The Doctrine of Basic Structure in Bangladesh: From ‘Calfpath’ to Matryoshka Dolls

The judicial entrenchment of the doctrine of basic structure through Anwar Hossain Chowdhury v Bangladesh (1981), popularly known as the Eighth Amendment Case (EAC) is considered as a milestone in the constitutional history of Bangladesh. Through invocation of the doctrine the parliament is restrained from amending certain basic or essential features of the Constitution though not expressly named. This article does not question the legitimacy or utility of the doctrine, rather critically examines the EAC judgment and its application in subsequent decisions leading to constitutional entrenchment of the doctrine by the Constitution (Fifteenth Amendment) Act, 2011. The article argues that: i) the dubious stand of the Supreme Court in times of political and constitutional turmoil reduced the viability of the doctrine in Bangladesh at the very outset, ii) the EAC suffered from inconsistencies making it short of a good precedent for a Constitutional Court long eclipsed by extra-constitutional authority, iii) in subsequent cases the Court either readily conceded to or subjectively applied the dicta of the EAC, and iv) the Parliament while constitutionally entrenching some immutable features has not only flouted judicial decisions with regard to basic features but also petrified the Constitution. Inspired by Sam Walter Foss’s poem “The Calf Path” (1905) the article argues that following the crooked trail initiated by the EAC the Constitution has reached a crossroad where one finds not a single constitution, rather many constitutions within the Constitution each smaller in breadth than the other, as in Russian Matryoshka dolls.