Challenging the Constitutionality of a Law in Bangladesh: Articles 7 and 26, Landmark Cases and Procedure in 2026

Challenging constitutionality of a law: the framework in 2026

Challenging constitutionality of a law in Bangladesh is the most powerful thing a writ petition can do. When the High Court Division declares a statute, an ordinance, a regulation or even a constitutional amendment void, the decision does not merely help the petitioner; it removes the provision for everyone, and once confirmed by the Appellate Division it binds every court in the country. Some of the defining moments in Bangladesh's legal history, from the end of martial-law validation to the separation of the judiciary, began as constitutional challenges of exactly this kind.

This guide explains the constitutional foundation for striking down laws, the difference between challenging ordinary legislation, subordinate legislation and constitutional amendments, the leading cases, the protected categories of law that cannot be attacked, the procedure in the High Court Division and on appeal, and the practical choices that decide whether a challenge succeeds. It reflects the position as at October 2026.

Summary: Article 7(2) makes the Constitution the supreme law and any inconsistent law void to the extent of the inconsistency; Article 26 does the same for laws inconsistent with fundamental rights. The High Court Division enforces both under Article 102, and the Appellate Division hears appeals as of right where a substantial question of constitutional interpretation is certified. Constitutional amendments are tested against the basic structure rather than Article 26.

Key point: Not every law can be challenged. Article 47 protects specified categories, including laws for the trial of international crimes, and Article 102(3) bars the High Court Division from making any order in relation to them. The Appellate Division has said such writ petitions should be summarily rejected. Check the protected categories before drafting.

At a glance

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Table of Contents

The constitutional basis for striking down a law

The power to strike down legislation rests on the text of the Constitution itself. In the Fifth Amendment case the apex court described the Constitution as the basis on which the vires of all other laws are judged under the Supreme Court's power of judicial review, and said that judges, having sworn to preserve, protect and defend it, are duty bound to strike down any inconsistent provision.[3]

Article 7(2) declares the Constitution "the supreme law of the Republic" and provides that "if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void".[1] Article 26(1) makes existing law inconsistent with the fundamental rights in Part III void, and Article 26(2) forbids the State to make any law inconsistent with Part III, declaring any such law void to the extent of the inconsistency.[1]

Article 44(1) guarantees the right to move the High Court Division under Article 102(1) to enforce fundamental rights, and Article 102 supplies the remedy: directions for the enforcement of fundamental rights, and declarations that acts done by persons performing functions in connection with the affairs of the Republic are without lawful authority and of no legal effect.[1] The apex court has called Article 7 the "pole star" of the Constitution, and it remains the touchstone against which every other law is measured.[5]

Voidness "to the extent of the inconsistency"

Both Article 7(2) and Article 26 strike down a law only "to the extent of the inconsistency".[1] That phrase is the constitutional basis for severance. The court does not need to annul an entire statute if one section offends; it can declare that section, or part of it, void and leave the rest standing. In Biplop Kanti Das v Government of Bangladesh, for example, the High Court Division declared statutory instruments without lawful authority only "insofar as" they failed to provide retirement benefits matching the increased deductions.[9] A well-drafted petition identifies precisely which words are said to be unconstitutional.

The starting presumption

Courts begin from the premise that Parliament intends to legislate within the Constitution. The burden is on the person challenging constitutionality of a law to show a clear inconsistency, and where a provision can reasonably be read in a way that is consistent with the Constitution, that reading will generally be preferred over a declaration of invalidity. In practice this means a challenge must be built on a specific constitutional provision, a specific statutory provision, and a clear explanation of why the two cannot stand together.

What can be challenged

The same constitutional standard applies to three different kinds of law, but each raises different arguments.

Acts of Parliament and ordinances

A statute is void if it violates a fundamental right or any other provision of the Constitution. In Z I Khan Panna v Bangladesh, decided on 13 September 2015 and reported at 7 SCOB [2016] HCD 7, the High Court Division declared void ab initio the indemnity law of 2003 that protected members of the joint forces for acts during "Operation Clean Heart". The court held its indemnity and bar-of-proceedings provisions repugnant to the rule of law, equality before law and the right to the protection of law, and held that Article 46 permits indemnity only for specific areas in connection with the maintenance or restoration of order, not a blanket indemnity for the whole country.[7]

Ordinances made by the President are "law" and are tested in the same way.[1] In Kudrat-E-Elahi Panir v Bangladesh, 44 DLR (AD) 319, writ petitions attacked the 1991 ordinance repealing the upazila parishad law as inconsistent with Articles 9, 11, 59 and 60. The court held that abolishing the upazila parishads violated no provision of the Constitution, but made clear that Parliament "is not free to legislate on local government ignoring Articles 59 and 60".[3] Even an unsuccessful challenge can fix the constitutional limits for future legislation.

Rules, regulations and statutory instruments

Subordinate legislation is open to a double attack: it may be unconstitutional, and it may be ultra vires the parent Act. In Biplop Kanti Das, decided on 22 February 2024, non-government teachers challenged statutory instruments raising deductions from their salaries without matching benefits, and the court declared them without lawful authority to that extent.[9] In Md Belayet Hossain v Government of Bangladesh, decided on 9 August 2026, Water Development Board employees attacked pension regulations as retrospective and ultra vires.[10] Our sibling guide on challenging an SRO in the High Court covers this area in detail.

Constitutional amendments

Article 26(3) provides that nothing in Article 26 applies to an amendment made under Article 142.[1] An amendment cannot therefore be struck down simply for abridging a fundamental right.

Instead, amendments are tested against the Constitution's basic structure. The doctrine took root in Anwar Hossain Chowdhury v Bangladesh, the Eighth Amendment case, in which the Appellate Division declared unconstitutional the change to Article 100 that had set up permanent High Court benches outside Dhaka.[2] The Fifteenth Amendment of 2011 tried to entrench the basic structure through Article 7B, which declared large parts of the Constitution "not amendable", but the High Court Division declared Articles 7A and 7B void in December 2024 and the Appellate Division left that ruling in force in July 2026.[5] [6]

Landmark cases on challenging constitutionality of a law

A handful of decisions show the reach of the power and the way it has reshaped the constitutional order.

The Fifth Amendment case

In Bangladesh Italian Marble Works Ltd v Government of Bangladesh, which grew out of the company's decades-long effort to recover the Moon Cinema Hall in Dhaka, the High Court Division bench of Justices A B M Khairul Haque and A T M Fazle Kabir on 29 August 2005 declared the Fifth Amendment illegal and martial law as a whole unconstitutional, holding the regimes of 15 August 1975 to 9 April 1979 unlawful. The bench said the Constitution "must take precedence over every thing under any circumstances".[4]

The Appellate Division upheld the High Court Division in February 2010 in Khondker Delwar Hossain v Bangladesh Italian Marble Works Ltd, reported at 62 DLR (AD) 298.[2] [5] The referendum provision in Article 142, first inserted under martial law and later re-enacted by the Twelfth Amendment in 1991, would become central to the Fifteenth Amendment litigation fourteen years later.[5]

Masdar Hossain and judicial independence

Secretary, Ministry of Finance v Md Masdar Hossain, 20 BLD (AD) 104, did not strike down an Act in the usual sense, but it tested the executive's control over the lower judiciary against the Constitution's scheme for the judicial service. The court found that Parliament and the government had departed from the constitutional arrangements, held that the higher judiciary may "bring back the Parliament and the executive from constitutional derailment", and gave 12 guidelines, almost all of which the government later implemented.[3]

The Sixteenth Amendment

The Constitution (Sixteenth Amendment) Act 2014 gave Parliament power to remove Supreme Court judges for proven incapability or misconduct. The High Court Division declared it unconstitutional on 5 May 2016 in Writ Petition No 9989 of 2014, and the Appellate Division upheld that decision on 3 July 2017 in Civil Appeal No 6 of 2017.[2] The apex court treated removal through the Supreme Judicial Council as part of the basic structure because it reinforces the independence of the judiciary, and the State's later review petition did not disturb that finding.[5]

The Fifteenth Amendment in 2024

The Fifteenth Amendment of 2011 itself became the subject of public interest writs filed in 2024 by Dr Badiul Alam Majumdar and others. On 17 December 2024 a Division Bench of Justices Farah Mahbub and Debasish Roy Chowdhury held that the Act was not void as a whole, but declared void the sections abolishing the non-party caretaker government system (with prospective effect), the repeal of the referendum provision in Article 142, Articles 7A and 7B, and Article 44(2). The remaining provisions were left to the next Parliament.[5]

The Appellate Division granted leave on 13 November 2025 and, on 9 July 2026, a four-member bench led by Chief Justice Zubayer Rahman Chowdhury dismissed all the appeals, leaving the High Court Division's judgment in force.[6] The case shows that an amendment claiming to entrench the basic structure can itself be tested against that structure, and that the court can cure the defect by striking down specific sections rather than the whole Act.[5]

Laws that cannot be challenged

The Constitution protects some categories of law from attack, and any practitioner contemplating challenging constitutionality of a law must check them first.

• Article 47(1): laws on listed subjects, including compulsory acquisition and nationalisation, the regulation of rights in commercial undertakings, mineral rights and certain property and business rights, are not void for inconsistency with fundamental rights if Parliament expressly declares that the provision gives effect to the fundamental principles of state policy.[1]
• Article 47(2): laws in the First Schedule continue in force and are not void for inconsistency with the Constitution, though they may be amended or repealed.[1]
• Article 47(3): no law providing for the detention, prosecution or punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law is void for inconsistency with the Constitution.[1]
• Article 47A: certain rights, including the right to move the High Court Division under Article 44, do not apply to persons to whom an Article 47(3) law applies.[1]
• Article 45: Part III does not apply to provisions of disciplinary law limited to ensuring discipline in a disciplined force.[1]

Article 102(3) adds a procedural lock: the High Court Division has no power "to pass any interim or other order" in relation to any law to which Article 47 applies.[1] In Government of Bangladesh v Shireen Pervin Huq, reported at 1 SCOB [2015] AD 22, a writ challenged provisions of the International Crimes (Tribunals) Act 1973 for lacking a right of appeal in contempt matters. The Appellate Division held that Article 47(3) read with Article 102(3) meant the High Court Division "had no jurisdiction to entertain the writ petition", that it "ought to have summarily rejected" it, and modified the order accordingly.[8]

Procedure for challenging constitutionality of a law

A constitutional challenge is brought as a writ petition under Article 102 before a Division Bench of the High Court Division. The procedure follows the ordinary writ route described in our guide to the writ petition in Bangladesh, with several features specific to constitutional cases.

Standing

The petitioner must be a "person aggrieved", but since Mohiuddin Farooque v Bangladesh in 1996 the courts have read the phrase broadly, so a citizen or organisation espousing a public cause can bring a challenge to a law that affects the public at large.[11] A person directly affected by the law, such as a prosecuted individual or a regulated business, will still present the strongest case.

The Attorney General and interim relief

The State is defended by the Attorney General's office. Where an interim order is sought that might prejudice a development programme or be harmful to the public interest, Article 102(4) requires reasonable notice to the Attorney General and an opportunity to be heard before any such order is made.[1] Courts are also generally cautious about suspending the operation of a statute before final hearing, so most constitutional challenges are argued to judgment with interim relief, if any, confined to the petitioner.

The steps

The sequence below reflects how we prepare a challenge from first instruction to the Appellate Division.

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Appeal to the Appellate Division

An appeal lies to the Appellate Division as of right where the High Court Division certifies that the case involves a substantial question of law as to the interpretation of the Constitution; otherwise it lies only with leave.[1] Ask for the certificate at the end of the hearing. Under Article 111 the law declared by the Appellate Division binds the High Court Division, and the law declared by either division binds all subordinate courts.[1] Article 112 requires all executive and judicial authorities to act in aid of the Supreme Court.[1]

One challenge, all grounds

Raise every ground in the first petition. In Md Belayet Hossain the High Court Division discharged a rule on constructive res judicata because the petitioners had not raised their vires challenge in earlier writs over the same scheme, holding that changing the form of the challenge did not avoid the bar.[10]

Defending a law against a constitutional challenge

Ministries, regulators and businesses that benefit from a statute are often on the other side. The defence of a law usually turns on four points. First, jurisdiction: whether the law falls within a protected category under Article 47 or Article 45, in which case the petition should be summarily rejected.[1] [8] Second, construction: whether the provision can be read consistently with the Constitution, which avoids any declaration of invalidity.

Third, the reasonableness of the restriction: many fundamental rights in Part III are expressly subject to "reasonable restrictions imposed by law", so the State must show the restriction is authorised and reasonable.[1] Fourth, remedy: even where a defect is shown, the court can sever the offending words rather than strike down the whole law.[1]

Anyone responding to a petition challenging constitutionality of a law should also look closely at the petitioner's standing, delay and any earlier litigation over the same provision. Constructive res judicata, as applied in 2026, can be as effective a defence as any argument on the merits.[10]

Comparing the targets when challenging constitutionality of a law

The table summarises how the main kinds of law are tested when challenging constitutionality of a law. On a phone, scroll it sideways.

Practical considerations and common mistakes

Most failures in challenging constitutionality of a law are avoidable. The most common are:

• Attacking the law when the real problem is its application. If the statute is valid but was misapplied, the remedy is a challenge to the decision, not the law.
• Ignoring the protected categories. A petition against an Article 47 law will be summarily rejected.[8]
• Relying on Article 26 against an amendment. Article 26(3) excludes amendments; argue the basic structure instead.[1]
• Pleading too broadly. Ask for the narrowest declaration that cures the defect; the court can sever.[1]
• Splitting grounds. Constructive res judicata can shut out a second attempt.[10]
• Forgetting the forum for service matters. A service dispute dressed up as a constitutional challenge may still belong to the Administrative Tribunal; see our sibling guide on the writ in service matters.

What to watch in 2026

Challenging constitutionality of a law has rarely been more active. The Appellate Division's July 2026 decision on the Fifteenth Amendment has restored the caretaker system and the referendum provision and removed Articles 7A and 7B, so challenges to future amendments will turn on the basic structure doctrine itself.[6] The ordinances made by the interim government, and the Acts that replaced many of them, will generate fresh challenges as their provisions are applied. At the same time, decisions such as Md Belayet Hossain show the court insisting on procedural discipline from those who bring challenges.[10]

For businesses and individuals, the practical message is to treat a constitutional challenge as a strategic project: identify the precise provision, the right petitioner, the protected-law risk and the appellate route before filing. Our constitutional and writ litigation practice advises on challenges to statutes, ordinances, rules and amendments, and on defending them. For background, see our guides to constitutional law in Bangladesh and constitutional law cases in Bangladesh.

Frequently asked questions

Can the High Court Division declare an Act of Parliament void?

Yes. Under Articles 7(2) and 26, a law inconsistent with the Constitution or with fundamental rights is void to the extent of the inconsistency, and the High Court Division declares this under Article 102.[1]

Who can file a petition challenging constitutionality of a law?

A person aggrieved, which the courts read broadly to include citizens and organisations pursuing a genuine public cause.[11]

Can a constitutional amendment be struck down?

Yes. Amendments are excluded from Article 26 but have been tested against the basic structure and Article 7B; the Fifth and Sixteenth Amendments were struck down, and parts of the Fifteenth were declared void in 2024 in a ruling the Appellate Division left intact in 2026.[1] [2] [6]

Can the whole Act be struck down if only one section is unconstitutional?

Usually only the offending part falls. Articles 7(2) and 26 void a law only "to the extent of the inconsistency".[1]

Which laws cannot be challenged?

Laws protected by Article 47, including qualifying laws on nationalisation and property, First Schedule laws and laws for the trial of international crimes, together with certain disciplinary laws under Article 45.[1]

Can the International Crimes (Tribunals) Act 1973 be challenged by writ?

No. The Appellate Division held that Article 47(3) with Article 102(3) bars such writs and that they should be summarily rejected.[8]

Can rules and SROs be challenged?

Yes, as unconstitutional or as ultra vires the parent Act. In 2024 the High Court Division declared statutory instruments on teachers' deductions unlawful to the extent they denied matching benefits.[9]

How do I appeal a constitutional decision?

An appeal lies as of right if the High Court Division certifies a substantial question of constitutional interpretation; otherwise by leave of the Appellate Division.[1]

Is a declaration of unconstitutionality binding on everyone?

Law declared by the Appellate Division binds the High Court Division and all subordinate courts, and all authorities must act in aid of the Supreme Court.[1]

Can I bring a second challenge on a new ground?

Risky. In 2026 the High Court Division applied constructive res judicata to a vires challenge that could have been raised earlier.[10]