Hartals have become a regular feature of everyday life in Bangladesh. Indeed, hartals in Bangladesh are historically associated with numerous important movements, including the Language Movement of 1952, the Liberation War, and the movement against an autocratic ruler in 1991.
Hence, there are many people in our country who believe that hartals are quite justifiable, and are called for appropriate causes. However, with the increasing violence and indiscipline that are associated with hartals nowadays, there are questions of how such hartals can be legal, and how destruction in the name of hartals can be a right, have been raised by various groups.
Recently, the question of legality of hartals has entered public discourse due to the anxiety, insecurity, uncertainty, and threats associated with hartals. Top political and business leaders are proposing to enact a law banning hartals to put an end to its detrimental effects.
A UNDP report on hartals showed a majority of the public agreed hartals should be banned. Thus, this issue needs to be resolved as the common people of Bangladesh hold a confused perception about the legality of hartals.
Generally, most of the people of our country regard hartals as lawful, and identify them as a democratic right. They feel banning hartals would be imposing a limitation on every fundamental democratic right, and in the end, it would not produce any positive result for the nation.
There is a good possibility it may even help turn a democratically elected government into an autocratic one. They believe that without establishing a trustworthy and sustainable democratic culture, based on mutual tolerance, accountability, and an independent judiciary, such a decision will be desperately detrimental for the nation and our democracy.
Although there is no concrete judgement or ruling regarding the legality of hartals, the issue of its legality was already answered and clarified by the Supreme Court of Bangladesh in distinct judgments. For the first time in 1999, the HCD of the Supreme Court issued a suo moto rule asking for an explanation as to why a call for a hartal and the enforcement of a hartal would not be declared illegal and a criminal offence.
In this case, the court declared the hartal as a political and constitutional right. However, the court also held that committing violence and coercion for or against hartals is a criminal offence.
Considering the violence associated with hartals, the court also interpreted 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 enforce, hartals shall be unlawful assembly, punishable under Section 143 of the code.
Likewise, all assemblies of five persons or more to oppose a hartal shall be an unlawful assembly. Activities of the members of these assemblies shall be cognisable offence according to their behaviour under the relevant sections contained in chapter VIII of the Penal Code.
Several questions still come to mind. On the one hand, the court has declared hartals a political and constitutional right, hence it should be tolerated when observed calmly with no illegal activities. Conversely, it has kept a precaution against those calling the hartals, saying they shouldn’t commit any violence and infringe on anyone’s rights in the name of hartal, and directed that the government take initiative to ensure the rights of individuals from the harm of hartals.
Consequently, a common question that pops into people’s minds is: By any means, is it possible to observe hartals with no violation and harm to others’ fundamental rights including the 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 be defined as a “hartal” at all?
Finally, a question that remains to be answered is: How can the hartal, as a democratic right, be observed legally without violating others’ rights? We cannot disregard the argument of the people who think that banning hartals will, in time, be damaging to the democratic process itself.
For that reason, we have to realise that the hartal is an extreme form of protest in a democratic society, and it should not be resorted to unless all other democratic forms of protest have become ineffective. Alternatively, another way to resolve political hartals is to reach an understanding through dialogue and negotiation between the government in power and the opposition parties to determine the issues that spark off hartals.
