HARTAL AND OBORODH : STILL LAWFUL !!

Publishes by The Daily Star on February 09, 2015 (Link Here)

WE are again creating headlines in the global media! And again for reasons that none of us cherish — hartal and related deadly violence. Hartal in a political sense may be defined as a means of protest by the people at large or by a group of a particular class of a society. It may be called for communicating thoughts, discussing public questions, or ventilating grievances to the government regarding legitimate claims. But, has it been truly the case ever since it was introduced in the political infrastructure of Bangladesh? After experiencing the recent devastation and vandalism in the name of hartal, one does not have to be a social scientist to answer that. I will attempt to clarify the confusion surrounding the legality of hartals in the mind of the common people.

The idea of hartal is thought to have originated during the British regime in India when Mahatma Gandhi used hartal as a political weapon against the British government, which ultimately led to the intensification of the Indian independence movement. Subsequently, hartal became a popular means of protest by political parties throughout the Indian sub-continent.

The question as to legality of bandh (similar to oborodh in Bangladesh) in India was answered in the case of Bharat Kumar Palicha and another vs State of Kerala and others. The High Court of Kerala held that the holding of bandh (a Hindi word meaning ‘closed’ or ‘locked’) by a political party or organisation involves a threat, express or implied, to a citizen not to carry on his activities or practice his avocation on the day of bandh. Hence bandh violates the fundamental rights of citizens guaranteed under the Constitution of India and is illegal. The argument by the political parties that it is the fundamental right of the parties to call for bandh was rejected. Nevertheless, the courts of India viewed general strike — hartal — as a completely different proposition than bandh. Hartal, as per the Courts of India, is a peaceful act of non-cooperation, or passive resistance movement, and is thus constitutional as it does not demand shutting down of all activities by the citizens. The Supreme Court of India upheld the judgment on appeal.

The legality of hartal in Bangladesh was first answered in 1999 by a division bench of the Hon’ble High Court Division of the Supreme Court in the case of Khondaker Modarresh Elahi vs. the Government of the People’s Republic of Bangladesh, where the court delivered judgment declaring that call for hartal per se is not illegal, rather it is a recognised political and constitutional right. The court observed that hartal is an act which is only an expression of protest not violating any of the fundamental rights of the citizens. As per the High Court “the calling for hartal, not accompanied by any threat, will be only an expression guaranteed as a fundamental right under the Constitution.” However, any attempt to enforce hartal, or ensure that the hartal is observed, or to foil the hartal makes it illegal as such conduct would involve illegal actions, incitement, provocation, instigation, interventions and aggression that would ultimately result in interference with the individual rights of other citizens. Hence, any political party may call hartal but such call will not give any right to the pro-hartal and or anti-hartal activists to carry out violence and vandalism.

The decision of the High Court Division Bench was later appealed against, and the Appellate Division of the Supreme Court in December 2007 delivered its judgment holding general strike and hartal as constitutional right. However, as per the Appellate Division, there is “no hesitation in holding that enforcing hartal by force leading to violence, death and damage to the life and property of the citizens is not only illegal but also liable to be detested and punished as per law of the land in existence. These are already cognisable offences under the Penal Code and other Penal laws of the land. … and any government worth the name will be duty bound to protect the people by bringing to book the offenders regardless of what party they belong.”

The judgments of the Courts, though apparently profound, add little in reality but rather compounded the confused notion of the people about the legality of hartal. The court sees a call for hartal as an action that does not contravene or affect the rights of the citizens. If we are to argue in conformity with the decisions of the court the mere calling of a hartal in the strict legal sense cannot be held objectionable. So at what stage does the calling of a hartal cease to be a legitimate exercise of freedom of association and freedom of speech? The courts held that the moment it seeks to impinge on the rights of others, it ceases to be a hartal and becomes a violent demonstration, a form of bandh, involving intimidation and coercion. The enforcement of hartal by intimidation and coercion is unconstitutional.

What is disputable in this above analogy is the fact that force, intimidation and coercion have always been inherent characteristics of hartal in Bangladesh. The destruction of public and private property has always been present whenever a hartal has been staged, and the violence is only intensifying. Hartal has now become a violent movement, which most of the times results in acts of vandalism, destruction of properties, bomb-blasts, throwing of petrol-bombs and even killing of innocent people.

How many more lives will it cost to understand that hartal and oborodh in their present form are the most heinous and grave illegal acts that a civilised human being can think of?