–Tonmoy Halder, LL.M. Candidate and Research Assistant, Law Discipline, Khulna University, Bangladesh; Co-Editor, Law and Society Students’ Journal
Introduction
On March 12, 2026, the Appellate Division of the Supreme Court of Bangladesh released the full text of its judgment reviving the Caretaker Government (CTG) system, setting aside its own 2011 decision that had declared the system unconstitutional. Two thoughtful posts on this blog have already unpacked the judgment. One reads it as offering a ‘moderate account’ of constituent power, reconciling popular sovereignty with legal stability. The other treats it as a puzzle about the proper limits of judicial authority to delay a revived provision’s operation. Both readings, in different ways, ask whether the Court applied the correct constitutional theory and arrived at a sound conclusion.
This post asks a different question, borrowed from critical legal studies (CLS): why did the same doctrinal toolbox that delegitimized the CTG system in 2011 re-legitimize it in 2026 and whose political settlement does the resulting evolutive basic structure quietly ratify?
My answer is that the shift was never driven primarily by improved constitutional reasoning. The Court’s evolutive-constituent-power framework conveniently tracks what the July 2025 National Charter had already mandated politically: restoration of the caretaker system through a post-uprising, cross-party settlement. The vocabulary of an ever-present, evolutive constituent power is what lets the Court present that negotiated settlement as the people’s own enduring will, rather than as one contingent outcome among several that were politically available.
The Same Toolbox, Opposite Outputs
CLS’s founding claim, developed most fully by Duncan Kennedy, is that legal doctrine is indeterminate at precisely the moments that matter: contested cases can typically be resolved either way using materials internal to the law itself, so outcomes track a decision-maker’s background commitments more than any doctrinal compulsion. Bangladesh’s caretaker litigation comes close to a natural experiment in this claim.
In 2011, the Appellate Division majority held that the running of state affairs by unelected persons during CTG rule was incompatible with the republican and democratic character of the Constitution. In 2026, a differently constituted Appellate Division read the same constitutional text, the same 1972 founding document, and much of the same historical record, to reach the opposite conclusion: that the CTG design is itself an immutable, basic feature of that order, because constitutional structures suffer… wear and tear over time and periodically need reinforcement.
Tellingly, the Court’s own account of its predecessor’s ruling does not defend 2011 as a plausible-but-mistaken reading. It goes further, describing the earlier bench’s approach as a rigid, utopian model of democracy that ended up feeding authoritarian, dysfunctional electoral politics, as reported here. More strikingly still, the Court separately observed that the 2011 bench appeared to have buckled under pressure from the 15th Amendment, which had been enacted in the gap between its short order and full judgment, as reported here. If a unanimous Appellate Division can say, in effect, that its predecessor’s basic-structure reasoning was itself a symptom of political capture rather than principled adjudication, that is closer to a CLS indeterminacy thesis stated in the Court’s own voice than to a story of doctrinal refinement.
From Doctrine to Legitimation Story
This matters because evolutive basic structure does not resolve the indeterminacy that the 2011-to-2026 swing exposes; it re-narrates it. Upendra Baxi has observed, of the Indian doctrine from which Bangladesh’s descends, that its imprecision was never accidental: the doctrine’s open texture is what allowed the Indian Supreme Court to function as a further check on constitutional amendment while presenting itself as merely safeguarding pre-existing fundamentals. The March 2026 judgment updates this move rather than escaping it. By grounding evolutive basic structure in Böckenförde’s account of an ever-present constituent power, and in the historical fact of the 1990 mass movement, the Court supplies its own discretion with a more attractive origin story: it is not that the judges changed their minds, but the people’s enduring will finally found its proper legal form. The underlying indeterminacy is unchanged; only the legitimating narrative has been upgraded.
This is close to what CLS scholars call legitimation: an arrangement of institutional power here, the Court’s own authority to decide, retrospectively and without settled procedure, which historical episodes count as genuine exercises of constituent power is represented as flowing from a source (the sovereign people) external to, and superior to, the deciding institution itself. Both existing posts on this judgment register a version of this problem. One asks who is to filter genuine constituent power from partisan capture. The other asks whether the Court exceeded its proper mandate by prescribing the timing of a revived provision. A CLS lens treats this less as an open question the Court left unanswered than as the structural function the doctrine actually performs: the unresolved question is not a gap in an otherwise coherent theory. The unresolvability is the theory’s point: it is what lets the same doctrine authorize opposite outcomes fifteen years apart while each time presenting itself as principle rather than preference.
Whose People?
If judicial discretion cannot be eliminated by better doctrine, a more useful question is: whose interests did this particular exercise of discretion serve? The March 2026 judgment did not emerge from a vacuum. It followed the August 2024 mass uprising against the Awami League government, the formation of an interim administration under Muhammad Yunus, and the July National Charter, an elite cross-party settlement that explicitly mandated restoration of the caretaker system and a referendum on constitutional reform. The petitions that led to the Court’s review were brought by political parties including the Bangladesh Nationalist Party and Bangladesh Jamaat-e-Islami together with individuals and organizations, not by an unmediated disorganized multitude invoking constituent power in the streets. The 13th Parliament that will eventually operate under the restored CTG system did not yet exist when the judgment was delivered.
None of this means the outcome is illegitimate, or that reviving the caretaker system is bad constitutional policy; there are strong functional reasons to think it improves electoral credibility. The point is narrower. The vocabulary of the people’s constituent power and evolutive basic structure does specific ideological work: it translates what was, on the ground, a negotiated settlement among an interim government and established political parties into a story about the sovereign people finally being heard by law. That translation is not dishonest, but it is not neutral either. It forecloses the question whether other, differently positioned constituencies including the same younger generation that drove the 2024 uprising, some of whom have separately voiced skepticism about the entire 1972 constitutional settlement in Parliament, were in fact the authors of the constituent power the Court now credits, or whether that power has simply been assigned to whichever coalition currently controls the machinery of transition.
Conclusion: Reading Doctrine Politically
None of this is an argument against basic structure doctrine, evolutive or otherwise; CLS scholarship has long accepted that some background allocation of interpretive authority is unavoidable in adjudication. It is an argument against reading the March 2026 judgment primarily as a contribution to constitutional theory as offering a better account of constituent power than the 2011 Court managed rather than as what it also is: a political artefact that a particular constellation of post-uprising forces needed the judiciary to produce, and got.
For comparative public law scholarship, the lesson travels beyond Bangladesh. Wherever a court announces that basic structure doctrine has become evolutive or living, the doctrinally interesting question is rarely whether the resulting theory is internally coherent; it usually can be made coherent after the fact. The more urgent question is which political settlement the newly discovered flexibility was built to accommodate, and which constituencies had no seat at the table when the people’s constituent power was being identified on their behalf.
Suggested citation: Tonmoy Halder, Whose People? A Critical Legal Studies Reading of Bangladesh’s “Evolutive” Basic Structure, Int’l J. Const. L. Blog, Sept. 9, 2026, at: http://www.iconnectblog.com/whose-people-a-critical-legal-studies-reading-of-bangladeshs-evolutive-basic-structure/