Article 26: Fundamental rights override inconsistent laws

by Barrister Tahmidur Rahman | Oct 25, 2026

In forceFundamental Rights

Article 26 Fundamental rights override inconsistent laws

Laws inconsistent with fundamental rights to be void

It is the reason a citizen or a business can ask a court to set aside a law that takes away a fundamental right. Without it, the rights in Part III would be promises without teeth.

Article 26 of the Constitution of Bangladesh: Fundamental rights override inconsistent laws
PART IIICONSTITUTION
PARLIAMENTNEW LAW
CITIZENHIGH COURT DIVISION
VOID PROVISIONJUDGMENT
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  1. The Constitution lists the fundamental rights in Part III, from equality before law to freedom of religion. Article 26 declares that these rights sit above ordinary laws, whether those laws were made before 1972 or are passed by Parliament later.

  2. Parliament enacts a statute. Some of its provisions may restrict speech, property or personal liberty. Article 26(2) forbids Parliament from making any law inconsistent with Part III, so every new law must be tested against these rights.

  3. A person affected by the law files a writ petition in the High Court Division under Articles 44 and 102, arguing that a particular section takes away a fundamental right. The court examines whether the restriction is one the Constitution permits.

  4. If the court finds a conflict, it declares the provision void to the extent of the inconsistency. The rest of the law can survive. Under clause (3), this test does not apply to amendments to the Constitution made under Article 142.

In plain English

How Article 26 works

Article 26 makes the fundamental rights in Part III a legal ceiling that ordinary laws cannot break through. Any law that existed before the Constitution came into force became void to the extent it clashed with these rights. Parliament also cannot make a new law that conflicts with them, and if it does, the clashing part is void. Courts do not throw out a whole statute; they cut away only the inconsistent part. Clause (3), added in 1973, says this rule does not apply to amendments of the Constitution itself made under Article 142. That means a constitutional amendment cannot be struck down simply for conflicting with Part III, although the courts have developed other grounds, such as the basic structure doctrine, to review amendments.

In practice

Article 26 works together with Articles 44 and 102: the High Court Division uses it to declare offending provisions void. A well-known example is the 2015 Appellate Division ruling that mandatory death sentences in the women and children repression laws were unconstitutional. Clause (3) shields constitutional amendments from a Part III challenge, but the Eighth Amendment case (1989) held that amendments which damage basic features can still be struck down. That reasoning was used on 17 December 2024, when the High Court Division declared parts of the Fifteenth Amendment void; the Appellate Division dismissed the appeals on 9 July 2026, as reported. A February 2025 Constitution Reform Commission report proposed merging the rights into a single enforceable charter, which remains a proposal only.

The text

What Article 26 says

26. (1) All existing law inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.

(2) The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void.

[(3) Nothing in this article shall apply to any amendment of this Constitution made under article 142.]

English text as published on the official Laws of Bangladesh website. Where a court has changed the position, the status note above explains it.

Landmark cases

How the courts have read it

Appellate Division · 1989

Anwar Hossain Chowdhury v Bangladesh (Eighth Amendment case)

41 DLR (AD) 165; 1989 BLD (Spl) 1

Held that constitutional amendments are permissible only so far as they do not impinge on the basic features of the Constitution, so an amendment can be declared void despite the amending power.

Appellate Division · 2015

BLAST v Bangladesh (mandatory death penalty case)

1 SCOB [2015] AD 1

Declared the mandatory death sentences in section 6(2) and (4) of the 1995 Ain and section 34(2) and (3) of the Nari-o-Shishu Nirjatan Daman Ain 2000 void as ultra vires the Constitution, because they removed judicial discretion in sentencing.

Case summaries are short descriptions for orientation, not a substitute for the judgment.

History

Amendments

  • Second Amendment 1973Added clause (3), excluding amendments of the Constitution made under Article 142 from the operation of Article 26.

Connected provisions

Related articles

Questions

Article 26: frequently asked questions

What is Article 26 of the Constitution of Bangladesh?

Article 26 says any law inconsistent with the fundamental rights in Part III is void to the extent of the inconsistency. It covers laws existing in 1972 and any law Parliament makes later, and it lets courts strike down only the offending part of a statute.

Can Parliament pass a law that violates fundamental rights?

No. Article 26(2) prohibits Parliament from making any law inconsistent with Part III, and any such provision is void. Some rights can be limited by reasonable restrictions set by law, so the question for the court is whether a restriction stays within what the Constitution allows.

Does Article 26 apply to constitutional amendments?

Clause (3) says Article 26 does not apply to amendments made under Article 142. However, the Appellate Division in the Eighth Amendment case held that amendments damaging the basic features of the Constitution can be declared void on that separate ground.

Sources

This guide explains the Constitution for general understanding. It is not legal advice. Constitutional reform proposals under discussion in 2026 are described as proposals until enacted.

Constitutional and writ practice

Need to rely on Article 26?

Our lawyers advise on writ petitions, fundamental rights and public law before the Supreme Court of Bangladesh.

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