. Therefore basic structure may or may not be faced with the subjective

verification. Reflecting the basic structures of the Constitution in the black letters of the Constitution is

not alarming or apprehending. The true apprehension lies when the area and scope of basic structure is

tried to be confined to and codified by the black letters of the Constitution. This initiative humiliates the

basic character of basic structure. This effort paves the way of its being materialized by the judiciary or

by the political government.

One of the major tasks of basic structure is to limit the unfettered power of political Government of

materialization of the Constitution of Bangladesh by way of constitutional amendment. The cause

amongst the others has led me to analyze about the role and mutual relationship between supremacy of

the Constitution, the amending power of the Constitution under Article 142 and the significance of

Bangladesh Socio-economic politics in shaping the basic structure, I will try here seeking this answer

questioning the gap between the theory and practice in Bangladesh. Another central area of this paper is

to scrutinize the relationship between basic structure and the power of political Government which has

led to amendment of the Bangladesh Constitution. The role of basic structure which is an ultra outface

of the Constitution adopted and established by the higher courts of Bangladesh. The Constitution does

not read out about any of its provision as ‘basic structure’. This is added by the judiciary as one of the

constitutional mandates. From subjective verification this doctrine requires certain provisions of the

Constitution shall be regarded as the ‘basic structure’ of the Constitution amongst the other provisions

of the Constitution. The constitutional provisions construing the basic structure of the Constitution

cannot be alerted in the same way as the other provisions of the Constitution are generally authorized to

alter or those provisions construing basic structure of the Constitution cannot be altered in any way.

This means some additional or special value is mechanically added on basic structures of the

Constitution. Does not this doctrine place some constitutional provisions in upper value than others?

This builds ‘constitution’ within ‘constitution’. This doctrine may be political. This doctrine may be an

out product of the judicial politics itself. The adoption of the doctrine of basic structure of the

Constitution is value free or not, is purposive or not; whether the bringing of this doctrine by an extra-

constitutional mechanism is itself purposive or this is an artifact of the judicial politics or this is a

judicial politics which legalizes the will of the political government these are the issues of concern of

this paper. The idea of certainty and uncertainty of basic structure is embedded between these gaps.


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1.0: Introduction

The Constitution ensures the certainty of the supreme law of a particular land i.e. a state, most of which

in written forms and in a few cases in unwritten or largely uncodified form. A Constitution is not the act

of a government, but of a people constituting a government and a government without a constitution is

power without right…a constitution is a thing antecedent to a government; and a government is only the

creature of a constitution.1 When a constitution is enacted it is the result of political consensus of the

people who agree on certain basic/fundamentals about their political organization and the details are

formulated to give body and content to such political organization, thus state organization. A

Constitution is meant to be permanent, but as all changing situations cannot be envisaged at a time; and

amendment of the Constitution becomes necessary to meet the future demands. The aim of

constitutional amendment is to bridge the inter-generational constitutional gap and make a Constitution

certain but dynamic for the changing society. Absence of this process may lead to the complete

frustration in having the supreme law of a state as certain. This will lead to have new Constitution every

day. That is why the constitution itself legalizes the process of its amendment and empowers any of its

superior organs; mostly legislature to amend the Constitution in a particularly prescribed way as

provided by the Constitution. The effect of new provision after amendment has the same value and

effect as that of the text of original Constitution. A change or addition to a legal document which, when

properly signed, has the same legal power as the original document.2 Question arises as to the extent of

this power of amendment of the Constitution. Can the parliament amend the Constitution in such way

which violates or destroys or frustrates the basic and fundamental nature of the Constitution protecting

of which the Constitution is framed? Those are the contributing factors which distinguish and

differentiate Constitution from country to country. Those contributing factors not only construe, justify

and validate the basic pillar of a Constitution but also shape the Constitution. When a legislature, which

is a creature of the constitution, is given the power of amendment; it is a power given not to subvert the

constitution, but to make it suitable to the changing situations.3 The relationship between the amending

power of the Constitution and the basic structure is dichotomous and very peculiar. Amendment

relieves the Constitution from its curse of unsuitableness and unfitness in changing circumstances. It

also upholds the rule of perpetuity of the Constitution. Conversely, basic structure retains the originality

of the Constitution. Hence the argument is shaped in the form of ‘change v. stability’ wherein former

was important for a nation’s constant growth and latter for ensuring that the identity and a certain basic

values of the constitution are retained and not allowed to be a plaything of temporary majority. One

difficulty arises when the question arises regarding the nature as to amendability and non-amendability

of the basic structure of the Constitution. According to one school of thoughts, to abrogate the basic

structure is unthinkable. It is the entire basis of the Constitution and even the slightest change in the

1 Barnett, Hilaire (1792) (Constitutional and Administrative Law), Fourth Edition, 2002, Page-7. 2 Khan, Salimullah, Leviathan and the Supreme Court, at: http://www.scribd.com/doc/25428931/Amendment-

Definition-a-Change-or-Addition-To, P. 1. 3 Islam, Mahmudul (2009), Constitutional Law of Bangladesh, 2nd Edt (Re-printed) 2009, Published by Mullick

Brothers, P. 392.

http://www.scribd.com/doc/25428931/Amendment-Definition-a-Change-or-Addition-To

http://www.scribd.com/doc/25428931/Amendment-Definition-a-Change-or-Addition-To


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structure would defeat the very purpose of the Constitution. 4 On the other hand, ‘the Constitution has

to be changed at every interval of time. Nobody can say that this is the finality. A constitution which is

static is a constitution which ultimately becomes a big hurdle in the path of the progress of the nation.’5

While infallibility is no attribute of a Constitution, is fundamental character and basic structure cannot

be overlooked. Otherwise the power to amend may include the power to repeal. This is reductio ad

absurdem.6 For certain procedural convenience under the rule of democracy the task for amending the

Constitution is vested upon the Parliament by the people of Bangladesh. The major question concerns

whether this power of constitutional amendment is so wide that it empowers parliament to alter and

destroy the fundamental/basic nature of the Constitution and takes far away from its deep-seated

essentials. Or, there is something inherent and built-in limitation in the Constitution and in the

amending power of Constitution itself which curtails the hand of Parliament not to go beyond certain

extent. What are those protectors? Are they rooted in the Constitution itself or somewhere else or in

both? Basic structure of the Constitution is thought as a newly emerged solution for this critical legal

query. In recent decades basic structure is an invention by the judiciary. But, before judicial invention

there are certain academicians who acknowledged about this supra-norm though by confining it

completely to theory. However, there are certain certainties and uncertainties about the basic structure

of the Constitution that leaves the scope of its being politically materialized by the government and

judiciary as well which is explored in this paper.

2.0: Origin of Basic Structure

The first application of basic structure in recent decades is very interesting. Though it originated earlier

but its modern application directly in court room jurisprudence is of recent. It is used in modern

jurisprudence that mostly developed by the advocates/legal practitioners and judges in the court room.

The jurisprudence developed in the court room by the judges and advocates/legal practitioners are

called ‘court room jurisprudence’. This is manifested in the arguments of advocate/legal practitioner

and decisions of the judges in cases. Basic structure was introduced by an Advocate who presented it as

a plea for merely taking a chance as a justification of an argument without knowing its future whether

this would be accepted by the court or not. Significantly this plea-cum-argument was raised by the

counsel of the petitioner for substantiating and justifying the cause of grievance of the petitioner which

therefore was not only accepted by the court but also later developed and used by the court to a greater

extent. The phrase ‘basic structure' was introduced for the first time by M.K. Nambiar and other

counsels while arguing for the petitioners in the Golaknath case7, but it was only in 1973 that the

concept surfaced in the text of the apex court's verdict.8 The doctrine of basic structure of the

Constitution owes its evolution in the ratio of the majority judgment of the Supreme Court in

4 Ashlesha, Galgale, “Doctrine of Basic Structure: The reason thereof”, Student, V Semester, Institute of Law,

Nirma University, (2003), quoted by Iyer, Krishna, V.R., A Constitutional Miscellany, 2nd Edn., Eastern Book

Company, Lucknow, at: http://www.nirmauni.ac.in/law/ejournals/previous/article2-v1i2.pdf., p. 1. 5 Ibid. 6 Iyer, Krishna, V.R., A Constitutional Miscellany, 2nd Edn., Eastern Book Company, Lucknow, 2003. 7 Golak Nath v.State of Punjab, (1967) 2 SCR 762: AIR 1967 SC. 8 Nayak, Venkatesh, The Basic Structure of the Indian Constitution, at:

http://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdf, P. 3.

http://www.nirmauni.ac.in/law/ejournals/previous/article2-v1i2.pdf

http://www.humanrightsinitiative.org/publications/const/the_basic_structure_of_the_indian_constitution.pdf


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Keshavananda Bharti v. State of Kerala9 (henceforth referred to as ‘Keshavananda case’) which has

been acclaimed an “epoch-making decision”10 . The majority of 7 Judges out of 13, it is said, “struck a

bridle path by holding that in the exercise of the power conferred by Art. 368, the parliament cannot

amend the Constitution so as to damage or destroy the basic structure of the Constitution.” 11 The

choice to call basic structure doctrine an ‘invention’ is inspired by ‘an exceptional display of art,

courage and craft’12 that the Supreme Court exhibited while evolving this doctrine which counts as one

of the greatest contribution of Indian judiciary to the theory of constitutionalism. Though the judgment

of the case is more popular for its lengthy disposition and incomprehensible ratio decidendi, yet its

showcase of a desperate attempt to strike balance of various contesting claims to the guardianship of the

constitution is remarkable.13

Basic structure is always seen to be used by the advocates as a plea for substantiating their arguments in

several cases. Before Keshavananda in India and Anwar Hossain v. Bangladesh 1989 DLR (AD) P. 163

(hereinafter abbreviated to the 8th Amendment case) in Bangladesh there were several cases where

basic structure was found in the advocates’ submission. In India sub-continent the plea first raised in the

Fazlul Qader case14 in the matter of a question raised about the interpretation of Art. 224(3) of the

Constitution of 1962 and the President’s Order No. 34 of 1962 made there under. Matter involved in

this case in short is that “under that Constitution the Presidential Form of Government was provided

with a cabinet consisting of Ministers who should not be members of parliament. Fazlul Quader was

elected as a member of parliament but he was appointed as a member of President’s cabinet as well.

Under Article 224(3) of the Constitution the President was empowered to remove any difficulties that

may arise in bringing this Constitution into operation, to direct by an Order that the provisions of the

constitution shall have effect subject to adaptations, whether by way of modification, addition or

omission, as he may deem necessary or expedient. The President made Order 34 for removing these

difficulties. A writ petition was filed challenging this Order on the ground that the power of removing

difficulties does not extend to amend the Constitution altering one of its basic structures-namely, no

person shall be a Minister and a Member of Parliament at the same time. This contention was upheld

and the President’s Order was struck down as ultra vires of the Constitution.”15 Thereafter the journey

of judicial adoption of basic structure was continued through several cases including Sajjan Sing case16,

Gloknath case17, Hamidul Hoque case18 till the final recognition as followed by Keshavananda case in

India and 8th Amendment case in Bangladesh.

9 Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461. 10 Waman Rao v Union of India 1981 2 SCC 362. 11 Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461. 12 A phrase used by Upendra Baxi in “Courage, Craft and Contention -The Supreme Court in Eighties”,

1985, cited in Sethi, Anuranjan, Basic Structure Doctrine: Some Reflections (October 25, 2005), at SSRN:

http://ssrn.com/abstract=835165 or http://dx.doi.org/10.2139/ssrn.835165, P. 6. 13 Sethi, Anuranjan, Basic Structure Doctrine: Some Reflections (October 25, 2005), at SSRN:

http://ssrn.com/abstract=835165 or http://dx.doi.org/10.2139/ssrn.835165, P. 8. 14 Fazlul Quader Chowdhury v. Abdul Huq, PLD 1963 SC 486 or 18 DLR SC 69. 15 Ibid, cited in paragraph no. 310 of the 8th Amendment Case. 16 Sajjan Sing v. State of Rajasthan, AIR 1965 SC 845. 17 Goloknath v. State of Punjab, AIR 1967 SC 1643. 18 Hamidul Hoque Chowdhury and others vs. Bangladesh, 33 DLR (1981) P. 381.

http://dx.doi.org/10.2139/ssrn.835165

http://dx.doi.org/10.2139/ssrn.835165


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Initially the Pakistan Supreme Court rejected the theory of basic structure, but later trend showed a

leaning towards acceptance of the theory as applied in Wukula Mahaz case19 and the decisions referred

to in this decision. Recently, Pakistan Supreme Court, while conceding to the Martial Law

Administrator power to amend the constitution, imposed the limitation that such amendment cannot

alter the basic structures of the constitution, saying that he cannot have that power which the Parliament

does not have20. In Sri Lanka, the doctrine was invoked to test the 13th amendment, but a majority of

the full bench of the Supreme Court in the 13th amendment to the Constitution21 held that the basic

structure doctrine had no application to the Sri Lankan constitution. Sharvananda CJ distinguished

Kesavananda case by pointing out that while Article 368 of the Indian constitution did not define

‘amendment’ and did not indicate the scope of the term, in Sri Lanka Section 51 of the 1972

constitution and Article 82 of the 1978 constitution permitted the repeal of the constitution itself, and as

such there could be no unalterable basic structure.

Though basic structure as a formal concept obtains judicial recognition in India, Pakistan, Srilanka and

Bangladesh primarily by the aforesaid cases but basic structure reflecting the fundamental norms of

supreme law of land was emerged earlier. The basic structure was already there even before the very

adoption and framing of the Constitution. Basic structures are the valuational norms contributed in

shaping the basic characteristics of the Constitution. Those valuational norms arise not out of legal text

or document but those may be reflected in legal text or document. Valuational norms are those which

contributed in establishing and charactersing the basic pillars of a country, of a legal system. In the

literature of legal theory, considerable attention has been devoted to debating whether valuational

considerations' should be outside the bounds of legal theory22 and text of legal document. What the

aforesaid cases did was a progressive and legal expedite towards devoting a judicial name of those

valuational considerations’ as basic structure. Judiciary did not invent this afresh; rather judiciary

enhanced its own graciousness by giving a judicial identity of basic structure, very notably, judiciary

also acknowledged this. The High Court of Gauhati, India nicely delineates this issue relating to basic

structure and Grundnorm stating inter-alia that,-

“a written Constitution is the Bible in the governance of a Country. All powers and rights

flow from such Constitution. In country like India and USA, the Constitution has always

been regarded as the supreme despite having amending provision within. In fact,

democracy and free and fair election, being the basic structures of the Constitution, are

immune from the amending process. The Act, being the statutory creation, springs from the

mandate of such Constitution. In this context, this Court feels that Article 329(b) of the

Constitution and the Act as well, may be reasonably referred to as the 'Grundnorm' and

other 'norm' respectively as postulated by Hans Kelsen in his 'Pure theory of law'.

According to Kelsen in every legal system, there is a hierarchy of norms leading up to a

basic norm which is known as 'Grundnorm'. This theory of Kelsen provides that the study

of any legal system is to be initiated with a very initial hypothesis of existence of a

'Grundnorm' which is the starting point in a legal system. Depending on such 'Grundnorm',

a legal system branches out either downwards or upwards in gradation becoming more and

19 Wukula Mahaz v. Pakistan, PLD 1998 SC 1263 1310. 20 Zafar Ali Shah v. General Parvez Mosharraf PLD 2000 SC 869, Wasim Sajjad v. Pakistan, PLD 2001 SC 233. 21 (1987) 2 Sri Lanka Law Reports 312. 22 Cohen, Julius (1978), The Political Element in Legal Theory: A Look at Kelsen's Pure Theory, The Yale Law

Journal, Vol. 88, November 1, 1978, P. 32.


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more specific and detailed as it progress. Kelsen's solution was that in every legal order, no

matter with what proposition one may begin, a hierarchy of 'ought' is traceable back to

some initial, fundamental 'ought' on which the validity of all the Orders ultimately rests.

This he called the 'Grundnorm', the basic or fundamental norm…. In democratic society,

for instance, the people being the governed are the sovereign. The governed is the highest

norm i.e. 'Grundnorm' which gives validity to other norms. That being so, our Constitution

is the basic norm which has got its validity and effectiveness for being solemnly adopted,

enacted and given to themselves by the people of India themselves by the people of India.

So the Parliament is another form of hierarchy as it has got validity being the product of

Indian Constitution. Therefore, applying the theory of 'Grundnorm' to Article 329(b) as

well as the Act created by Parliament on being authorized by the Constitution, the purpose

and intendment of our law makers reflected in the provisions of Section 80, 80A and 81

must be carried out within the parameters of those provisions. Those previsions need to be

read as the law 'what it is' but not 'what it ought to be'.”23

Similar experience is envisaged with the Preamble and Article 142 read with Articles 7 and 65 of

Bangladesh Constitution. Comparing the basic structure with ‘Grundnorm’ can also be justified by the

Kelsen’s pure theory of law because it ‘addresses a complex of norms, not facts, and it also resembles

the sciences because it offers guidance for recognizing a given subject matter, not for directing its

course’24; exactly in the same way as the basic structure is doing. The pure theory focuses on the

validation of what is legal and thereby draws attention to the formal limits of legal authority. This is a

response to a felt need for certitude and security in planning one's conduct within the framework of a

legal order.25 It seeks to identify the legal concepts in logical arrangements apart from moral or social

considerations. Basic structure is taken as a determinant for recognizing certain Act of Parliament

regarding constitutional amendment is legal or illegal. It also acts as a safeguard protecting and

preserving the basic norms of the constitution upon which the Constitution is standing and wherefrom

the Constitution obtains its validity and legality. Recognizing something very legal happens to exclude

some other things from legality. Basic structure plays the central role in differentiating and

distinguishing the borderline of these two aspects of social and political behavior. ‘Legality’ and

‘illegality’- according to mirror image rule one validates and evidences the existence of other. It is the

illegality which captivates the existence and acceptance of legality and basic structure justifies the

rationality of legality by also providing the rationality of nullifying the acceptance of illegality. Kelsen

excludes custom, morality, and community expectations from the explicit tests for legal validity in part

because he hopes to avoid the danger of massive disobedience to law in the name of more fundamental

obligations; he also wants to shield against the danger of moral absolutists who would employ

government to impose their preferences on others. His placement of custom and community

expectations outside of the basic norm, however, is not required by these concerns and has the effect of

shaping a distinct political perspective on the legal order, rather than a neutral description of all legal

systems.26.This is not possible because law is not like any other social or scientific discipline like

23 By Saikia, A.H., J, Utpal Dutta and Ors (Appellants) v. Indra Gogoi and Ors (Respondent), 2002(3) GLT197

(arising out of Misc. Case No. 13 and in Election Petition No. 7 of 2001), Decided On: 29.08.2002. 24 Ibid. 25 "[F]or modern bureaucracy, the element of 'calculability of its rules' has really been of decisive significance.

The nature of modern civilization, especially its technical-economic substructure, requires this 'calculability' of

consequences." M. Weber, On Law In Econ-Omy And Society 350 (E. Shils & M. Rheinstein trans. 1954), cited in

Supra Note: 22. 26 Supra Note: 22.


9

physics, chemistry, literacy, and art etc, existence of these types of discipline alone may not be

impossible to think apart from all others. But law is different because all other disciplines directly or

indirectly contributed to form the very foundation and norms of law. Law reflects morality and

sometime even more. Law may be the collection of all other value creating norms in the society.

Thinking law in itself excluding from all other disciplines may be spiritless and contentless. That is why

law is dynamic. Those value creating norms may be reflected in the codified formation of law but the

origin may be somewhere else those cannot be changed or even curtailed. Kelsen himself admitted that

the procedures that must be followed in order to produce objectively verifiable judgments of legal

validity are capable of yielding only judgments about particular factual contexts or existing national and

international orders.27

“….It is the people who make supreme sacrifices for the creation of their Nation. It is the people for

which a Nation exists. It is the people for which all ‘services’ are required and are created by the

Constitution. It is the people for which all high functionaries of the Republic do exist. Those high

functionaries are created not for staying in ivory towers; rather they are created, so that they can serve

the people better. The people do not exist for them, rather they including the Judges, [parliament i.e.

legislatures] exist for the people and only for the people, however humble their station of life may be.

The greatness of the State functionaries depends not on their status or rank but how much and how far

they can serve their people”.28 According to Kelsen, "to say that individuals belong to a certain

community, or form a certain community, mean only that the individuals are subject to a common order

regulating their mutual behavior.''29 As a result, the community is no more than a formal construct with

no independent existence30. Under this view of community, the function of the legal order is to provide

a basis for effective compromise between competing groups. Even in a community existing under a

stable power structure, the law would reflect fundamental conflict between groups and individuals by

expressing the values associated with those wielding the dominant power.31 This assumption of conflict

as a basic characteristic of community has political consequences. An adherent to this view of

community acquires a specific perception of the political order as a non-utopian one of imposed

constraint and continuing conflict. “This model of society has been described using the concepts of

change, conflict, and constraint: We do not know what an ideal society looks like-and if we think we

do, we are fortunately unable to realize our conception. Because there is no certainty (which, by

definition, is shared by everybody in that condition), there has to be constraint to assure some livable

27 Kelsen, Hans (1957), What Is Justice?: Justice, Law and Politics in the mirror of science: collected essays,

Published by The Law Book Exchange Ltd, on September 1, 2ooo, at Pp. 210, 329, 361, 365. 28 Haque, ABM Khairul, Mr. Justice in BIMW Ltd vs. Bangladesh and others, 2006, (Special issue) BLT (HCD),

p.6. 29 Kelsen, Hans (1954), General Theory of Law and State, Published by The Law Book Exchange Ltd, on

September 1, 2ooo, at P. 439. 30 Kelson observed the statement "individuals form a community," or "belong to a community," is nothing but a

very figurative expression of the fact that their behavior is regulated by the legal order constituting the

community. Besides that legal order, there is no community, no corporation, as little as there are a body of the

corporation be-sides the bodies of its members. On this point, Kelsen's view is similar to Bentham's observation:

"The community is a fictitious body, composed of individual persons who are considered as constituting as it were

its members." J. Bentham, An Introduction To The Principles Of Morals And Legislation 3 (Hafner ed. 1948) (1st

ed. London 1789). 31 Kelsen, Hans (1934), Pure Theory of Laa: Legality and Legitimacy, Oxford University Press, 2007, P. 47

(Kelsen distinguishes between legal order and order imposed by "gang of robbers," which lacks basic norm).


10

minimum of coherence. Because we do not know all the answers, there has to be continuous conflict

over values and policies. Because of uncertainty, there is always change and development. Quite apart

from its merits as a tool of scientific analysis, the conflict model is essentially non-utopian; it is the

model of an open society.”32 It is always the people who are the value creating authority, though it is

not always the general people who intrude and interrupt the norms of the society. This is an open

society which neither can be made nor delimited by time and nor can be made constant or unchangeable

for all the time. Basic structure protects those value creating norms but sometime in disguise of basic

structure the constitutional intruders may misuse it by materializing it in their own way and condemned

with their own politics.

3.0: Nature of Basic Structure

There are so many controversies regarding the nature and existence of basic structure. The existence of

basic structure though capable of keeping beyond controversy but its nature cannot be possible to keep

in abeyance from controversy. However, a separate episode of this paper is dedicated later on this issue,

now the concern is to see the nature of basic structure as generally understood by others. The nature of

basic structure was observed by Justice Shahabuddin Ahmed as,-

“there are many concepts which are not capable of precise definition, and nevertheless

they exist and play important part in law. Negligence, reasonableness, natural justices

are some of these concepts which are very much understood but cannot be precisely

defined. In Ridge v. Baldwin (1964) AC 42, Lord Reid explained the concept of natural

justice thus: ‘In modern times opinions have sometimes been expressed…that natural

justice is so vague as to practically meaningless. But I would regard these as tainted by

the perennial fallacy that because something cannot be cut and dried or nicely weighed

or measured, therefore it does not exist. The idea of negligence is equally insusceptible

of exact definition, but what a reasonable man would regard as fair procedure in

particular circumstances and what he would regard as negligence in particular

circumstances are capable of serving as tests in law, and natural justice as it has been

interpreted in the courts is much more definite than that’. Again the doctrine of basic

structure cannot be rejected if consequence of its rejection is taken into consideration.

Seervai in his Constitutional Law of India, Vol. II, page 1568 rightly observed that the

consequence of rejecting the doctrine of basic structure would be so grave and so

opposed to the objectives of the constitution that the consequence of uncertainty would

be insignificant by comparison”.33

If basic structure would have taken as a justification theory validating the rules of the Constitution, the

next question would arise about to find out the justification theory of the Constitution. Is there nothing

which can justify the basic structure? Or it is because it is? Or it is originated by itself? Or there is

something as justification theory of the basic structure of the Constitution? Is really basic structure is a

pure concept of constitutionalism? Is basic structure a doctrine purely relates and confined to the

constitution within? Would not it be inappropriate to call basic structure of the constitution instead of

basic structure in itself? Would be it inappropriate to call basic structure as the bench mark of

justification and validating the constitutionalism and practical efficacy of a constitution? The position

32 R. Dahrendorf, Out of Utopia, in Essays In The Theory Of Society 128 (1968), cited in Supra Note: 22. 33 Para 368 of 8th Amendment case, DLR 1989 (AD) P. 165.


11

of basic structure is same in either states having written or unwritten Constitution. For better

understanding the discussion about the nature of basic structure is divided into following heads,-

3.1: Towards having a Structural Definition of Basic Structure

Scope for having a structural definition of basic structure lays at the heart in-between the relationship of

basic structure and the Constitution. Basic structure is widely understood as a theory of

constitutionalism added and invented by the judiciary. From very mechanical point of understanding

the basic structure of the constitution is rooted in the provisions contained in the black letters of the

Constitution. This indicates on the subjectivity i.e. subjective verification of basic structure. The

contrasting or opponent view to this leads towards having objective theorization and verification of

basic structure. The basic proposition of this value addition of basic structure is that the Constitution is

the reflection of some of the basic principles basing on which the Constitution is grown up, developed.

Those basic principles act as fundamental pillars of the Constitution. Constitution may codify those in

black letters or may not, but the basic image of the Constitution is the reflection of those

basic/fundamental features which justify the norms and rules of the Constitution. The root of basic

structure is not only reflected in the Constitution but also it is rooted somewhere else to whom the

Constitution is highly and significantly indebted. The value creating norms which validates and

legalizes the provisions of the Constitution may be the root of basic structure of the Constitution.

Kelsen also maintained that positive legal norms can be verified objectively because they are

conditioned by the existence of facts. These facts are the acts by which the legal norm is created, such

as custom, legislative, judicial, or administrative act, a legal transaction, together with the effectiveness

of the total legal order to which the legal norm belongs.34

‘By the basic structure is meant the way in which the major social institutions fit together into one

system, and how they assign fundamental rights and duties and shape the division of advantages that

arises through social cooperation. Thus the political constitution, the legally recognized forms of

property, and the organization of the economy, all belong to the basic structure.’35 Analyzing the

relation between pure theory of law and the concept of justice as one of the Grundnorms (ground of

rules) John Rawls emphasized on objective verification of Grundnorm which could be compared to

basic structure. According to John Rawls the ‘theory of justice is that the basic structure of society is

the primary subject of justice’.36 He emphasized on having basic structure as a ‘primary subject’,

though he did not clear that what the ‘primary subject’ means. Without defining what the ‘primary

subject’ is he suggested some grounds justifying and supporting his proposition; hence clarifying the

reasons why the basic structure should be taken as primary subject. Thereby he suggested the

following: first that once we think of the parties to a social contract as free and equal (and rational)

persons, then it is natural to take the basic structure as the primary subject. Second, that in view of the

34 Supra Note: 27, P. 7. Kelsen also observed that legal judgments "are true or false, and their truth or falsehood

may be tested." Id. at 210 35 Rawls, John, The Basic Structure As Subject, Chapter IX, American Philosophical Quarterly, Volume 14,

Number 2, April 1977, P. 159. This paper was presented at the 51st Annual Meeting of the American

Philosophical Association, Pacific Division, Portland, Oregon, March 1977. 36 Ibid.


12

distinctive features of this structure, the initial agreement, and the conditions under which it is made,

must be understood in a special way that distinguishes this agreement from all others; and doing this

allows a Kantian view to take account of the fully social nature of human relationships. And finally,

that while a large element of pure procedural justice transfers to the principles of justice, these

principles must embody an ideal form for the basic structure in the light of which ongoing institutional

processes are to be constrained and the accumulated results of individual transactions continually

corrected.37

Anuranjan Sethi38 tried to reach into a structural definition of basic structure proposing three models of

basic structure which are (i) 'Basic Structure' and the theory of ‘Originalism’, (ii) 'Basic Structure' as

‘balancing tool’, and (iii) 'Basic Structure' as a tool of development.39

In the context of constitutional law, the theory of originalism of basic structure means that various

provisions of the constitution must be construed and interpreted so as to discover the true meaning that

was given to them by the framers of the constitution. This theory is widely accepted in the practice of

constitutional interpretation around various jurisdictions and is even imbibed in the ‘romantic theory’ of

literature wherein, the meaning intended by the author of a text is privileged and is placed above all the

contesting meanings that are argued. Kelsen explains that the existence and contents of underlying

normative references presupposed by a moral or a political judgment cannot be verified by facts. [They

are] determined only by the subjective wish of the subject maker of the judgment. Moral and political

judgments of value and, in particular, judgments of justice, are based on ideologies which are not, as

juristic judgments of value are, parallel to a definite social reality.40 The deeper implications of the

theory of Originalism are that ‘true meaning of a written text may be the meaning which the author of

the text had in his mind while she/he wrote the text, rest all are mere interpretations or versions of truth

which are inferior to the truer version.41 Being the dominating theory of constitutional interpretation,

both minority and majority judges of Keshavananda case relied on ‘Originalism’ to bring out the

contesting versions of true intention of the constitution framers. Among the various judges who held

Indian constitution to have a basic structure most relied on the ‘structural interpretation’ of the

constitution. According to them, by looking at the scheme of the various provisions and the structure of

different features it emerges that Indian Constitution has a certain ‘implied limitations’ which then can

be read as the basic structure of the constitution. Though they could use the constitution assembly

debates as an external aid, yet most of the judges quoted extensively from these to find that the framers

had intended there to be a certain higher values and principles which give the Constitution its identity

and can’t be abrogated even by exercising the amending power by the parliament. Since constitution

assembly debates only prove to be an external aid and both sides found ample materials from these in

their favour, a direct intention to have a certain features as basic and fundamental to the extent that they

can’t be violated couldn’t be found. Hence the court, for the first time in the history of Indian

37 Ibid. 38 Supra Note: 13. 39 Ibid. 40 Supra Note: 29. 41 Supra Note: 13.


13

constitutional interpretation, evolved and applied the theory of ‘structural interpretation’. As

experienced with Article 368 of Indian Constitution the scheme of various provisions showed to the

judges that federalism, president and the democratic nature of Indian Constitution, even though not

provided for in the special procedure in Article 368 could not have been intended to be abrogated or

amended by ordinary procedure. Finding various exclusions in the language used in Article 368 of the

Indian Constitution and Article 142 of the Bangladesh Constitution, court concluded that the structure

and scheme of the constitution clearly demonstrates the intention of the constituent assembly to make a

certain features of the constitution above the reach of ordinary majorities and hence inviolable by the

amending procedure. Both in the Keshavananda case and the 8th Amendment case the majority and

minority judges relied on the model of originalism of the basic structure42. This model of basic structure

leads to the subjective verification of basic structure as to be identified from the bare text contained in

the black letters of the Constitution. But from the theoretical construction of basic structure as discussed

earlier the basic structure is already there in the social and behavioral norms a state which forms the

basis of political consensus of the people of a state. Therefore confining basic structure to the text and

only intention of the constituent assembly i.e. constitution makers would be hopeless and fugitive.

Basic structure as a ‘Balancing Tool’ remains the most popular perception that basic structure came to

be identified with both from within the judiciary and among the general public, essentially due to the

political tribulations that marked that decade in India’s political and constitutional history. basic

structure as a ‘balancing tool’, most desperately required at the time at both political ideology level and

in a general sense the philosophy of the ‘amending power’ in a rigid constitution.43 This approach has

not been reflected yet in Bangladeshi case laws, though one of the major task of basic structure to

maintain check and balance among the judiciary and the parliament and the Original Constitution as

well.

S.R. Bommai v. Union of India44 brought out an entirely new dimension of the basic structure which

emphasises for using basic structure as a tool of development. Governors of three states reported that

the governments concerned were subverting secularism. This was in the context of the demolition of the

Babri masjid at Ayodhya on 6 December 1992. The BJP government in Uttar Pradesh resigned,

virtually accepting responsibility. The mosque was demolished with the active cooperation of the state

government, which had given a solemn undertaking in the Supreme Court to protect the structure.

However, the governments of the other BJP-ruled states, namely Rajasthan, MP and Himachal Pradesh

were dismissed and President’s Rule was imposed. Various factors were cited in support of the

decision. The court held that secularism was a basic feature of the constitution and that if any political

party in power in a state supported or encouraged acts that subverted, sabotaged, or eroded secularism,

it could be said the government of the state could not be run in accordance with the constitution. The

fact that the anti-secular stance of a government has resulted in loss of life and property, failure of law

and order, and failure to guarantee safety to a minority community would certainly mean that the

governance of the state cannot be carried on in accordance with the provisions of the constitution,

42 For reference in detail see point no. 6 of this paper. 43 Supra Note: 13. 44 (1994) 3 SCC 1.


14

warranting resort to Article 35645. The above stance of justifying the application of a constitutional

power is seen as an unjustified use of the basic structure doctrine since the doctrine was invented to

check the exercise the constituent power of the parliament in amending the constitution and not to

check the administrative and executive actions that President is empowered to exercise or even the way

governance. But Bommai holds special significance in the development of the basic structure doctrine

under Indian constitutionalism, since it holds out the true spirit of constitutionalism. It is also important

since it opens/extends the new horizon for application of basic structure in several dimensions of

Constitutional use.

From the recent development of basic structure it is claimed as the invention of the judiciary. Gratitude

with credit goes to judiciary to cut the stone from its piecemeal manner and bringing it into active play

testifying the validity and invalidity of the act of parliament and act of other organs of the constitution.

It legalizes and validates those value creating norms of social behavior which are reflected

fundamentally in the text of Constitution. Basic structure not only validates and substantiates the

fundamental basis and reasoning of the Constitution but also recognizes those value creating norms

which form the existence of the Constitution. It is much more than a constitutional doctrine. In very

literal sense basic structure is identified as judicial addition with the Constitution because it is more

judicial principle than constitutional. It is also claimed that judiciary invented it as a constitutional

principle. But the area and scope of basic structure is much wider than the Constitution itself, sometime

more powerful than the Constitution is and sometime more certain than those rules confined to the text

of Constitution.

3.2: Basic structure sets the norms of the Constitution or Constitution sets the basic structure for

itself

Undoubtedly, basic structure of the Constitution is capable of being identified. From subjective

verification and theory of originalism basic structure of the Constitution is to be understood from the

Constitution itself. From very mechanical sense it can be argued that basic structure of the Constitution

is reflected in the black letters of the Constitution within. As stated earlier taking basic structure from

this sense will be not less than unjust and unfair though this view is not altogether deny this argument

that basic structure might have some reflections in the black letters of the Constitution. Verifying

subjectively of basic structure of the constitution may be possible to find out only in the text and the

intention directly reflected therein subject to golden rule of interpretation but this is obviously not

reflected the actual nature of basic structure. It is need to clarify first that basic structure is different

from the understanding what is understood from the theme of salient feature of the Constitution. Basic

structures are those fundamental pillars which shape the Constitution in its present form and wherefrom

the Constitution itself draws its legal validity. Basic structure may be the justification and can form the

basis for constitutional amendment. Basic structure justifies the cause for retaining earlier constitution

and at the same time justifies the necessity of constitutional amendment. This may be the bridge

between the practices and political consensus of people, aftermath categorizing the nature of

45 Supra Note: 13.


15

Constitution for a particular state. According to John Rawls the root of basic structure is may be drawn

a social contract46 between the people at large and some people among the general people of the

society. Let to consider how the special features of the basic structure affect the conditions of the initial

agreement arising out of the political consensus of the people and hence the content of these principles.

Now by assumption the basic structure is the all inclusive social system that determines background

justice; so any fair situation between individuals conceived as free and equal moral persons must be one

that suitably evens out the contingencies within this system. Agreements reached when people know

their present place in an ongoing society would be influenced by disparate social and natural

contingencies. The principles adopted would then be selected by the historical course of events that

took place within that structure. We would not have gotten beyond social happenstance in order to find

an independent standard. 47 Professor K.C. Wheare at Page 146 of Modern Constitution states that,- ‘the

real justification of Constitution, the original idea behind them is that of limiting Government and of

requiring those who govern to conform to law and usage’.48 Justice B.H. Chowdhury also emphasized

on this point in the perspective of Bangladesh Constitution in A.T. Mridha’s case49 stating inter-alia

that,- “the Constitution is the supreme law and all laws are to be tested in the touch-stone of the

Constitution (Article 7). It is the supreme law because it exists; it exists because the will of the people is

reflected in it. History of mankind is replete with instances when a Constitution ceased to exist because

the will of the people was either because the will of the people was either not reflected in it or the

support was withdrawn ultimately. It is rather late in the day to suggest that pre-constitutional piece of

legislation will displace one of the three structural pillars on which the mechanism of the Constitution

rests. Having declared that parliamentary democracy is the manifest aspiration of the people of

Bangladesh, the Constitutional instrument has been drafted keeping in full view that the power of three

organs of Government namely, Executive, Legislative and Judiciary are well defined”. With this view

he further added in the 8th Amendment case stating inter-alia that “it is needless to pursue the point

further because it has been noticed earlier that in our Constitution the Preamble can only be altered by

the people because our Constitution is not the result of the Indian Independence Act, 1947 though we

have taken inspiration from the wisdom of the past. Ours is an ‘autochthonous’ constitution.

‘Autochthony’ in its most common acceptance is the characteristic of a Constitution which has been

freed from any trace of subordination to and any link with the original authority of the Parliament of the

foreign power that made it. The aim is to give to a constitutional instrument the force of law through its

own native authority. A factual autochthony is generally achieved after a revolution”50.

46 According to John Rawls “social contract is an agreement (i) between all rather than some members of society,

and it is (2) between them as members of society (as citizens) and not as individuals who hold some particular

position or role within it, (3) the parties are regarded as, and also regard themselves as, free and equal moral

persons; and (4) the content of the agreement is the first principles that are to regulate the basic structure. ” in

Supra Note: 35. 47 Supra Note: 35. 48 Cited by Chowdhury, B.H. in the 8th Amendment Case Judgment Para 203, 1989 (AD) P. 165. 49 A.T Mridha v. State 25 DLR (AD) 1973 P. 335, para 10. 50 Para 55 of 8th Amendment Case.


16

4.0: How Does Basic Structure Operate?

Constitution represents an express agreement between the people and the state. It represents a political

consensus between the people at large and some people amongst the generals who are conferred with

the duty to lead the state on and for the behalf of the general people. Equally decisive is the fact that

society is a system of cooperation that extends over time: it is cooperation- between generations and not

just cooperation among contemporaries. Constitution exactly does the same thing carrying the past to

the present and present to the future. Constitutional amendment vitalizes this way of declining and

delimiting the generational gap. If people are to account for the duties and obligations between

generations, there is no clear way to do this in a contract view without interpreting the initial agreement

as hypothetical. Justifications in favour of constitutional amendments are many; those are so strong and

inevitable. Famous American Justice Martial was also in favour of constitutional amendment

considering it a living organism lasting for all ages to come. Very precisely, one quotation is fair to

quote here from the verse of J. Abraham who said “our constitution is not a straight jacket. It is a living

organism. As such it is capable of growth, of expansion, and of adaptation to new conditions. Growth

implies changes, political, economic and social. Growth which is significant manifests itself rather in

intellectual and moral conceptions than in material things”.51 The correct principles for the basic

structure are those that the members of any generation (and hence all generations) would agree to as the

ones their generation is to follow and as the principles they would want other generations to have

followed and to follow subsequently, no matter how far back or forward in time. From very mechanical

and narrow sense the basic structure doctrine is the judge-made principle that certain features of the

Constitution are beyond the limit of the powers of amendment of the parliament. The basic structure

doctrine applies only to the constitutionality of constitutional amendments and not to ordinary Acts of

Parliament, which must conform to the entirety of the Constitution and not just to its basic structure.

The laws amending the Constitution are lower than the Constitution and higher than the ordinary laws.

That is why legislative process is different and the required majority for passing the legislation is also

different (comparing Article 80(4) and Article 142(1)(ii). What the people accepted is the Constitution

which is baptized by the blood of the martyrs. That constitution promises ‘economic and social justice’

in a society in which ‘the rule of law, fundamental human right and freedom and equality and justice’ is

assured- and declares that is the fundamental aim of the State. Call it by any name- ‘basic feature’ or

whatever but that is the fabric of the constitution which cannot be dismantled by an authority created by

the Constitution itself-namely the Parliament. Necessarily the amendment passed by the Parliament is

to be tested as against Article 7 because the amending power is but a power given by the Constitution to

Parliament; it is a higher power than any other given by the Constitution to the parliament but

nevertheless it is a power within and not outside the Constitution. In amending a constitutional

provision, Parliament exercises it ‘Constituent power’ under Article 142 and not its legislative power

under Article 80, and as such there is no limitation to exercise of the constituent power. Amendment

exercising the ‘constituent power’ is not a mere piece of statute and it is unchangeable as it becomes a

part of the Constitution. How can basic structure operate in between a written constitution and its self

51 United States v. Moreland, 258 US $433 (1992).


17

delegated amending power this can nicely be depicted from the aforesaid52 argument raised by the

opposite party’s advocate and a reply posed thereon by Justice Shahabuddin Ahmed. He replied “as to

the ‘constituent power’, that is power to make a Constitution, it belongs to the people alone. It is the

original power. It is doubtful whether it can be vested in Parliament, though opinions differ. People

after making a Constitution give the Parliament power to amend it in exercising its legislative power

strictly following certain procedure. Constitutions of some countries may be amended like any other

statutes following the ordinary legislative procedure. Even, if the ‘constituent power’ is vested in the

Parliament the power is a derivative one and the mere fact that an amendment has been made in

exercise of the derivative constituent power will not automatically make the amendment immune from

challenge. In that sense there is hardly any difference whether the amendment is a law, for it has to pass

through the ordeal of validity test”.53

In case laws the basic structure is often tested under the principle of ‘implied limitation’ in the

constitutional amending power by the legislative. This limitation is implied and certainly cannot be

expressly visualized from the very black letters of the Constitution. It can be rightly observed that basic

structure acts more than that as doctrine of ‘implied limitation’ plays. Basic structure is originated from

and embedded from the value creating norms in the society. It is much more than that of the principle of

‘implied limitation’. Sometimes it may be expressed in the black letters of the Constitution. Many of it

may not be textual. Basic structure may be the genus and implied limitation may be the species.

‘Implied limitation’ itself gets validity from the basic structure. From very objective verification basic

structure most likely contains significant social and economic inequalities. Basic structure operates

through the wills of the people. Basic structure either reflects the norms of the society or norms of the

society altogether construes basic structure or vice versa. “These I assume to be necessary, or else

highly advantageous, in maintaining effective social cooperation; presumably there are various reasons

for this, among which the need for incentives is but one… they seem bound to have a considerable

effect and so to favor some over others depending upon their social origins, their realized natural

endowments, and the chance coincidences and opportunities that have come their way. The basic

structure includes inequalities between certain starting-places, so to speak, and this feature, together

with the earlier observations, prompts us to take this structure as the primary subject.54 The operation of

basic structure takes place either by setting the norms for the Constitution or by having a set of rules of

the Constitution.

Kelsen also admits that there could be sources of authority beyond the formal constitutional authority of

the Grundnorm: “Certainly one may ask why one has to respect the first constitution as a binding

norm”.55 Yet for the purposes of the Pure Theory, the Grundnorm is presupposed to be binding as the

basis for validating all law. Presupposing the Grundnorm has the advantage of satisfying the

methodological requirement of a single synthesizing principle from which discrete judgments can be

52 Para 378 of 8th Amendment case DLR 1989 (AD) P. 165. 53 Para 381, Ibid. 54 Supra Note: 35. 55 Supra Note: 29.


18

logically deduced.56 In addition, the adoption of this formal constitutional authority as the sole basis for

validation reflects Kelsen's decision to join other positivists in repudiating "any natural law from which

positive law would receive its validity."57 The adoption of the Grundnorm as the single validating

baseline ensures that norms not based on formal constitutional authority can receive no validation.

Basic structure as Grundnorm acts as a touchstone of validating and invalidating certain acts of highest

authority of the state. The procedural element for validation does, however, introduce criteria that go

beyond the formal provisions of the Grundnorm.58 This is the requirement that the legal order be

"effective." In Kelsen's model, effectiveness is measured not only by the extent to which the legal order

established by the Grundnorm is actually obeyed, but also by whether its restraints are, by and large,

considered to be valid and binding by the citizenry.59 For legal prescriptions to be valid, relations

among individuals must be interpreted "as legal duties, legal rights, and legal responsibilities, and not as

mere power relations."60 Basic structure can help to build the substance of legal rules and make those

procedurally effective and binding. The role of the basic structure is to secure just background

conditions against which the actions of individuals and associations take place. Unless this structure is

appropriately regulated and corrected, the social process will cease to be just, however free and fair

particular transactions may look when viewed by them.61

The role of basic structure may also be narrated as a legal and valid check and balance between

parliament and judiciary. In this sense it is the power balance between the judiciary and parliament. On

the other hand it can be valued as check and balance between the prolonged norms, practice and

consensus of the people and the will of the parliament. It may act as a check and balance between the

political consensus of the people and political will of the government and also the political consensus of

the judiciary. As it is observed, in the eye of judiciary the Kesavananda Bharti case is understood as an

important episode in a long serial of tiff between Indian parliament and the judiciary. The 8th

Amendment case was again a reproduction of check and balance between the judiciary and the

parliament.

Basic structure can act as a shield when it is used as a defending tool behind restricting the hand of

constitutional amendment power of the parliament that certain provisions cannot not be amended

because it possess the flavor of basic structure or certain other provisions of Constitution cannot be

amended considering those are the certain basic structure of the Constitution- the former functions as a

justification tool and the later is the end of basic structure in its definite appearance.

56 Supra Note: 22. 57 Supra Note: 29. 58 Supra Note: 22. 59 Supra Note: 27. 60 Ibid. 61 Supra Note: 35.


19

5.0: Reasons behind Legal Transplantation of Basic Structure in Bangladesh in 8th Amendment

Case and the Approach Applied to

As stated earlier, theory of originalism which emphasized on subjective verification of basic structure is

reflected from the approach used in the 8th Amendment case. In fact, what the Supreme Court of

Bangladesh did in adopting the plea of basic structure in the 8th Amendment case is simply nothing

inventive other than a repercussion and legal transplantation of basic structure in the same line as

followed in the Keshavananda case. The comparative constitutional lawyer would prefer to call it legal

borrowing. This legal transplantation is very purposive and highly motivated by the judicial politics.

Most of the citations quoted, arguments raised, analogy made and reasoning advanced in the 8th

Amendment case are precisely copied from the Indian Keshavananda case. What India did in

Keshavananda case for a good purpose but the same is misused in Bangladesh in 8th Amendment case.

Reasons which motivated in filing this case and the factors which contributed and influenced judgment

leading to have this decision as appearing now are multi-furious. The apparent cause may be the

disguise of other causes. There might be certain other factors which motivated and accelerated the

lawyers and judges as well. The reasoning and justifications placed in the judgment might be to mislead

and frustrate the general people entangling with various technical and difficult law points. Those

arguments might be fraud and sham. Those arguments might be only to secure the ulterior purpose of

vested quarter. That vested quarter might be the judges or the advocate or someone else or no one but

accumulated interest of all of them. That might be highly political. That might be merely from much

presupposed idea to nullify every work/attempt done/taken by a usurper government, even a good

attempt taken by a bad government. That might be a consequence of revenge. Then it was a problem

not about the work done but the person who did that. This may be arisen out of revenge might be

between the judiciary and usurper government. The entire socio-economic, political context might be

one of the contributory factors behind this decision.

5.1: Cause Appeared/Shown

These two Civil Appeal Nos. 42 of 1988 and 43 of 1988 by special leave arise out of an order dated

15.08.88 passed by a Division Bench of the High Court Division at Dhaka in Writ Petition Nos. 1252,

1176 and 495 of 1988. That gist of the controversy is that the Commissioner of Affidavit refused to

allow the counter affidavit to be affirmed by the appellant at Dhaka on the ground that the writ petition

stood transferred to the permanent Bench at Sylhet pursuant to the provisions of Rule 6 of the Supreme

Court (High Court Division) Establishment of the Permanent Benches Rules, 1988 framed under

Article 100(6) as amended by the Constitution (Eighth Amendment) Act, 1988. In the other case the

Registrar of the Supreme Court had taken steps for sending the record to Chittagong Bench and the

appellant was denied to affirm affidavit and have the writ petition heard in the High Court Division at

Dhaka. In these circumstances the appellants challenged the constitutionality of amended Article 100 of

the Constitution as amended by the Constitutional Eighth Amendment Act, 1988. These petitioners

impugned section 5 of the said Amendment Act (hereinafter abbreviated to as “the impugned

amendment”) which provided as follows-


20

“100(5) The President shall, in consultation with the Chief Justice assign the area in

relation to which each permanent Bench shall have jurisdiction, powers and functions

conferred or that may be conferred on the High Court Division by this Constitution or

any other law; and the area not so assigned shall be the area in relation to which the

High Court Division sitting at the permanent seat of the Supreme Court shall have such

jurisdictions, powers and functions.

100(6) The Chief Justice shall make rules to provide for all incidental, supplemental or

consequential matters relating to the permanent Benches.”

That purportedly pursuant to Clause 6 of the amended Articles 100 the Chief Justice of

Bangladesh framed the Supreme Court (High Court Division) Establishment of Permanent

Benches Rules, 1988 (hereinafter referred to as “the impugned Rules”). Rules 4 and 6 thereof,

which are relevant for the purpose of this appeal are quoted below-

“‡Kvb †e‡Âi Rb¨ wbw ©̀ó GjvKvq D™¢yZ mKj welq mswkó †e‡ÂB `v‡qi Kwi‡Z nB‡e Ges D³

†e‡ÂB †mB me welq wb®úwË nB‡e Ab¨ †Kvb †e‡Âi Rb¨ wbw ©̀ó b‡n Ggb GjvKv nB‡Z D™¢yZ welq

mg~n mycÖxg †Kv‡U©i nvB‡KvU© wefv‡Mi ’̄vqx Avm‡b `v‡qi Kwi‡Z nB‡e Ges Z_vq †mB me welq

wb®úwË nB‡e|

AÎ wewa Kvh©¨Ki nIqvq AeëwnZ c~‡e© †Kvb †e‡Âi Rb¨ wbw`©ó GjvKv nB‡Z D™¢yZ welq mg~n hvnv

eZ©gv‡b nvB‡Kv‡U© wefv‡Mi ’̄vqx Avm‡b A_ev Ab¨ †e‡Âi wePvivaxb iwnqv‡Q †mB welq †mB †e‡Â

¯’vbvšÍwiZ nBqv‡Q ewjqv Mb¨ nB‡e, Ges nvB‡KvU© wefv‡Mi ’̄vqx Avm‡bi GjvKv nB‡Z D™¢~Z welq

mg~n hvnv eZ©gv‡b Ab¨ †Kvb †e‡Â wePvivaxb iwnqv‡Q †mB welq mg~n nvB‡KvU© wefv‡Mi ’̄vqx Avm‡b

¯’vbvšÍwiZ nBqv‡Q ewjqv Mb¨ nB‡e|Ó

One of the main filling Advocates of the said writ petitions was Md. Joynul Abedin who challenged the

aforesaid impugned provisions of the Constitution (Eight Amendment) Act, 1988 on the following

grounds amongst others. For ready reference those are summarized below in a nutshell-

“(i) For that curtailing the jurisdiction, powers and functions of the High Court Division,

in name of Establishing six Permanent Benches outside Dhaka under the amended

Article 100 of the Constitution, is incompatible and inconsistent with Articles 94, 95,

101 and 102 of the Constitution;

(ii) For that Article 100(5) of the Constitution as amended could not be construed to

mean that the President has been empowered to re-determine by executive fiat the

territorial jurisdiction of the High Court Division in Dhaka; if so construed then the

power and jurisdiction conferred on the High Court Division under the Constitution are

rendered nugatory and become irreconcilable with the scheme of the Constitution,

particularly Articles 94, 95(3), 101 and 102 thereof;

(iii) For that [from harmonious interpretation] the impugned amendment is to be seen as

a fraud on the constitution inasmuch as in the garb and pretence of amending Article 100

of the Constitution…to alter the basic structure of the Constitution and to destroy the

independence of the judiciary and the character, role and effectiveness of the High Court

Division’

(iv) For that [impugned provisions] cannot curtain the power of the Chief Justice;


21

(v) For that [impugned rules] is bad in law as it has failed to provide for any guideline

with regard to determination of jurisdiction particularly in matters of writ petitioner

namely, whether jurisdiction shall be determined with reference to the place where the

order/action complained of was passed or taken or whether the jurisdiction will be

determined on the basis of the place where such order/action will have effect and as such

this power can be used arbitrarily, whimsically and can also be abused;”62

The Learned Attorney General M. Nurullah appeared on behalf of the respondents and contested the

case by filling affidavit-in-opposition submitting several grounds which are summarized below-

“(i) That the power of amendment conferred by Article 142 of the Constitution is very

wide, and the Parliament, in exercise of that constituent by way of admission, alteration,

substitution or repeal. There is no provision in the constitution imposing any express

limitation on the power of amendment. The amending power, conferred by Article 142

of the Constitution, is so wide that is can be exercised ‘not withstanding anything

contained in the Constitution.’ The overriding power of amendment is not subject to any

restrict or limitation. There is no scope under the Constitution to read any implied

limitation on the amending power of Parliament. It was also submitted that the amended

Article 100 of the Constitution is neither incompatible nor in conflict with Articles

94,102 and 111 or any other provision of the Constitution nor has it 100(5) is against the

basic concept of the Constitution and therefore, the amendment was not made in

accordance with Article 142 of the Constitution.

(ii) That Article 100 of the Constitution, prior to its amendment, provided for permanent

seat of the Supreme Court at the Capital but the Sessions of the High Court Division

might be held at such other place or places as the Chief Justice may, with the approval of

the President, from time to time appoint. The amended Article 100 of the Constitution is

only a functional re-arrangement of the High Court Division without affecting for

integrity or fullness of power. The establishment of permanent Benches cannot be said

to have demolished the basic structure of the Constitution or changed the character of

the unitary form of the Republic. The power and jurisdiction of the High Court Division

has remained the same subject to the provisions contained in Article 100 of the

Constitution, as amended. The High Court Division exercises he same jurisdiction as

provided under Articles 101 and 102 of the Constitution which have not been amended.

Hence the amended Article 100 does not change the unitary character of the Republic

nor does it seek to curtail he power and jurisdiction of the High Court Division. It was

also submitted that by amending Article 100 the supremacy of the constitution has not

been affected. By the Constitution (Eighth Amendment) Act, 1988 the provisions in the

Constitution investing power of judicial review or superintendence of the Supreme

Court have not been amended, the power of judiciary have not been curtailed, the form

of Government has not been touched and therefore, the arguments that were advanced

on behalf of the appellants as to the change of basis structure of the Constitution are

merely academic.

(iii) That by the Constitution (Eighth Amendment) Act, 1988 the President of the

Republic of Bangladesh has been empowered to assign the areas in respect of which the

permanent Benches of the High Court Division shall have jurisdiction. This is purely an

executive function and this function is neither judicial nor quashi-judicial and the

President in assigning the areas is not required to act judicially. There is no dispute or

‘lis’ involved between the parties. The Notifications issue by the President in

Constitution with the Chief Justice assigning areas to Permanent Benches as per

provision of amended Article 100(5) are valid and legal as they do not in any way

contravene any provision of the Constitution.

62 Exactly reproduced from the Grounds of Writ Petition Nos. 1176 and 495 of 1988 filed by the petitioner.


22

(iv) That the Rules framed under amended Article 100(6) of the Constitution are valid. It

was submitted that by Sub-Article (6) the Chief Justice has been conferred the power to

make rules to provide for all incidental supplemental and consequential matters relating

to permanent Benches. The Chief Justice framed rules in conformity with the provisions

of amended Article 100 of the Constitution and therefore, the same are valid and intra

vires the Constitution.”63

Hearing the parties and perusing their documents the High Court Division rejected the petitions

summarily holding that-

“(i) the amended Article 100 is neither incompatible nor in conflict with Articles 1,

2,44,94,101,102,109 and 111 of the Constitution nor does it curtail or abrodge or

minimize the jurisdiction of the High Court Division as laid down in Chapter I and VI of

the Constitution;

(ii) it is possible to give a harmonious interpretation of the amended Article 100 with

other Articles of the Constitution;

(iii) Articles 101 and 102 have not been amended and the jurisdiction of the High Court

Division spreads over the entire territory subject to Article 107(3) and 100(5);

(iv) what has not been done directly cannot be considered to have been done indirectly;

(v) amended Article 100 has not in any way changed the basic structure of the

Constitution nor affected the unitary character of the Republic;

(vi) all the Benches of the High Court Division are entitled to exercise all the powers of

the High Court Division over the entire territory of Bangladesh subject to provisions of

Articles 107(3) and 100(5) of the Constitution and the Rules framed by the Chief Justice

under Article 100(6).”

Against the said judgment and order of the High Court Division the petitioners-appellants filed the Civil

Petition for Leave to Appeal contending several reasons which are summarized below-

“(i) Because the High Court Division was wrong in rejecting the writ petition without

adverting to and considering the submissions set out in the foregoing paragraphs, and in

asserting without any discussion that the general principles which laid down that an

amendment which sought to alter the essential feature or basic structure of the

constitution is unconstitutional as being beyond the amending power of Parliament had

no application in the facts and circumstances of the present case.

(ii) Because the High Court Division committed an error of law in proceeding on a

wrong legal premise, namely, that what has not been done directly cannot be considered

to have been done indirectly and thereby refraining from considering the moot question

as to the effect of the amendment of Article 100 on other Article of the Constitution.

(iii) Because Article 100(5) has, in fact, rendered the indivisible and integrated High

Court Division with plenary judicial powers over the entire territory of the Republic

non-existent and thus altered the essential feature and basic structure of the constitution

and the High Court Division committed an error of law by holding otherwise without at

all considering the effect of Article 100(5) on other provisions of the Constitution,

particularly, Article 101, 102,107,108,109,110,111 and 112.

63 See para nos. 6-9 of the Concise Statement on behalf of the Respondents in the Civil Appeal No. 43 of 1988.


23

(iv) Because the impugned Act is a fraud or the Constitution inasmuch as under the grab

and pretext of amending Article 100 the provisions, amongst others, of Articles 101,102,

107,108,109,110,111 and 112 of the Constitution have been altered and that too in

violation of the mandatory procedure prescribed by Article 142(a)(i),

(v) Because the transfer of pending cases involves interference with the jurisdiction of

the Court and the rights of the parties in those cases and is not covered by the expression

“incidental, supplemental and consequential matters” appearing in Article 100(6) and

thus the impugned Rules framed by the Chief Justice providing for the transfer of

pending cases from the High Court Division at its permanent seat to permanent Benches

are ultra vires and void.”64

Special Leave was granted on 29.11.1988 to both the petitions being Civil Petition Nos. 207 and 208 of

1988. In the said order granting leave it has been noted that “it is unfortunate that in the judgment no

discussion finds place as to why the aforesaid decision have no manner of application in the facts and

circumstances of the case”. It is further mentioned that “Dr. Kamal Hossain, learned Counsel appearing

for the petitioner (in Civil Petition No. 207 of 1988), addressed the Court on the effect of the

Constitution (Eighth Amendment Act, 1988) which has substituted the original Article 100 by a new

Article. The whole argument of Dr. Hossain is that the Constitution contemplates a superior Court,

namely, Supreme Court of Bangladesh comprising the Appellate Division and the High Court Division

under Article 94. By amending Article 100 for the purpose of setting up permanent Benches the basic

structure of the Constitution has been altered and it seeks to destroy the independence of judiciary and

the character and rule of effectiveness of the High Court Division. It is submitted that Article 100 (5)

purports to mean that the President has been empowered to re-determine by executive fiat the territorial

jurisdiction of the Permanent Benches which in effect renders the Constitutional provision e.g. Articles

94, 95 (3), 101, 102 nugatory and irreconcilable.” Mr. Syed Ishtiaq Ahmed, learned Counsel appearing

for the petitioner (in Civil Petition No. 208 of 1988) submitted that the concept of the residuary area as

envisaged in Article 100(5) is against the basic concept of the Constitution and therefore, the

amendment was not made in accordance with Article 142 of the Constitution. Mr. M. Nurullah, learned

Attorney-General appearing for the Caveator pointed out that the concept of “Permanent Bench” is

nothing new and extensively referred to the establishment of the permanent Benches of the High Court

from the Indian Jurisdiction. The learned Attorney-General contended that the establishment of the

Permanent Benches is not incompatible with Article 94 nor has it changed the basic structure of the

Constitution. The learned Attorney-General vigorously argued that the petitioners have not made out a

case as to how the unitary character of the Republic has been affected: it appears that a number of

important questions of public importance have been raised which require authoritative interpretation by

this Court. Hence leave is granted for consideration of these points in full scale”.65

64 Exactly quoted from the Concise Statements of the Appellants in Civil Appeal No. 43 of 1988.

65 Para nos. 1-8 of the 8th Amendment case, DLR 1989 (AD) P. 165.


24

5.2: Disguise Cause Motivated

5.2.1: Politics behind Keshavananda Case

The task is not here to analyze or criticize the nature of politics behind Keshavananda case whether that

is good or bad. Here is to compare the gravity of reasons for applying of basic structure in the

Keshavananda case and in the 8th Amendment case. The Kesavananda Bharti case is understood as an

important episode in a long serial of tiff between Indian parliament and the judiciary headed by the

Supreme Court of India triggered over the ‘property rights’ clause in the Chapter 3 (Fundamental

Rights) of Constitution of India. Congress party, under the guidance of Mrs. Indira Nehru Gandhi after

the death of party’s father and country’s first Prime Minister Pt. Jawaharlal Nehru, was committed to

bring about land reforms in the country which were popularly understood to be the cause of widespread

social inequities in the country. Various constitutional and political steps taken by the party since the

dawn of Indian independence were challenged before the court as unconstitutional since they seem to

be violating one or the other fundamental rights of a section of society. The most aggrieved among

various classes were the propertied class who felt that the parliament is acting ultra vires Indian

constitution every time they brought about a constitutional amendment or legislation in pursuance of

land reforms. The case draws its importance from the fact that it made an important pronouncement

regarding parliament’s hitherto unlimited power to amend the constitution to make it subject to judicial

review based on the norm of “Basic Structure”. The case is also important from the political point of

view, which would show the delicate times in which the case came before the court and the political

overtones regarding the future of the country that were raised before the court. Curtailing some

jurisdiction of the court Indian parliament earlier added the Ninth Schedule to the Constitution through

the very first amendment in 1951 as a means of immunising certain laws against judicial review. Under

the provisions of Article 31, which themselves were amended several times later, laws placed in the

Ninth Schedule – pertaining to acquisition of private property and compensation payable for such

acquisition -- cannot be challenged in a court of law on the ground that they violated the fundamental

rights of citizens. This protective umbrella covers more than 250 laws passed by state legislatures with

the aim of regulating the size of land holdings and abolishing various tenancy systems. The Ninth

Schedule was created with the primary objective of preventing the judiciary - which upheld the citizens'

right to property on several occasions - from derailing the Congress party led government's agenda for a

social revolution. Later on, laws relating to the nationalisation of certain sick industrial undertakings,

the regulation of monopolies and restrictive trade practices, transactions in foreign exchange, abolition

of bonded labour, ceiling on urban land holdings, the supply and distribution of essential commodities

and reservation benefits provided for Scheduled Castes and Tribes in Tamil Nadu were added to the

Ninth Schedule through various constitutional amendments. Thereafter Indian Supreme Court

desperately held that all the fundamental rights of the Indian Constitution would be the basic structure

of the Constitution and those can be abrogated even for implementing the fundamental directives of the

Constitution. By now, it was clear that the Supreme Court and Parliament were at loggerheads over the

relative position of the fundamental rights vis-à-vis the Directive Principles of State Policy. At one

level, the battle was about the supremacy of Parliament vis-à-vis the power of the courts to interpret and


25

uphold the Constitution. To neutralise the affect of doctrine of the basic structure, the Govt. enacted the

constitution (42ND Amendment) Act.1979 and added clauses (4) and (5) to art. 368 which provided for

exclusion of judicial review of amendments of the constitution made before or after the 42nd

Amendment. It also declared that there shall be no limitation on the amending power of the parliament

under article 368. While this position was going on the Keshavananda came to give some flexibility to

the Goloknath approach with having some strict restriction on the constitutional amending power of

Parliament. Whereof the Court observed that Parliament could not use its amending powers under

Article 368 to 'damage', 'emasculate’, 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or

framework of the Constitution. The court has been cautious enough not to apply this doctrine in a rash

and undirected manner yet various jurists18 have accused the court of being extremely careless and

irresponsible in performing the new role it has taken up by the invention of basic structure.66 There has

been a considerable debate between the legal scholars and jurists about the true ratio of the case for a

multiplicity of the judgments and a summary judgment signed by 9 out of 13 judges in the bench.

5.2.2: Politics behind 8th Amendment Case

The fact stated inter-alia as above under point no. 5.1 is a disguise. Before examining the politics

behind the 8th Amendment Case let’s have a look at how the judges and advocates reacted when Ershad

passed the SRO 175-?/82 Dacca, the 8th June, 1982 creating four permanent benches of High Court

Division at Dacca, Comilla, Rangpur, Jessore. Immediately after publishing the said SRO lawyers,

judges and advocates, especially from Dhaka Bar Association started protestation and repeatedly

proposing the Chief Martial Law Administrator to withdraw the said SRO. A general meeting of the

Bangladesh Supreme Court Bar Association held on 15th July, 1982 at 1-30 P.M. in the Southern Hall

of the Association Bui1ding under the Presidentship of Mr. Serajul Huq, its President "discussed the

situation in the judiciary of the country consequent upon the functioning of the High Court Division

Benches at Jessore, Rangpur and Comilla in the light of the experiences gathered by the members of the

Bar and was of the unanimous opinion that the actions of setting up separate High Court Division has

failed to achieve the objective of getting justice at the door-steps of the public as well as to make it

expeditious and easy, on the contrary, it has created a number of avoidable problems which are not

conducive to the smooth and effective functioning of the judiciary. As such in the interest, progress,

prosperity and development of the Nation on a Solid foundation of the Rule of law, this meeting once

more makes a fervent appeal to the Chief Martial Law Administrator to kindly review the situation with

an open mind and to revise the decision". The same reaction was also found when the Constitutional

Eight Amendment Act was passed. It is unanimously held in an Extra-ordinary General Meeting dated

12.05.1988 of the Supreme Court Bar Association that “evsjv‡`k mycÖxg‡KvU© AvBbRxwe mwgwZi A`¨Kvi Ri“ix

mvaviY mfv me©m¤§wZµ‡g MZKvj (11-5-88) Zvwi‡L weMZ 3iv gv‡P© †fvUviwenxb Z_vKw_Z cÖnm‡b †NvwlZ A‰ea msm‡`

Òmsweavb 8g ms‡kvabx wejÓ D¯‹vbxg~jKfv‡e AeZvibv Kiv n‡q‡Q Ges D³ we‡j msweav‡b KwZcq ms‡kvab Gi mycvwik Kiv

n‡q‡Q hvi g‡a¨ .... msweav‡bi 100 Aby‡”Q`‡K ms‡kvab K‡i byZb 6wU Dc-Aby‡”Q` ms‡hvRb Kiv n‡q‡Q| Dc‡iv³ ms‡kva‡bi

mycvwik Øviv †MvUv evsjv‡`k I †`kevmx‡K GK fqsKi cwiw ’̄wZi wfZ‡i †V‡j w`‡q †`kªi ¯̂vaxbZv, msnwZ I RvZxqZv‡eva‡K

m¤ú~Y©fv‡e aŸsk Kivi †h Ac‡Póv Kiv n‡”Q Zvi Zxeª wb›`v Ki‡Q| 1971 m‡bi i³¶qx gyw³hy‡×i weR‡qi gva¨‡g cÖwZwôZ

66 Supra Note: 13.


26

RvZxqZv‡eva Ges ¯̂vaxb I wbi‡c¶ wePvi eë ’̄v †gŠwjK PwiÎ cÖwZdwjZ msweavb‡K ms‡kvab Kivi †Kvb AwaKvi G A‰ea

miKvi I msm‡ì †bB| GB mfv A‰ea Gikv` miKv‡ii †bZ…‡Z¡ A‰ea msm‡ì ¯̂vaxb I wbi‡c¶ wePvieë ’̄vi we‡ivax Ges

gyw³hy‡×i †PZbv we‡ivax msweavb I ms‡kvabx wej‡K cÖwZ‡iva Kivi Rb¨ †`‡ki ivR‰bwZK †bZ…e„›`‡K, AvBbRxwe mgvR, QvÎ,

wk¶K, K…lK, kªwgK, Wv³vi, cÖ‡KŠkjx, K…wlwe` mn mg¯— †kªYxi †`kevmxi cÖwZ AvnŸvb Rvbv‡”Q”. Thereafter lawyers and

judges started 2 (two) points movement, 1 (one) of which was to restore the benches of the High Court

Division in Dhaka, thus to protect and save the unitary character of the Supreme Court. It is worth to

mention that it is mostly the lawyers, judges and advocates from Dhaka who initiated, instigated and

vehemently continued movement against this division of seats of the High Court Division. The lawyers,

judges and advocates left no stone unturned to stop the successful implementation of said SRO. They

were highly determined to prevent this initiative at the cost of anything. Thousands of afford met with

no success during the strong power play by Ershad. As soon as his power faced turmoil and tarnished

thereby the lawyers, advocates and judges did not wait for a second to take this ill attempt of preventing

the division of sets/benches of High Court Division in several places of Bangladesh outside Dhaka. As

a part of series of plan and attempts the 8th Amendment Case was filed.

The Constitutional (Eight) Amendment was not the fundamental issue in this case, if so, then the Court

could declare this Act altogether void, but they did not do so. The main cause of grievance was that of

the mutual interest of advocates and the judges who did not wanted to go outside Dhaka and who were

apprehended to get lesser cases, those are to clients, if benches of High Court Division would be

divided. In several places of the judgment three of the assenting justices showed a relation between the

SRO 175-?/82 Dacca, the 8th June, 1982 creating four permanent benches of High Court Division at

Dacca, Comilla, Rangpur, Jessore and the Constitution (Eight) Amendment Act, 1988 (Act No. 30 of

1988) creating six permanent benches of High Court Division at Barisal, Chittagong, Comilla, Jessore,

Rangpur and Sylhet. The Court at the opinion in this regard that the new benches as created by the said

Eighth Amendment was nothing but the continuation of the said Notification as made by an usurper

Government under the Martial Law Administrator. Even this view is taken true; this case was a

reproduction of mutual predetermination of judges and advocates. This is equally evident from the fact

of this case itself, even till the date of final pronouncement of judgment by the Appellate Division. High

Court Division with its permanent benches had been acting from 8.06.1982 till the date of filling this

case. During this prolonged period neither anybody filed any case challenging this issue nor did the

High Court Division issue any suo moto Rule. It can be argued that during the subsistence of Martial

Law the Court has no jurisdiction to do that. In sooth, the jurisdiction was not the issue; the issue was of

courage and the surrounding circumstances. No one was there including judges with such courage

taking any bold step raising view against the Martial Law Administrator. When the case was filed and

the case was decided that was era of beginning the end of Ershad Regime. The case was deliberately

filed only for securing some ulterior purpose including political interest, personal and mutual interest of

judges and advocates, etc. Since 8.06.1982 any matter arising out of the specified area was filed and

adjudicated by the specified bench of High Court Division. This position was continued even after

withdrawal of Martial Law on 10th November, Dhaka. During these two years neither such writ petition

was filed nor any suo moto Rule was issued by the Court calling upon government. The movement

against Ershad era was launched at the end of 1987 which was going to be strong with success at the


27

end of 1988. This socio-political era favoured the judiciary to declare any act of Ershad government

void. The petitioners including the judges of the 8th Amendment case were very well aware of this fact.

For that reason he and they intentionally filed the alleged case in a wrong court. They intentionally filed

the said case at Dhaka bench which the Commissioner of Affidavit refused to allow. That filling and

that refusal was intentional and made up. That was their judicial politics. That hegemony,

dissatisfaction, displeasure was most of time kept hidden by the judges and advocates but at times it

was revealed out in their words uttering in subconscious mind. One example can easily be depicted

from the words of Justice Mustafa Kamal while he stated “with the revived Constitution in full bloom

during 1979-1982, the Supreme Court saw a spate of institutional litigations springing up from various

quarters. It was as if the cork of the Constitutional bottle was opened and the pent-up constitutional

injuries gushed out of the corked bottle in a fury. All this came to a halt in 1982 when Martial Law was

clamped. Even pending writ petitions abated. When the Supreme Court started functioning with revived

constitutional jurisdiction from the 11.09.1986 the High Court Division lay fragmented into seven parts.

All constitutional matters originate by way of an application under Article 102 of the constitution in the

High court Division, but the High Court Division was a shadow of its former self after the Constitution

was revived and such debilitating situation was hardly conducive to constitutional litigation. The

revocation, therefore, did not make any difference; it was only in 1988 that the Supreme Court became

seized with a constitutional issue of momentous importance, triggered off by the Eighth Amendment to

the Constitution”67.

8th Amendment judgment may be a result of retribution or payback given by the judiciary to the Martial

Law Administrator. After coming into power as Martial Law Chief Administrator the erstwhile Chief,

Ershad passed the said notification dated 8.06.1982 dividing the benches of High Court Division into

Four benches as stated earlier. The Constitution was abrogated then. The judges despite being one of

the supreme organs of the state could not act independently. Judges had to act under a usurper and anti-

constitutional government. Judges had to act under Martial Law. Despite being the constitutional

safeguard the Supreme Court was made mockery and it could do nothing for the restoration of the

Constitution till the people of Bangladesh would come forward. That hoplessness of judges during

Martial Law era and being highly materialized and neglected by the Martial Law Administrator

motivated judges to payback for this. The case might be a reflection of that. This revenge and

dissatisfaction has been reflected in many places of the 8th Amendment decision. For expeditious

reference one example is exactly quote below from the 8th Amendment Judgment-

“(i) By the Proclamation (Third Amendment) Order of 1986 a new paragraph 4A was

substituted in place of earlier paragraph 4A to the Schedule to the Martial Law

Proclamation. It was provided that on the commencement of that Proclamation Order on

17.6.1986 the permanent Benches be deemed to be Circuit Benches, and that after the

restoration of the Constitution the Circuit Benches be deemed to be Sessions of the High

Court Division outside Dhaka. Despite the dexterous device of double deeming

provisions, after restoration of the Constitution the learned Chief Justice resorted to

Article 100 and with the approval of the President, issued Notification No. 9096-G dated

67 Kamal, Mustafa J (April, 2001), Bangladesh Constitution: Trends and Issues, 1st published: July, 1994, Reprint:

April, 2001, Chapter 2 (Constitution -Its Basic Features), P. 14.


28

24th November, 1986 “appointing Rangpur, Jessore, Barisal, Chittagong, Comilla and

Sylhet to be places in which Sessions of the High Court Division of the Supreme Court

may be held on such dates and for such period as may be held on such dates and for such

period as may be specified by the Chief Justice.” From a number of resolutions of

Bangladesh Supreme Court Bar Association, it appears that notification, dated

24.11.1986 was viewed as an instrument for continuing the Martial Law dispensation

prevailing immediately before the restoration of the Constitution. Certain unfortunate

things happened at the permanent seat of the Supreme Court. The above notification

was, however, not challenged in Court and the High Court Division continued to hold its

Sessions at six places. The members of the Supreme Court Bar Association abstained

from attending the Court presided over by the learned Chief Justice who stoically carried

on his administrative functions. The whole matter uneasily drifted for some time.

(ii) The impugned amendment was intended to resolve the conflict by giving a

constitutional cover. I am fully aware that when the Court examines the constitutionality

of an amendment of the Constitution the initial presumption of validity is heavily in

favour of the amendment and that the legislature deserves full deference in view of the

doctrine of separation of power. The Court will exercise utmost self-restraint and weigh

the consequences for and against before striking down an amendment and hold back

from striking down an amendment if it can be reconciled with the provisions of the

Constitution. ”68

5.3: Ratio decidendi in the 8th Amendment Case Verdict is an Error Reflection of the Basic

Structure

Doctrine of basic structure is a theory of constitutionalism invented and added by the higher judiciary

of Bangladesh. It is the higher courts of Bangladesh which introduces the Constitution with its new

phase and characteristics. What was actual demand or emergency behind adoption and development of

this doctrine by the higher judiciary? What is the cause behind this veil or show off reason? Are there

notable gaps between these prima facie causes shown or the causes behind? The gaps are notable. There

is no assurance that in current future this doctrine will not be politically misused. Moreover, the origin

of this doctrine may be political. This is not a hypothesis. This question is frequently asked by the

critics and examiners. Whatever the politics is, judicial or political or something else, this may be a

disguise.

The decision taken in the 8th Amendment case is an error of law and error of fact as well. Considering

the factual aspect of this case it does not reflect the true intention of the people, general people’s

expectation to access to justice. What does it reflect only the communal interest of judges and

advocates. This judgment is highly motivated by the communal interest of bar and benches of the High

Court Division. It only secured the interest of the judges and advocates who did not want to go outside

Dhaka which is contrary to public interest to convenient access to justice. The hidden cause was highly

professional and self interested motivated. I would like to pay tribute to the learned counsels for the

appellants for the high standard of professionalism and modernization set by them in that in their long

submissions, they have not introduced any matter other than law avoiding scrupulously any reference to

68 Paragraph nos. 442 and 443 of 8th Amendment case.


29

political and extraneous matters.69 The Constitution 8th Amendment Act had been made to provide

justice to the people at a lesser expense70 but the Court did not pay any heed in this matter and kept

completely silent on this issue. It is very surprising and astonishing to look at about the complete

silence and willpower of the Court to say anything on this point of facilitating easy access to justice to

all over the Bangladesh invariably and equally despite of frequently raising of this plea by the defence

learned advocates.

Merely holding seat of High Court Division in several places outside Dhaka cannot violate or destroy

the unitary character and oneness of Supreme Court of Bangladesh, because there is nothing as seating

as Supreme Court at all in Bangladesh except its two Divisions as the Appellate Division and the High

Court Division. If the articles of Chapter I, Part VI of the Constitution relating to the Supreme Court are

analyzed it will be seen that the Supreme Court as such has no judicial function. Comparing with any

proceeding constitutional document prior to the independence it will be seen that in our Constitution

whenever the Constitution-makers wanted to refer to the general attributes of a superior courts, they

mentioned ‘Supreme Courts but where jurisdiction and judicial function are concerned, they mentioned,

‘Appellate Division and High Court Division’ separately although the two together constitute the

Supreme Court. Thus while providing for a permanent seat in Article 100, the generic term ‘Supreme

Court’ has been mentioned Rule-making power has been vested in the Supreme Court (Article 107).

Article 108 provides that the Supreme Court shall be a court of record and shall have all the powers of

such a court but while conferring jurisdiction and providing for exercise of judicial power, a clear

division has been maintained. Article 102 and 102 relate to the powers and jurisdictions of the High

Court Division while Articles 103, 104, 105 define the powers and jurisdiction of the Appellate

Division. Article 106 provides that the President may seek the opinion of Supreme Court on a question

of law under certain circumstances but the reference will have to be made to the Appellate Division

which is to be opinion in the matter. Article 109 provides that the High Court Division shall have

superintendence and control over all courts subordinate to it. Article 110 empowers the High Court

Division to withdraw any pending case from subordinate court when it is satisfied that the case involves

a substantial question of law as to the interpretation of the Constitution, etc. Thus it is clear that in

matters of exercise of judicial power, the High Court Division has been treated separately in the

Constitution and the impugned amendment is but only extension of such treatment. What is very

important to remember is that no other Article of Chapter I having been amended (except 107 (which is

consequential) it must be presumed that the integrity of Supreme Court/High Court Division with its

unlimited territorial jurisdiction has not been impaired and the High Court Division has remained one as

before and therefore the impugned amendment has to be construed in harmony with all the other

provisions of Chapter I”.71 Constitution talks about the unitary character of the Supreme Court and not

unitary character of the High Court Division only. Mere seating the benches of justices of the High

Court Division in separate place does not undermine the unitary character of the Supreme Court, if so,

then contemporary division of jurisdiction and power of High Court Division into separate benches

seating by different justices in different room is liable to be treated as violation of unitary character of

69 Afzal, ATM J, at para 532 of 8th Amendment case1989 DLR (AD) 165. 70 Said by Attorney General in the 8th Amendment case, reported in 41 DLR (AD) 165, at para 28. 71 Afzal, ATM J, at para 618 of 8th Amendment case1989 DLR (AD) 165.


30

the Supreme Court of Bangladesh, thus violation of basic structure. Thinking like this evidences very

narrower and mechanical interpretation of law. This is also the result of subjective verification of basic

structure which is better misuse of its virtue and basic character. Mere apportionment of the benches of

the High Court Division could not affect the territorial jurisdiction of the High Court Division. This

judgment is a reflection of colourable72 judicial decision. Judiciary can declare a piece of Parliament

colourable, thus ineffective and ultra vires, but there is nothing who can declare any judicial decision as

colourable, thus ineffective. Only people can do that. This decision itself violated the basic norm and

basic structure of the Constitution because the effect of this judgment is the acceleration of

centralization of power and this judgment is an anti-democratic attempt. It is causing hindrance in the

promotion and strengthening the local government of Bangladesh. Two of the fundamental principles of

democracy are to promote and accelerate of local government and free and to facilitate equal access to

justice for all. This judgment is causing justice centralized and inconvenient to all people of

Bangladesh. It is making justice expensive. It is causing multiplicity of suits and proceedings. It is

lingering the way of justice. It is promoting centralization. It accelerates not only the centralization of

power but also making Bangladesh dependent on Dhaka. In this case though Constitution upholds but

the rights and wills of the general people terribly ignored. It is foolish to think that the justices were not

concerned about the people’s right and easy access to justice but they technically avoided this ground

and somehow misinterpret the Constitutional spirit. Uncertainty of basic structure is certainly liable for

this while it leaves scope for materialization by the judiciary also. Though the problem is not rooted in

its uncertainty rather it mostly depends upon those which apply it and the purpose securing of which

this is applying. Justice Shahabuddin Ahemd said in para 416 that “main objection to the doctrine of

basic structure is that it is uncertain in nature and is based on unfounded fear. But in reality basic

structures of a Constitution are clearly identifiable. Several inconsistencies found in the impugned

provisions of the Constitution (Eighth Amendment) Act, 1988, despite, if the Appellate Division

wanted could provide some positive directions for removing those legal inconsistencies for making it

practically implemented. Despite of having so power to direct the legislative to have the impugned

amendment legally effective removing some inconsistencies the Appellate Division was voluntarily

refrained from positive approach. This was their judicial politics because by any means as stated earlier

the Appellate Division wanted to have the impugned provisions of said amendment as void, ineffective

and unsuccessful.

Coming to the question whether the amendment of Art.100 affected the basic structure of the

Constitution, three learned Judges found that the High Court Division with plenary judicial power over

the entire Republic is a basic structure of the Constitution and the amendment having destroyed the

plenary judicial power of the High Court Division altered the basic structure of the Constitution and is,

therefore, void. In the opinion of Badrul Haider Chowdhury-

The amendment sub-article (5) has disrupted structure balance that was carefully erected

in part VI of the Constitution.... if sub-article (5) attempted to create two new sets of

Courts by a device terming them as “permanent Bench” and the Bench at the “permanent

72 In law colourable legislation means what cannot be done directly cannot be done indirectly. For details see

Kudate-E-Elahi v. Bangladesh 44 DLR (AD) 319.


31

seat” then....the least that can be said is that it is hit by Article 114 which enables the

legislature for setting up subordinate courts of law but such must not be of co-ordinate

jurisdiction or compete with Article 44... Sub-article (5) has clearly destroyed the

structural pillar of the Constitution as given in Article 94 and thus has violated the

mandate of the Constitution and further brought itself within the mischeif of the provision

of Article 7 (2).73

Shahabuddin Ahmed J observed-

The High Court Division as an internal part of the Supreme Court has lost its original

character as well as most of its territorial jurisdiction. Seven judicial bodies, by whatever

name they are called, Benches or Courts, are, to all intents and purposes, independent

courts having no relation with each other except a thin link through the Chief Justice...

“The High Court Division” sitting in the permanent seat is not the original High Court

Division with jurisdiction over the whole of the Republic, it is a court with limited

territorial jurisdiction- that is, the jurisdiction over what is called the “residuary area” in

clause (5) of the impugned Article... High Court Division, as contemplated in the

unamended Article is no longer in existence and as such the Supreme Court, one of the

basic structures of the constitution, has been badly damaged, if not destroyed altogether.74

According to M.H.Rahman J-

One of the fundamental aims of our society is to secure the rule of law for all citizens and

in furtherance of that aim Part VI and other provisions were incorporated in the

Constitution. Now by the impugned amendment that structure of rule of law has been

badly impaired, and as a result the High Court Division has fallen into sixes and seven-

six at the seats of the permanent Benches and seven at the permanent seat of the Supreme

Court.75

The learned dissenting Judge, A.T.M Afzal J held-

It is clear that in matters of existence of judicial power, the High Court Division has been

separately in the Constitution and the impugned amendment is but only an extension of

such treatment. What is important to remember is that no other Article of Chapter I has

been amended (except 107(3) which is consequential) it must be presumed that the

integrity of the Supreme Court/ High Court Division with its unlimited territorial

jurisdiction has not been impaired and the High Court Division has remained one as

before and therefore the impugned amendment has to be construed in harmony with all

other provisions of Chapter I.76

Before coming to the conclusion that the amendment did not impair the integrity of the High Court

Division with its unlimited territorial jurisdiction, the learned dissenting Judge commented-

...the entire argument on behalf of the appellants rests on an assumption.. that by

assigning the areas to the permanent Benches and leaving the residue to the High Court

Division sitting at the permanent seat, the jurisdiction of the judges on those Benches

have been limited to the areas thus assigned (territorial limited) and as such they have

ceased to be judges of the High Court Division exercising plenary power through out the

Republic as envisaged under the Constitution. If this assumption or interpretation is

73 Ibid, Para 139-14. 74 Ibid, Para 378, ibid. 75 Ibid, Para 456, ibid. 76 Ibid, Para 580, ibid.


32

correct, I shall have no hesitation to accept the argument elaborated for days together that

the High Court Division, a structural pillar of the constitution, has ceased to exist....

The above contentions of dissenting judge are made in supporting a Pakistani case77 submitted by the

learned Attorney General, M. Nurullah. In Shamsuddin the Chief Justice of the West Pakistan High

Court was empowered to make provision for assigning area included the power to modify the

assignment. Transfer of a case is nothing but modification of such assignment in a particular case. Thus

the Pakistan Supreme Court had no difficulty in finding the power of transfer in favour of the Chief

Justice even though there was no express grant of such power.

Criticizing the opinion of the said Hon’ble dissenting judge Learned Senior Advocate Mahmudul Islam

opined but this decision had no application in this case and in the 8th Amendment Case sub-Art. (5)

conferred the power of any assignment of area on the President and as such in the absence of any

specific provision in the Constitution, the question of the Chief Justice modifying the assignment in

particular cases could not arise and any such exercise of the power of transfer, whether by making rules

or otherwise, would be ultra vires amended art. 100. Learned Advocate is often criticized by others who

are on the view that his argument is wrong as he failed to interpret that though power is given to the

president only for making it prompt and speedy but there was no bar that Chief Justice cannot transfer

it. Court could make an observation to this effect or declare only this particular provision void and

further could direct to have the same corrected or remove this provision. Court could take liberal

approach and harmonious rule of interpretation.

Learned Senior Advocate Mahmudul Islam further opined-

“the learned Judge drew a distinction between jurisdiction in relation to an area and

jurisdiction within an area. It is submitted that the distinction is really not material. Sub-

art (5) provided that the President seat would have jurisdiction and the area not assigned

would be the area in relation to which the High Court Division at the permanent seat

would have jurisdiction and the area not assigned would be the area in relation to which

the High Court Division at the permanent seat would have jurisdiction. This made it clear

that the jurisdiction of the High Court Division at the permanent seat would be limited to

the unassigned area, while the jurisdiction of a permanent Bench would not extend to the

area not assigned to it. The rules framed made the position further clear highlighting the

exclusivity of the jurisdiction....This was crucial and the learned Judge also agreed when

he said that the absence of any authority to transfer cases would amount to creation of

seven High Court Divisions with mutually exclusive jurisdiction which is entirely outside

the contemplation of the Constitution.78 The learned judge was of the view that through

authority to transfer cases has not been given to any body, the Chief Justice could always

make rules providing for transfer of case in his discretion when sub-art (6) conferred

power on him to make rules providing for all incidental, supplemental or consequential

matters relating to permanent Benches. Transfer of cases, it is submitted, cannot be

treated as an incidental, supplemental or consequential matter. When the place of suing is

determined by law, transfer of a case from its legal forum is inconsistent with the law,

unless the law itself provides for such a transfer. Therefore, power to transfer is always

expressly given. In this case, an express provision for transfer of cases was necessary

because exercise of such a power would conflict with the exclusivity created by sub-art.

77 Shamsuddin v. Gauhar Ayub (1965) 17 DLR (SC) 384. 78 Ibid, Para 596.


33

(5).79 Any rule providing for transfer of cases would be ultra vires, unless the constitution

itself expressly permitted making of such a rule.”80

Learned Attorney General made extensive and highly academically accepted arguments to this effect

referring several case laws and other incidences of foreign countries, but as stated earlier the Court paid

no heed thereon. For better understanding that how the assenting judges came into a wrong conclusion

regarding the plenary jurisdiction of the High Court Division and the impugned provisions violated the

basic structures of the constitution submissions made the learned Attorney general against these pleas

are summarized below-

“(i) Because the various Articles of the Constitution including amended Article 100 and

the rules made there under not having affected the integrity of the High Court Division,

its power of judicial review having not been taken away, Article 100 having merely

provided for functional re-arrangement of the High Court Division without affecting its

integrity or fullness of power, its power and jurisdiction having reminded the same

subject to the provisions contained in Article 100 of the Constitution, as amended, and

the assignment of areas to the six Benches having not affected the fullness of jurisdiction

vested in the Judges of the High Court Division, subject, or course, to the provisions of

the amended Article 100 of the Constitution, the contention of the appellants that the

amendment of Article 100 of the Constitution and the rules framed thereunder have

affected the powers and jurisdiction of the High Court Division is not sustainable.

(ii) Because Article 100(5) of the Constitution having empowered the President to assign

the area in relation to which each permanent bench shall have jurisdiction, powers and

functions conferred on the High Court Division by the Constitution or any other law and

this power having been conferred by the Constitution the President is competent to

exercise the power under Article 100(5); and Article 100(5) having also provided that

the area not so assigned shall be the area in relation to which the High Court Division

sitting at the permanent sent of the Supreme Court shall have such jurisdictions, powers

and functions, Article 100(5) merely provided for functional re-arrangement of the High

Court Division and a permanent bench of the High Court Division and the High Court

Division at its permanent sent exercise the same jurisdiction as conferred on the High

Court Division by the Constitution or by law subject to the provisions of amended

Article 100 of the Constitution and its jurisdiction is not restricted to the area assigned to

it and it may issue order or direction to have effect beyond the area so assigned, and

therefore, the functional re-arrangement as provided by Article 100(5) of the

Constitution does not affect the powers and jurisdiction of the High Court Division.

(iii) Because the contention that the words “and the area not so assigned shall be the area

in relation to which the High Court Division sitting at the permanent sent shall have

such jurisdiction, powers and functions”, were not in the original bill but were added

subsequently and therefore, this part should be struck down is untenable inasmuch as

Article 142 of the Constitution does not expressly or by implication prohibit any

amendment of a bill for amendment of the Constitution after it has been introduced

during its passage through the House.

(iv) Because the Chief Justice having framed rules under Sub-Article (6) of Article 100

providing for incidental and consequential matters relating to permanent benches, in

79 In SK. A.K.M Abdul Mannan v Raj Textile Mills, (1990) 42 DLR (AD) 11, the Appellate Division held that it

could not transfer a civil case from one permanent Bench to another in exercise of power under Art. 104 in the

absence of any statutory provision. 80 Islam, Mahmudul (2012), The Constitutional Law of Bangladesh, Published by Mullick Brothers, 3rd Edition,

May, 2012, Pp. 531-532.


34

exercise of the powers conferred by Art, 100(6) of the Constitution, the rules so framed

have the force of law and the some not being in conflict with any provision of the

Constitution are valid and intravires the Constitution.

(v) Because the Constitution (Eighth Amendment) Act has not affected the provisions of

Article 101, 102, 109 and 111 of the Constitution inasmuch as, even after the

amendment, the High Court Division, subject to Article 100, has the same jurisdiction as

conferred by Article 101, exercises the same jurisdiction as conferred by Article 102,

exercises the same power of superintendence and control under Article 109 over all

courts subordinate to it and its judgments have the same binding effect under Article 111

of the Constitution.

(vi) Because the amendment of Article 100 of the Constitution has not altered Articles

101, 102, 107, 109, 110 and 111 of the Constitution inasmuch as subject to Articles 100,

the High Court Division exercises the same jurisdiction, some power of

superintendence, the judgments of the Supreme Court have the same binding effect,

power and position of the Supreme Court under Article 107 and 108 have not been

affected and therefore, the contention that in the grab and pretext of amending Articles

100 of the Constitution Articles 101, 102, 107, 108, 109, 110 and 111 have been altered

is untenable.

(vii) Because Article 100(5) of the Constitution has empowered the President to assign

the areas in respect of which the permanent Benches of the High Court Division shall

have jurisdiction which function is neither judicial nor quasi-judicial but purely an

executive function and the President in assigning the areas is not also required to act

judicially and therefore, the contention that Article 100(5) has given power to determine

the territorial jurisdiction of the permanent Benches and thereby to affect the jurisdiction

of the High Court Division in its permanent sent offends against the principle of

separation of powers as enunciated in Article 22 or alters the essential feature and basic

structure of the Constitution is based on misconstruction of Article 100(5) of the

Constitution and is untenable.

(viii) Because there has been no alteration or modification of the Constitution

jurisdiction of the High Court Division by amendment of Article 100 of the Constitution,

and such power has not been delegated to the President and therefore, the contention that

the power of alternation or modification of the Constitutional jurisdiction of the High

Court Division has been delegated to the President is based on misconstruction of

Article 100(5) of the Constitution and is untenable.

(ix) Because the transfer of pending cases does not involve interference with the

jurisdiction of the court inasmuch as the pending cases which stood transferred will be

disposed of by the same High Court Division either in its permanent sent or in one of its

permanent Benches exercising the full jurisdiction of the High Court Division conferred

on it by the Constitution or by law and the transfer of pending cases is covered by the

expression “incidental, supplemental and consequential matters” appertaining to Article

100(6) and therefore, the rules framed by the Chief Justice providing for transfer of

pending cases from the High Court Division in its permanent sent to permanent Benches

is intra-vires Article 100(6) of the Constitution.

(x) [He boldly uttered and draw an analogical submission that before declaring the

impugned provisions as violating the basic structure of the Constitution it is necessary to

declare Constitution (Fourth), (Fifth) and (Seventh) Amendment Acts void for violating

the basic structure of the Constitution]”81. Very interestingly, at that time Learned Senior

Advocate Mahmudul Islam did not support this contention made by the Learned

81 See pages 56-65 of the Concise Statement on behalf of the Respondents in the Civil Appeal No. 43 of 1988.


35

Attorney General but in his new book he supported this contention and devoted

thousand words strengthening this view.82

[Note: It is noted that the Learned Attorney General, M. Nurullah and his companion

Advocates submitted 70 pages Concise Statements and 100 pages submissions referring several

case laws from India, Pakistan, USA and other countries but their opinions, reasoning and legal

submissions are very little seen to be reflected in the opinion of the assenting judges of the

Appellate Division in the 8th Amendment Case which is really shocking, unfair, partial and

biased. That is why the viewers are less acquainted with the counter/rebuttal arguments made

by the learned Advocates of the respondent i.e. Government of Bangladesh. Their submissions

are academically so enriched and high valued that it should be exposed to public to make

understand that how the assenting judges misusing and materializing the doctrine of basic

structure terribly ignored people’s expectation and easy access to justice and came to an error

conclusion that impugned provisions violated the integrity of High Court Division, thus

Supreme Court, thus violated the basic structure of the Constitution of People’s Republic of

Bangladesh.]

“Sovereignty” belongs to the people and it is a basic structure the Constitution. There in no dispute

about it, as there is no dispute that this basic structure cannot be wiped out by amendatory process.

However, in reality, people’s sovereignty is assailed or even denied under may devices and ‘cover-ups’

by holders of power, such as, by introducing ‘controlled democracy’, basic democracy or by super-

imposing thereupon some extraneous agency, such as a council of elders or of wisemen. If by

exercising the amending power people’s Sovereignty is sought to be curtailed it is the constitutional

duty of the Court to restrain it and in that case it will be improper to accuse the Court of acting as

“super-legislators’’. Supremacy of the Constitution as the solemn expression of the people, Democracy,

Republican Government, Unitary State, Separation of Powers, Independence of the Judiciary,

Fundamental Rights are basic structures of the Constitution. There is no dispute about their identity. By

amending the Constitution the Republic cannot be replaced by Monarchy, Democracy by Oligarchy or

the Judiciary cannot be abolished, although there is no express bar to the amending power given in the

Constitution. Principle of separation of powers means that the sovereign authority is equally distributed

among the three Organs and as such one Organ cannot destroy the others: these are structural pillars of

the Constitution and they stand beyond any change by amendatory process. Sometimes it is argued that

this doctrine of bar to change of basic structures is based on the fear that unlimited power of

amendment may be used in a tyrannical manner so as to damage the basic structures. “In view of the

fact that ‘power corrupts and absolute power corrupts absolutely’, I think the doctrine of bar to change

of basic structure is an effective guarantee against frequent amendments of the Constitution in sectarian

or party interest in countries where democracy is not given any chance to develop”.83 This kind of

interpretation is a constitutional deadlock. Already long time elapsed. Now it is the people of

Bangladesh who can change this scenario. “If abuse occurs, it occurs at the hands of a special

organization of the nation and of the States representing an extra-ordinary majority of the people, so

82 Supra Note: 80, Pp. 539-545. 83 Afzal, ATM J, at para 580 of 8th Amendment case1989 DLR (AD) 165.


36

that for all practical purposes it may be said to be the people, or at last the highest agent of the people,

and one exercising sovereign powers. Thus the people merely take the consequences of their own

acts”.84 It has already been mentioned above that the best safeguard against the abuse of power is public

opinion.85 “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws

and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of

men and women; when it dies there no constitution, no law, no court can save it, no constitution, no

law, no court even do much to help it. When it lies there it needs no constitution, no law, no court to

save it.”86

Though it is considered that doctrine of basic structure of the constitution has firmly and finally been

established and settled by the 8th Amendment Case but it worth to mention for all of our review afresh

of the said judgment only 2 (two) amongst the 4 (four) judges relied on this doctrine and 2 (two) others

have not relied upon it. Even, amongst the 2 (two) judges who relied on this doctrine justified it from

different perspective. Mr. Justice Badrul Haider Chowdhury opined “some of the features are basic

features of the Constitution and they are not amendable by the amending power of the

Parliament….Hence the constitutional scheme if followed carefully reveals that these basic features are

unamendable and unalterable”87. Summing up his view it is found that he relied on basic structure by

creating a nexus between basic structure and the constitutional overall scheme which is originated from

the provisions in black letters and also from the intention of the constitution makers as reflected in the

black letters of the constitution within. Mr. Justice Shahabuddin Ahmed does not entail any details

justifying or elaborating any reason for relying upon doctrine of basic structure. In para 376 of the 8th

Amendment judgment he directly acknowledged that “there is no dispute that the constitution stands on

certain fundamental principles which are its structural pillars and if these pillars are demolished or

damaged the whole constitutional edifice will fall down”. He emphasized on the implied limitation of

the power of amending the constitution. To this effect he noted the difference between the constituent

power of adoption of the constitution and the derivative power from the constitution itself for amending

the same having regard to the connotation of the term ‘amendment’ took the view that amendment of

the constitution does not mean its abrogation or destruction or a change resulting in the loss of its

identity and character. Without going into the detail discussion about Mr. Justice Habibur Rahman

contended that the doctrine of basic structure is in a nascent stage and it may take some time before it

gets acceptance from the superior courts where constitutionalism is prevailing. Instead of relying upon

the doctrine of basic structure he mostly reasoned his decision on the ground of express limitation in the

matter of amendment of the constitution. He however, held that when Parliament itself cannot alter

Preamble and certain other provisions of the constitution then it cannot impair or destroy the

fundamental character of the constitution. But this contention is not tenable after the Constitutional

(Fifteenth Amendment) Act because it omits Article 142 (1A) and (1B).

84 Orfeild, L.B., The Amending of Federal Constitution, quoted by ATM Afzal at para 580 of 8th Amendment

Case, 1989 DLR (AD) 165. 85 Afzal, ATM J, at para 580 of 8th Amendment case1989 DLR (AD) 165. 86 Hand, Learned, Spirit of Liberty, quoted by ATM Afzal at para 580 of 8th Amendment Case, 1989 DLR (AD)

165. 87 See para nos. 192,255 and 256 of the 8th Amendment case.


37

The leading advocates of the petitioner reasoned highly against the impugned amendment that it

violated the oneness and unitary character of Supreme Court and jurisdiction of the High Court

Division. It is argued that impugned provision of the said Constitution 8th Amendment Act violates the

unitary character of the Supreme Court and the learned Advocates gave a prolong submission

describing the early history of the Indian Supreme Court and the High Court since British period, but

how and in what way that history related to the upholding of the unitary character of the High Court

Division of the Supreme Court of Bangladesh that remains unanswered. If so long history practically

caused legal embargo or impossibility in apportionment of the benches of the High Court Division in

different places, then India had never several benches/seats of High Court in different places. Because,

India knows such apportionment is relating to the division of benches/seats in different places and it has

nothing to apportion the jurisdiction, of course. Assenting justice in 8th Amendment case also confirmed

this plea. What they did is very narrow interpretation of the soleness and uncertainties of jurisdiction of

High Court Division which is absolutely subjective. This subjective confinement narrows the wider

jurisdiction of the High Court Division. Narrow interpretation retains one thing back capable of being

expanding and causes bar on progressive realization. Learned counsel for the petitioners wrongly

argued that the impugned Act violated the admiralty jurisdiction of the High Court but that was not a

matter of great concern. There were so many alternatives to solve this problem. Government could

make special court or tribunal or conferred jurisdiction on the High Court Division separating territorial

command. Several pleas raised by the petitioner’s advocate for misleading the court which included the

plea regarding long title in the constitutional amendment act, regarding the pending cases before the

earlier High Court Division, regarding consultation with the Chief Justice etc. The dissenting justice

ATM Afzal replied very intelligently and logically against those plea. Neither in the amended article

nor in the Rules, there is any provision for transferring a case from permanent Bench to principal set or

vice versa for hearing by the Chief Justice and this was pointed out time and again to show that the

Benches are separate courts with mutually exclusive territorial jurisdiction.88

Dr. Kamal Hossain argued that there can be little doubt that the farmers of the Constitution never

intended to confer a power of amendment which would extend to destroying the supremacy of the

Constitution. Thus the power of amendment under Article 142 of the Constitution is not unlimited and

is subject to the limitation that an essential feature and basic structure of the Constitution cannot be

altered or destroyed. But in the debates of constituent Assembly he supported the extensive power of

Amendment under Article 142.

Even the role of dissenting justice Mr. Justice ATM Afzal is subject to question. He argued from an

error point of law that there is no theory of implied limitation in amending power in a written

Constitution. Therefore he referred several decisions of USA, India, Australia and opinion of many

scholars etc. In his verse ‘the theory of implied limitation or prohibition on the amending power under a

written constitution does not seem to have been approved in any jurisdiction either of UK, USA or

Australia.89 He mostly relied on the theory of originalism thus to look the intention of the constitution

88 Afzal, ATM J, at para 634 of 8th Amendment case1989 DLR (AD) 165, 89 Para 581, 8th Amendment Case, 1989 DLR (AD) P. 165.


38

makers as inferred from the text of the constitution and also from the debate of the constituent

assembly. He boldly opposed to the basic structure and held it is contrary to the express intention of the

Constitution. This is again subjective verification of basic structure. Summing up his reasoning reads

out inter-alia that-

“….it is signification that the article [Article 142 of the Constitution] opens with a Non

Obstante Clause. A Non-Obstante Clause is usually used in a provision to indicate that,

that provision should prevail despite anything to the contrary in the provision mentioned

in such Non Obstante Clause. (The Interpretation of Statutes-BINDRA P.949). In the

presence of such a clause in Article 142, it is difficult to sustain the contention of the

appellants that some provisions containing of the appellants that some provisions the

amendment of any provision has to stand the test of validity under Article 7. The ‘basic

feature’ theory does not appeal to reason on those two fundamental grounds. The first is

that it is inconceivable that the makers of the Constitution had decided on all matters for

all people of all ages without leaving any option to the future generation. Secondly, if it is

right that they wanted the so-called ‘basic features’ to be permanent features of the

Constitution there was nothing to prevent them from making such a provision in the

Constitution itself. On the other hand, it has been noticed that the makers placed no

limitation whatsoever in the matter of amendment of the Constitution except providing for

some special procedure in Article 142. Further after the incorporation of sub-article (1A)

providing for a more difficult procedure of referendum in case of amendment of the

provisions mentioned therein, the contention as to further ‘essential features’ becomes all

the more difficult to accept. The Constitution, as now stands, by the said sub-art (1A)

amply manifests that except the provisions mentioned therein, no other provision is so

basic that it will need a referendum for its amendment to be incorporated in the

Constitution. All the provision of the Constitution are essential and no distinction can be

made between essential and non-essential feature from the point of view of amendment

unless the makers of the Constitution make it expressly clear in the Constitution itself. If

the positive power of amendment of the Constitution in Article 142 is restricted by raising

the wall of essential features, the clear intention of the Constitution-makers will be

nullified and that would lead to destruction of the Constitution by paving the way for

extra-constitutional or revolutionary changes. So long the Constitution exists; there is no

other method of amendment open to the people. K.C. Wheare in ‘Modern Constitution’

P.89-90 states, ‘Moreover, once a Constitution is enacted, even when it has been

submitted to the people for approval, it binds thereafter not only the institutions which it

establishes, but also the people itself.”

The theory of implied and inherent limitation could not be allowed to act as a boa constrictor to the

clear and unambiguous power of amendment.”90 The main hopelessness lied in his opinion that he did

not argue from the point of democracy, merit of decentralization, access to justice, promotion of local

government, true intention of the constitution makers under Article 44, 102 etc which are the

fundamental pillars of the Constitution. He failed to address the point of Article 7 and Preamble as well

where repeated emphasis added on the people’s power and expectation. Without opposing the basic

structure and without spending much time, afford and cost explaining Article 142 if he would go into

the details of nature of basic structure justifying it through objective verification as rooted in the

people’s expectation, consensus, behavior and if he would argue that the impugned provision91 of the

impugned Act did not violated the basic structure or Grundnorm (ground of rules) of the Constitution

that had been much better, logical and rationale. Though he cited several opinions of several scholars

90 Para 573-575, Ibid. 91 Section 7 of the Constitution (Eight) Amendment Act 1988 (Act No. 30 of 1980) dated 9.06.1988.


39

regarding the value of people’s expectation which was the centre concern of all power and duties but he

vehemently failed to relate those points with the instant case in basic structure perspective.92 He viewed

basic structure in very mechanical and subjective way. If he would relate basic structure with Kelson’s

pure theory of law, or Grundnorm or verified basic structure objectively and find its origin into the

history of legal jurisprudence, the reasoning decision and the way he made decision in this case would

be far more different and progressive. It could leave the way for future discussion for the upcoming

lawyer, judges, scholars, academician and public as well. He failed to pick up one the very fundamental

point raised and accepted by the petitioner’s advocates and the assenting justices about the violation of

oneness of the Supreme Court and jurisdiction of the High Court Division. How could the division of

benches/seats of the High Court Division in several places affect the territorial or other jurisdiction of

the High Court Division or the jurisdiction of the Supreme Court? The mere apportionments of the

division of benches of the High Court Division is a matter of procedural convenience and it is for

facilitating for justice to the doorsteps of the general people at large, it does not affect the substantive

or other statutory jurisdiction of the High Court Division or the Supreme Court. What was bad or

prejudicial in that? The leaned advocates on opposition and the said dissenting Hon’ble Justice failed to

address this issue. He merely stated that “upon a true interpretation of the amended Art 100 particularly

sub-art (5) read in the context of all other provisions of Chapter I, Part VI, the position that emerges is

that the plenary jurisdiction is vested in the judges of the High Court division under Arts. 101 and 102

has remained unaffected and the provisions of the amended Art. 100, particularly that of sub-art (5)

read with rule (4) of the impugned rules merely provide for the places from where and the manner in

which such jurisdiction is to be exercised. The limitation of territory under sub-art (5) is meant to

operate not on the jurisdiction of the Court or if judges but on the manner of its exercise. There is a

fundamental difference between jurisdiction of a court and the manner of its exercise.”93

Mahmudul Islam is one of filling advocates of Civil Petition for Leave to Appeal. So it is reasonably

expected that he would strongly support the doctrine of basic structure of the constitution.

Consequently, he argued in favour of basic structure and he further pleaded the impugned provision of

the Constitutional 8th Amendment Act violated the basic structure of the constitution. Therefore, we

cannot expect from him that he would oppose it arguing from different angles e.g. from the perspective

of people’s expectation, access to justice, availability of justice in less expense and most easy way.

Learned Attorney General made extensive arguments from this point of view referring the division of

benches of High Court Division permanently in several provinces in India and Pakistan only for

considering the need of public at large for getting easy access to justice in lesser expense and also for

decentralizing one of the supreme powers of one of the supreme organs of the state. It is very surprising

and shocking that even a progressive and mostly accepted value free learned Advocate Mahmudul

Islam has also paid no heed and made no comment to this effect. He does not consider the objective

verification of basic structure. In his latest edition of book on Constitutional Law of Bangladesh he also

remains silent and places several arguments supporting the basic structure of the constitution, the 8th

Amendment Judgment, and the impugned provisions violated the basic structure of the Constitution.

92 For details please see para nos. 576-588, supra note: 3. 93 Para nos. 611 and 612, of the 8th Amendment case, 1989 DLR (AD) P. 165.


40

The role played by the advocates of the opposition party i.e. the Attorney General and his/her

companion brothers/sisters is also subjected to acute criticism. They could have played better role

actively than that of they had played. They had not spent much effort in substantiating and

strengthening their arguments. They did not catch up certain vital issues tightly relating to this case

which might lead the decision of this case towards another direction. In fact, they also belonged to the

same community as the assenting justices and the petitioner’s advocates were. For securing their

interest too they did not pay much attention. Their role was obviously not neutral and could not be

expected to act fairly. They were seen to attend and take part in the earlier anti movements, procession,

meetings, assembly to the impugned division of benches of the High Court Division. Being the defence

lawyer for the State they had no alternative other than to oppose the petitioner’s counsel, otherwise their

role would be more controversial.

Moreover, the fundamental issue of this case was wrongly framed because the principal issue was

framed on one point and decision was given on another point. The issue was about the amendment

power of the parliament to the Constitution but it was entirely decided on the matter whether the seat of

the High Court Division cannot be transferred outside the premise of Dhaka. It is also evident from the

order portion of the 8th Amendment Judgment which is as follows-

“1. By majority judgment the appeals are allowed; the impugned orders of the High

Court Divisions are set aside.

2. The impugned amendment of Article 100 along with consequential amendment of

Article 107 of the Constitution is held to be ultra vires and hereby declared invalid.

3. This invalidation however will not effect the previous operation of the amended

Articles and judgments, decrees, order, etc. rendered or to be rendered and transactions

past and closed.

4. In view of this invalidation, old Article 100 of the Constitution stands restored along

with the Sessions of the High Court Division.”94

The case was developed on the cause apparent but the case was ultimately motivated by and decided on

the cause behind. To bridge this gap the Court intentionally brought basic structure into active play.

Ultimately, a good doctrine was used malafide. The justices neither wanted to nullify the whole of

Constitution (Eighth) Amendment Act nor wanted to affect the activities of the Martial Law regime. All

that they wanted jointly not to hold the seat of the High Court Division outside Dhaka. If they truly

wanted to intervene or to raise voice or to challenge the activities of Martial Law Administrator they

could declare Constitution (Seventh) Amendment Act void and illegal, but they did not. Without doing

so and without declaring the Constitution (Eighth) Amendment as void altogether they partially used

the holiness of basic structure securing their ulterior and political motive.

94 Last para i.e. Order portion of the 8th Amendment Case.


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6.0: Constitutional Provisions Where the Doctrine of Basic Structure May Be Rooted In

The case laws of Bangladesh and India lay down certain constitutional provisions which may reflect the

basic structures of the Constitution of the respective state each. The approach, as stated earlier,

followed by the judiciary in applying basic structure in case laws of Bangladesh and India is very

frivolous and slender which confines to subjective verification of basic structure.

6.1: Constitution of India

In the seminal Kesavanand case95 each judge laid out separately, what he thought were the basic or

essential features of the Constitution. There was no unanimity of opinion within the majority view

either. Sikri, C.J. explained that the concept of basic structure included:

• supremacy of the Constitution

• republican and democratic form of government

• secular character of the Constitution

• separation of powers between the legislature, executive and the judiciary

• federal character of the Constitution

Shelat, J. and Grover, J. added two more basic features to this list:

• the mandate to build a welfare state contained in the Directive Principles of State Policy

• unity and integrity of the nation

Hegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:

• sovereignty of India

• democratic character of the polity

• unity of the country

• essential features of the individual freedoms secured to the citizens

• mandate to build a welfare state

Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the

Constitution and the provisions into which they translated such as,- (i) sovereign democratic republic,

(ii) parliamentary democracy and (iii) three organs of the State.

The above mentioned features are in no way exhaustive. Whether a feature is “basic” or not is to be

determined from time to time by the court as and when the question arises.96 In Indira Gandhi v.

Rajnarain97, the SC has unequivocally ruled that the Preamble to the Indian Constitution guarantees

equality of status and of opportunity and that the Rule of Law is the basic structure of the

Constitution.98

95 Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461. 96 Jain, M.P., Constitutional Law of India, Wadhwa Publication pg. 1645 97 Indira Nehru Gandhi v. Raj Narain, AIR 1975 SCC 2299 98 Supra Note: 9.


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Chandrachud, CJ., in Minerva Mills case99 observed thus, “ The Indian Constitution is founded on the

bedrock of the balance between Parts III and IV. To give absolute primacy to one to one over the other

is to disturb the harmony of the constitution. This harmony and balance between fundamental rights and

directive principles is an essential feature of the basic structure of the Constitution.”

Chandrachud J. says in Minerva Mills Limited case100 that “The Preamble assures to the People of

India a polity where basic structure is described therein as a Sovereign Democratic Republic”. It is also

claimed that the objectives set out in the preamble of the Constitution of India are themselves

ambiguous and they cannot throw any light on the provisions of the Constitution because they stand in

need of interpretations themselves.101 But in 1975 in Smt. Smt. Indira Gandhi V. Rajnarain102 he

previously opined that “I find it impossible to subscribed to the view that the Preamble to the to the

Constitution holds the keys to its basic structure ... the preamble can not affect or throw light on the

meaning of the enacting words of the Constitution. Therefore, though our preamble was voted upon and

is a part of the Constitution, it is really’ a preliminary statement of the reason’ which made the passing

of the Constitution necessary and desirable...”. In the same case Mathew J. said that “the preamble,

though a part of the Constitution is neither a source of power nor a limitation upon that of the

ideological aspirations of the people. ... It is impossible to spin out any concrete concept of basic

structure out of the gossamer concepts set out in preamble. The specific provisions of the Constitution

are the stuff from which the basic structure has to be woven”103.

In the context of Bangladesh, it was decided in the 8th Amendment case that at least the concept of

‘Rule of law’ contained in the Preamble constitutes the basic structure of the Constitution of

Bangladesh.104 Badrul Haider Chowdhury, J. has made it very clear in the following words: “that

Constitution promises ‘economic and social justice’ in a society in which ‘the rule of law, fundamental

human right and freedom, equality and justice’ is assured and declares that as the fundamental aim of

the State. Call it by any a name- ‘basic feature’ or whatever, but this is the basic fabric of the

Constitution which cannot be dismantled by an authority created by the Constitution itself-namely, the

Parliament”.105

There was further affirmation of the Basic Structure doctrine in Waman Rao v. Union of India106. In

Samapath Kumar case107 and Sambamurthy108 the judges laid down that the rule of law and judicial

review were integral to the Basic Structure.Effective access to Justice is part of the basic structure,

according to the ruling in Central

99 Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625. 100 AIR 1980 SC 1789 at p. 1811. 101 Seervai H.M., Constitutional Law of India, 4th ed. Universal Book Traders, Delhi, 2002, vol. 2 p. 282. 102 AIR 1975 SC 2299 Para 347 at p. 2386. 103 Ibid. 104 Haque, Muhammad Ekramul, The preamble of the Constitution of the People’s Republic of Bangladesh: An

Analysis from Legal Perspective, (The Dhaka University Studies), Part-F Vol. XV (2): 107-122, December 2004. 105 Ibid., p. 96 para 195 106 (1981)2 SCC 362. 107 S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124. 108 P. Sambamurthy v. State of Andhra Pradesh (1987) SCC 362


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Coal Fields case109.

In Kihoto Hollohon110, the Supreme Court has declared, “Democracy is a basic feature of the

Constitution and election conducted at regular prescribed intervals is essential to the democratic system

envisaged in the constitution. So is the need o protect and sustain the purity of the electoral process that

may take within it the quality, efficiency and adequacy of the machinery for resolution of electoral

disputes.”

In Bommai111 Sawant and Kuldip Singh, JJ., have observed: “Democracy and Federalism are essential

features of our constitution and are part of its basic structure.” In the same case, the Supreme Court has

ruled that secularism is a basic or an essential feature of the Constitution. In this case K. Ramaswamy,

J., quoting Dr. S. Radhakrishnan and Mahtma Gandhi, explained the concept of secularism as a basic

feature of Constitution of India, at para –124: “...The Constitution has chosen secularism as its vehicle

to establish an egalitarian social order. I am respectfully in agreement with our Brethern Sawant and

Jeevan Reddy, JJ. In this respect ‘Secularism’, therefore, is part of the fundamental law and basic

structure of the Indian political system to secure all its people socio-economic needs essential for man’s

excellence and of moral well being, fulfillment of material prosperity and political justice.”112

In State of Bihar v. Bal Mukund Sah and Ors.113, the Supreme Court observed that the concepts of

“Separation of Powers between the legislature, executive and Judiciary” as well as “the fundamental

concept of independent judiciary have been now elevated to the level of basic structure of the

constitution and are the very heart of the constitution scheme.

6.2: Constitution of Bangladesh

Not less than 1 (one) year of assiduous forethought and persistent debate and patience, the Constitution

makers produced the Constitution of People’s Republic of Bangladesh. With an impermeable and

perpetual desire to serve the Nation and cater to the cause of welfare of the people of the country, the

framers of the Constitution had left no stone unturned in order to deliver a perfect and precise

Constitution. A close “reading of the Constitution shows, that Bangladesh Constitution envisages a

State, whose fundamental aim is to realize through democratic process a socialist society, free from

exploitation- a society in which the rule of law, fundamental human rights and freedom, equality and

justice, political, economic and social, will be secured for all citizens. Keeping this Proclamation in the

Preamble in view, the Constitution has given fundamental principles of state policy,…”114. There are

certain principles basing on which the Constitution of Bangladesh is standing and glittering. Does the

power of amendment extend to a degree which vitiates the fundamental pillars of the Constitution? The

settled answer is ‘no’. Question arose wherefrom the ‘no’ comes. Is it derives from the contents

109 Central Coal Fields Ltd. V. Jaiswal Coal co. 1980 Supp SCC 471 110 AIR 1993 SC 412. 111 S.R. Bommai v. Union of India AIR 1994 SC 1918 at 1976. 112 S. R. Bommai V. Union of India AIR 1994 SC 1918, (Page–2019 -20). 113 AIR 2000 SC 1296. 114 CJ, Kemaluddin Hossain, Jamil Haq vs. Bangladesh 34 DLR (AD) 1982 P. 125, para. 3.


44

provided in the black letters of the Constitution or from outside the Constitution. One of the pre-

dominant judicial founder of the basic structure concept in Bangladesh, namely Justice Mustafa Kamal

has emphasized on the objective value addition of the basic structure stating that ‘yet even

constitutional lawyers and judges may discern some fundamental structural designs in a Constitution as

when an architect views a building. They can see the schematic structure of the constitutional edifice,

the basic pattern into which the constitutional fabric has been woven. ‘Call it basic structures or

structural fabric or by whatever name they are there and in my eyes they are principally the following in

our constitution’115 but later intentionally or unintentionally, may be, he has deviated from this and has

tried to confine the basic structure of the Constitution in the constitution-contained provision in its

apparent letter. Furthermore for substantiating his argument he has referred certain provisions of the

constitution as basic structure of the constitution of Bangladesh which includes ‘a unitary, independent,

sovereign Republic, separation of powers, independence of judiciary, parliamentary democracy,

fundamental rights, and judicial review’116.

In 8th Amendment case one of the leading Justice Mr. Badrul Haider Chowdhury mentioned the

following provisions of Bangladesh Constitution are the unique features117 where the basic structure

may be rooted in,-

1). It is an autochthonous constitution because it refers to the sacrifice of the people in

the war of national independence after having proclaimed independence.

2. The Preamble: It postulates that it is our sacred duty to safeguard, protect, and

defend this Constitution and to maintain its supremacy as embodiment of the will of the

people of Bangladesh.

3. Fundamental aim of the State is to realize through democratic process a society in

which the rule of law, fundamental human rights and freedom, equality, and justice will

be secured.

4. Bangladesh is a unitary, independent, sovereign Republic.

5. All powers in the Republic belong to the people. The Constitution is the supreme law

of the Republic and if any other law is inconsistent with the Constitution that other law

shall be void to the extent of inconsistency. Such article e.g. Article 7 cannot be found

in any other Constitution.

6. Article 8 lays down the fundamental principles to the Government of Bangladesh.

This article is protected like the Preamble and can only be amended by referendum.

7. Article 44 figures as a fundamental right and sub-article (2) says without prejudice to

the powers of the High Court Division under Article 102 Parliament may by law

empower any other court, within the local limits of its jurisdiction, to exercise all or

any of those powers.

8. Article 48. The President shall be elected by direct election. This is also a protected

Article which can only be amended by referendum.

115 Kamal, Mustafa J (April, 2001), Bangladesh Constitution: Trends and Issues, 1st published: July, 1994,

Reprint: April, 2001, Chapter 2 (Constitution -Its Basic Features), P. 14. 116 Ibid. 117 Anwar Hossain Chowdhury V. Bangladesh, 1989 BLD (Spl) 1, paragraph 254.


45

9. The President shall appoint as Prime Minister who commands the support of the

majority of the members of Parliament. This Art. 58 is also protected and can be

amended by referendum. This presupposes the existence of Parliament within the

meaning of Art. 65.

10. There shall be a Supreme Court for Bangladesh to be known as the Supreme Court

of Bangladesh comprising the Appellate Division and High Court Division (Article

94). This is given by the Constitution which the people of Bangladesh “do hereby adopt

enact ad give to ourselves this Constitution”.

11. This Constitution has erected three structural pillars e.g. Executive, Legislative, and

Judiciary-all these organs are creatures of the Constitution. None can compete with the

other.

12. Judges shall be independent in the exercise of their judicial functions (Article 94(4)

and 116A)

13. In case of necessity a Judge of the High Court Division can sit as ad-hoc Judge in

the Appellate Division-that shows to the oneness of the Court itself. (Article 98).

14. If any question of law of public importance arises the President can refer the

question to the Appellate Division although it is the opinion of the Supreme Court

(Article 106).

15. In the absence of the Chief Justice the next most Senior Judge of the Appellate

Division may perform those functions if approved by the President. Such clause cannot

be found in any other Constitution. It thus safeguards the independence of judiciary

(Article 97) (See Art. 126 and 223 of Indian Constitution).

16. The plenary judicial power of the Republic is vested in and exercised by the High

Court Division of the Supreme Court (Articles 101, 102, 109 and 110) subject to few

limitation e.g. in Article 47, 47A, 78, 81(3) and 125.

17. The power of superintendence of subordinate Courts is exercised by the High Court

Division and these courts are subordinate to the Supreme Court (Article 114).

18. If a point of general public importance is involved in a case pending before a

subordinate court the High Court Division has the power to transfer the case to itself.

This is unique feature of the Constitution because this power is not available to any

High Court either in India or Pakistan. Nor such power was available under the

Government of India Act, 1935.

19. The plenary judicial power of the Republic is not confined within the territories of

the Republic but extends to the functionaries and instrumentalities of the Republic

beyond the Republic. See Article 102

20. The declaration and pledges in the Preamble have been enacted substantively in

Article 7 and 8. While Preamble and Article 8 have been made unamendable,

necessarily Article 7 remains as unalterable.

21. Judges cannot be removed except in accordance with provisions of Article 96-that

is the Supreme Judicial Council. Sub-article (5) says if after making the inquiry, the

Council reports to the President that in its opinion the Judge has ceased to be capable of

properly performing the functions of his office or has been guilty of gross misconduct,

the President, shall, by order remove the Judge from office. This is unique feature

because the Judge is tried by his own peers, ‘thus there is secured a freedom from

political control’ (1965 A.C. 190).


46

In 8th Amendment case per para 362 Dr. Kamal Hossain has referred to the Preamble of the

Constitution of Bangladesh and certain Article including Article 1,7,8,44 and 102 in order to show that

the provisions therein clearly indicate the intention of the makers of the Constitution that its basic

pillars were intended to last for all time to come. A Preamble gives the intention of the makers of the

Constitution, the objects which are sought to be achieved, the purposes for which are sought to be

achieved, the purpose for which the State itself was establish and the fundamental principles as to

exercise of the sovereign power for governance of the country. A Preamble reflects the long cherished

hopes and aspirations of the people and contains the ideologies of the State and gugarantees

fundamental rights of the people. In the Constitution of Bangladesh, Part IV, defines the power of the

Execution, Part V and Part VI, respectively that of the Legislature and the Judiciary.

In 8th Amendment case per para 363 Mr. Amir-ur-Islam has referred to the Proclamation of

Independence dated 10 April 1971 made when the war of Independence began. This Document and the

Constitution including its Preamble show the Principles and Ideals for which our national martyrs

sacrificed their lives and our brave people dedicated themselves to the said war. Essential features of

these documents are People’s Sovereignty, Constitution’s supremacy, Independent Judiciary,

Democratic Polity based on free election and justice. He has emphasised the fact that these fundamental

principles were not followed, and the basic rights were denied to us, during the Pakistan regime and that

is why the War of Independence was fought and won and consequently these rights and principles have

been enshrined in the Constitution as the solemn expression of the people’s will and that these

objectives are intended to last for all time to come and not to be scrapped by any means including

amendment of the Constitution.

7.0: The Result of 8th Amendment Case in Absence of the Indian Experience with the Doctrine of

Basic Feature in the Keshvananda Bharti Case

If the Indian Keshvananda case had not been filed or doctrine of basic feature had not been pleaded in

the said case the result of the 8th Amendment case might not be different though finding and justifying

reasons behind the obiter dicta of the 8th Amendment case would be different. The result would not be

different though the justifying causes might be different because judges and lawyers were seemingly

pre-determined to declare the impugned provision of Constitutional 8th Amendment Act so far relates to

the transfer of seats of the High Court Division null and void. This was their judicial politics. It is

evident from a resolution took place in a conference of the Supreme Court Bar Association118 attended

by representatives of 43 Bar Associations including 13 District Bar Associations out of 72 Bar

Associations from all over of Bangladesh. In resolution nos. 4 and 5 the Conference unanimously

adopted the following Resolutions:

“4. The bifurcation of the High Court Division of the Bangladesh Supreme Court by the Martial

Law Proclamation Order No. II of 1982 dated 8th May, 1982 by setting up of 3 more permanent

118 Proceedings of the conference of the representatives of Bar Associations of Bangladesh held on 20th May,

1983, at 9.30 a.m. at Supreme Court Bar Association Hall Dhaka.


47

Benches outside Dhaka was not conducive for healthy and effective dispensation of justice

more so in a unitary form of government as such the said Proclamation be withdrawn and the

High Court Division should be restored to its original form and jurisdiction and if necessary

Circuit' Bench of the High Court Division as provided in the Constitution of 1972 may be set

up by the Chief Justice of the Bangladesh at any place or places as may be deemed necessary.

5. That the decentralization of the Subordinate Judiciary, particularly, the courts of Magistrates

and Munsifs at Thana level is unnecessary, useless and harmful and as such it should

immediately be withdrawn and dropped.”

When Ershad came into power as a Chief Martial law Administrator and apportioned the benches of the

High Court Division in Jessore, Rangpur and Comilla outside Dhaka it was taken like SIDRE upon

judiciary by the advocates, judges and lawyers. General people accepted it widely but thousands of

processions, movements, and series of meetings, discussions and resolutions took place against this by

the lawyers, judges and advocates. Several times formal proposals were presented before Ershad for

withdrawing the concerned notification.

The Proceedings of the Emergent General Meeting of the Bangladesh Supreme Court Bar Association

held on 10.10.1982 at 12-00 noon in the Southern Hall of the Association Building with Mr. Serajul

Huq, President of the Association in the chair passed the following resolution unanimously-

"After successful abstentions from the Court in 4 Division held to-day the 10th day of

October, 1982 reiterates and reaffirms its resolution in regard to the scheme of

decentralization of the High Court Divisions of the Supreme Court which amounts to

disintegration of the Judiciary of the country and once more requests the Chief Martial Law

Administrator to review the whole situation in regard to the decentralization of the High

Court Division and restore the High Court Division in its original fore as well as for larger

and greater interests of the country all decisions of schemes in regard to the judiciary of the

country including the District and Sub-ordinate Courts should not be set into operation unless

a broad-based National Law Commission be set up with eminent retired Judges and Members

of the Bar who will hold a regular enquiry and assess public opinion and submits report."

The lawyers, judges and advocates left no stone unturned to stop this division of High Court Benches

into 4 (four) different places of Bangladesh. They were highly determined to prevent this initiative at

the cost of anything. Notorious but true that lawyers and advocates dishonestly and disrespectfully hide

several documents and important instruments/documents from the office of Supreme Court. Criminal

charges also brought against those perpetrators by the Government against which all advocates and

lawyers stood strongly and pressurized the Government to withdraw the charges.119 “GB mfv mycÖxg‡Kv‡U©i

nvB‡KvU© wefvM we‡K› ª̀xKiY D™¢y` cwiw ’̄wZ‡Z mycÖxg‡KvU© AvBbRxweiv MZ 1982 mvj n‡Z jvMvZvi Av‡›`vjb Pvjv‡”Q Ges

Av‡›`vjb‡K MwZkxj I kw³kvjx Kivi j‡¶¨ wewfbœ mg‡q Kg©m~Px w`‡q‡Q Ges mycÖxg‡KvU© AvBbRxwe mwgwZi †bZ…‡Z¡ AvBbRxwe

mgšq̂ cwilÌ MVb Kiv n‡q‡Q| Ges †ckvRxwe msMVb Gi Rb¨ AMÖYx fywgKv wb‡”Q Ges wewfbœ mg‡q Av‡›`vjb cwiPvjbv Kivi

Rb¨ Znwej MVb Kiv n‡q‡Q myZivs Av‡›`vjb Znwej n‡Z Av‡›`jb‡K †eMevb I MwZkxj Kivi Rb¨ D³ Znwej n‡Z H mg¯—

msMV‡bi e¨vcv‡i e¨q Kivi h_vh_ ¶gZv mfvcwZi Aby‡gv`b mn m¤úv`‡Ki _vK‡e Ges GB mfv D³ Av‡›`vjb Znwe‡ji Rb¨

119 For details see the resolutions of the meeting of the Supreme Court bar association held on 18th October, 1982

at 12 a.m. with Mr. Bazlur Rahman Talukder, vice-president of the association in the chair.


48

cÖ‡Z¨K m`m¨‡ì wbKU nB‡Z by¨bZg 50/- (cÂvk) UvKv Zv‡i eva¨Zvg~jK Pv`v †bIqvi wm×vš— MÖnb Ki‡Q| Aóg ms‡kvabx

m¤ú‡K© AviI ¯úó e³e¨ †`kevmxi wbKU †ck Kivi Rb¨ GKwU mvsevw`K m‡¤§jb Kivi Rb¨ AvMvgx kwbev‡ii g‡a¨ wm×vš— MÖnb

Ki‡Q|”120 This dissatisfaction and movement was also reflected in many places of the 8th Amendment

Judgment. Thousands of afford met with no success during the strong power play by Ershad. As soon as

his power faced turmoil and tarnished thereby the lawyers, advocates and judges did not wait for a

second to take this ill attempt of preventing the division of sets/benches of High Court Division in

several places of Bangladesh outside Dhaka. As a part of series of plan and attempts the 8th Amendment

Case was filed.

That is why this judgment is also condemned as reproduction of preconceived/presupposed judgment

output of joint conspiracy of bar and bench of the Supreme Court of Bangladesh. Doctrine of basic

structure was only adopted by the Court for legalizing their ulterior purpose. This doctrine merely

helped to secure and validate that purpose. If the doctrine of basic features had not been adopted in the

Keshavananda case the judges would take any other new or existing shield for nullifying the 8th

Amendment Act of the Constitution. If the judges really wanted to establish basic structure they could

do that before there were several other cases which were filed against the Constitutional Amendment

Acts121 which manifestly violated the fundamental feature of the Constitution and changed its basic

nature and in those cases the plea of basic structure was taken but court did pay much attention thereon.

This case was decided back to the legal submission laid down by the lawyers in this case, even before

the filing of this case and, the later arguments or legal reasoning was contained in the judgment only for

justifying and legally substantiating that pre-judgmental view. The way the advocates made their

submissions and justices replied to those arguments in this case and the way of materializing their view

evidenced that the decision was predetermined. Very interestingly Justice Habibur Rahman before

elaborating any point at the very first paragraph he pronounced his decision.122 It is argued that the case

was filed intentionally after having mutual meeting of mind of bar and bench of the Supreme Court of

Bangladesh. This is evident from the earlier experience as met by the Court with similar kind of plea

raised by some of the progressive lawyers in notable cases, whereof the petitioners tried to substantiate

their arguments under the shield of basic structure which were mostly met with disappointment.

In the case Hamidul Hoque Chowdhury and others vs. Bangladesh, 33 DLR (1981) P. 381123 one of the

fundamental issue raised by the petitioners that the Fourth Amendment Act violated some of the basic

and fundamental feature of the Constitution. Without expressing any concrete view or opinion on this

issue the High Court Division of Supreme Court of Bangladesh had very discreetly avoided this

substantial question of law. In the exact version of the petitioners the plea was that “.…amendment of

120 Resolutions took place in an Extra-Ordinary General Meeting of the Supreme Court Bar Association held on

5.06.1988. 121 Several cases filed challenging the 4th, 5th and 7th Amendment of the Constitution which are also discussed in

several paragraphs of this paper. 122 “In last seventeen years the Constitution has experienced avulsion and kinds of reformation in situ. Far-

reaching and radical changes had been introduced in the Constitution both during the time when it was

functioning and during the time when it was not allowed to function. For the first time an amendment of the

Constitution has been challenged in this Court and it is now declared to be unconstitutional”. Para 422 of 8 th

Amendment case, DLR 1989 (AD) P. 165. 123 Arising out of Writ Petition Nos. 482 and 483 of 1980.


49

the Constitution in December, 1973 by incorporating the provision for declaration of emergency and

subsequent amendment of the Constitution by the Act No. II of 1975 being the Fourth Amendment of

the Constitution was clearly an alteration and violation of the fundamental structure and framework of

the Constitution and as such the impugned legislations must be declared to be void ones and should be

struck down by this Court’124. The petitioners further submitted that ‘…as a result of radical change of

the Constitution by Fourth Amendment the Constitution has been converted and altered beyond

recognition. The change to Presidential system has changed the complexion and character of the

Parliament and as such the Parliament lost its competency to pass the impugned law….the

incorporation of a provision in the constitution providing proclamation of Emergency and the Fourth

Amendment was beyond the amending power of Parliament and as such void, and if the Parliament or

any state organ is allowed to transgress its powers, the Constitution would be reduced to a document

not even worth the paper upon which it has been written’125. In this contention the petitioners referred

the cases, Goloknath vs. State of Punjab, AIR 1967 SC 1643 and Minerva Mills Ltd vs. Union of India,

AIR 1980 SC 1789. In response of said plea in the obiter of the said Hamidul Huq case the leading

Justice, namely Sultan Hossain Khan expressed the view regarding the aforesaid submission that-

“the Constitution is the supreme law of the country. All powers of different organs of the

State are derived from the Constitution. The Constituents or the fathers of the Constitution

provided for a parliamentary Democratic system. The constitution clearly provided for

protection of the citizens by guaranteeing Fundamental Rights. Limitations or restrictions

as to enforcement of Fundamental Rights of citizens and provisions as to making of laws

by Parliament inconsistent with Fundamental Rights were made by incorporation of a

provision relating to a proclamation of Emergency in the Constitution and by introduction

of Fourth Amendment in the Constitution Act II of 1975 the basic and essential features of

the Constitution were altered and destroyed. Parliamentary democratic system was

changed to a presidential system of Government. This alterations and amendments of the

Constitution reduced the constitution out of recognition. It was, in our opinion beyond the

powers of Parliament as the donee of prescribed powers under a controlled Constitution to

alter the essential features and the basic structures of the Constitution. We are, though, in

agreement with the views expressed in the cases of Goloknath vs. State of Punjab, AIR

1967 SC 1643 and Minerva Mills Ltd vs. Union of India, AIR 1980 SC 1789 but the

principles enunciated in those decisions cannot be applied to the present case, firstly,

because the constitutional process in this country has followed a different course in view

of the change of political system in consequence of the change of the Government in

August, 1975, Secondly, after lapse of merely six years interposed by extra-constitutional

processes which has not been resisted by people and having been recognized by several

judicial authorities, this questions, namely the unconstitutionality of the impugned

enactment on ground of loss of competency of the Parliament in 1975 on account of

Fourth Amendment and creation of immunity of laws during proclamation of Emergency

though this were violative of Fundamental Rights cannot be entertained. It is seen that

several parts of Fourth Amendment were incorporated and retained in several

proclamation made by the Chief Martial Law Administrator during the period from 15th

August 1975 7th April, 1979 when Martial Law was lifted. This proclamation

incorporating, retaining or recognizing several parts of Fourth Amendment of 1975 are

immune from attack from a court of law. The Parliament of Bangladesh also by Act I of

124 Para 16 of the judgment and order dated 11.08.1981 in the case Hamidul Hoque Chowdhury and others vs.

Bangladesh, 33 DLR (1981) P. 381. 125 Ibid.


50

1979 has ratified this Proclamation. The impugned legislations therefore cannot be

challenged”.126

This finding is extremely criticized by the Learned Senior Advocate Mahmudul Islam who states that “a

change of the political system by unconstitutional method cannot immunize an unconstitutional

amendment. There is no political decision accepting the amendment as valid and as such the question of

judicial recognition cannot arise. A constitutional amendment cannot be avoided by a collateral attack

and in the same way validity of a constitutional amendment cannot be established in any collateral

proceeding in which the question of the validity of the amendment was not mooted. There cannot be

any plea of waiver127, or acquiescene128 in respect of unconstitutionality129. It is held in Sindh High

Court Bar Association v. Pakistan130 that ‘we are inclined to take the view that in a situation where

people did not show any reaction or failed to hold even peaceful rallies or protests against the

unconstitutional, illegal and void ab initio acts of a usurper of power, such inaction and apathy could

not be pressed into service to justify such constitutional and illegal acts, as was done on the previous

cases….We hold and declare that the unconstitutional and illegal acts would remain unconstitutional

and illegal even though nobody comes up to challenge the same in a court of law, or nobody asks to the

streets to protest against then, or the political opponents or other disgruntled elements resort to

jubilations and sweet distributions at the unconstitutional; and illegal; ouster of those in power by

means of imposition of martial law.’ Passage of time cannot impart validity to an otherwise

unconstitutional act (e.g. a statute declared invalid after 18 year131s and a statute held unconstitutional

after 58 years132). Time does no run in favour of legislation. If it is ultra vires, it cannot gain legal

strength from long failure on the part of lawyers to perceive and set up its invalidity. Albeit, lateness in

an attack upon the constitutionality of a statute is but a reason for exercising special caution in

examining arguments by which the attack is supported133”134

Here the court technically avoided opining anything regarding the constitutional demolition of its

fundamental features by the intrusion of the Constitution (Fourth Amendment) Act, 1974. The court, if

wanted, could declare the impugned legislations as questioned in the said case as void and ineffective

on the ground of violating the fundamental/basic features/basic structures of the constitution which was

one of the fundamental issues of this case but the Court technically avoided addressing the question

with much concern. This might be for the reason that the judiciary was indifferent in applying this

constitutional doctrine/principle with distinct worth and value most. Another reason might be the

adverse surrounding circumstances, social and political context which did not make a favorable or

suitable platform for the judiciary that could corroborate judiciary taking such a bold step to declare

those impugned legislations void on the ground of violating the basic structures of the Constitution.

126 Para 18, Ibid. 127 Grosse v. US (1967) 39 U.S. 62. 128 Field v. Clark (1892) 143 US 649. 129 Khondker Delwar Hossain v. Italian Marble Works Ltd. (2010) 62 DLR (AD) 298. 130 Sindh High Court Bar Association v. Pakistan130 PLD 209 SC 897. 131 Toronto Electric Commissioners v. Snider 1925 AC 396. 132 Proprietary Article Trade Association v. A.G. of Canada 1931 All E.R. Rep. 277. 133 Grace Ali, MP (2006) v. The Commonwealth (1945) 72 CLR 269, 289 and Khondker Delwar Hossain v.

Italian Marble Works Ltd. (2010) 62 DLR (AD) 298. 134 Supra Note: 80, P. 540.


51

Reasons might be otherwise which restrained the judiciary to declare any amendments made by the

usurper government void on the ground that the same violated the basic structures of the Constitution.

Most obvious and accepted reason might be the lack of legal coherence of this doctrine when this

doctrine was merely under construction. Since then the basic structure principle had not developed or

construed firmly till Keshavananda case and the 8th Amendment case. Though the basis of this doctrine

was under formulation as this plea rose in the said Goloknath and Sajjan Singh cases but; that was in

very elementary stage. Might be, declaring the impugned legislations in the said Hamidul Huq case

relying on the basic structure principle of the Constitution might be very pre-mature or impulsive. This

self-restraint was deliberate. The theoretical proposition behind this willpower was to secure this

doctrine for future use when this can be adopted confidently and established in a more mature and

grown-up state whereby espousal and use of this doctrine would be more appropriate, legally and

politically justified and supportive by the Constitutional norms and judicial practice of other countries.

But, controversially, waiting for this mature adoption suffers lack of legal consistency and judicial

confidence and coherence. These kinds of excuses or defences are not logically acceptable, because, the

plea of basic structure for declaring any constitutional amendment void has already been firmly

established in 1964 in Fazlul Kadir case as stated earlier. Following that case, if the judiciary intended

and had the courage enough could declare the Constitutional 4th Amendment Act void unconstitutional

on the ground of basic structure. Mathematically it need to acknowledge that there would not have any

better case other than said Hamidul Huq case for applying basic structure for invalidating and nullifying

any constitutional amendment act. It is also supported in the 8th Amendment Case and by Learned

Senior Advocate Mahmudul Islam.135 On the other hand this exposes the judicial infidelity towards (i)

the original and novel constitutional spirit to uphold the supremacy of the Constitution and save the

constitutional spirit from intruders intrusion, (ii) to the accountability and answerability of the judiciary

as to its sacred duty conferred by the constitution itself, thus conferred by the people at large, (iii) to the

inherent duty and merit of the judiciary and lastly, to the public blind faith and belief upon the

judiciary.

Learned Senior Advocate Mahmudul Islam the Constitutional (Twelfth Amendment) Act, 1991 and the

Constitutional (Fifth Amendment) Act, 1979 also violated some of the basic structures of the

Constitution of Bangladesh and those are liable to be declared unconstitutional, ultra vires, and void ab

inition.136 The Constitutional (Fifth Amendment) Act, 1979 was declared on the said ground. Therefore,

it remains open for the judiciary to declare the Constitutional (Fourth Amendment) Act, 1974, the

Constitutional (Seventh Amendment) Act, 1986 and the Constitutional (Twelfth Amendment) Act,

1991 unconstitutional, ultra vires, and void ab ignition. Similar types of question regarding the

Constitutional (Seventh Amendment) Act, 1986 was raised in the Siddique Ahmed v. Bangladesh

2011137 but the validity of this Amendment was not particularly challenged in this case. But in

pursuance of the 8th Amendment case and the 5th Amendment case138 the aforesaid disputed

Constitutional Amendment Acts should liable to be stand unconstitutional, ultra vires, and void ab

135 Supra Note: 80, P. 540. 136 Ibid, Pp. 541-547. 137 Siddique Ahmed v. Bangladesh (2011) 63 DLR 565. 138 Khondker Delwar Hossain v. Italian Marble Works Ltd. (2010) 62 DLR (AD) 298.


52

initio. Moreover, if the High Court Division wants, can suo moto declare those disputed Constitutional

Amendment Acts unconstitutional, ultra vires, and void ab initio. It was rightly picked up by the

learned Attorney General in 8th Amendment Case that before the impugned provisions of Constitution

(Eight Amendment) Act there are certain other provisions of the Constitution (Fourth), (Fifth) and

(Seventh) Amendment Acts including the other provisions of the Constitution (Eight Amendment) Act

which not only violated the basic structures and fundamental pillars of the constitution but also alters

of the 4 (four) fundamental pillars and founding aim of our constitution.139 The Hon’ble Appellate

Division paid no heed to these analogical arguments.

8.0: Political Materialization of Basic Structure

Both in India and Bangladesh the formal recognition or institutional day-light identification of basic

structure is followed by the verdict of the judiciary. Hence, subjectively basic structure is more judicial

contribution than that of others. The evolution of basic structure doctrine has been very central to the

development of the power of judicial review in India. Hence judiciary can materialize it against the

political democratic government; even a neutral judiciary can materialize it against the basic norms of

the society and political consensus of the people and can alter the basic character of the Constitution.

Some argue that through basic structure Indian Supreme Court has assumed much greater power of

constitutional judicial review which is not available even to courts where traditionally the separation of

powers is most deep rooted. Many show a concern that basic structure is nothing more than a vulgar

display of usurpation of constitutional power by the Supreme Court of India which is essentially anti-

democratic in nature and violates the sacred constitutional framework. On the other hand basic structure

is more oriented to constitutional norms and as claimed, it can be used only against validating and

invalidating the act of parliament, hence there is possibility of materialization of basic structure by

political government. Therefore the materialization of basic structure may be judicial politics and also

may be the politics of political government. Basic structures being construing and reflecting the value

creating norms might have acute possibility of being politically materialized. The Constitution vests the

legislature to make laws and amend the Constitution by an ‘Act of Parliament’. The Constitution vests

in the judiciary, the power to adjudicate upon the constitutional validity of all laws. If a law made by

Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has

the power to declare such a law invalid or ultra vires. This check notwithstanding, the founding fathers

wanted the Constitution to be an adaptable document rather than a rigid framework for governance.

Hence Parliament was invested with the power to amend the Constitution. Article 142 of the

Constitution gives the impression that Parliament's amending powers are absolute and encompass all

parts of the document. But the Supreme Court has acted as a brake to the legislative enthusiasm of

Parliament ever since independence. With the intention of preserving the original ideals envisioned by

the constitution-makers, the apex court pronounced that Parliament could not distort, damage or alter

the basic features of the Constitution under the pretext of amending it. It is still uncertain to draw any

139 For details see page nos. 15-20 of the Concise Statement on behalf of the Respondents in the Civil Appeal No.

43 of 1988.


53

conclusion about the relationship between parliament and court created by the basic structure whether

the same is inverse or intersecting.

8.1: Materialization by Judicial Politics

Contesting arguments about the reality of basic structure and the power of judicial review of Indian

Supreme Court is nothing more than a reflection of what the arguments in the case were all about. At

one side where the pro-basic structure judges found it extremely important to recognize, if not invent,

the ghost of basic structure, on the other hand the pro-parliament judges found it to be an unwarranted

and undemocratic exercise of power over Constitution. Among the many fascinating arguments that

were raised in Keshavananda case, the core arguments of both the sides rested on the same footing of

preserving the constitution from being irreparably damaged by the very institutions that it created.

Though, it has been observed that many a judges (both in minority and majority) found the real debate

to be that of supremacy of constitution and not one institution over the other within the democratic

framework. I guise of doctrine of basic structure exercising the power of constitutional amendment and

thereby declare any constitutional amendment Act made by the democratically elected government is

the most usurper exercise of judicial politics which is a misuse and colourable exercise of judicial

solemn power. This apprehension is not hypothetical. This is happening in fact. Judiciary obviously

can declare any constitutional amendment Act as unconstitutional and void but cannot revive the earlier

provision of the constitution directly. It is against the practice of judicial norm. As soon as the court

declare any constitutional amendment Act as unconstitutional and void it stands automatically

ineffective, illegal and of no legal effect but the task of revival of original constitution remains in the

hands of democratically elected government though officially but it is the mandate of our true

democratic scheme of our constitution. In the 8th Amendment Judgment the assenting judges of the

Appellate Division very outrageously and out of judicial norm has not only allowed the appeal and

thereby set aside the judgment and order of the High Court Division but also restored old Article 100 of

the Constitution along with the Sessions of the High Court Division. Allowing of appeal and setting

aside the judgment and order of the High Court Division is enough to prove the impugned provision of

impugned amendment as void and ineffective and thereby automatic restoration of the Article 100 in its

earlier condition. In all cases including landmark 5th Amendment Case, Twelfth Amendment Case,

Thirteenth Amendment Case, even in the case of declaring any statute or administrative action void and

unconstitutional Court just declare it void, unconstitutional and of no legal effect. This is the judicial

practice. It also upholds the separation of powers. It is the duty of Parliament to formally restore the

earlier provision on the basis of Court’s declaration of the new/amended provision as void,

unconstitutional and of no legal effect. From the aforesaid point of thought the doctrine of basic

structure is a ‘subjective one and largely relies upon the values of the judges, who influenced by

inherited instincts, traditional beliefs, acquired convictions, and conceptions of social need formulate,

their own peculiar yardsticks and values and the same vary from person to person and time to time’140.

140 Tyagi, Himanshu, Doctrine of Basic Structure (Constitutional Law),

at: http://www.legalserviceindia.com/articles/thyg.htm.


54

Among other things, the major criticism that has been leveled against the judicial invention of basic

structure is the vagueness and uncertainty that mars it. Almost all the minority judges in the

Kesavananda case and many a theorists who either oppose or support the theory of basic structure have

shown serious concerns about its utility in the face of the obscurity that it breeds on. Bhanu argues in

his paper141 that purpose of the doctrine is getting jeopardized due to its uncertain and unknown content.

He further goes on to suggest that it’s actually the obscurity of the doctrine which changes the power

equation between the parliament and the judiciary in the favour of latter. By being the sole institution

with the authority to interpret all the parts (and those which are not so!) of the Constitution, judiciary

has retained the task of defining the basic structure in future. The underlying purpose of being able to

understand and identify the true nature and content of this doctrine is to be able to prevent and defend

this doctrine which has given a new meaning to democracy and constitutionalism in India. It has been

dealt with quite absurdity when the courts argued that “…we will know it when we see it” and puts in

doubt the fide of the judicial institution in devising this doctrine142.

The most judicial appropriation of the basic structure is seen in the principle case establishing basic

structure in Bangladesh. Judicial invention of basic structure in 8th Amendment case is not value free or

neutral, rather, it is largely considered as misleading. The learned Attorney-General contesting 8th

Amendment case did not dispute the existence of basic structure but he contended that in all other

concepts the basic structure is vague and uncertain. In absence of full catalogue of these basic structures

neither the citizen nor the Parliament will know what the limit of power of amendment of Constitution

is. The Parliament will never be able to know what amendment it can make in the Constitution and

what it cannot and that to ‘find out the essential or non-essential features of the Constitution is an

exercise in imponderables’. The theory of basic structure has to be considered in each individual case

and not in the abstract.143 Because, of its non-specification and uncertainty there remains near chance of

its being misused as happened in the 8th Amendment case. The learned Attorney-General concluded his

submission in tune of supporting the basic structure though it is wrongly used in this case because the

impugned amendment did not violate basic structure of the Constitution. The apprehension rooted in the

uncertain nature of basic structure is mentioned in the 8th Amendment case. ‘A bad use of good thing’

by how basic structure is used in the 8th Amendment case. The Hon’ble dissenting justice ATM Afzal

often wrongly get by the critics’ and he is condemned with the false allegation that he was against the

basic structure, but in sooth he was not. He opined that there was in-built limitation in the constitutional

power of amendment and that built-in limitation is not less than enough to restrict the hand of the

parliament. According to him there was no necessity to recognize Article 100 as the basic structure of

the Constitution because this Article may not be the basic structure of the Constitution. Though he did

not make any details clarification about the nature of basic structure or what were the sources of the

said built-in limitation or wherefrom the basic structure could be drawn but his greatness was in the

141 Bhanu, Pratap, “The inner conflict of constitutionalism: Judicial review and the Basic Structure” “India’s

Living Constitution: Ideas, Practices, Controversies”, edited by E. Sridharan, Zoya Hasan, R. Sudarshan,

Permanent Black, Delhi 2002. 142 Ibid. 143 Para 367 of 8th Amendment Case DLR 1989 (AD) 165.


55

point of taking opposing view against the assenting justices approach of defining and establishing

Article 100 as the basic structure of the Constitution.

8.2: Materialization by Political Government

One explicit materialization of basic structure by political government is reflected in the newly inserted

Article by the Constitutional Fifteenth Amendment Act calling 7B of the Constitution which runs as

follows,- “Notwithstanding anything contained in article 142 of the Constitution, the preamble, all

articles of Part I, all articles Part II, subject to the provisions of part IXA all articles of Part III, and

the provisions of articles relating to the basic structures of the Constitution including article 150 of

Part IX shall not be amendable by way of insertion, modification, substitution, repeal or by any other

means”; when upcoming government if want, repeal this provision of the Constitution that will be

another example of materialization. This endeavour expresses the impulsiveness, hastiness and

outrageousness of the political Government. It encourages numerous legal and factual complexities.

Learned Senior Advocate Mahmudul Islam has very boldly pointed out in the latest edition of his book

on Constitutional Law of Bangladesh stating inter-alia that “the Fifteenth Amendment, however,

narrowed the width of article 142 by inserting article 7B which provides that …. This is a futile

exercise. It is an essential principle of constitutional law that a Parliament cannot bind its successor.

Art. 7B not being a part of the original Constitution and thus not being a basic structure of the

Constitution, a future Parliament having the requisite majority, and even the Ninth Parliament, may

repeal art. 7B and then amend any of the provisions mentioned in Art. 7B except the provisions which

relate to the basic structures of the Constitution”.144

For the first time one clause of the Constitution expressly uses the term “basic structure”.

Simultaneously, it also recognizes the dormant existence of some provisions of the Constitution within

which constitutes the basic structures of the Constitution without making any further clarification or

specification as to those provisions which ought to be recognized as basic structures of the Constitution.

Certainly, this omission is deliberate and purposive. One reason may be for avoiding the responsibility

that may be arisen out of the possible risk of identifying and determining the basic structures if the tasks

have been carried out by any political government. The reason may be also for attributing the

responsibility upon the judiciary to determine the basic structures of the Constitution. The reason may

be also for avoiding controversies and upholding popularity. Reason may be also for lifting no new

constitutional issue which other political party can use as a tool of resistance against the ruling

government which inserted Article 7B but fail to gather more courage for determining the basic

structures of the Constitution. Reason may also be very positive and dynamic. Reasons may be political

and non-political. Reason may be also for avoiding possible threat of upholding the basic nature of the

basic structure doctrine of the Constitution, thus to secure it from further amendment. Because the event

of constitutional amendment in Bangladesh is so frequent and natural that next government for securing

its own political interest may not do fear/hesitate or feel shy to amend the basic structures of the

Constitution set out by the earlier Government. History of this Bangladesh since 16th December, 1972

144 Supra Note: 80, Pp. 523-524.


56

the Constitution of Bangladesh evidences that the political phase of this country has changed much

more times amended than the political governments are. Either political or non-political government

mostly some individual’s sovereignty prevails instead of popular sovereignty though it the grundnorm

or basic structure of the Constitution of Bangladesh.

Uncertainty of basic structure poses threat not for this doctrine itself only; rather it also widens the hand

of the parliament regarding constitutional amendment. This risk is rooted in those countries where

Constitution is not neutral, where the power of constitutional amendment is not neutral and specially,

where the most of the amendment are brought in the constitution for political purpose. Possibility of

political materialization of basic structure is the real threat arising out of the uncertainty of basic

structure. Article 142 was also referred as source of basic structure in the 8th Amendment case; hence

any change in this Article tantamount to infringe the basic structure. Article 142 lays down the power

and general procedure of constitutional amendment to all provisions of the Constitution of Bangladesh

along with special procedure for amending certain few provisions of the Constitution. Before the

Constitutional (Fifteenth) Amendment Act the Article 142 of the Constitution provided as such,-

“ (1) Notwithstanding anything contained in this Constitution –

(a) any provision thereof may be amended by way of addition, alteration, substitution or

repeal by Act of Parliament:

Provided that –

(i) no Bill for such amendment shall be allowed to proceed unless the long title thereof

expressly states that it will amend a provision of the constitution:

(ii) no such Bill shall be presented to the president for assent unless it is passed by the votes

of not less then two- thirds of the total number of members of Parliament :

(b) when a Bill passed as aforesaid is presented to the President for his assent he shall, within

the period of seven days after the Bill is presented to him assent to the Bill, and if he fails

so to do he shall be deemed to have assented to it on the expiration of that period.

(1A) Notwithstanding anything contained in clause (1), when a Bill, passed as aforesaid,

which provides for the amendment of the Preamble or any provisions of articles 8, 48 or 58 or

this article, is presented to the President for assent, the President, shall, within the period of seven

days after the Bill is presented to him, cause to be referred to a referendum the question whether

the Bill should or should not be assented to.

(1B) A referendum under this article shall be conducted by the Election Commission, within

such period and in such manner as may be provided by law, amongst the persons enrolled on the

electoral roll prepared for the purpose of election to Parliament.

(1C) On the day on which the result of the referendum conducted in relation to a Bill under

this article is declared, the President shall be deemed to have-

(a) assented to the Bill, if the majority of the total votes cast are in favour of the Bill being

assented to; or

(b) withheld assent thereform, if the majority of the total votes cast are not in favour of the Bill

being assented to.

(1D) Nothing in clause (1C) shall be deemed to be an expression of confidence or no-

confidence in the Cabinet or Parliament.

(2) Nothing in article 26 shall apply to any amendment made under this article”.145

After the said constitutional amendment said Article 142146 now provides that,-

145 Government Of The People’s Republic Of Bangladesh, by Ministry Of Law, Justice And Parliamentary

Affairs, [As Modified Up To 31ST December 1998], published on 26.01.1999.


57

“Notwithstanding anything contained in this Constitution –

(a) any provision thereof may be amended by way of addition, alteration, substitution or repeal by

Act of Parliament:

Provided that-

(i) no Bill for such amendment shall be allowed to proceed unless the long title thereof expressly

states that it will amend a provision of the Constitution

(ii) no such Bill shall be presented to the President for assent unless it is passed by the votes of not

less than two-thirds of the total number of members of Parliament;

(b) when a Bill passed as aforesaid is presented for his assent he shall, within the period of seven

days after the Bill is presented to him assent to the Bill, and if he fails to do so he shall be

deemed to have assented to it on the expiration of that period.”

Emphasis should be added on the changes made by the said Amendment by which the provision of

referendum as necessary for the amendment of Preamble and Preamble or any provisions of articles 8,

48 or 58 or 142 of the Constitution. No such referendum was held before amending Article 142 by the

Fifteenth Amendment Act. Many of the arguments in the 8th Amendment case and other cases for

justifying the basic structure or curtailing the hand of parliament regarding constitutional amendment

was largely advanced basing on this provision of referendum. It was argued as some of the

constitutional provisions were kept secured and beyond the general power of amendment, hence there

might be certain other provisions in the Constitution which cannot be amended. Justice B.H.

Chowdhury opined in ‘our Constitution is not only a controlled one but the limitation on legislative

capacity of the Parliament is enshrined in such a way that a removal of any plank will bring down the

structure itself. For this reason, the Preamble, Article 8, had been made unamendable-it has to be

referred to the people!’.147 .But this provision is repealed by said Constitution (Fifteenth Amendment)

Act. This may be a violation of one of the basic structure of Article 142 of the Constitution.

Many times the government politics is seen to be reflected in the judicial politics and vice versa. So

long judiciary acts against the tyranny decision of political government the basic norms of the society

and will/interest of people is secured but massacre happens when judiciary acts as an agent of political

government and judicial activities reflect the will of the political government and vice versa. Mutual

tyranny of judiciary and political government might abolish the basic norms of the society and abrogate

the basic structure. This can only be restored by the people and many often this attempt is seen to be

failed to the insurrection by the people at large. Constitution Fifteenth Amendment Act is the

reproduction of mutual consensus and politics of judiciary and the parliament. It is often claimed by the

scholars and critics as well that 5th Amendment judgment and the Constitution Fifteenth Amendment

Act has changed the true nature of original Constitution instead of producing the Constitution in its

original form and character. It is also claimed the these two, first one is the production of judiciary and

later one is the production of political government, while both are reproduction of each other and

reflection of mutual politics, has violated basic structure of the Constitution. As for example

parliamentary form of democratic government for Bangladesh is appreciated as basic structure of the

146 Article 142 was substituted by the Constitution (Fifteenth Amendment) Act, 2011 (Act XIV of 2011), section

42, The Constitution of People’ s Republic of Bangladesh, printed with latest amendment October, 2011by

Ministry of Law, Justice and Parliamentary Affairs, Government of the People’s Republic of Bangladesh. 147 Para 188 of judgment of 8th Amendment case.


58

Constitution in 8th Amendment case, said Hamidul Hoque case etc. In the disrupted, corrupted,

trustworthyless, selfish and disorderly political and socio-economic context to hold a free and fair

election is quite impossible under the political government. Holding and electing representatives for

democratic government in a free and fair election is a pre-condition for democracy. Democracy is

esteemed as a basic structure of Bangladesh Constitution in the 8th amendment case and others. With

holding election under the care-taker government to have the representatives for the democratic

government by neutral, free and fair election is barely let to be true/happening by the political power

grabbers of Bangladesh. Therefore abolition of care-taker government provision from the Constitution

by the Constitution 15th Amendment Act may be categorized as violation of basic structure of the

Constitution. Another most talked example of violation of basic structure by the Constitution 15th

Amendment Act is the constitutional recognition of state religion. Though the provision148 was drafted

sharply creating a balance among all other religion by giving those equal statuses, but this is a disguise

cause. The original cause is something which may be for the securing of power and obtaining the public

confidence. As majority people of Bangladesh belonged to muslim sect and the vote of other people

belonging to other religions is also still equally important for the government, hence public sentiment is

highly involved in this issue. Additionally, deleting Islam from state religion may cause thrown

Bangladesh from the financial aid and shelter awarded by the other muslim countries of the world. That

will act negatively for the government which may cause the government suffer and sacrifice in the

upcoming election. But this provision undoubtedly frustrates the true character of secular nature of

Bangladesh, whereas secularism is esteemed as one of the fundamental principles and basic structure of

the Constitution of Bangladesh.149

9.0: Fallouts of the Basic Structure

Though there is definitional gap regarding basic structure concept of the Constitution but the fallouts’

of the basic structure are reflected not because its gesture or its application is problematic or basic

structure in its very normative condition or as a concept is problematic; rather the problem is otherwise

which is rooted in its application and in the way how the judges or parliamentarians or people

understand, interpret and use it. The way the judges of Bangladesh interpret and use basic structure is

very unclear and undefined. It is not very clear about the view of the judges they define and understand

basic structure. Whether basic structures construe those basic edifice or fundamental back-floor for the

Constitution basing on which the Constitution is standing and the Constitution is reflecting its main

characteristics and identity (this is objective value addition) or some provisions in black letter within

the Constitution construe the basic structure for the Constitution itself (this is subjective verification)

that is not settled yet. It is true that the fundamental norms or ground of rules creating basic structure

for the Constitution may have some reflections in the black letters of the Constitution but that does not

148 Article 2A of the Constitution of the people’s Republic of Bangladesh. 149 Justice Mr. ATM Afzal observed in the 8th Amendment case (reported in 41 DLR AD 1989 P. 165, paragraph

no. 591 that “the original constitution started with ‘secularism’ as one of the fundamental principles of the

Constitution but now we have provided for a state religion of the Republic. Thus the changes made in the basic

structure within a span of 17 years have been too many and too fundamental and it is not necessary to refer to all

of them nor is it my purpose to find fault with any amendment or anybody or any regime for the amendments

made in the Constitution”.


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obviously mean that those are the basic structures for the Constitution forever; because this concept is

volatile. What is basic structure today may not be basic structure or value creating norm in tomorrow.

One hand this versatility makes basic structure most dynamic, adoptive and capable of being applied

time to time according to the socio-legal, political, economic, cultural engaging context of a particular

state, on the other hand this makes basic structure uncertain and paves the ways of political

materialization.

9.1: Examining Fallout form the point of Subjective Verification of the Basic Structure

Fallouts’ of the basic structure is deeply rooted when the constitutional norms creating the basic

structure of the Constitution are shaped into certainty by codifying those in the block letters of the

Constitution. Thereby, from this point of view fallouts’ of the basic structure concerns certain

problematic issues including (i) what are basic structures of the Constitution, (ii) who will determine

the basic structures of the Constitution, (iii) what are the fundamental criteria or justifications for taking

certain provisions of the Constitution as the basic structure of the Constitution, (iv) what is normative

value of basic structure, this relates to the fact that is basic structure really unalterable or everlasting,

(v) practical inefficacy of the basic structure and etc. Provisions which may be or shall be valued as

basic structures of the Constitution have not yet certain or definitely identified. Yet even constitutional

lawyers and judges may discern some fundamental structural designs in a Constitution as when an

architect views a building.150 ‘Who has or should be the authority to determine certain provisions are to

be valued as the basic structures of the Constitution’-not settled yet. Undoubtedly, there is no one who

is going to determine that, conversely, there is everyone who is going to determine that. Unless or until

basic structure is enacted or recognized by the Act of Parliament it will remain as a ‘doctrine’ even

though the same is valued with more inviolability as ‘constitutional doctrine’ or ‘constitutional

principle’ or moreso. It is not possible that the Constituent Assembly would go back at 1972 and set

some of the provisions of the Constitution as basic structures of it. Hence there is no alternative to

acknowledge that only the Parliament that can determine and set the basic structures of the Constitution

because under the Constitution it is only the parliament who is conferred with the task/duty to amend

the Constitution by an Act of Parliament. This Act of Parliament is different from other Act of

Parliament. This Act of Parliament is of with some constitutional values and will take effect as such as

the Constitution is. No other organ including the judiciary shall have the right to make any ‘Act of

Parliament’; in fact, it is neither possible nor desirable. The act of judiciary will be the act of judiciary

and can never be the ‘Act of Parliament’ though under the Constitution of Bangladesh judiciary has to

some extent ample power to declare any act of parliament void and unconstitutional. Thus there is no

alternative to parliament who can set the basic structures of the Constitution of Bangladesh. But, does

parliament can do so? Okay, if it is deemed that parliament can do so; then next question births that if

parliament of a time determines and sets the basic structures of the Constitution. Will the next

parliament be bound by it? Under the convention of parliamentary privileges the next parliament may

not be bound by the act of the previous parliament151. By this way the upcoming parliament shall have

150 Supra Note: 54. 151 Supra Note: 3, pages 413-427.


60

the liberty not to comply with the Act of Parliament of the earlier government, even though the same

was for determining and setting the basic structures of the Constitution. Therefore next parliament can

set some other basic structures of the Constitution by an Act of Amendment of the Constitution.

Consequently, the parliament cannot be relied on for construing the basic structures of the Constitution

because the frequent alterations, amendments, changes to the basic structures of the Constitution will

impede the proper merit and holiness of this constitutional principle. These fallouts’ of the act of

parliament show the way to pay attention on the role of judiciary who can be relied on for determining

and construing the basic structures of the Constitution. But there is a fitted limitation within the act of

the judiciary, duty of which to safe-guard the constitution and preserve its dynamisms by interpreting

and applying the constitutional provisions in changing situation; because, judiciary cannot amend the

Constitution by inserting any new provision or repealing something therefrom. Moreover, ‘to be legally

valid according to the Pure Theory, judgments must not only be objectively verifiable but also must

pass tests for proof of legal validity’152. The function of a judiciary in the classical western liberal

democratic context has been traditionally understood as ‘interpreting the text of the constitution’, which

if seen through the lens of Originalism would mean ‘discovering the literal intention of the framers’.

Judges are not supposed to interpret the text in a manner where various political, social and other

consequential factors would govern the task of interpreting the text.153 Hence judiciary has the

limitation of its own and it can be authority for setting out the basic structures of the Constitution.

Judiciary can make law but not in the way of Act of Parliament how the Constitution can be amended.

Judiciary can formulate the principles and basis wherefrom extract can be drawn for shaping the basic

structures of the Constitution. The main drawback lies on the inherent nature of doctrine of overruling

of the earlier decision by the subsequent decision despite doctrine of binding precedent has

constitutional recognition under Article 111 of the Constitution of the People’s Republic of Bangladesh.

As a result uncertainty remains in fixing the basic structure of the Constitution by the judiciary case to

case. Where parliament and judiciary as well cannot be entirely relied on for fixing the basic structure

of the Constitution, it is suggested to go for alternative. To filter this gap it is always the people of

Bangladesh who formulate the ground of rules for the Constitution of Bangladesh. In the Constitution

the people feature as the dominant actors and it is a manifestation of what is called ‘the people’s

power’.154 As people is the source of supreme power of Bangladesh155 and it is the people who enact,

adopt and give the Constitution to them156. Accordingly, it is the people who can determine the basic

structures of the Constitution for them. Thus, is it truly possible for the people at large to seat altogether

for setting the basic structures of the constitution? Or is it possible to hold a referendum for selecting a

committee who will act as a constituent assemble or something like this conferring with the task of

determining and setting the basic structures of the Constitution? All these are impractical to perform.

The biggest shortcoming of basic structure is rooted in this theory itself. These shortcomings are

inherent and unavoidable, because removing of those may raise complicated controversies in practice

152 Supra Note: 22. 153 Supra Note: 13. 154 Dr. Mohiuddin Farooque v. Bangladesh, 49 DLR (AD) 1, para 41. 155 Acknowledged under Article 7 of the Constitution of the People’s Republic of Bangladesh. 156 Acknowledged under the Preamble of the Constitution of the People’s Republic of Bangladesh.


61

and theoretical impossibilities to construct. Theoretical construction may be possible to build up and

develop but reaching at any conclusion with regard to the future and practical efficacy of this doctrine is

quite impossible. However, one of the vital deficiencies in the basic structure theory is the ambiguity

about what is basic and what is not. There is an absence of a definite test to conclude whether a

constitutional right or a part thereof forms a part of the basic structure. ‘In other words, there was no

hypothesis against which the theory could be tested. The result was that instead of the Constitution

drawing authority from within itself, it became dependent upon judicial interpretation i.e. the Judge

made the Law.’157 Thus the judiciary which was a creation of the Constitution became more powerful

than its creator.158

Lack of proper authority determining and setting the basic structures of the Constitution certainly cause

uncertainty in identification and pointing out certain constitutional provisions amongst other

constitutional provisions of the Constitution. Even if it is possible to settle the issue regarding

constituent authority but in what manner or how the basic structures can be settled down. What will be

the value norms or ground of rules for the basic structures? Generally all provisions of the Constitution

are subject to amendment under Article 142 of the Constitution but some of the provisions of the

Constitution are given additional protection. Despite putting some of the provisions of the Constitution

as basic structures of the Constitution are a constitutional redundancy and making ‘constitution’ within

‘constitution’. Moreover lack of certainty in determining the basic structures of the Constitution widens

the scope and area of misapplying this is as a legal shield. This apprehension is practical as experienced

in several cases. In Fazle Rabbi v. Election Commission159 the petitioner raised the plea that the

Constitution (Tenth Amendment) Act extending the period of reservation of seats for women in

Parliament was challenged as violative of the basic structures of the Constitution, but the High Court

Division repelled the contention pointing out that the reservation had been there in the original

Constitution and the question cannot arise at all. The problem remains that court chooses to take

politico-legal route to solving the problem and doesn’t really care to base its decision in any existing

constitutional or legal norm. Failure to do this keeps 'Basic Structure' hanging in the air due to the

uncertainty of its content and application. Moreover it gives court a freehand in the definition and

application of the 'Basic Structure' doctrine to the cases at hand, hence makes its power of defining

'Basic Structure' as extra-constitutional and hence bad. Our Supreme Court in this regard suffers from

an identity crisis where constitution declares and parliament has often found to be the legal branch of

the government which is not capable of assuming political character and giving out decisions which

have political undertones. On the one hand court is accused of indulging into the practice of defining its

own powers in a manner not founded in the constitution and on the other more than often it is brought

to a point where it becomes important for the court to extend beyond the traditionally set boundaries to

ensure that country is run by a truly constitutionally democratic government160. Its failure to theorise

this new role for itself has shown in court’s inconsistent or rather partial application of the 'Basic

157 Gulati, Ajay, Theory of Basic Structure- Reality or Illusion. The author is Asst. Advocate general, Haryana,

Masters M Law from University of Warwick, U.K. This paper is presented by him as a part of completing his

Masters at Law, available at: www.nirmauni.ac.in/law/ejournals/pr..P. 17. 158 Ibid. 159 Fazle Rabbi v. Election Commission, 44 DLR 14. 160 Supra Note: 13.

http://www.nirmauni.ac.in/law/ejournals/pr..P


62

Structure' to the cases that have come before it.161 The most appropriate illustration of such a failure is

its judgment in the case popularly known as ADM Jabalpur v. Shivkant Shukla162 where the personal

liberty of a large number of people was jeopardized during the period of emergency. Court failed to

take up the cause of ‘personal liberty’ which is a constitutionally protected Fundamental right of Indian

citizens chose to interpret the provisions of the constitution in isolation of the 'Basic Structure' doctrine.

This case was a major set back for the supporters of judicial power in India since, judiciary which stood

tall in previous times to uphold the basic rights of the Indians and also promised to protect the people

from their own representatives failed to show the courage which was needed from them in the times of

emergency. Many thought that court’s decision in ADM Jabalpur case reflects upon the low integrity of

the judges which either feared the stick of the emergency powers which the parliament was

indiscriminately applying against the political dissidents or were expecting favours from the

government which it gave to some of the dissenting justices (Ray and Beg JJ.) for showing loyalty

towards the congress party. But researcher humbly submits that the decision of the court of not applying

'Basic Structure' in the ADM Jabalpur case is a direct consequence of the failed process soul-searching

by the Supreme Court. It was the inability to identify the institutional role it needs to play in a unique

experience of Indian constitutional democracy. Often being compelled to follow the parameters adhered

to by the western judicial institutions and the failure of Indian legal intelligentsia to articulate the new

avatar which is constitutionally most suited to Indian needs.163

Some scholar criticizes basic structure saying that the basic structure is nothing but binding future

generations with the notions and understanding of the previous generation governed by their times and

circumstances. Such wisdom can never be the best solution for the problems which the present

generation faces, especially since changing socio-political sensibilities gives rise to unforeseen

situations previous generation could not be reasonably expected to have provided for. Larger reliance

upon the theory of originalism for understanding basic structure ‘which requires judges to essentially

assume that each and every situation faced by the courts and society has been provided for in the very

text of the constitution and its only a matter of judicial discovery that the same would be uncovered. It

creates a hypocritical lack of faith in the wisdom of the judiciary which then impacts the judicial self-

perception of the part they can play in the working of our constitution.’164

Now focus on the point that what practical difficulties caused by basic structure. One of its difficulties

as to greater possibility of misapplication of the basic structure in several cases as already explained in

the forgoing paragraph. The main impact of adoption of this doctrine justifying the decision of the 8th

Amendment case is catastrophic. It closed the gateway of setting up HCD in division/district level in

future. This is expressly prejudicial to public interest that breaches one of the fundamental principle

(might be basic structure) of the constitution which is to promotion and development of local

government in Bangladesh. This case vehemently ignored the wills of people and totally disregarded

161 1976 AIR 1207, 1976 SCR 172. 162 Ramachandran, Raju (2000) “The Supreme Court and the 'Basic Structure' doctrine” in B.N. Kirpal et al. ,

Supreme But Not Infallible, Oxford University Press, New Delhi, 2000, pp. 129 163 Supra Note: 13. 164 Ibid.


63

the people’s easy access to justice. It is matter of great regretting that Justice B.H. Chowdhury said the

division of benches High Court Division into 6 (six) places as “mush-room” courts.165 Next time if any

government pleases to apportion the benches of the High Court Division in division level, that cannot

be possible to be done without overriding the verdict of 8th Amendment case, which will be a dishonor

to the basic structure and the result may be devastating. Basic structure may be subject of laughing

because that act will carry the evidence that once recognized basic structure may be altered next time

which is against the basic characteristics of basic structure, because one of the basic philosophies

underlying the doctrine of basic structure is the non amendability of the basic features of the

constitution. It is evolved by the majority in the mother case of basic structure, Kesavananda case is

explained by Hedge and Mukherjee, JJ., as follows: “Our Constitution is not a mere political document.

It is essentially a social document. It is based on a social philosophy and every social philosophy like

every religion has two main features, namely, basic and circumstantial. The former remains constant

but the latter is subject to change. The core of a religion always remains constant but the practices

associated with it may change. Likewise, a constitution like ours contains certain features which are so

essential that they cannot be changed or destroyed.”166 This is also taken authoritative in the 8th

Amendment Case.

Another threatening issue is that one feature though recognized as basic feature/ structure of

constitution in a case but which has subsequently became altered and denied in another case as basic

structure of constitution. By the same way some provisions of a Constitutional Amendment Act was

declared void for violating basic structure of the constitution in a case but the similar kind of

Constitutional Amendment Act though subsequently challenged as being violating of basic structure of

constitution in another case, but court technically avoid this issue. This is the judicial politics which is

practically apprehending.. This causes confusion of basic structures of the constitution. As for example

in the M Saleemullah v. Bangladesh167 it was held that the Constitutional (Thirteenth Amendment) Act,

1996 did not affect or destroy any of the basic feature or structure of the Constitution but in the case,

Md. Abdul Mannan Khan v. Bangladesh168 that this amendment was challenged as ultra vires as it

infringed four basic features of the Constitution, namely, Republican Character, democracy, judicial

independence and separation of powers and the amendment was declared invalid by a majority of 4

(four) to 3 (three).

Subjective verification of basic structure within the words in Constitution may add higher value on

some constitutional provision amongst the others, which may build a mini Constitution inside the large

Constitution. It may be the fragmentation of the Constitution itself. One of the major limitations of the

application of basic structure is wrongly contained by the judiciary that it can be used only to testify

and verify the legality and illegality of the Act of Parliament so far the same relates to the matter of

constitution amendment and not for verifying other act of parliament, executive or judiciary. The area

165 Para 179 of 8th Amendment Case. 166 Supra Note: 8. 167 M Sallemullah v. Bangladesh 2005 BLD 195. 168 Md. Abdul Mannan Khan v. Bangladesh, Civil Appeal No. 139 of 2005, an unreported case, quoted from a

book as referred in Supra Note. 80, P. 547.


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and scope of basic structure may be much wider than that of as it is still thinking. It may be wide than

the Constitution itself.

9.2: Examining Fallout form the point of Objective Verification of the Basic Structure

Objective verification justifies the existence of basic structure in the history, culture, daily life, political

scenario, influence of religion, originality, fundamental practices of a nation, group and community

mores, civilizations, traditions, origin of language, origin of a state, ethnicity, socio-economic

perspective, legal context where the very basic or core principles of any Constitution are deeply rooted

in. These are there though apparently in most scattered way but; I would prefer to call it most certain

way. Because codification of which might destroy the basic character of those value creating norms

which directly or indirectly contributed significantly in shaping of Constitution. This certainty by way

of codification also enhances apprehension reasonably to alter, amend the basic structures which is

quite bogus and impossible to do. For that reason from the objective verification basic structure is

rooted mostly in the back to this present or also in the future from the present. One of undeniable and

indisputable human limitation is that they cannot change past or background to which they belonged to

and they can’t absolutely control the future as well. Process of value creating norms by which the

scholars tried to justify the basic structure of the constitution is not constant. It is observed and

construed but can not be framed. Country to country, nation to nation, area to area these value creating

norms are different because country to country, nation to nation, area to area the factors (including

history, language, race, culture, daily life, political, social, legal context) which construe these value

creating norms and that is why country to country, nation to nation, area to area the rules, laws and

basic governing instruments (whatever it is called for, as popularly known as “Constitution”) is

different. Argument is there when those value creating norms which preferably called as basic

structures are already there then why it is necessary to codify the basic structures of the Constitution.

Argument in favor and disfavor of basic structure is still in progress. Going to any conclusion opposing

or supporting the basic structure may be premature.

10.0: Conclusion

The subjective verification of basic structure, thus seeking the certainty of basic structure in the black

letters articulated by visible words in the Constitution may disvalue, misunderstand the inherent nature

and basic philosophy of basic structure. Constitution may be changed in harmony with the political

government. Constitution may be withheld or suspended or abrogated or nullified by any government or

by a dictator administrator. If basic structure gets its originality in the blue pencil of the Constitution it

may lose its existence in the changing situation of the Constitution. Basic structure does not mean the

salient features of the Constitution. This subjective substantiation births the way of its being

materialized by the intruders securing their ulterior purpose. The real threat may appear when

subjective verification becomes the victim of judicial and government politics. Whereof this creates and

widens the scope for the political government and judiciary to materialize basic structure in a dangerous

way which may destroy the nascent character of basic structure. Then basic structure will act as


65

legalizing and justifying every act of the political government even by changing the true character and

demolishing the fundamental features of the Constitution basing on which the Constitution stands and

glitters its intensity. Subjective verification may divert basic structure from its original and true

purpose. It enhances the possibility of basic structure being act as a legal expedite for the political

government and the judiciary to misuse the basic structure. But this does not mean that basic structure

cannot have a subjective reflection. Basic structure may have subjective reflection or not because basic

structures are certain and definite though to some extent nature of it is volatile. Basic structure was

always there, even before the adoption of the text of the Constitution in its present form. Basic structure

is also here today and everywhere. Objective verification of basic structure does not make it uncertain,

rather it make basic structure more certain and help to prevent from uncertainty of being frequently

amended and materialized by the political government and the motivated judiciary. Objective

verification comparatively the better test of understanding core character of basic structure because we

are born into a society and within its framework realize but one of many possible forms of like minded

persons; the question of entering another society does not arise. It protects basic structure from a

ludicrous and weightless subject of being changed or suspended or abrogated in changing situation of

political government or other administrator. The task is to agree on principles for the basic structure of

the society of one's birth. The veil of ignorance not only establishes fairness between equal moral

persons, but by excluding information about the parties' actual interests and abilities, it represents the

fact that apart from people’s place and history in a society, even people’s potential abilities cannot be

known and their interests and character in Bangladesh are still to be formed.

BIBLIOGRAPHY

*. All footnotes. All cases, web-sites as referred in the article

In addition to: Most Important:

*. Photocopy of the certified copy of Concise Statement on behalf of the Appellant in the Civil Appeal

No. 42 of 1988 (including annexures).

*. Photocopy of the certified copy of Concise Statement on behalf of the Respondents in the Civil

Appeal No. 42 of 1988 (including annexures).

*. Photocopy of the certified copy of Concise Statement on behalf of the Appellant in the Civil Appeal

No. 43 of 1988 (including annexures).

*. Photocopy of the certified copy of Concise Statement on behalf of the Respondents in the Civil

Appeal No. 43 of 1988 (including annexures).

*. Photocopy of the certified copy of Civil Petition for Leave to Appeal No. 208 of 1988 arising out of

the Writ Petition No. 1252 of 1988 (including annexures).

*. Photocopy of the certified copy of Order dated 29.11.1988 to both the petitions being Civil Petition

Nos. 207 and 208 of 1988.


66

*. Photocopy of the certified copy of Writ Petition No. 1252 of 1988 (including annexures).

*. Photocopy of the certified copy of Writ Petition No. 1176 of 1988 (including annexures)

*. Photocopy of the certified copy of Writ Petition No. 495 of 1988 (including annexures).

*. Photocopy of the Rules of the High Court Division framed by the Chief Justice.

*. Photocopy of the Act No. 30 of 1988.

*. Photocopy of certified copy of Affidavit Facts submitted by the Learned Advocates of the

Petitioner/Appellants in the Civil Appeal Nos. 42 and 43 of 1988 including service of notices.

*. Photocopies of all notices, minutes of all meetings, seminars and conferences, all notifications,

recommendation letters and other documents of the proceedings of the Supreme Court Bar Association

since 1982 to 1989.

Documents

[Un]certainty of Basic Structure PREFACE