The Supreme Court on Tuesday heard the second day of arguments on an appeal challenging the High Court (HC) verdict that declared several provisions of the 15th constitutional amendment, including the abolition of the caretaker government system, unconstitutional. 

Lawyers presented opposing views on whether the entire amendment should be struck down. The hearing will resume on Wednesday.

The bench, led by Chief Justice Jubayer Rahman Chowdhury, fixed Wednesday for the continuation of the proceedings.

Appearing for the original petitioner, Badiul Alam Majumdar, advocate Dr Sharif Bhuiyan argued that the entire 15th amendment should be declared void.

"The 15th amendment was a betrayal of the Constitution. It destroyed the Constitution and should be struck down in its entirety," he told the court.

He said the amendment had altered the Constitution's basic structure and should be annulled to prevent similar amendments from undermining the people's democratic aspirations.

Representing Jamaat-e-Islami, advocate Shishir Monir took a different position. He argued that repealing the amendment in full could restore the one-party BAKSAL system.

He told the court the amendment covered several issues beyond the abolition of the caretaker government, although that remained the principal issue in the case.

Monir argued that the court could uphold the HC ruling while striking down only those provisions that conflict with the Constitution and its basic principles. The remaining politically contentious issues, he said, should be left to Parliament.

"If the court decides political questions, those decisions may themselves become controversial," he submitted.

Attorney General Md Ruhul Quddus Kajal and Deputy Attorney General Anik R Haque appeared for the state. Dr Sharif Bhuiyan and Mohammad Shishir Monir represented the appellants.

On November 13 last year, the SC granted leave to appeal against the HC verdict declaring several provisions of the 15th amendment unconstitutional.

The appeal, filed on behalf of petitioner and Sujan Secretary Badiul Alam Majumdar by advocate Dr Sharif Bhuiyan, seeks to have the entire amendment declared void.

On December 17, 2024, the HC ruled that several provisions of the 15th amendment, including those abolishing the caretaker government system, were unconstitutional.

The court also restored the constitutional provision for referendums but stopped short of annulling the amendment in its entirety.

In its observations, the HC said democracy forms part of the Constitution's basic structure and can flourish only through free, fair, impartial and credible elections.

The HC said the previous three parliamentary elections held under partisan governments had failed to reflect the people's will and had eroded public confidence in the electoral process, ultimately contributing to the July uprising.

The court also held that the caretaker government system had originally been incorporated into the Constitution in line with the people's will and had since become part of its basic structure.

The bench of Justice Farah Mahbub and Justice Debashish Roy Chowdhury declared Articles 20 and 21 of the 15th amendment unconstitutional, holding that the abolition of the caretaker government system had undermined the Constitution's democratic foundations.

The HC also declared Articles 7A, 7B and Article 44(2), inserted through the amendment, unconstitutional. The 15th amendment introduced additions, revisions and substitutions in 54 areas of the Constitution.

However, the court declined to invalidate the amendment in full, saying Parliament could amend or revise the remaining provisions after consulting public opinion.

Those provisions include the constitutional recognition of Bangabandhu Sheikh Mujibur Rahman as the Father of the Nation and matters relating to the March 26 declaration.

On referendums, the court ruled that repealing Article 142, which had provided for referendums, was inconsistent with the Constitution's basic structure. It struck down Section 47 of the amendment and restored the earlier version of Article 142 introduced through the 12th amendment.

The judgment also invalidated Articles 7A and 7B, which dealt with offences relating to the suspension or abrogation of the Constitution and made certain constitutional provisions unamendable.

Article 44(2), concerning the enforcement of fundamental rights through courts other than the HC Division, was also declared void.

Justice Farah Mahbub delivered the judgment over nearly two hours.

Earlier, on August 19, 2024, the HC issued a rule asking why the abolition of the caretaker government system through the 15th amendment should not be declared unconstitutional after hearing a writ petition filed by Sujan Secretary Dr Badiul Alam Majumdar and others.

Later, BNP Secretary General Mirza Fakhrul Islam Alamgir and Jamaat-e-Islami Secretary General Mia Golam Parwar were added as parties to the rule. Insaniyat Biplob, Gano Forum and four other applicants also joined the proceedings as intervenors.

Parliament passed the 15th constitutional amendment on June 30, 2011.

The amendment recognised Sheikh Mujibur Rahman as the Father of the Nation, abolished the caretaker government system, increased the number of reserved parliamentary seats for women from 45 to 50 and introduced several other constitutional changes.

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