Law Letter
Hartal horror : legal controversies
Hartal is historically acknowledged democratic right exercised by the political parties at different times in this subcontinent. The term comes from Gujarati signifying the closing down of warehouses and shops for the purpose of realising a demand. Mahatma Gandhi used the term first to refer to his anti-British general movement. During the 20th century Hartal has been used as serene mace to protest repression, exploitation and injustice. It was used as a democratic means to force the British government to quit India and creating independent states in the subcontinent, it was used as a struggle against the colonial exploitation of the Pakistani ruling elite. A call to observe Hartal is a democratic right exercised under the purview of basic structure of the constitution of Bangladesh.
But in the recent milieu of this country observance of Hartal is not as all peaceful, and it is an illegal activity physically restraining the citizens of the country from attending to their avocations and the traders are prevented from keeping open their shops or from carrying on their business activities, the organisers of Hartal also indulge in wanton acts of vandalism like destruction of government property and vehicles, killing passengers by setting vehicles ablaze , even children are not being spared from such inhuman brutality. Now the main issues come before the common people are: Whether the calling of Hartal is legal? If it is so; to what extent? Whether Hartal is a means of expression which is guaranteed by the constitution? If it is so then is it within the scaffold of the constitutional commitment??
Kerala high court in India in a case namely Bharat Kumar Palicah v. State Of Kerala And Others AIR 1997 declared Hartal or 'bundh' illegal as it involves threat express or implied to a citizen no to carry on his activities or to practice his avocation on the day of 'bundh'(Hartal) . The intention of calling Hartal is to ensure that no activity either public or private is carried out on that day if it is meant to prevent another citizen from exercising his freedom to work which is a fundamental right guaranteed by the constitution. It is palpable true that in recent times more often than not Hartal leads to disruption of peace, disorder, injuries and killings to innocent persons, damage to vehicles and properties of private citizens and the state.
A call for Hartal without any threat expressed or implied would be an expression of protest which is guaranteed by article 39(2)(a) of our constitution. But as soon as call for Hartal becomes more than a call which by use of language of threat or show of force or warning of consequence of violating the call is expressed or implied likely to create trepidation and apprehension in the mind of ordinary citizens it would cease to be a lawful expression . It would be an offence under section 503 of the penal code and the responsible would be liable under the ordinary law of the land as it would interfere with the act of a person which he legally entitled to do, such as go to work, pursue his business and move about freely.
Let's see what is the stand point of our apex court, in the famous case Khondokar Modarresh Elahi v Bangladesh 54 D.L.R it was declared that observing Hartal is not illegal as it is one of the fundamental rights of the citizen of Bangladesh. The court has no power to declare Hartal illegal as it is the job of parliament (Abdul Mannan v State. 50 DLR). Now the issue is, if observing Hartal becomes fundamental right under article 39 of the constitution then freedom of movement and freedom of profession and occupation guaranteed by the constitution are also the same. So it is seen that both the perpetrators of Hartal and people affected by Hartal are equally protected under the constitution. In such a situation what can court do? Can the court say that the fundamental right of one is better than that of other? A fundamental right is a fundamental right. The 'orwellian dictum' that all animals are equal but some are more equal than others may hold a good in dehumanised authoritarian society but it has no place when it comes to fundamental rights, one fundamental right cannot be sacrificed or subordinated to other. Finally we can say that we can observe Hartal as long as it is peaceful, this is the constitutional requirement. It will cease to be peaceful and become terrorisation when it turned to violent activities such as firing people, taking life of innocents. For them those who want to ban Hartal it is worthy to mention the famous quote of justice kenedy: “the hard fact is that sometimes we make decisions we do not like, we make them because they are right, right in the sense that the law and constitution as we see them, compel the result”.
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