From Fortress to Forums: The Return of Interpretive Unamendability in Bangladesh

Isfar Tehami Sarker

Md Isfar Tehami Sarker is Lecturer in Law and Human Rights, Varendra University, Bangladesh

Introduction:

In the post-colonial constitutional landscape of South Asia, the Basic Structure Doctrine (BSD) has a notable history. Its purpose is limiting the constituent power or unamendability of constitutional commitments. Born in the 1970s in India, in line with the globally migrating trend of limiting constitutional amendment powers, it promised to preserve the essence of a constitution against any internal and external attack by rendering questionable amendments invalid through judicial decisions. Despite incorporating the BSD in its constitutional system, this has been refined by the Supreme Court of Bangladesh in a 2024 decision.

This post examines Bangladesh’s 2024 annulment of Article 7B as a constitutional turning point, marking a shift from rigid textual unamendability toward a revived, judicially grounded interpretive model. The Supreme Court’s decision reopens constitutional space for both parliamentary amendment and judicial review with respect to the provisions petrified by Article 7B, balancing preservation with change. In doing so, it advances a dialogic and adaptive constitutional order rooted in popular sovereignty, structural continuity, and principled judicial oversight.

A Tale of Unamendabilities in Bangladesh

Bangladesh’s experience reflects the full life cycle of unamendability. Unamendability was first introduced into the Constitution through its Fifth Amendment in 1979. This was an example of Constructive Unamendability because it made the amendment procedure excessively hard and complex to achieve with respect to some specific provisions (articles 8, 48, 56 and article 142 itself) along with the Preamble, by inserting article 142(1A-1C).

Then came the Eighth Amendment Case in 1989. Here, the judiciary imported the Indian Basic Structure Doctrine as introduced by the Indian Supreme Court in the Kesavananda Bharati v. State of Kerala (1973) case, creating a form of interpretive unamendability, as Richard Albert termed it. This involved judicially enforceable limits over constitutional amendments and brought any future amendment of the Constitution that affected several foundational concepts enshrined in the Constitution under the scrutiny of judicial review.

In 2011, a new form of unamendability alongside this was adopted through the Fifteenth Amendment. This Amendment embedded codified unamendability into the constitutional text through Article 7B, which made the Preamble, the provisions of the first three Parts of the Constitution and any other constitutional provision connected to the Basic Structure of the Constitution permanently unalterable. Since then, the explicitly mentioned provisions enjoyed protection from amendment by the Parliament. In 2024, the Supreme Court of Bangladesh nullified Article 7B and declared it unconstitutional in the Badiul Alam Majumdar vs Bangladesh case. The judgment marks the return of interpretive unamendability in Bangladesh.

The effect of Article 7B

Article 7B has been widely criticized, as it provided protection from insertion to the articles of the first three Parts of the Constitution and not the parts themselves. This means any new article could be inserted into any of these three parts. Because of the categorical petrification, anything inserted here cannot be amended by any means. Upon this reasoning, Lima Aktar pointed out in a previous post on this Blog that this amendment has created a Constitutional Blackhole. This black hole could be misused for harbouring provisions that would have been against constitutionalism in Bangladesh. It can also be called an undesirable constitutional dismemberment because it has been brought in a constitutionally incoherent way. Article 7B itself was inserted into Part I, making Dr Ridwanul Hoque identify it as an eternity clause. As it protected almost one third of the Constitution from any kind of amendment, Rokeya Chowdhury called it “a Constitution inside of a Constitution”, comparing it with the Matryoshka Dolls.

The Badiul Alam Majumdar vs Bangladesh Decision (2024)

In its 2024 decision, the Supreme Court of Bangladesh focused on the legitimacy of the provision. It found the article itself unconstitutional and against the Basic Structure Doctrine and Popular Sovereignty. Upon reading Articles 7B and 142 (which provides procedures for formal constitutional amendment) together, it held that “eternal rigidity” contradicts popular sovereignty and curtailed the opportunity for future generations to change the Constitution over time. It also requires attention that the Judgment of 1989 introduced autochthony as a unique feature of the Constitution. The Constituent Assembly of Bangladesh derived its validity from the Provisional Constitution of 1972. This Provisional Constitution was valid under the Proclamation of Independence of 10th April 1971 which itself drew its validity from the popular demand expressed through the General Election of 1970. We may see its reflection in the present Constitution: the Preamble introduced the Constitution as the embodiment of the will of the people of Bangladesh and Article 7(1) provided that the Constitution, as the solemn expression of the will of the people, is the Supreme Law of the Republic. The Court treats Article 7 as a foundational provision that conditions all exercises of public power, including constitutional amendment. As a result, Parliament’s authority in Article 142 should be interpreted not as an unlimited constituent power but as a derivative authority that must operate within the framework of the Constitution. According to the Court, this interpretation was not possible due to the incorporation of Article 7B.

The Court also reaffirmed and refined the scope of the Basic Structure Doctrine. It emphasised that certain features—such as popular sovereignty, rule of law, and judicial independence—are integral to the constitutional order and cannot be destroyed by amendment. Importantly, the Court explained that these features are not external abstractions but are derived from specific provisions and the overall constitutional scheme. The Court then turned to the Fifteenth Amendment, especially Article 7B. The court initially focused on the procedural validity of the amendment and noted irregularities in the enactment process, including the absence of meaningful deliberation and the failure to comply with constitutional requirements such as proper debate and referendum provisions, upon which the court opined that the amendment was passed in an unusually hasty manner. Substantively, it examined whether the amendment alters the constitutional structure. It is in this substantive analysis that Article 7B becomes central. By declaring parts of the Constitution permanently unamendable—including Article 7B—the provision attempts to remove those parts from the reach of future constitutional change. The Court evaluated this against the framework it has already established: amendment power is limited, but those limits arise from the Constitution itself, not from an attempt to freeze the Constitution through text.

The conclusion follows from that structure. Article 7B was held to be inconsistent with Article 7 because it reconfigures the constitutional order: instead of the Constitution being the expression of the people’s will, the amendment sought to bind future expressions of that will. The Court therefore declared Article 7B (along with Article 7A) ultra vires and void. Notably, the Court did not invalidate the Fifteenth Amendment in its entirety. It adopts a selective approach, striking down provisions that conflict with the basic structure while leaving others to be addressed by the political process. This reinforces the idea that judicial review operates as a structural safeguard, not a wholesale veto unlike article 7B.

From Fortress to Forum

In light of Article 7B, constitutional identity appeared as a fortress—solid, guarded, and insulated from political change. Yet such rigidity risked severing the Constitution from the society it served, turning protection into paralysis. When, in 2024, the Supreme Court declared it void, it made the previously petrified provisions subjected to judicial review and parliamentary power of amendment. Instead of removing all forms of unamendability in favour of popular sovereignty, it instead presented a balance between popular sovereignty and preservation of the constitutional basic structure. This has opened the door for coherent constitutional reconstruction which both saves the Constitution from any future act of suffocation and makes any future act of destroying the Constitutional fundamentals subject to judicial review. This can be identified as the return of interpretive unamendability in Bangladesh in a more mature way.

Md Isfar Tehami Sarker is Lecturer in Law and Human Rights, Varendra University, Bangladesh

Suggested Citation: Md Isfar Tehami Sarker, ‘From Fortress to Forum: The Return of Interpretive Unamendability in Bangladesh’ IACL-AIDC Blog (12 May 2026) From Fortress to Forums: The Return of Interpretive Unamendability in Bangladesh — IACL-IADC Blog