Hartal in Bangladesh has become a vital feature of everyday life of the citizens of Bangladesh. The history of hartals in Bangladesh is quite extensive and is associated with numerous important movements including language movement, liberation war and movement against autocratic rulers. Hence, there are many people in our country who believe that hartal is quite justifiable and they are called for appropriate causes. However, with the increasing violence and indiscipline that we can associate with hartals nowadays, a question arises from various groups that how such hartal can be legal, and how the destruction in the name of hartal can be a matter of right.
Lately, the question of legality and illegality of hartal enters into a public discourse due to the “anxiety,” “insecurity,” “uncertainty,” “threat” associated with hartals. Top political and business leaders are proposing to enact a law banning hartal to put on end to its detrimental effects. A UNDP report on hartal showed that, the majority of the public agreed that the hartal should be banned (UNDP Bangladesh; Beyond Hartals, 2005). Thus, this issue needs to be resolved as the common people of Bangladesh hold a confused perception about the legality of hartal.
Generally, most of the people of our country regard hartal as lawful and identify it as a democratic right. They even feel that banning hartal means imposing limitation on every fundamental democratic right, and in the end it will not bring any positive result for the nation. There is a high amount of possibility exist that it will assist a democratically elected government to become an autocratic one. They strongly believe that without establishing a trustworthy and sustainable democratic culture which definitely based on the mutual tolerance, accountability and independent judiciary; such decision will be detrimental for the whole nation and its democracy.
Although there is no concrete judgment or rulings subsist regarding the legality of hartal, however, legality issue was already answered and clarified by the Supreme Court of Bangladesh in distinct judgments. For the first time in 1999 the High Court Division of the Supreme Court issued a suo moto rule asking explanation as to why call for hartal and enforcement of hartal would not be declared illegal and considered a criminal offence.
In this case, the Court declared the hartal as a political and constitutional right, however Court also held that, committing violence and coercion for or against hartal is a criminal offence (Khondaker Modarresh Elahi v State, 2007).
Moreover, considering the violence associated with hartal, the Court also interpreted the section 141 clause 5 of the Penal Code 1860 which is on the offences against public tranquility and held that a procession or other activities of five or more persons in support of or to force hartal shall be unlawful assembly punishable under Section 143 of the Code. Likewise, all assemblies of five persons or more to oppose hartal shall be an unlawful assembly. Activities of the members of these assemblies shall be a cognizable offence according to their behaviour under the relevant sections contained in chapter VIII of the Penal Code. The Division Bench then directed the Criminal Courts and the police to act accordingly.
However, this decision was challenged before the Appellate division of the Supreme Court and the Court partially agreed with the earlier decision ie on the point that “hartal is a political and constitutional right.” However, the Court overturned the prior decision on the point ie “violence and coercion for or against hartal is a criminal offence” (Abdul Mannan Bhuiya and others v State, 2008). As a basis the Court reasoned that the nature of the crime and its punishment has already been clearly defined in the Penal Code. Hence, the High Court Division had no authority in entering into the field of making law and to declare the pro-hartal and anti-hartal activities as cognizable offence. Undoubtedly in strict sense this ruling has clearly drawn a line for the Court reminding them about their power and also clarified that offence can be created only by an act of the Parliament and not through the declaration of the Court.
Although at the first sight these findings seem to be remarkable, but practically, several questions come to mind and create a complex politico-legal situation. Because at the one hand the Court declared that the hartal is a political and constitutional right, hence it should be tolerable to be observed calmly with no illegal activities. Conversely, they made a pre-caution for the callers of hartal that they shouldn’t commit any violence and infringe any one’s right in the name of hartal, and directed to the government to take initiative to ensure the rights of the individual from the harm of hartal. Consequently, a question peep on people’s mind that, is it possible, by any means, to observe hartal with no violation and harm to others’ fundamental rights including right to liberty, movement, work, conduct business and so on. If it is possible, what will be the nature of that hartal? Or can that condition be defined as “hartal” at all?
Finally, a question remains to answer that how the hartal as a democratic right can be observed legally without violating others’ rights, and how we will afford such harmful, violent and destructive hartal. At the same time, we cannot disregard the argument of the people who think that, banning hartal will be damaging to the democratic process itself in time.
For that reason, we have to realise that the hartal is the extreme form of expression of protest in a democratic society and it should not be resorted to unless all other democratic forms of expression of protest become ineffective. Alternatively, another way to avoid hartals is to reach an understanding through dialogue and negotiation between the party in power and the opposition parties to determine the issues that spark off the hartals.
