The Kerala High Court's order on hartals has taken the fight against shutdowns backwards
news Monday, January 05, 2015 - 05:30
Siddharth Mohan Nair| The News Minute | November 1, 2014 | 11.50 am IST The Kerala High Court, in 1997, was the first to ban bandhs. However, on Wednesday the same court refused to take a similar decision when it came to hartals. The full bench of the Kerala High Court said that it cannot declare calling for hartal a crime. The order came in response to a petition that had been filed by Khalid Mundapilli. The petitioner had also pleaded that media should be barred from reporting the calling for a hartal. The court rejected this plea too, Manorama Online reported. However, it directed the state government to implement without fail its earlier orders on the issue. It also assigned to the Chief Secretary the task of checking whether all rules laid down by the courts regarding hartals were being followed. It also asked him to ensure that the authorities do register cases against those who destroy public or private property during a strike. From 2006 to 2012 the state had lost almost a year in hartals! And each day of hartal causes a loss of Rs. 200 crore to the state exchequer. Feeling disgusted people had approached the courts many times. Despite repeated orders by the courts, hartals continue to be in vogue and, with this recent judgement the groups protesting against the menace of hartals have received a big blow. The judgement of the Kerala High Court in 1997 drawing distinction between a strike and a bandh and declaring the latter as unconstitutional is considered as a watershed moment in the fight against this menace. The apex court, which was approached by the Kerala government challenging the High Courtâ€™s verdict, had upheld the distinction and the order. The apex court in 2003 in a case relating to hartals had said that â€śUnless those who organize (hartals) can be confident of enforcing effective control over any possible turn of events, they should think twice to hazard themselves into such risk prone ventures endangering public peace and public order.â€ť In 2004 the Kerala High Court was approached again and its judgement it had come down heavily on the people who called for hartals and also the state agencies for not protecting the people.Â The judgement began by saying that â€śdespite various judgments of this court and the Honourable Apex Court, there are frequent bandhs, forced hartals and general strikes in the State harassing general public causing trouble, inconvenience, loss and injury to them and a situation is created by unscrupulous, anti-national and anti-people groups who force majority of the people not to move about and force them in illegal detention in their own house by threat, coercion and force.â€ť It then went on to make a very strong point. It said that the political partiesâ€™ and organizationsâ€™ efforts to continue to bring the state to a standstill by using different nomenclature cannot be accepted. â€śNomenclature is not at all important. As Shakespere has put it: What's in a name? That which we call a rose by any other name would smell as sweet," the judgement said. It also said that â€śNotices calling for hartal exempting certain essential services alone show that it is a threat to all other establishments and services that they will not be allowed to function.â€ť However, with the judgement that the same High Court delivered on Wednesday, activists who have been fighting against this for long feet let down. Raju Nair, the founder of Say NO to Hartal campaign, is of the opinion that by refusing to accept the plea that the petitioner had put forth to declare calling for hartal as a crime, their struggle has been â€śtaken backwards by 20 years.â€ť â€śThis judgement has watered down all what the courts had adjudicated earlier on the same issue,â€ť he said to The News Minute. â€śThis could have been a landmark judgement on the issue but the judgement has failed to take into consideration the ground realities,â€ť he said. â€śOn September1 when there was a hartal declared in the state by the RSS there were four clear incidents of violence. Our legal team contacted each of the victims and told them that we could provide them with free legal aid and fight their case in the High Court but, none wanted to. The common man is afraid to fight against a political party. The state-owned KSRTC is the always targeted during hartals. The state itself does not file a case against a political party that declared the hartal. This is the extent of helplessness. This could have been settled had the court taken a different view,â€ť he said feeling disturbed and let down. â€śThere are laws which book people for delivering hate speech because it causes animosity among people and may lead to violence. Why not in this instance when invariably there is violence whenever there is a hartal?â€ť he questions. The fight of the likes of Raju Nair has definitely received a jolt. How they will take the fight forward remains to be seen.