Concept of Basic Structure of The Constitution: An Appraisal From The Perspective of Bangladesh And India

Abstract

The basic structure doctrine is the judge-made rule that some features of the Constitution of India are beyond the limit of the powers of amendment of the Indian parliament. The doctrine was first expressed in ‘Kesavananda Bharati v. The State of Kerala’ reflects judicial distress at the perceived danger to the moderate constitutional order caused by the Indian National Congress, in particular under Indira Gandhi. The basic structure doctrine is only applicable to the constitutionality of amendments and not to ordinary Acts of Parliament, which must match to the whole of the constitution and not just to its basic structure. On April 24, 1973, the Supreme Court ruled in Kesavananda that even though the Twenty-fifth Amendment of 1971 was suitable, the court still kept back for itself the judgment to reject any constitutional amendments passed by Parliament by asserting that the amendments cannot modify the constitution’s “basic structure”. The case of Anwar Hussain.Vs. Bangladesh widely known as 8th Amendment case is a famous judgment in the constitutional record of independence Bangladesh. This is the earliest judgment whereby the Supreme Court of Bangladesh as salient down an amendment to the constitution ready by the parliament. By two court order appeal the amended Art 100 & the notification of the Chief Justice were confronted as mega vires. A division bench of the HCD discharged the appeal instantly. Leave was established by the Appellate Division by a majority of 3 to 1 striking down the amendment 8th The standard argument of the judgment is that, the constitution rests on some fundamental main beliefs which are its structural supports which the parliament cannot amend by its amending power for; if these supports are discharged or damaged then the entire constitutional configuration will lose its validity.