Doctrine of Basic Structure

The fascinating doctrine of Basic Structure resides in the nitty-gritty of the highly sophisticated debate on the scope of constitution amending power. It has become a vibrant tool of judicial activism to protect the constitutional edifice faced with the invincible parliamentary super majority from ruination. The substance of the claim is that there are certain structural pillars of the Constitution which cannot be dismantled by parliament in the name of amendment. It was planted strappingly in the judicial culture of Bangladesh by Anwar Hossain Chowdhury v. Bangladesh 1989 BLD (Spl) 1. Though since Anwar Hossain it has got a confident practical acceptance, a plain reading of Article 142 of the Constitution puts the doctrine into the fogginess of controversy, incongruity and inapplicability in certain cases. This article aims at outlining the clarified range of the reach of the doctrine as well as the flat standard of its identification to shun the duskiness rotating round the contents of the notion.

This paper examines the doctrine of Basic Structure and its effect upon the development of constitutional jurisprudence on the Indian sub-continent, i.e. Bangladesh, India and Pakistan. It also analyses the courts' robust underpinning on the doctrine that puts 'an embargo or a limit upon the parliamentary supremacy'. Such an embargo or a limit is at times seen as a fundamental one which eventually led practical application. Since this position provokes huge controversy, e.g. illegitimacy, anti-democracy, judiciocracy, counter-majoritarianism, anathema to popular sovereignty , non-textual and abstract formulation, etc., it fairly requires doctrinal expositions to be made on how to figure it out. Moreover, it explores the scope, standing and inviolability of the doctrine in the sense of comparative conceptualization. Furthermore , dissection from multifarious perspective is made in order to look into its pragmatism, justification and legitimacy through fixing its today's position in the ongoing debate among the contemporary constitutional commentators.