Hartal: An Extreme Form of Democratic Expression

Mohammad Habibur Rahman

Hartal in Bangladesh has become a vital feature of the everyday life of the citizens of

Bangladesh. Indeed the history of hartals in Bangladesh is quite extensive and is associated with

numerous important movements including language movement 1952, liberation war and

movement against autocratic ruler in 1991. 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?

Recently 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. An

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. Even they 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 to revolve a democratically elected

government to 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 desperately 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 HCD 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 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 Vs. State, 21 BLD 352).

Considering the violence associated with hartal, moreover 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 cognizable offence according to their behavior 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 i.e on the point that ‘hartal is a political and

constitutional right’. Again the Court overturned the prior decision on the point i.e 'violence and

coercion for or against hartal is a criminal offence' (Abdul Mannan Bhuiya and others Vs. State,

2008 MLR). 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 clearly has 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.

Even though at the first sight these findings seem to be remarkable, but practically, several

questions come to pass in our mind and create a complex politico-legal state. 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 complication, hence a common question peep

on people’s mind that, by any means; Is it possible 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, then 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. Simultaneously, 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 realize 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 resolve political hartals is to reach understanding and

argument through dialogue and negotiation between the government in power and the opposition

parties to determine the issues that sparked off the hartals.

Writer is a student of BRAC University, School of Law; and also the Student of University of

London International Programme, LL.B.

E-Mail: mhr25@student.london.ac.uk