Anwar Hossain Chowdhury Vs.

Bangladesh1

Facts in brief:
Parliament amended article 100 of the constitution and thus it amended previous
provision into that the high court division shall have a permanent bench each at Barisal,
Chittagong, Comilla, Jessore, Rangpur and Sylhet and each permanent Bench shall have
such benches as the chief justice may determine from time to time. Thereby through this
case said amendment of the constitution was challenged to declare the ultra vires.

Reasoning:
Judges has given their decision on the basis that this amended Article 100 is conflicting
with Article 44, 94. 101 & 102 also compact Articles 108, 109, 110 & 111 of the
constitution. It directly violated Article 114 this amended is illegitimate since there is no
provision of transfer which is essential obligation for relaxation of the rules of justice.

Further, there are some fundamental provisions in the constitution which only belongs to
the people of the state such as Supremacy of the Constitution, Democracy, Republican
government, Independence of Judiciary, Unitary state, Separation of powers and
Fundamental rights. These structural pillars of the constitution can not be changed or
amend by the parliament (under article 142). If these pillars changed or damaged then the
entire constitutional configuration will lose its validity. The court cited different Indian
cases to support their decision such as Minerva Mills Ltd vs. Union of India, Woman Rao
vs. Union of India etc. Thus Appellate division followed the Indian decision as regard the
doctrine of Basic Structure.

Judges included that if by implementing the amending power these principles changed
and establish more than one stable seat of the Supreme Court then the unitary quality of
the Judiciary will be broken. The amended Art 100 is ultra vires for the reason has
destroyed the vital limb of the judiciary by setting up adversary courts to the High Court

1
18 CLC (AD) 1989
Division in the name of permanent Benches presenting full jurisdiction, power and role of
the High Court Division.

The court also contended that Article 7 and 26 of Bangladesh constitution exercise
authority over Article 142. Therefore an amendment under article 142 will be invalid if it
is inconsistent with article 7 or 26.

Decision:

Appeals are allowed by the judges and the impugned orders of the High Court Division
are set aside. Thus the impugned amendment of Article 100 along with consequential
amendment of Article 107 of the Constitution is held to be ultra vires and hereby declared
invalid.