Understanding the 15th Amendment case

In 2024, the High Court Division (HCD) of the Supreme Court of Bangladesh (SCOB) repealed that part of the 15th constitutional Amendment that had eliminated the caretaker government system, which was introduced in 1996 through the 13th Amendment, and reversed by the 15th Amendment in 2011. The judgment also restored procedures for holding referendums on constitutional modifications. This issue, however, returned to the spotlight after a recent judgment by the Appellate Division (AD) upheld the HCD’s ruling. This write-up will give a short analysis of the HCD judgment as the AD judgment is yet to be published in full.

Notably, being dissatisfied with the HCD verdict, the petitioner had filed an appeal to the AD challenging the legality of the entire 15th Amendment. However, the AD has upheld the HCD judgment and did not scrap the entire 15th Amendment.

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Before delving into the case, it is pertinent to note that the Constitution (15th Amendment) Act 2011 introduced several significant changes. Among others, the abolition of the Non-Party Caretaker Government (NPCG) system, the repeal of the referendum requirement under article 142 of the Constitution, and insertions of article 7A (the sedition clause) and article 7B (basic structure provision) were highly significant. The court in its judgment mainly focused on these issues.

The first question it dealt with was whether the parliament could amend the basic structure of the Constitution. The court answered in the negative. Indeed, parliament has the power to amend the Constitution under article 142. However, that power is limited, not absolute. If a constitutional amendment subverts the basic structure of the Constitution, it is to be deemed void (ultra vires the Constitution).

Then the issue was whether the Non-Party Caretaker Government was part of basic structure. Considering the history, preamble, and overall framework of the constitution, the Court observed that the Non-Party Caretaker Government became part of the Constitution’s basic structure. Importantly, per the Court, it was introduced to ensure free and fair elections, which are indispensable for ‘democracy’- another key pillar of the Constitution.

Thirdly, the issue was whether article 142 (amendment power) subject to article 7 (constitutional supremacy)? The court noted that the Parliament’s power to amend the Constitution under article 142 is not absolute. Rather, it is limited by article 7. The Constitution is supreme, and it itself empowered parliament to amend it. Parliament cannot weaponise this power to destroy or replace the ‘constitutional edifice’.

Fourthly, the court answered whether removing the ‘referendum requirement’ from article 142 was constitutional.  Abolishing the referendum requirement without first conducting a referendum was beyond parliament’s power, the Court viewed. Doing so, it violated the will of the people under article 7. As a result, it was declared ultra vires (unconstitutional). Lastly, the court dealt with the constitutionality of article 7A. The court noted that article 7A created the offense of ‘Constitutional Sedition’. The court maintained that the offence was vague, undefined, open-ended, and arbitrary. A criminal law must clearly inform people what conduct is prohibited, what amounts to an offence, and what authorities can issue punishment. Article 7A was vague, and hence it was to be struck down.

The court further noted that even procedurally, the 15th Amendment Act was defective as its adoption did not follow the regular procedures required for amendments (the long title requirement) and as it was passed in an ‘unusually hasty manner’.

Based on these observations, the court held that the 15th constitutional amendment Act, 2011 is not wholly void (rather some of its parts were declared void). The abolition of the NPCG (article 58A and Chapter IIA) is unconstitutional because it destroyed the basic structure of democracy. Similarly, the removal of the referendum requirement from article 142 was also found ultra vires, and that provision introduced by the 12th Amendment (1991) was restored. Moreover, the insertion of articles 7A and 7B were also struck down because they were found conflicting with article 7 on the grounds of undermining the will of the people and the supremacy of the Constitution. Furthermore, article 7B was held unconstitutional as well based on the contention that no Parliament can bind its successor.

The writer is intern at Law Desk, The Daily Star.