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Anwar Hussain .Vs.

Bangladesh or 8th
Amendment Case
The case of Anwar Hussain .Vs. Bangladesh popularly known as 8th
Amendment case is a historic judgment in the constitutional history of
independence Bangladesh. This is the first judgment whereby the
Supreme Court of Bangladesh as striking down an amendment to the
constitution made by the parliament.

By two Writ petition the amended Art 100 & the notification of the
Chief Justice were challenged as ultra vires. A division bench of the
HCD dismissed the petition summarily. Leave was granted by the
Appellate Division 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 its structural pillars which
the parliament cannot amend by its amending power for; if these
pillars are dismissed or damaged then the whole constitutional
structure will be down.

Basic structures are:


1. Sovereignty belongs to the people.
2. Supremacy of the Constitution
3. Democracy.
4. Republican government.
5. Independence of Judiciary.
6. Unitary state.
7. Separation of powers
8. Fundamental rights.
These structural pillars of the constitution stand beyond any change by
amendatory process. If by exercising the amending power these
principles are curtailed more than one permanent seat of the Supreme
Court thus destroying the unitary character of the Judiciary.

The amended Art 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.
This amended Art 100 is inconsistent with Art 44, 94. 101 & 102 also
reduced Art 108, 109, 110 & 111 of the constitution. It directly
violated Art 114 this amended is illegal because there is no provision of
transfer which is essential requisite for dispensation of justice.

If any provision can be called the ‘pole star’ of the constitution, then
it’s Preamble. The impugned amendment is to be examined on the
touch stone of the preamble with or without restoring to the doctrine of
basic structure. The preamble is not only a part of the constitution; it
now stands an entrenched provision that cannot be amended by the
parliament. Though this amendment it simply destroy the objectives of
rule of law which is enunciated is our preamble.

The above quotations from the judgment make it clear that the centre
point, on which the majority relied to declare the amendment illegal,
which was the basic structure of the Constitution.

The Doctrine of Basic Structure is not well settled principle of the


constitutional law; rather it is recent trend in and a growing principle of
constitutional jurisprudence. The concept of basic structure of the
Constitution can be found in the Sub-Continent, as Dr. Kamal Hossain
submitted in the 8th amendment case, in a decision of the Dhaka High
Court. This decision was upheld by the Pakistan Supreme Court in
Fazlul Quder Chowdhury .Vs. Abdul Hague.

But in its Development stage in Indian jurisdiction the first formal


judicial formulation of this doctrine came out in Golak Nath. Vs. State
of Punjab case, 1967. Where it was decided that parliament has no
power to amend fundamental right so as to take away any of them.
The Indian Parliament passed 24 Amendment, 1971.Which laid down
that, the parliament might in the exercise of its constituent power
amend any provision of the Constitution be it of fundamental right or of
any other one.

The validity of the amendment which curtailed the power of judicial


reviews was challenged in Kesavananda .Vs. State of Cerala case,
1973.The court by majority overruling the Golak Nath’s case, held that
parliament had the power to amend any or all the provision of the
constitution.

Following Kesavananda principle, the court in the case of Indian Nehru


Gandhi .Vs. Raj Narayan, 1979 held that the 39 amendment affected
and destroyed certain structure of the constitution.

The scope of the application of the doctrine of basic structure again


came up for discussion in the case of Minerva Mills Ltd .Vs. Union of
India, 1980.

Thus proposition that parliament cannot amend the Constitution so as


to destroy its basic features was again repeat and applied by the
Supreme Court in Woman Rao .Vs. Union of India, 1980.

The Doctrine of Basic Structure successfully passed the acid test in 5


cases in India. And Bangladesh court in the 8th Amendment case
followed the Indian decision as regard the Doctrine of Basic Structure.