Law
alter views
Hartal
When
a political right violates some of the fundamental rights
Md.
Zahidul Islam
Theoretically
in every normative society there exist some ways and styles
to demonstrate grievances collectively. These ways and
styles differ from system to system, depending upon the
status of the society, upon the differences of the mode
of governances. Hartal is such a way to protest in the
Indian sub-continent. Unfortunately, the hartal, which
once emerged to ventilate grievances to the rulers or
government or to the concerned authority regarding the
democratic rights and the legitimate claims, has now turned
to an absolute political weapon used sometimes to gain
even a petty political interest. Now, it appears to be
a great part of our political culture. As it proves a
completely political issue, we cannot reasonably expect
that the nation will come to a single unique decision
whether hartal should exist any more in our political
culture. Whatever be the decision, one must pay an earnest
thought on the hartal issue since day by day it is becoming
not only a matter coercive for the common public but also
a thing undoubtedly baneful for the national state.
Historical
background of hartal
Protestation is nothing new in the Indian society and
history tells us many events where there were agitations
for articulating different types of demands. Influenced
by European trade unionist movements, the industrial workers
of India had been observing occasional strike or dharmaghat
from the first quarter of the twentieth century. This
industrial strike or dharmaghat was conveniently extended
to the political arena and took the name hartal.
Hartal
is originally a Gujarati expression, which signifies closing
down of shops and warehouses with the object of realising
a demand. Essentially a mercantile practice, it acquires
political significance in the 1920s and 1930s when MK
Gandhi institutionalises it by organising a series of
anti-British general strikes by the name 'hartal'. After
that hartal becomes a way to protest in whole Indian sub-continent.
In today's India it is popularly known as 'bundh'.
In Bangladesh, hartal is a constitutionally recognised
political method for articulating political demand.
A
glimpse of hartals in our history
During the period between the 1920s and 1950s, there were
so many hartals called against the British rule.
From
the 1960s, political activists were increasingly organising
hartal, which by then appeared to them to be a stronger
political weapon. There had been hartal for days together
on the eve of the Bangladesh War of Liberation. Indeed,
politics of hartal had played decisive role in mobilising
people on behalf of the Liberation War.
Hartal
becomes a very frequently used political tool for agitations
from the 1980s. In the face of recurring hartal, called
mostly on the issue of legality, the regime of Hussain
Mohammad Ershad (1982- 1991) collapsed. The government
of Khaleda Zia put under tremedous pressure by the calling
of relentless hartal by Awami League led opposition. Similarly,
the government of Sheikh Hasina was also not free from
the politics of hartal. And the present government is
facing hartals now and then.
Why
for fundamental rights
A hartal, when called upon for the greater public interest,
does not raise any question of fundamental rights of the
citizens or economic loss of the nation. Because, public
then spontaneously suffer the financial or others losses
to make a hartal successful. For example, the hartals
called for against the British or the then Pakistani rule
in East Pakistan (Bangladesh) were to meet the 'political
demand', which was actually the overwhelming public demand
of a society or community.
But
after the independence, the words 'political demand' encounters
the usage of the same in narrow sense. Different political
parties begin to resort hartal to meet their political
demand signifying the demand of a particular political
party, not of the whole community. So, the other members
of the community or the parties against the hartal usually
raise the questions of their fundamental rights to be
violated and financial loss to be suffered by the observance
of hartal. Hence, there comes the question to stop hartal,
a political right, allegedly denying some other civil
and fundamental rights of the citizens.
Hartal
in the eye of law
However, call for hartal per se is not illegal; rather,
it is a historically recognised democratic right. Indeed,
where an act is meant to be nothing but an expression
of protest such an act cannot be said to violate the fundamental
rights of the citizens. The calling for hartal, not accompanied
by any threat, will be only an expression guaranteed as
a fundamental right under the Constitution. And, therefore,
any political organisation may call 'hartal' by extending
invitation to the public in general or to a particular
class or group of people.
Certainly,
the freedoms as enunciated in the constitutional provisions
cannot to be construed as a license for illegality or
incitement to violence and crime. Hence, any attempt to
enforce it or ensure that the hartal is observed makes
the call illegal, resulting in interference with the individual
right. At the same time, any kind of provocation, instigation,
intervention and aggression by anti-hartal activists to
foil the hartal is also unlawful. In a word, hartal, as
a democratic right, should be observed as well as should
be allowed to be observed peacefully without resorting
to any illegal activities. (Khondoker Modarresh Elahi
Vs The Govt of Bangladesh).
Actual
scenario of hartals today
The actual scenario hartals today is that during hartal
citizens are prevented from attending to their avocations
and the traders are prevented from keeping open their
shops or from carrying on their business activities. Also,
the workers are prevented from attending to work in the
factories and other manufacturing establishments leading
to loss in production causing nations loss. And after
every hartal, with our painful eyes and heartbreaking
sighs, we have to see in the newspapers the pictures of
wanton acts of vandalism like destruction of government
and private properties, transport vehicles, private cars
and three wheelers as well as rickshaws. These illegal
acts in the name of hartal cannot be recognised as political
rights protected by the Constitution.
In
this respect, High Court of Kerala, in the case of Bharat
Kumar Palicha and another Vs State of Kerala and others,
held that the calling for and holding of bundh (hartal)
by political party or organisation involves a threat expressed
or implied to citizen not to carry on his activities or
to practise his avocation on the day of bundh. It violates
the fundamental rights of the citizens. The Supreme Court
of India by its judgement reported in AIR 1998 (Supreme
Court) 1984 upheld the judgement saying there was no right
to call or impose bundh which interfere with the fundamental
rights of freedoms of citizen in addition to causing loss
in many ways.
What
to do
Hartal should not be banned enacting law, because it will
be a futile exercise for some practical reasons. In fact,
it must be allowed to be exercised in the greater context
of the nation as a whole for political and social development
in democratic culture. What is necessary is to ensure
that it is not resorted to unless a genuine cause for
the welfare and greater interest of the people, failure
to the government to respond to the demands or grievances
raised by common public or by the opposition, and overwhelming
public support in favour of hartal are present.
Another
point is that the rights of assembly, meeting and processions,
which nurture the right to call hartal, are not absolute,
but rather regulated by law. Reasonable restrictions may
be imposed in observance of hartal in the interest of
public order. Again, when a call for hartal is accompanied
by threat, it amounts to intimidation, for which any aggrieved
person or party may take legal action against the caller
for hartal under the ordinary law of the land. Besides,
citizens, who think their fundamental rights are encountering
threat due to hartal, can take the resort of article 44(1)
and 102 of the Constitution to have their fundamental
rights protected, and can thus restrict destructive mood
of hartals to some extent.
Concluding
remarks
Most important thing, therefore, is that our political
parties have to be self-motivated that except a grave
cause they will never indulge a hartal causing so much
of sufferings to the national life. Hopefully, in the
recent time we see there has been an auspicious start
to the way of civilised political culture. Human wall,
human chain, silent procession or procession with black
scarf on faces, burning the party or organisation flags,
burning effigy of the person being protested, arrangement
for music on streets where protesters sing those songs
containing fighting spirit, staging drama or play in public
places, public assembly in the premises of Shaheed Minar
are symbols signifying that our political culture is taking
a positive turn. We, therefore, can expect that all concerned
will realise that hartal in the way it is exercised now-a-
days can never be a way to protest the activities of government
or other organisations in a democratic and civilised society.
The
author is a legal researcher currently working for ERGO
Legal Counsels, Dhaka.
