Doctrine of Basic Structure : The Constitution of Bangladesh
Doctrine of Basic Structure
In every constitution there are some fundamental elements those are considered as the main components of the constitution. If those elements are changed, contradicted or violated, the main purpose of the constitution can be hampered.
In
Golaknath
v. State Of Punjab (AIR 1967 SC 1643) the Court held that the
parliament has no right to amend the fundamental right. The decision was given on
the 24th Amendment to their constitution which provides that, “With the
executive and constitutional power government can amend any provision of the
constitution”.
But
in Kasabanka
Bharati vs State of Kerala, it was held that “Parliament can amend any
provision including fundamental rights of the constitution but it cannot amend
the provisions of the constitution which strikes the basic structure.”
In
Bangladesh, by the 8th amendment, the legislative among other changed Article
100 of the constitution which decentralized the judiciary by setting up six
permanent benches of the High Court Division outside Dhaka. This amendment to
art 100 of the Constitution resulting establishment of permanent seats of HCD
was questioned and challenged in the case of Anwar Hossain Vs Bangladesh, 41 DLR
(AD 130). The case finally
reached to the appellate division of the Supreme Court of Bangladesh and
finally, the court recognized article 100 of the Bangladesh Constitution as
part of the Basic Structure and the basic structures of the constitution cannot
be amended. This is the first judgment whereby the Supreme Court of Bangladesh
stroke down an amendment to the constitution made by the parliament.
Following
the decision of Anwar Hossain Vs Bangladesh, 41 DLR (AD 130), by the fifteenth
amendment in 2011 article 7B was inserted in the Constitution to end the
takeover of power through extra-constitutional means. Article 7B of Constitution
says that Preamble, Part I, II subject to provisions of Part IXA (Emergency
provisions) and Part III and other provisions of articles relating to the basic
structures of constitution including article 150 of part XI shall not be
amendable by way of insertion, modification, substitution, repeal or by any
other means provided by article 142 of the constitution of Bangladesh.