By Ashok KM
Nearly six hours into the hartal called by the Bharatiya Janata Party (BJP) in Kerala on Thursday, sporadic violence has been reported from across the state.
The BJP march turned violent in Thrissur, with hartal supporters trying to attack journalists. BJP supporters reportedly stopped vehicles in Kochi and forcefully shut down shops, including medical stores.
Most vehicles across the state have stayed off the roads , except for some two-wheelers. University examinations have been postponed.
In 1997, bandhs were declared unconstitutional by the Kerala High Court and later upheld by the Supreme Court. But the concept has lived on with protesters calling for hartals and strikes.
Are you bound to stay put in your home on a hartal day? Is it legal to bring essential services like banking and public transport to a grinding halt? What are your rights and duties on a hartal day?
Political parties and organizations that call for strike, purportedly espousing the cause of public, should realize that they are, in effect, harming the public itself.
Citizens should realize that they have fundamental rights and that the Indian Penal Code and other penal legislations, which criminalize intimidation, restraint, etc., have application during hartal days also.
The Supreme Court and High Courts have made it very clear through various judgments that hartal (or whatever term is used) should not infringe anyoneâs fundamental rights.
Various judgments have reinforced that on any day, a citizen of India has the following rights:
1. To move freely
2. To work in his/her workplace
3. To complain to the police if he/she is stopped from travelling
4. To sue the concerned for loss he/she suffers due to hartal/strikes.
Meanwhile, the organizations that call for hartal should follow the dicta laid in the judgments of the Supreme Court and the High Court.
They are duty bound to:
1. Make it clear in their call that nobody will be compelled to participate in the hartals or strikes.
2. Make it clear that traffic will not be obstructed
3. Make it clear that those who are willing may go for work
4. Make it clear that the fundamental right of others to move about will not be affected
Instruct their supporters to see that no coercion or force is used for compelling others to participate in the strike or hartal.
Here are some of the pertinent observations made by the Supreme Court and High Courts over the years:
1997: Kerala High Court bans Bandh
âCalling for a bandh by any association, organisation or political party and the enforcing of that call by it is illegal and unconstitutional. We direct the State and its officials, including the law enforcement agencies, to do all that is necessary to give effect to this declarationâ.
In 1997 Supreme Court confirmed the Kerala HC Judgment.
âThere cannot be any doubt that the fundamental rights of the people as a whole cannot be subservient to the claim of fundamental right of an individual or only a section of the people. We may also observe that the High Court has drawn a very appropriate distinction between a âBandhâ on the hand and a call for general strike or âHartalâ on the other. We are in agreement with the view taken by the High Courtâ.
2004: SC holds that there is no right to cause inconvenience in the name of hartal.
âIn the name of hartal or bandh or strike, no person has any right to cause inconvenience to any other person or to cause in any manner a threat or apprehension of risk to life, liberty, property of any citizen or destruction of life and property, and the least any Government or public property.â
2004: Kerala HC says hartal should not obstruct othersâ fundamental rights.
"But whatever name it is called, whether general strike, hartal or any other name, nobody can create a Bandh-like situation or obstruct the fundamental rights of othersâŚ.Those who call for 'hartals' or strikes by whatever reason must make it clear in their call that nobody will be compelled to participate in the âhartalsâ or strikes, that traffic will not be obstructed and those who are willing may go for work and that fundamental right of others to move about will not be affected. They must also instruct their supporters to see that no coercion or force is used for compelling others to participate in the strike or âhartalâ." (Kerala High Court: George Kurian vs State Of Kerala 2004 (2) KLT 758)
2008: Kerala HC calls for appropriate legislation to curb hartal
The High Court observed that unless legislative measures are taken, the menace of `forced hartalsâ cannot be curbed.
From the reading of the above judgments it is very clear that organizations do not have the right to force anyone to participate in hartal/strikes. Instead, it is the right of an individual to get assurance from such organizations that a call for hartal/strike does not mean he or she will be stopped from travelling or working.
This article first appeared on Livelaw, this is a modified version reproduced with permission. You can read the full report here.