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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 178
February 20, 2005

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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.


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