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From Rigidity to Resilience: The Unamendable Core and a New Era of Constitutional Evolution in Bangladesh

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Authored By: MOST. RADIA TASNIA

Daffodil International University

Abstract

The Doctrine of Basic Structure (BSD) is a significant judicial innovation designed to accord the inherent tension between constitutional stability and adaptability. This article examines the BSD’s evolution, particularly its procreation in India and its subsequent adoption in Bangladesh. It analyzes how the doctrine of basic structure, initially a judicial safeguard, has been both reinforced and complicated by the explicit codification in Article 7B of the Bangladesh Constitution. Through an in-depth analysis of landmark Bangladeshi judgments and the recent constitutional reform proposals following the July Revolution. This article critically evaluates whether the BSD primarily prevents a “living constitution” or effectively safeguards its fundamental “constitutional spirit.” It concludes with recommendations for navigating Bangladesh’s constitutional future, emphasizing a balanced approach to ensure democratic resilience and constitutional integrity.

Introduction

Constitutions as the supreme law of the country should embody a delicate balance and must provide a stable framework for governance while remaining flexible enough to adapt to societal changes. This inherent trait often leads to a fundamental question, “how can a constitution evolve as a ‘living document’ without compromising its core values and spirit?” This article delves into the Doctrine of Basic Structure (BSD), a judicial innovation that seeks to address this poser by imposing limitations on the power of constitutional amendment. The central inquiry is whether the BSD acts as an impediment to a living constitution or, conversely, serves as an indispensable guardian of its enduring spirit. This analysis will primarily focus on the unique journey of the BSD in Bangladesh, encompassing its historical application, the complexities introduced by its explicit codification in Article 7B, and its alignment with the constitutional reform reports following the recent July Revolution.

The global proliferation of the Basic Structure Doctrine, particularly its adoption in common law jurisdictions such as India and Bangladesh, underscores a universal challenge in constitutional democracies. This challenge revolves around balancing the imperative for constitutional adaptability, the idea of a “living constitution” that can evolve with societal changes with the critical need to preserve foundational values and principles, which constitute the “constitutional spirit”. This is not merely a theoretical debate; it is a practical challenge often driven by political realities. The recent July Revolution in Bangladesh further highlights the pressing need for constitutional frameworks that can adapt to popular aspirations while simultaneously protecting the core tenets of democratic governance.

Methodology

This article employs a doctrinal and analytical research approach. The information was gathered through a comprehensive review of primary and secondary legal sources. Primary sources include landmark judgments from the Supreme Courts of India and Bangladesh, relevant constitutional provisions, and official reports from the Bangladesh Constitution Reform Commission. Secondary sources comprise scholarly articles, journal publications, and legal commentaries that critically analyze the Basic Structure Doctrine, its application, and its implications in various common law jurisdictions, with a particular focus on Bangladesh.

A. Legal Framework: Constitutional Provisions on Amendment

The power to amend a constitution is fundamental to its longevity and responsiveness. In Bangladesh, this power is primarily vested in the Parliament under Article 142 of the Constitution. However, the scope of this power has been significantly shaped by judicial interpretation and by explicit constitutional provisions.

The original Constitution of Bangladesh, adopted in 1972, was silent on the issues of unamendability or judicial review of constitutional amendments. This left the door open for legislative changes, some of which were perceived as undermining the foundational principles of the Republic. In response to a history of constitutional turbulence and politically motivated amendments, Bangladesh took an unprecedented step in 2011 with the Fifteenth Amendment, which introduced Article 7B into the Constitution.

Article 7B explicitly declares several core components of the Constitution as unamendable. These include:

  • The Preamble.
  • All articles of Part I (The Republic).
  • All articles of Part II (The Fundamental Principles of State Policy).
  • Subject to Part IXA (emergency provisions), all articles of Part III (The Fundamental Rights).
  • Provisions relating to the “basic structures of the Constitution,” including Article 150 of Part XI, are also deemed unamendable, notwithstanding the general constituent amendment power granted by Article 142.

B. Judicial Interpretation: Landmark Judgments

The Basic Structure Doctrine, though codified in Bangladesh, has its roots in judicial pronouncements, particularly from India.

1. The Indian Precedent: Kesavananda Bharati v. State of Kerala (1973)

The Basic Structure Doctrine originated in India with the landmark judgment of Kesavananda Bharati v. State of Kerala, delivered by the Supreme Court of India on April 24, 1973. This pivotal case arose from a period of intense constitutional conflict, as the Indian Parliament passed the 24th, 25th, and 29th Amendments, which were seen as attempts to curtail judicial powers and fundamental rights. Sri Kesavananda Bharati challenged these amendments, arguing they violated the Constitution’s fundamental framework.

In a historic 7:6 majority decision by an unprecedented 13-judge bench, the Supreme Court articulated the basic structure doctrine. It held that while Parliament possessed the power to amend the Constitution under Article 368, this power was not absolute and could not be used to alter or abrogate certain fundamental features. This judgment was a direct judicial response to perceived legislative overreach, underscoring the judiciary’s role as a guardian of the Constitution’s original ideals.

Though no exhaustive list was provided, the Court identified several core principles as basic features:

  • Supremacy of the Constitution.
  • Republican and Democratic form of Government.
  • Secular character of the Constitution.
  • Separation of powers between the legislature, executive, and judiciary.
  • Federal character of the Constitution.
  • Mandate to build a welfare state (Directive Principles of State Policy).
  • Unity and integrity of the nation.
  • Sovereignty of India.
  • Essential features of individual freedoms.
  • Elements from the Preamble, such as social, economic, and political justice; liberty; and equality.

Subsequent Indian cases further elaborated on the doctrine, affirming judicial review itself as an essential feature (Minerva Mills Ltd. v. Union of India) , and including free and fair elections (Indira Nehru Gandhi v. Raj Narain) , the principle of equality (Raghunathrao v. Union Of India) , and the rule of law (Indira Sawhney v. Union of India). The judiciary maintained a flexible, case-by-case approach to defining the basic structure, ensuring its adaptability while preserving fundamental values.

2. Bangladesh’s Embrace: Anwar Hossain Chowdhury v. Bangladesh (1989)

Bangladesh formally embraced the Basic Structure Doctrine in 1989, in the landmark ruling of Anwar Hossain Chowdhury v. Bangladesh, popularly known as the 8th Amendment Case. This was the first instance where the Supreme Court of Bangladesh struck down a constitutional amendment enacted by Parliament.

The Court explicitly relied on the jurisprudence of India’s Kesavananda Bharati case. The challenge in Anwar Hossain Chowdhury concerned the 8th Amendment’s alteration of Article 100 of the Constitution, which had established six permanent benches of the High Court Division outside Dhaka. The Supreme Court found that this amendment fundamentally undermined the unitary character of the judiciary, thereby violating basic structures of the Constitution, particularly the independence of the judiciary.

The Appellate Division identified several key basic structures of the Bangladeshi Constitution as inviolable:

  • Sovereignty belonging to the people.
  • Supremacy of the Constitution.
  • Republican government.
  • Independence of the Judiciary.
  • Unitary state.
  • Separation of powers.
  • Fundamental rights.

The Court emphasized that the power to amend the Constitution is a derivative power, not an absolute one, and cannot be used to destroy the Constitution’s basic structure. The Preamble was also recognized as the Constitution’s “pole star” and an entrenched provision.

3. Subsequent Applications of BSD in Bangladesh

The Bangladeshi Supreme Court has consistently applied the BSD to challenge constitutional amendments, demonstrating its role as a guardian of constitutional principles:

  • Fifth Amendment (1979): This amendment, enacted by military ruler General Ziaur Rahman, aimed to ratify martial law proclamations. In 2010, the High Court Division, in Bangladesh Italian Marble Works Ltd v. Bangladesh, declared the Fifth Amendment repugnant to the Constitution, implicitly affirming the principles of rule of law and democracy.
  • Thirteenth Amendment (1996): This amendment introduced a non-party caretaker government system for elections. In 2011, the Supreme Court declared it prospectively void and ultra vires the Constitution, finding it violated the basic structures of democracy and judicial independence. However, the Court pragmatically allowed two subsequent elections under its provisions, citing “necessity” to ensure political stability.
  • Sixteenth Amendment (2014): This amendment sought to empower Parliament to remove Supreme Court judges. The Supreme Court declared it illegal and unconstitutional, asserting that it directly interfered with judicial independence, a well-established basic structure.

These repeated judicial interventions highlight the BSD’s function as a bulwark against “constitutional fraud,” preventing amendments from dismantling core democratic principles and consolidating power.

C. Critical Analysis: Loopholes, Challenges, and Comparative Insights

Despite its vital role, the Basic Structure Doctrine, particularly in Bangladesh, faces significant criticisms regarding its vagueness, potential for judicial overreach, and the complexities introduced by Article 7B.

1. Vagueness and Judicial Activism

A primary concern with the BSD is its inherent vagueness. The absence of an exhaustive definition for “basic structure” grants significant power to an unelected judiciary, leading to concerns about “judicial overreach” or “judicial tyranny”. Critics argue that judges might impose their own interpretations of constitutional principles over the will of elected representatives. The “dubious stand” of the Supreme Court in Bangladesh during periods of political turmoil has also been cited as a factor that may reduce the doctrine’s viability and legitimacy. This debate raises fundamental questions about democratic legitimacy, especially when unelected judges invalidate amendments passed by elected representatives.

2. The Paradox of Article 7B: “Black Hole” Effect and Ultra-Rigidity

Bangladesh’s unique codification of the BSD in Article 7B, while intended to fortify constitutional principles, has inadvertently created new challenges. Article 7B prohibits amending existing articles within Parts I, II, and III, but it does not prevent the insertion of new articles into these parts. Paradoxically, once a new article is inserted, it automatically gains the protection of Article 7B and becomes unamendable. This creates an “ultra-rigid” segment of the Constitution where new provisions can be introduced but cannot subsequently be removed, akin to a “Black Hole”.

This structural flaw poses a substantial threat to constitutional supremacy and fundamental rights. An incumbent government could exploit this loophole to insert new articles that indemnify its unconstitutional actions or create exceptions to fundamental rights. Once inserted, such provisions would be immune from legislative removal due to Article 7B’s protection, effectively undermining the protective measures of Article 7A. This demonstrates how an attempt to safeguard the constitutional spirit through explicit, rigid codification can inadvertently create new vulnerabilities.

D. Recent Developments: The July Revolution and Constitutional Reform

The recent July Revolution in Bangladesh has ushered in a new era of constitutional discourse, with widespread demands for fundamental reforms.

1. Context of the July Revolution (2024)

The July Revolution, a pro-democracy mass uprising in 2024, was initially triggered by the Bangladesh Supreme Court’s invalidation of a government circular on public sector job quotas. This movement rapidly escalated into a nationwide pro-democracy uprising, leading to the resignation and flight of then-Prime Minister Sheikh Hasina. An interim government was formed under Nobel laureate Muhammad Yunus, and student leaders at the forefront of the uprising explicitly demanded a new constitution to prevent future autocracy.

2. Establishment and Mandate of the Constitution Reform Commission (CRC)

In response to these demands, the interim government established the Constitution Reform Commission (CRC) in October 2024. The CRC was tasked with recommending comprehensive constitutional reforms to establish a “representative and effective democracy” and rectify past shortcomings. The Commission analyzed over 120 constitutions and received more than 50,000 submissions before submitting its report on January 15, 2025.

The July Revolution and the CRC recommendations represent a direct societal and governmental response to perceived constitutional failures, particularly the abuse of amendment power and the erosion of democratic principles that the BSD and Article 7B were intended to prevent but seemingly could not fully contain.

 Key Recommendations of the CRC

The CRC’s report proposed sweeping changes, many of which directly impact constitutional amendments and the basic structure doctrine:

  • Deletion of Articles 7A and 7B: The most significant recommendation is the proposed deletion of Articles 7A and 7B, directly challenging the explicit constitutional entrenchment of basic structures. This signals a potential move away from the “ultra-rigidity” and “black hole” issues of Article 7B.
  • Revised Fundamental Principles: The CRC proposed “Equality, Human Dignity, Social Justice, Pluralism, and Democracy” as fundamental principles, reflecting the ideals of the 1971 War of Independence and the 2024 uprising. Notably, it recommended omitting secularism, socialism, and nationalism from the existing fundamental principles.
  • Reinstatement of Referendum: The CRC recommended reinstating the ‘referendum’ as a mechanism for constitutional amendments.
  • Bicameral Parliament: A proposal for a bicameral parliamentary system (National Assembly and Senate) was put forth.
  • National Constitutional Council (NCC): Establishment of a nine-member NCC was recommended to ensure accountability, transparency, and balance of powers.
  • Limiting Prime Minister’s Powers: Recommendations include a two-term limit for the Prime Minister and prohibiting the Prime Minister from simultaneously holding the position of party president or leader of the house.
  • Judicial Independence: Proposed decentralization of the judiciary while maintaining the Supreme Court’s unitary structure, and integrating rights from Parts II and III into a single, judicially enforceable charter of “Fundamental Rights and Freedoms”.

The CRC’s recommendation to delete Article 7B signals a potential philosophical shift, moving from ultra-rigidity towards a new balance that prioritizes democratic adaptability and responsiveness. This re-evaluation of how foundational principles are protected is a crucial development, highlighting the ongoing struggle to find the optimal balance between preventing an overly static “living constitution” and effectively safeguarding the “constitutional spirit”.

RECOMENDETIONS

The constitutional journey of Bangladesh, marked by the evolution and challenges of the Basic Structure Doctrine, presents a critical opportunity for reform. To ensure a robust and resilient constitutional framework that truly embodies its spirit while remaining adaptable, the following suggestions are offered:

  1. Re-evaluating Article 7B: The CRC’s recommendation to delete Article 7B is a crucial step. However, simply removing it without a clear alternative for entrenching fundamental principles could lead to a return to the pre-BSD era of unchecked amendment power. A more nuanced approach might involve:
    • Refined Codification: If explicit entrenchment is desired, Article 7B should be redrafted to prevent the “black hole” effect, ensuring that any new insertions into protected parts are subject to rigorous review and are not automatically rendered unamendable without substantive scrutiny. This could involve a super-majority requirement for any amendment (insertion, modification, or repeal) to these core parts.
    • Focus on Substantive Review: Re-emphasize the judiciary’s role in substantive review of amendments, ensuring they do not violate the inherent basic structure, even if not explicitly listed. This requires a strong, independent judiciary capable of resisting political pressure.
  2. Strengthening Judicial Independence and Capacity: The judiciary remains the ultimate arbiter of constitutional validity. Measures to enhance its independence and capacity are paramount:
    • Transparent Judicial Appointments: Implement the CRC’s recommendation for a Supreme Judicial Appointment Council to ensure transparent, merit-based appointments to the higher judiciary.
    • Judicial Autonomy: Establish an autonomous Supreme Court Secretariat to end dual executive-judicial control over lower courts’ administration, enabling financial and institutional autonomy of the judiciary.
    • Consistency in Jurisprudence: The Supreme Court should strive for greater consistency in its application of the basic structure doctrine, providing clearer guidelines on what constitutes a basic feature and how it is to be protected. This would reduce the perception of subjective application.
  3. Fostering a Culture of Constitutionalism: Beyond legal provisions, a robust constitutional culture is essential. This involves:
    • Political Consensus: Encourage broad political consensus on fundamental constitutional principles, reducing the incentive for ruling parties to manipulate the Constitution for short-term political gain. The CRC’s efforts to build consensus are a positive step.
    • Public Education: Promote public awareness and understanding of constitutional principles, including the basic structure doctrine, to foster a citizenry that can hold its representatives accountable.
    • Checks and Balances: Implement the CRC’s recommendations for institutional balance of power, such as a bicameral parliament and a National Constitutional Council, to create a more robust system of checks and balances.

By carefully considering these recommendations, Bangladesh can navigate its constitutional crossroads, moving towards a future where its supreme law is both a steadfast guardian of its founding ideals and a dynamic instrument capable of serving the aspirations of its people.

Conclusion

The Doctrine of Basic Structure in Bangladesh stands as a testament to the enduring struggle between constitutional stability and the imperative for change. Originating from the Indian judicial landscape, its adoption in Bangladesh through landmark cases like Anwar Hossain Chowdhury provided a crucial judicial bulwark against legislative overreach, safeguarding core principles such as democracy, judicial independence, and the republican character of the state. This judicial innovation has undeniably served as a vital protector of the constitutional spirit in a nation marked by political volatility and a history of constitutional manipulation.

However, Bangladesh’s unique constitutional journey, particularly with the explicit codification of unamendability in Article 7B, has introduced a complex paradox. While intended to fortify the Constitution, Article 7B has inadvertently created an “ultra-rigid” framework susceptible to a “black hole” effect, potentially allowing for the insertion of unamendable provisions that could undermine the very constitutionalism it seeks to protect. This highlights the delicate balance required in constitutional design: an attempt to prevent an overly flexible “living constitution” through rigid entrenchment can, ironically, create new vulnerabilities and hinder necessary adaptation.

The recent July Revolution and the subsequent recommendations of the Constitution Reform Commission represent a pivotal moment. The CRC’s proposal to delete Article 7B, coupled with its focus on strengthening democratic institutions and fundamental rights, signals a potential philosophical shift towards a more adaptable yet adequately safeguarded constitutional framework. The ongoing discourse in Bangladesh exemplifies the universal challenge of ensuring that a constitution remains both a steadfast guardian of its core values and a vibrant, living document capable of serving future generations. The path forward for Bangladesh lies in a judicious blend of judicial vigilance, legislative prudence, and a deep-seated commitment to constitutionalism, ensuring that the spirit of its supreme law continues to guide its democratic destiny.

Reference(S):

Case Laws:

  • Anwar Hossain Chowdhury v. Bangladesh, 41 DLR (AD) 165 (1989).
  • Bangladesh Italian Marble Works Ltd v. Bangladesh, 62 DLR (HCD) 1 (2010).
  • Delhi Juridical Service Association v. State of Gujarat, AIR 1991 SC 2176 (India).
  • C. Golak Nath and Ors. vs. State of Punjab and Anr., AIR 1967 SC 1643 (India).
  • Indira Gandhi a/p Mutho v. Pengarah Jabatan Agama Islam Wilayah Persekutuan, 1 MLJ 405 (Malaysia).
  • Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299 (India).
  • Indira Sawhney v. Union of India, (1992) Supp (3) SCC 217 (India).
  • Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 (India).
  • Kihoto Hollohon v. Zachilu, AIR 1993 SC 412 (India).
  • Kuldip Nayar v. Union of India (UOI) and Ors., AIR 2006 SC 3127 (India).
  • Loh Kooi Choon v. Public Prosecutor, 2 MLJ 187 (Malaysia).
  • M Nagraj & Ors. v. Union of India & Ors., AIR 2007 SC 71 (India).
  • Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 (India).
  • Phang Chin Hock v. Public Prosecutor, 1 MLJ 70 (Malaysia).
  • Raghunathrao v. Union Of India, AIR 1993 SC 631 (India).
  • R. Bommai v. Union of India, AIR 1994 SC 1918 (India).
  • Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Ano’r Case, 3 MLJ 561 (Malaysia).
  • Sivarasa Rasiah v. Badan Peguam Malaysia & Anor, 2 MLJ 333 (Malaysia).
  • Supreme Court Advocates on Record Association v. Union of India, AIR 2016 SC 117 (India).
  • Teo Soh Lung v. Minister for Home Affairs, 1 SLR(R) 347 (Singapore).
  • The Constitution (Thirteenth Amendment) Act, 1996 (Act 1 of 1996).

Constitutional Provisions:

  • The Constitution of the People’s Republic of Bangladesh, Articles 7, 7A, 7B, 142, 150.
  • The Constitution of India, Articles 13, 31, 31A, 31B, 39(b), 39(c), 32, 136, 141, 142, 368.

Reports & Official Documents:

Journal Articles & Scholarly Works:

Online Resources & News Reports:

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