A case against hartal

In the case of Khondaker Modarresh Elahi v The Government of the People’s Republic of Bangladesh (1999) the High Court Division of the Supreme Court issued a suo moto rule seeking explanation as to why call for and enforcement of hartal would not be declared illegal and a criminal offence. After hearing the case, the High Court Division delivered a verdict declaring that hartal is a political and constitutional right, but violence and coercion for or against hartal is a criminal offence.

The petitioner of the suit, a citizen of Bangladesh and a practising advocate in the High Court Division of the Supreme Court of Bangladesh, sought to protect his fundamental right and that of other citizens threatened to be violated by hartal on April 18, 1999 as in the past, and for a declaration that calling and the holding of hartal is unconstitutional and therefore illegal. While the Rule Nisi was pending, another hartal took place on May 11, 1999. The petitioner submitted additional supplementary affidavits giving further accounts of violent incidents.

From the petition and the affidavit-in-opposition the core questions which arose before the Court were whether:

The calling of hartal on April 18, 1999 was illegal The calling and holding of hartal is illegal as it interferes with the petitioner’s and citizen’s right to work and pursue              their occupation and trade, or Whether hartal is a means of expression which is guaranteed by the Constitution

The HCD observed that “call for hartal per se is not illegal but where any call for hartal is accompanied by threat it would amount to intimidation and the caller of hartal or strike would be liable under the ordinary law of the land.” The HCD further observed: “The calling for hartal and not accompanied by threat would only be an expression guaranteed as a fundamental right under the Constitution. But any attempt to enforce it or ensure that it is observed would make the call illegal and interfering with the individual right.”

Although the Court confirmed that calling a hartal cannot be declared illegal as a hartal is a democratic right, it also stressed that hartals should be observed peacefully with no illegal activities or provocation on the side of those calling the hartal, or over-reaction and aggression by anti-hartal parties.

At the same time the HCD opined that any kind of provocation, instigation, intervention and aggression by anti-hartal activists to foil the hartal would also be unlawful.

In paragraph 51 of the judgment the HCD made its position clear stating, “hartal is a political issue. It is resorted to and supported by the parties in opposition while it is criticised and opposed by the party in power. So, the determination whether hartal is good or bad depends on the position held by the political parties. As such, this political issue should in all fairness be decided by the politicians themselves without unnecessarily burdening this Court to adjudicate something it is not empowered to.”

The decision of the High Court Division was appealed against. In the Appellate Division case called Abdul Mannan Bhuiya and others v the State and others (1999) the apex court delivered its judgment in December, 2007. The judgment had two dimensions.

Firstly, it upheld the HCD’s decision that hartal is a political and constitutional right. Secondly, it reversed HCD’s declaration that “violence and coercion for or against hartal is a criminal offence.”

This turnaround was based on a technical legal ground. According to the court’s observation, offences have already been defined in the Penal Code and in the Code of Criminal Procedure. Furthermore, offence can be created only by a law, by an act of the Parliament and not by any legal pronouncement by any court.

Hence, the HCD had no authority in entering into the field of law-making and to declare the pro-hartal and anti-hartal activities as cognisable offences.

In paragraph 34 of the judgment, the Appellate Division observed: “We have 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 cognizable offences under the Penal Code and other penal laws of the land.

But hartal or strike per se enforced through persuasion unaccompanied by threat, intimidation, force or violence is a democratically recognized right of the citizens guaranteed under the Constitution.”