Court wants law on hartals

A march in Thiruvananthapuram during a State-wide hartal called by the Rashtriya Swayamsevak Sangh on September 2.

IN 1997, the Kerala High Court in a landmark judgment declared bandhs unconstitutional and illegal, a view that the Supreme Court upheld. But the High Court has now said that it cannot similarly ban hartals as a way of protest in the absence of an enabling law. The court said that such a restriction could only be imposed by a new law framed by the legislature within the meaning of Article 19(2) of the Constitution, which provides the grounds of restriction of the freedom of speech and expression. As of now, the court’s powers were limited as the matter fell within the scope of fundamental rights, it said.

The verdict—delivered on October 29 by the Full Bench of the High Court, including Acting Chief Justice Ashok Bhushan, Justice A.M. Shaffique and Justice Jayasankaran Nambiar—came at the end of a long legal battle on a group of petitions that sought, among other things, a ban on political parties and others from calling hartals and on the media from reporting such calls and related events. Pointing out that fundamental rights available to citizens would cease to exist whenever such forms of protests turned disorderly or violent, the court said that the State government had failed so far to check or counter the menace of hartals or strikes and that it was high time that it considered enacting a law to prohibit or regulate them.

While framing such a law, the government should take into account the draft Bill on regulating hartals and strikes submitted by the State Law Reforms Committee in 2008. The Bench also suggested that the State government propose a mechanism in the new law by which citizens could lodge claims for damages or injuries caused to them during a hartal or strike. The court also asked the government to revisit the directives issued to various departments under the Kerala Police Act and the Kerala Public Ways (Restriction of Assemblies and Processions) Act, in order to deal effectively with hartals and strikes and for the authorities to report and take steps to register cases for damage to property and injuries to citizens. In its 1997 verdict (Bharat Kumar vs State of Kerala), the High Court made a clear distinction between a “bandh” and a “hartal” and pointed out that a bandh involved coercion of others into toeing the line of those who called the bandh, an unconstitutional act because it violated the rights of others. A hartal, it said, was a peaceful act of non-cooperation or a passive resistance movement and a call for it did not involve coercion.

But soon complaints were filed that political parties were resorting to “forcible hartals”, which were for all intents and purposes taking on the nature of bandhs. In the latest order, the High Court referred to the distinction drawn in its 1997 decision and said: “It is clear that protests, demonstrations and speeches fall within the right to freedom of speech and expression under Article 19(1)(a). Any restriction on calling for a protest, non-cooperation and hartal can be imposed only by a law framed within the meaning of Article(19)(2) of the Constitution of India.”

However, referring to the 1962 verdict of the Constitution Bench of the apex court (Kameshwar Prasad and others vs State of Bihar), the High Court said that the right to protest ceases to be a right when it turns disorderly or violent and added that “on any such act or offence, the law shall take its own course and the guilty be punished”.

The court said that each incident connected to a hartal had to be looked into by a judge to see whether there is criminal intimidation in carrying out the hartal, and there could not be any generalisation in the matter. The court also said that any prohibition on the media from publishing any call for bandh or hartal shall be violative of the right of the people to know and receive information.

R. Krishnakumar