Why Investors Shy Away From Kerala? - Asia Net HARTAL Hartal signifies closing of offices and shops in India as a mark of public protest or sorrow. This form of public protest dates back to days of British colonial rule in India. Repressive actions infringing on human rights by the colonial British Government and princely states against countrywide peaceful movement for ending British rule in India often triggered such localised public protest After the British conceded independence to India on 15th August 1947, Hartals in free India were often observed mostly as a mark of public sorrow to mourn the demise of public men and great leaders. It is also observed to mourn the deaths as a consequence of calamities, man-made or natural, that leave many people dead and injured. Towards the end of 1980’s, public policy in India began to turn towards the right with the Government embarking on many measures to what are termed as “liberalisation” policy. This policy is being pursued with more vigour since the turn of 1990’s. The new policy gave more freedom to entrepreneurs both domestic and foreign, to set up business in India and to import goods and services. The Government’s control on such activities became minimal. Trans-national companies were able to expand their business into India and to capture Indian market for goods, services and capital. These developments led to jobless economic growth and fall in prices of primary commodities exported by India. The new economic situation adversely affected workers and marginal farmers due to severe unemployment and fall in incomes. The disparity between the rich and the poor also widened because of these policies. Workers’ protest in the form of countrywide general strike against liberalisation and globalisation became frequent with mass-based organisations joining hands with trade unions. This naturally evolved into bandhs, with transport and public utilities grinding to halt, especially in pockets of strong trade union movements, such as in Kerala, West Bengal, Tripura, Tamil Nadu and industrial suburbs of metro cities. With workers in nation-wide industrial sectors like Banks, Insurance, Steel, Coal, Ports, Communications etc. participating in the general strike, the bandhs signified total cessation of almost all economic activities. The Kerala High Court in its path-breaking verdict delivered by a Full Bench in July 1997 declared forced bandhs as illegal. The spirit of the judgement is that people cannot be made to participate in bandhs under duress. The 1997 verdict upheld the view that the organisers of bandh "trample upon the right of the citizens protected by the Constitution". In simple terms, the judiciary laid down the rule that political parties and trade unions have a right to protest, but the citizens have an equal right to not support their action. The Kerala High Court has twice in a span of four years, delivered judgements curbing the right of trade unions and political parties to call for bandh. The Supreme Court in November 1997 in the Communist Party of India vs Bharatkumar and others upheld Kerala High Court’s Order making bandhs illegal. Out of this situation, need arose for trade unions and political parties not to cross path with judiciary, while exercising their right to call for public protest. When all workers stop work in a general strike, naturally all economic activities grind to a halt. This in fact is the Bandh. Such occurrences came to be termed as hartals. That is how hartals assumed the added characteristic, though essentially, it remained just what it was, viz. public protest by closure of shops and commercial establishments. This situation came for review in June 2000 by the Division Bench of Kerala High Court, which held that hartal and bandh were two different names for the same form of protest. This interpretation gave rise to another public interest litigation in the Division Bench of Bombay High Court, where in a petition filed by prominent citizens and certain public action groups argued that a declaration of illegality without a sting was not good. The Bombay High Court by an Order on July 23 2004 fined Shiv Sena and Bharatiya Janata party INR 20 lakhs (about US $ 45,000) each for organising a bandh on July 30 2003 to protest against killing of innocent people in the serial bomb blasts that had occurred in Mumbai. The question is whether there is no limit to individual freedom. The Constitution guarantees individuals certain fundamental rights such as freedom of movement, right to free speech, freedom to organise into associations and unions, freedom to practice any profession, occupation etc. In a democracy, each individual has equal share in governing the country. In a country of a billion people, each individual has one-billionth share in governing. In other words, an individual’s share in government is infinitesimal. One is more governed than governing. To increase the share of governing in democratic manner, people form into associations and unions. The right to form such association and unions is also guaranteed in the Constitution of India as fundamental right. Formation of union and association is for a purpose. To achieve the objectives of the association, the individuals in the association take collective decisions and implement certain plan of action to achieve the objectives. Bandhs, Hartals, Strike or whatever else are part of collective exercise of such freedom guaranteed under the Constitution. In a democracy, can there be blanket ban or illegality for public protest? The Constitution declares India as “SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC”. Certain directive principles for governing the country are given in Part IV of the Constitution. This Part gives direction to the Government to shape and implement policies for achieving objectives such as minimising economic inequality, enhancing the welfare of the people in regard to health, education, decent living condition, equality and fairness in remuneration for equal work, prevention of concentration of wealth and means of production to common detriment etc. When organised groups find that the principles of secularism and socialism are being flouted or the country is not governed as laid down in the Directive Principles of the Constitution of India, there are only two remedies. One of them is enforcement through legal process. The other is organising public protest to ensure that the Government implement Directive Principles through adoption of policies and by appropriate legislations. As Courts have no power to enforce Directive principles through legal process, the only option open to citizens is recourse to public protest through organised action. Bandhs and Hartals are to be viewed in this context. Do they deserve to be branded as illegality through rule of thumb criteria? Alternatively, do they strengthen democracy by making the government more responsive to public protest by allowing the citizens the right to dissent? Eternal vigilance to strengthen democracy is the sure way to retain and secure guaranteed right to freedom of individuals and society. Maze of esoteric arguments arrayed for or against bandhs and hartals must not lead us to lose sight of this reality. By K.V.A. Iyer E-mail: krpm@vsnl.com Telephone – Home: 91-484-394-6129 Cell: (91) 98471-31136 Address 48/1546-A, St. Antony's Road, Thanikkal, Cochin - 682 026. (India)