Authored By: Nur-E-Jannat Siddiquee
American International University Bangladesh (AIUB)
- Case Title & Citation
Case Name: Anwar Hossain Chowdhury v. Bangladesh
Year: 1989
Citation: Writ Petition No. 5267 of 1988
Popular Name: The 8th Amendment Case
- Court Name & Bench
Court: Supreme Court of Bangladesh (High Court Division)
Bench Type: Constitutional Bench
Judges: The judgment was delivered by a constitutional bench, though specific judge names require verification from official records
- Date of Judgment
Date of Judgment: 1989 (specific date requires verification from official court records) 4. Parties Involved
Petitioner/Appellant: Anwar Hossain Chowdhury
- A citizen of Bangladesh who challenged the constitutional validity of the Eighth Amendment
- Filed the writ petition questioning the Parliament’s authority to make fundamental changes to the Constitution
Respondent/Defendant: Bangladesh (The State)
- Represented the legislative authority that enacted the Eighth Amendment • Defended the Parliament’s power to amend the Constitution under Article 142
- Facts of the Case
The case arose from the enactment of the Eighth Amendment to the Bangladesh Constitution in 1988, which introduced two significant changes:
Primary Amendment: The Parliament amended Article 100 of the Constitution to establish six permanent benches of the High Court Division outside Dhaka. These benches were to be situated in:
- Sylhet
- Rangpur
- Barisal
- Chittagong
- Jessore
- Comilla
Secondary Amendment: The Eighth Amendment also declared Islam as the state religion of Bangladesh, fundamentally altering the secular character established in the original Constitution.
The rationale provided by Parliament was that having only one division of the Supreme Court in Dhaka was insufficient for proper judicial administration and contradicted the principle of inclusive judiciary. The establishment of regional benches was intended to improve access to justice for citizens across the country.
Anwar Hossain Chowdhury challenged this amendment through a writ petition, arguing that it violated the basic structure of the Constitution, particularly the unitary character of the judiciary and the principle of secularism enshrined in the founding principles.
- Issues Raised
The following key legal issues were raised before the court:
- Whether the Eighth Amendment violated the basic structure of the Constitution of Bangladesh
- Whether the Parliament possesses unlimited power to amend the Constitution or if such power is subject to limitations
- Whether the establishment of permanent regional benches of the High Court Division compromises the unitary character of the judiciary
- Whether the declaration of Islam as the state religion violates the principle of secularism, which is a fundamental feature of the Constitution
- Whether the judiciary has the power to review and strike down constitutional amendments as unconstitutional
- Whether Article 142, which grants amendment powers to Parliament, can be used to alter the basic features of the Constitution
- Arguments of the Parties
Arguments of the Petitioner (Anwar Hossain Chowdhury):
Constitutional Basic Structure: The petitioner argued that the Constitution possesses certain basic features that cannot be altered by ordinary amendment procedures. These include:
- The unitary character of the judiciary
- The supremacy of the Constitution as enshrined in Article 7
- The principle of secularism established in the preamble
Limitation on Parliamentary Power: It was contended that Article 142, while granting amendment powers to Parliament, does not confer unlimited authority to alter the fundamental character of the Constitution.
Judicial Integrity: The establishment of permanent regional benches would compromise the unified structure of the judiciary and potentially undermine judicial independence and consistency.
Secular Foundation: The declaration of Islam as state religion violated the secular principles upon which Bangladesh was founded, as reflected in the four fundamental principles: nationalism, socialism, democracy, and secularism.
Arguments of the Respondent (Bangladesh):
Parliamentary Sovereignty: The state argued that Parliament, as the supreme legislative body, possesses plenary power under Article 142 to amend the Constitution without judicial interference.
Practical Necessity: The establishment of regional benches was justified as a practical measure to improve access to justice and reduce the burden on the single High Court Division in Dhaka.
Democratic Mandate: The amendments were passed through proper constitutional procedures and reflected the democratic will of the people as expressed through their elected representatives.
Religious Identity: The declaration of Islam as state religion was argued to reflect the religious composition and cultural identity of the majority population of Bangladesh.
- Judgment / Final Decision
The Supreme Court delivered a landmark judgment with the following key decisions:
Constitutional Amendment Powers Limited: The court held that Parliament’s power to amend the Constitution under Article 142 is not absolute and is subject to limitations imposed by the basic structure doctrine.
Basic Features Doctrine Established: The court recognized and applied the basic structure doctrine to Bangladeshi constitutional law, establishing that certain fundamental features of the Constitution cannot be amended.
Eighth Amendment Declared Ultra Vires: The court declared the Eighth Amendment unconstitutional and ultra vires the Constitution on the following grounds:
- It violated the basic structure of the Constitution
- It compromised the unitary character of the judiciary
- It undermined the principle of secularism
Judicial Review Power Affirmed: The court established its power to review constitutional amendments and strike them down if they violate the basic structure of the Constitution.
Supremacy of Constitution: The judgment reaffirmed that Article 7, which establishes the supremacy of the Constitution, is itself a basic feature that cannot be amended.
- Legal Reasoning / Ratio Decidendi
Basic Structure Doctrine:
The court adopted the basic structure doctrine, drawing inspiration from the Indian Supreme Court’s decision in Kesavananda Bharati v. State of Kerala. The court reasoned that:
Inherent Limitations: Even though Article 142 grants amendment powers, these powers must be exercised within the framework of the Constitution’s basic structure.
Constitutional Supremacy: Article 7 establishes the Constitution as the supreme law, and this supremacy cannot be compromised through amendments that alter fundamental constitutional principles.
Judicial Independence: The unitary character of the judiciary is essential for maintaining judicial independence, consistency in legal interpretation, and equal access to justice.
Secularism as Basic Feature:
The court analyzed the preamble and foundational principles, concluding that:
Historical Foundation: The Constitution was adopted to establish a society based on nationalism, socialism, democracy, and secularism, making these principles integral to Bangladesh’s constitutional identity.
Fundamental Character: Secularism is not merely a policy choice but a fundamental characteristic that defines the nature of the Bangladeshi state.
Religious Neutrality: The state’s neutrality in religious matters is essential for protecting minority rights and maintaining social harmony.
Precedential Value:
The court established several important precedents:
Judicial Review: Courts have the power and duty to review constitutional amendments for conformity with basic structure.
Limited Amendment Power: Parliamentary sovereignty in constitutional matters is not absolute but subject to constitutional limitations.
Protection of Minorities: Basic structure includes protection of fundamental rights and minority interests.
- Conclusion / Observations
Significance and Impact:
The Anwar Hossain Chowdhury case represents a watershed moment in Bangladeshi constitutional jurisprudence with far-reaching implications:
Constitutional Democracy: The judgment strengthened constitutional democracy by establishing checks on legislative power and preventing the tyranny of the majority.
Judicial Independence: By affirming judicial review powers, the court enhanced its role as the guardian of
