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Home > Tamilnation Library > Eelam Section > Sri Lanka Supreme Court Judgment: Gunawardena v Perera and Others, 1983
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TAMIL NATION LIBRARY: Eelam
On information that the cameraman was taken to the Police Station the petitioner and two others walked into the Police Station to request the release of the cameraman. While inside the Polite Station, the 1st respondent (officer‑in‑Charge of the Kollupitiya Police Station) arrested and detained the petitioner and also subjected her to cruel, inhuman and degrading treatment in violation of her fundamental rights set out in Articles 11 and 13 (1) of the Constitution. The 1st respondent denied the allegations against him. The 2nd respondent (Inspector General of Police ) among other documents, filed an affidavit by one V. Ganeshanantham, (Sub‑Inspector of Police) who averred that it was he, who arrested the petitioner, and that the arrest was made while the petitioner and others were walking along the Galle Road, in a procession which was being conducted without the authority of a lawful permit. Held : (2) That the petitioner had been arrested, the 1st respondent but by the Sub ‑ Inspector, Ganeshanantham and that the arrest constitutes an infringement of a fundamental right set out Article 13 (1) of the Constitution. (3) That whether the State adopted it or not, the action taken by Sub‑Inspector Ganeshanantham, was an executive action and thereby the State was liable for the said. infringement. The State was also ordered to pay compensation to the petitioner. Held further (obiter): That cross examination on the affidavits, when there is a sharp conflict of testimony on a question of fact, could be permissible. Cases referred to (2). Maharaj v. Attorney General of Trinidad and Tobago (No.2) - [1979] A.C, 385,399. (3). Thornill v. Attorney General of Trinidad and Tobago - [1980] 22,, W.L.R. 510,519. (4). Mariyadasa Raj v. Attorney General and another - S.C. application No. 130/82 - S.C. Minutes of 14-2-1983. APPLICATION under Article 126 of the Constitution for violation of fundamental rights. Dr. Colvin R. de
Silva with V.S.A. Pullenayagam. Sunil de Silva Additional Solicitor General with K. Kumarasiri S.C. and A.K. Wickramanayake S.C. for 2nd and 3rd respondent. Cur. adv. vult. June 8, 1983. SOZA, J., In this application the petitioner complains that she was on March 8, 1983 subjected to illegal arrest and detention and cruel, inhuman and degrading treatment in violation of her fundamental rights by the 1st respondent who is the Officer‑in‑Charge of the Kollupitiya Police Station. She now seeks relief and redress under Article 126 of our Constitution of 1978. The petitioner is a veteran politician 66 Years of age. She has been a Member of Parliament and in 1964 she was a Junior Minister. She is today the President of the Lanka Sama Samaja Kantha Sammelanaya - a Women's organisation interested and active in local and foreign affairs. March 8, 1983 was International Women's Day. As part of the programme of this day at about 8.45 a.m the petitioners along with members of her organisation and representatives of certain other Women's organisation staged a demonstration displaying banners and placards opposite the American Embassy emphasising the need to preserve the Indian Ocean as a Peace Zone and protesting against the establishment of a nuclearised military base in the Island of Diego Garcia. They also handed over at the Embassy a letter signed by the petitioner and the leaders of two other women's organisations and addressed to President Reagan. Thereafter the demonstrators dispersed. The working women left for their places of work. The remainder along with the petitioner stated walking back along the left side of the Galle road towards Kollupitiya junction with the object of going over to the petitioner's house in Kollupitiya. As they passed the Kollupitiya Police station a posse of policemen snatched the banners which were being taken along to be stored in the petitioner's house. A short time later the petitioner was informed that the newspaper cameraman who had been walking along with them had been taken to the Police Station for taking snaps of the policeman snatching banners. Thereupon the petitioner along with Mrs. Ouida Keuneman and Mrs. Srima Wijetilleke walked into the Police Station to request the cameraman's release. At the Police Station she found Mrs. Nanda de Silva already there speaking on behalf of the cameraman. The police officer there requested them to await the arrival of the officer-in-Charge of the Police Station. About half an hour later the Officer-in-Charge who is the 1st respondent to this application arrived. The petitioner walked up to him and requested the release of the cameraman. The 1st respondent shouted at her, "Shut up, you are under arrest". She explained that she was not under arrest but had come to the Police Station of her own accord to seek the release of the cameraman. Thereafter she attempted to walk out of the room where she was seated to inform those outside not to wait for them. She was then physically stopped by a policeman and almost immediately the 1st respondent held her and threw her on the floor. While she lay fallen the 1st respondent kicked her and put his foot on her leg. Mrs. Ouida Keuneman came to assist her to get up. She too was attacked by the 1st respondent and her saree was torn. Later the party leaders and several others came but by then the 1st respondent had left the scene The petitioner and the others were later allowed to leave the police Station. On her insistence her statement and those of her companies were recorded before they left the police Station. The police officers gave no reason for her arrest and detention, Apart from the 1st respondent, the petitioner has named the Inspector-General of Police and the Attorney-General as the 2nd and 3rd respondents respectively. The petitioner filed with her affidavit the annexures marked A to D. After the respondents filed their, affidavits and documents the petitioner filed a counter affidavit and the document E. On 19.5.1983 she was able to obtain the statement she made to the police on 8.3.1983. This was handed over to her in Court and produced marked G with its translation Gl. What I have given above is a resume of the petitioner's account of the incident. On 20.5.1983 the petitioner filed the affidavit dated 19.5.1983 of Mrs Ouida Keuneman. Strong objection was taken to the admission of this affidavit. Learned senior counsel for the petitioner submitted that this affidavit was prepared by way of response to what was alleged in the affidavits filed by the respondents. It could not be filed with the counter affidavit of the petitioner because Mrs. Keuneman was campaigning in the recent by‑elections and could not be contacted for the preparation of an affidavit before the elections. This affidavit would not ordinarily have been admitted as it was belated. Yet we admitted it because we felt that the excuse given sufficiently explained the delay. This affidavit was marked F. The learned Additional Solicitor‑General then moved to mark Mrs. Keuneman's statement to the police made on the day of the incident. This was not objected to and the application was allowed. This statement was marked 2 R 3. The version placed before this Court on behalf of the respondents is as follows : About 10.15.a.m. of the day of the incident, that is, on 8.3.1983, Sub‑Inspector Ganeshanantham saw a crowed of over fifty persons carrying banners and shouting slogans, and walking along Galle Road from the direction of Galle Face Junction towards Kollupitiya Junction. He went up with the four constables to the lady at the head of the procession and asked her whether "they had a permit to go in a procession" but neither she nor any other member of the procession produced a permit. On thus becoming aware that the procession was being conducted "without the authority of a lawful permit" and that the participants were committing an offence under section 77 of the Police Ordinance, in performance of his duty to prevent the conduct of the procession he directed the members of the procession to discontinue the procession and disperse. The petitioner however pushed him aside and proceeded with the procession and thereby obstructed him in the performance of his lawful duty. With the assistance of the other four constables he arrested the petitioner and four other persons and took charge of the banners of the processionists. At the time when he arrested the five persons he informed them of the reason for their arrest. The reason itself is not divulged in any of the affidavits filed by the respondents but during the argument we were informed, that it was obstruction of a police officer while in the execution of his duty for which section 32(l)(f) of the Code of Criminal Procedure Act, No. 15 of 1979 authorises arrest without a warrant. It is only fair to add that this reason is adumbrated in the affidavit of Sub‑Inspector Ganeshanantham. The Sub‑Inspector produced the five arrested persons at the Police Station and made his entries in the Routine Information Book at 10.45 a.m. The 1st respondent who had come to the police Station on hearing that a procession of women was marching from Galle Face towards Kollupitiya Junction in a protest demonstration, found that the petitioner and Three other ladies and one Saranapala Pamunuwa had been arrested by Sub-Inspector Ganeshanantham for failing to disperse when ordered to do so and were being detained in the Crime Dectective Bureau of the Station. The petitioner tried to walk out of the Police Station. Sub-Inspector Ganeshanantham tried to restrain her but she pushed him aside. Constable Thaveendiradas also went up to prevent the petitioner from going away but she slapped him. At this stage the 1st respondent intervened and held her firmly by her hand. She struggled to free herself in doing so slipped and fell. When she got up a women constable Ratnaseeli Perera detained the petitioner in the Crime detection Bureau of the Police station on the directions of the 1st respondent. Later she was released on bail on Mr. Bernard Soysa signing ass surety. Along with his affidavit the 1st respondent has filled the affidavit (1R1) of Police Constable Thaveendiradas. The 2nd respondent has filed the affidavits of Sub-Inspector Ganeshanantham (2R1) and Reserve Woman Police Constable Ratnaseeli Perera (2R2) along with his own affidavit. respondent has also filed a typewritten document in two pages marked X which is subscribed with a. signature similar to that of the petitioner. On the top of the first page of the letter there is some handwritten matter making reference to a letter dated 18th March from the "Secy. to H.E. the President." Just before the typewritten matter begins are written the words "Statement of Mrs.V. Goonawardene". The typewritten matter in document X purports to be an account of the incident by the petitioner. In her counter affidavit however she does not make herself clear as to whether the typewritten matter in document X is a statement of hers or whether she admits or denies her signature on it. The 1st respondent has stated in his affidavit that this document was received at his Police Station by post. It will be seen that we have before us two videly different versions of the incident. questions of fact on which there is controversy are : 1. Was the petitioner arrested by the 1st respondent inside the Kollupitiya Station or was she arrested (along with four others) by Sub‑Inspector Ganeshanantham when she and the others arrested were walking Galle Road towards the Kollupitiya Junction in a procession of several persons carrying banners and shouting slogans ? 2. Did the petitioner push Sub-Inspector Ganeshanantham and slap constable Thaveen diradas when they tried to restrain her from walking away from the Police Station and did the 1st respondent then merely hold her firmly by her hand to prevent her from going away whereat she struggled to free herself and slipped and fell or did the 1st respondent throw her down and kick her and place his feet on her when she lay fallen? Before I deal with the facts a word about the burden of proof. There can be no doubt that the burden is on the petitioner to establish the facts on which she invites the court' to grant her the relief she seeks. This leads to the next question. What is the standard of proof expected of her? Wanasundera, J. considered the question in the case of Velmurugu v. the Attorney‑General and another(1) and held that the standard of proof that is required in cases filed under Article 126 of the Constitution for infringement of fundamental rights is proof by a preponderance of probabilities as in a civil case and not proof beyond reasonable doubt. I agree with Wanasundera, J. that the standard of proof should be preponderance of probabilities as in a civil case. It is generally accepted that within this standard there could be varying degrees of probability. The degree of probability required should be commensurate with the gravity of the allegation sought to be proved. This court when called upon to determine questions of infringement of fundamental rights will insist on a high degree of probability as for instance a Court having to decide a question of fraud in a civil suit would. The conscience of the court must be satisfied that there has been an infringement. The court has to be satisfied firstly that there has been an infringement of fundamental rights and secondly that such infringement has been by executive or administrative action. The infringement complained of in this case falls under two heads : 1. Degrading treatment of the petitioner in contravention of Article 11 of the Constitution. 2. Arrest of the petitioner contrary to procedure established by law informing her of the reasons, in contravention of Article 13 (1) of the Constitution. Degrading treatment The 1st respondent is accused of throwing the petitioner down and kicking her and placing his foot on her leg when she lay fallen. Apart from the affidavit of the petitioner herself and her own statement to the Police we have the following material on this point : 1. Affidavit of Mrs. Ouida Keuneman where she says she saw the 1st respondent throw down the petitioner. In the meantime she herself was pushed about and she saw the petitioner lying on the floor. When she went to help the petitioner she saw the first respondent's boot on the Petitioner's body. 2. Statement of Mrs. Ouida Keuneman to the Police. Here she says the Police Officers pushed the petitioner and she fell down. When she fell she was kicked. she does not single out the 1st respondent as being the perpetrator of any of these acts. 3. No specific allegation of kicking or degrading treatment by the 1st respondent has been made by the petitioner's lawyer in three letters B, C, and D Written obviously on petitioner's instructions on 18.3.1983. 4. An affidavit of the press photographer whose arrest, according to the petitioner, sparked off this incident has not been filed. Needless to say his testimony would have been very valuable yet it has not been made available. 5. The 1st respondent and the other Police Officers who have filed affidavits have of course denied the allegations. The Police Officers for their part accuse the petitioner of having pushed Sub-Inspector Ganeshanautham and slapped Constable Thaveendiradas. Further there is a statement in the letter X that the petitioner twisted the arm of a Policeman. In this state of the evidence I regret I am unable to hold that them allegation of degrading treatment has been established by proof to the high degree of probability required. Illegal arrest The material relied on for the allegation that the 1st respondent arrested the petitioner is her statement that when she pleaded for the release of the press photographer but his was not heeded. There are also the affidavit and statement to the police of Mrs. Ouida Keuneman to support the petitioner. But the words "you are under arrest" are of ambitious import. They could mean "you have been already been arrested" just as much as "I am now placing you under arrest". The version of the respondents is that the arrest took place on the Galle road before the 1st respondents came to the Police Station. The question of who arrested and where is bound up with the question whether there was a procession being conducted by the petitioner and the other ladies along Galle Road. On this we have conflicting testimony. In the letter X the return trip of the petitioner and the others with her is described as a march and again as a procession. There is also reference to banners. Here too the failure of the petitioner to place before the Court an affidavit of the press photographer must be regarded as a serious shortcoming. The rival versions on the question whether there was a procession have their infirmities. The burden of proof however is on the petitioner. In the result it cannot be said that the petitioner has affirmatively proved in the manner required that she was first arrested by the 1st respondent inside Police Station. But here the petitioner has two strings to her bow. If it is not accepted that it was the 1st respondent who arrested her there is the admission by Sub-Inspector Ganeshanantham that he arrested her and four others as they were coming along Galle Road in a procession about 50 strong carrying banners and shouting slogans. The petitioner can rely on Sub-Inspector Ganeshanantham has stated that he questioned the leader of the procession and asked her whether they had a permit. No permit was produced He then directed the precisionists to disperse but they attempted to continue in defiance of his orders. Hence he arrested the petitioner and the other leaders of the procession and the press photographer and took them to the Police Station. He has averred in his affidavit that he gave the reason for the arrest to the arrestees at the time he arrested them. He has however not disclosed in his affidavit what the reason was which he gave.
Let it be borne in mind that it is important that the reason given should be
stated to Court. No doubt failure to mention what the reason was to Court would
not necessarily mean that no reason was given at the time of arrest. But it is
necessary that the court should have the reason given for the arrest The petitioner and her companions are alleged to have conducted a procession "without the authority of a lawful permit" and thereby contravened section 77 of the Police Ordinance. Section 77(l) forbids any procession being taken out or held in any public in any urban area unless notice of the procession has, at least six hours before the time of its commencement, been given to the officer in charge of the Police Station nearest to the place at which the procession is to commence. Under subsection 2 and 5 of this section every person who in contravention of section 77 (1) organises a procession or does any act in furtherance of the organization or assembling of a procession, commits an offence punishable by a fine not exceeding five hundred rupees or imprisonment of either description for a term not exceeding six months or both such fine and imprisonment. Contravention of the provisions of section 77(1) of the Police Ordinance is a non-congnizable offence for which arrest without a warrant is not permissible - see First schedule of the code of Criminal procedure Act, No. 15 of 1979 at page 241. Section 77(1) of the Police Ordinance Does not make it an offence to take out or hold a procession on a public road in an urban area without a valid permit. No permit or even permission is required but only notice has to be given. The Ordinance does not even prescribe written notice. It can be oral. Once notice is given or even otherwise it would no doubt be lawful under section 77(3) for an officer of police of a rank not below the grade of Assistant Superintendent, if he considers it expedient so to do in the interests of the preservation of public order, to give directions (whether orally or in writing) prohibiting the taking out of any procession, or imposing on the person or persons organizing or taking part in the procession such conditions as appear to him to be necessary, including conditions prohibiting or restricting the display of flags, banners or emblems. But so far as the organisers of the procession are concerned the only legal requirement is to give notice and comply with the directions, if any, of an officer of police of a rank not below the grade of Assistant Superintendent. It was submitted that during this period the Police Stations in this area were placed in a state of alert owing to the possibility of disturbances Sub‑Inspector Ganeshanantham would have been aware that no notice had been given of this procession to the officer in charge of the Kollupitiya Police Station to which he was attached. But here we are in the field of surmise. Sub‑Inspector Ganeshanantham himself says nothing of no notice having been given in his affidavit. It is obvious that he was acting on the footing that without a valid permit no procession is permissible. It must be emphasised that there was no state of emergency on the 8th March, 1983. Accordingly there was no legal basis for Sub-Inspector Ganeshanantham's order to the processionists to disperse. The absence of a permit did not make the continuance of the procession an offence or any of the processionists liable to arrest. The petitioner and the others who were with her were well within their rights to ignore the orders of Sub-Inspector Ganeshanantham to disperse. I might add that under Article 14 (1) (b) of the Constitution freedom of assembly is a fundamental right guaranteed to all citizens. As his order to disperse was in the circumstances illegal Sub-Inspector Ganeshanantham is in no position to complain that the petitioner obstructed him while in the execution of his duty. Therefore he is in no position to justify arresting the petitioner without a warrant by invoking the provisions of section 32 (1) (f) of the Code of Criminal Procedure Act, No 15 of 1979. On his own showing Sub‑Inspector Ganeshananthem was guilty of arresting the petitioner in contravention of the Constitutional prohibition of arrest except according to procedure established by law. The arrest constitutes an infringement of a fundamental right. Sub‑Inspector Ganeshanantham's action no doubt proceeded from a wrong appreciation of the Law, but the infringement remains. Executive or administrative action I will now turn to a question on which we heard much argument from both sides. Was the infringement by executive or administrative action ? Learned Senior Counsel for the 1st respondent with support from the learned Additional Solicitor-General submitted that liability on the basis of executive or administrative action can be established only if the State has either expressly or impliedly authorised or ratified or adopted or condoned or acquiesced in the acts constituting the infringement. The 2nd respondent has expressly sworn to the fact that he has not and will not authorise or condone any illegal acts on the part of his officers. In his affidavit he states he has read the affidavit of Sub‑Inspector Ganeshanantham and being satisfied with the truth of the averments therein he is producing it to Court marked M. It is a reasonable inference that the 2nd respondent is adopting the action taken by Sub‑Inspector Ganeshanantham which no doubt was felt at that time to be within the pale of the law. Hence the infringement under discussion passes even the test formulated by learned Senior Counsel for 1st respondent. I have no difficulty in holding that the infringement was by executive action for which the State is liable. his should have been sufficient to dispose of this case but in view of the fact that the question was argued at length before us, I will proceed to deal with it. The remedy prescribed by Article 126 of the Constitution is available only where there is an infringement or imminent infringement of a fundamental right by executive or administrative action. The question is whether an act violating fundamental rights committed under colour of office by a public officer constitutes executive or administrative action unless it is expressly or impliedly authorised or adopted or condoned or acquiesced in by the Statue. On behalf of the respondents it is
argued that constitutional safeguards are directed against the State and its
organs and not against individuals. Hence fundamental rights guaranteed against The principle of liability however must not be determined on the basis of the extensiveness or narrowness of its field of operation. Chapter 3 on Fundamental Rights in our Constitution is concerned with public law. The protection afforded is against contravention of these rights by executive or administrative action of the State and its organs. Public authorities clothed by law with executive and administrative powers are organs of the State. A police officer using the coercive powers vested in him by law acts as an organ of the State. As much as the State is served when he enforces the law, the State is liable for the transgressions of fundamental rights he commits when he is enforcing the law. Fundamental rights were secured and guaranteed even by the 1972 Constitution but no special machinery for enforcement was provided. The Constitution of 1978 spells out in detail the Fundamental Rights it recognizes and it has provided a special forum and special machinery for enforcement and for the grant of relief and redress. But the old forms of procedure and the old remedies still co‑exist with the new. The question we are considering has been the subject of judicial decisions in our Courts. Sharvananda,J. explained the principles on which liability for infringement of Fundamental Rights is Imputed to the State in the Velmurugu case (supra) as follow :
The nature of the liability has been neatly explained by Lord Diplock in the Privy Council decision in Maharaj v. The Attorney-General of Trinidad and Tobago (No.2) (2) in the following words:
Lord Hailsham of St. Marylebone in his minority dissenting judgment in this case did not agree with this formulation because he found " it difficult to accommodate within the concepts of the law a type of liability for damages for the wrong of another when the wrongdoer himself is under no liability at all and the wrong itself is not a tort or delict". His Lordship found it equally difficult to understand that this was "some sort of primary liability". But what Lord Diplock was emphasising was that this was a new liability in public law" created by the Constitution of Trinidad and Tobago, not to be considered from the angle of the existing bases of liability. In Sri Lanka too our Constitution has created a new liability in public law. On the nature of police duties Lord Diplock again made an authoritative pronouncement in the case of Thornhill v. Attorney-General of Trinidad and Tobago (3)
Lord Diplock went on to point out that police officers are endowed with coercive powers to perform their functions. This is so in Sri Lanka too . Hence contravention by the police of any of the Fundamental Rights guaranteed by the Constitution must attract State liability. The State no doubt cannot be made liable for such infringements as may be committed in the course of personal pursuits of a public officer or to pay off his personal grudges. But infringements of Fundamental Rights committed under colour of office by public officers must result in. liability being cast on the State. Reliance was placed by learned Senior Counsel for the 1st respondent on the judgment of Wanasundera.J. in the Velmurugu case (supra),. In that case the majority view was that on the facts there was no infringement of fundamental rights. Hence the decision so far as it relates to the interpretation of executive or administrative action must be regarded as obiter. Wanasundera, J. took the view that the State should be strictly liable for the acts of its high officials. Of subordinate officials he says as follows:
This passage appears indeed to support what the petitioner, is contending for. With great respect, I do not agree that any distinction should be drawn on the basis of the rank of the official. I can find very., little' in this judgment which supports the proposition which learned Counsel for the respondents have invited us to accept. The principle that the State is liable for infringements of fundamental rights committed under colour of office by its public officers was applied by Sharvananda,J. in the case of Mariyadas Raj v. Attorney‑General and another. He explained the principle of liability as follows:
With this formulation I respectfully agree. In the instant case the action taken by Inspector Ganeshanatham was 'executive action whether the State adopted it or not. Accordingly I hold that the arrest of the petitioner was unlawful and contravened Article 13(l) of the Constitution. The State is liable for the infringement. Therefore I order the State to pay Rs. 2500/‑ as compensation to the petitioner. As this award is based on material placed before Court by the Police Officers, I order no costs. Before I part with this judgment I would like to advert to one last matter which has caused my brothers and me some concern. As there was a sharp diffrence of testimony on the question of cruel, inhuman and degrading treatment we may have examined the question of permitting crossexamination on the affidavits. However such a course was not in any event feasible as under Article 126 (3) of the Constitution we are obliged to deliver our order today. In the circumstances we direct the 2nd respondent to proceed with his inquiries and take appropriate action in accordance with the law in respect of the various allegations made against the 1st respondent. RATWATTE, J., : I agree. COLIN‑THOME. J.,: I agree. Application allowed and
compensation ordered. |
