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Basic Structure of Constitution

The document discusses the basic structure doctrine in Bangladesh's constitution. It establishes that the constitution is the highest law of the land and outlines certain fundamental principles that form its basic structure, including the supremacy of the constitution, democracy, an independent judiciary, and fundamental rights. The basic structure cannot be altered by amendments. This was demonstrated in a landmark Bangladesh Supreme Court case that struck down the 8th amendment for violating the basic structure by disrupting the unitary character of the judiciary. In conclusion, some past amendments were made without proper discussion or democratic practices and were rightfully overturned.

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Shahin
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60 views

Basic Structure of Constitution

The document discusses the basic structure doctrine in Bangladesh's constitution. It establishes that the constitution is the highest law of the land and outlines certain fundamental principles that form its basic structure, including the supremacy of the constitution, democracy, an independent judiciary, and fundamental rights. The basic structure cannot be altered by amendments. This was demonstrated in a landmark Bangladesh Supreme Court case that struck down the 8th amendment for violating the basic structure by disrupting the unitary character of the judiciary. In conclusion, some past amendments were made without proper discussion or democratic practices and were rightfully overturned.

Uploaded by

Shahin
Copyright
© © All Rights Reserved
Available Formats
Download as PPTX, PDF, TXT or read online on Scribd
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INTRODUCTION:

• Firstly, we have to know that, what the basic structure of the constitution
is. This doctrine is not a settled principle of constitutional law. It is a
growing principle of Constitutional Jurisprudence. The basic structure
doctrine is the judge made doctrine whereby certain features of a
constitution are beyond the limit of the powers of amendment of a
parliament. This doctrine also applies only to the constitutionality of
amendments and not to the ordinary Acts of the parliament which must
confirm to the entirety of the constitution.
.
BANGLADESH CONSTITUTION AND BASIC STRUCTURE
DOCTRINE
The Constitution of Bangladesh is the highest ruling of Bangladesh. It represents
Bangladesh as a democratic republic nation where all the power is in the hands of
Bangladeshi people and characterizes basic political principles of the state and stands
for the fundamental rights of citizens. It was approved by the Assembly of
Bangladesh on November 4, 1972; it was exercised from December 16, 1972.
The constitution stands as the most powerful evidence to state Bangladesh as a
unitary, independent and Republic, founded on a struggle for national liberation, and
that is how we achieve the People's Republic of Bangladesh. It lays a strong
foundation of
• Nationalism,
• Secularity,
• Democracy and
• Socialism
• as the essential ethics that stands for the Republic and declares the quest of a
society that gives its citizens- the rule of law, fundamental civil rights and
independence as well as fairness and evenhandedness, political, economic and
social
THE ORIGIN OF THE CONCEPT OF "BASIC
STRUCTURES" OF THE CONSTITUTION:

The concept of the basic structure of the constitution can be found in the
sub-continent in the case of Pakistan Supreme Court in -FAZLIL QUDER
CHOWDHURY Vs. ABDUL HAQUE. It was held that Franchise and form
of government are fundamental features of a constitution. The power
conferred upon the presidency by the constitution of Pakistan to remove
difficulties does not extend to making an allegation in a fundamental
feature of the constitution.
Kesavananda Bharati case (1973)
This was a landmark case in defining the concept of the basic structure
doctrine in India.
The SC held that although no part of the Constitution, including
Fundamental Rights, was beyond the Parliament’s amending power, the
“Basic structure of the Constitution could not be abrogated even by a
constitutional amendment.”
THE BASIC STRUCTURE OF THE CONSTITUTION
OF BANGLADESH:
• The constitution shall be the supreme law of the land for all times.
Nothing can be done which is brings about a violation of the
constitution and its basic features. That means the constitution of
Bangladesh beings the embodiment of the WILL of the republic of
Bangladesh which mentioned in Article 7 of the Bangladesh
constitution. In the case of ANWAR HOSSAIN Vs. Bangladesh,
• This case is also known as the eighth amendment case. Here Article 7
was prevailed. This is the first case whereby the Supreme Court of
Bangladesh as striking down an amendment to the constitution made by
the parliament. By two writ petition the amended article 100 and the
notification of the chief justice were challenged. A division bench of the
High Court Division (HCD) dismissed the petition summarily. Leave
was granted by the Appellate Division (AD) by a majority of 3 to 1
striking down the 8th amendment.
The principle argument of the judgment is that-the constitution stands on
certain fundamental principles which are the structural pillars. These basic
features are:
• 1) Supremacy of the constitution which states in article 7 of the
constitution.
• 2) Democracy which states in the preamble.
• 3) Republican government which states in the article 1 of the
constitution.
• 4) Independence of judiciary which states in article 22 of the
constitution.
• 5) Unitary state which is mentioned in article 1 of the constitution.
• 6) Separation of powers which is mentioned in article 22 of the
constitution.
• 7) Fundamental rights which is mentioned in from Article 26 to 47A of
the constitution.
These structural pillars of the constitution stand beyond any change by
amendatory process. If these principles are curtailed more than one permanent
seat of the Supreme Court by exercising the amending power, then it
destroying the unitary character of the judiciary.

The amended article 100 is Ultra vires because it has destroyed the essential
limb of the judiciary by setting up rival courts to the HCD in the name of
permanent Benches conferring full jurisdiction, power and function of the
HCD. The amended article 100 is inconsistent with article 44, 94, 101, and
102. It also reduced article108 to article 111 of the Bangladesh Constitution.
It directly violated article 114, this amended is illegal because there is no
provision of transfer which is essential requisite for dispensation of justice.
Conclusion
It is seen from the above abstract, that a few Amendments ended at one
time under certain forceful situation were consequently detached by
another Amendment, and also that numerous of these had a nationwide
harmony. But a only some of the Amendments were endorsed without
appropriate arguments and thorough discussions concerning all the
pledge holders including people adhering to diverse, sometime differing,
ideological or opinionated views. Amendments that were the
consequence of unsophisticated thought, lack of esteem for democratic
practices or suitability have clearly come under severe disapprovals,
sometimes for suitable motives and sometimes for sectarian political
ideas.

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