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Somasunderam Nadesan Q.C.
Pavidi Handa Case - Freedom of Speech
Judgment of the Supreme Court of Sri
Lanka, 2 February 1983
Ratnasara Thero v Udugampola
Wimalaratne J. Ratwatte J, Colin Thome J,
Abdul Cader J, Rodrigo J in
SC Application 125/1982
January 19th 1983.Fundamental rights ‑ Confiscation of printed matter
prepared for distribution ‑ S 398 and S 453 of Penal Code Article 14 (1) (a)
of the Constitution ‑ Freedom of speech and expression including publication.
The petitioner who had printed some leaflets for distribution on the subject of
the referendum to be held for extending the life of the parliament, complained
that the 1st respondent had taken some of the leaflets into custody The 1st
respondent had initiated inquiries on the receipt of a complaint by one
Wimaladasa that he had seen a copy of the leaflets on public display.
Subsequently one Rev.Father Basil Nicholas had complained that he had been
deceived by one Father Reid Fernando into signing a copy of the same document.
The original copy signed by Rev. Father Basil Nicholas was not taken into
custody and Father Reid Fernando was not questioned. Wimaladasa's statement had
not been produced in court and it was admitted that the contents of the leaflet
were not unlawful. The 1st respondent had not, stated under what provisions
of the law he chose to act and the learned Deputy ‑Solicitor General suggested
that ire could have acted under S 398 and S 453 of the Penal Code. Held ‑ S.
398 and S. 453 of the Penal Code had no application and that the fundamental
rights of the petitioner that is the freedom of speech and expression including
publication had been violated.
S. Nadesan Q.C. with Sri Ranjan and S.H.M. Reeza for the petitioners.
Priyantha Perera.D.S.G. . with C.R. de Silya S.C for the
resoondents.
Head Note:
Fundamental rights - Confiscation of printed matter prepared for
distribution - S 398 and S 453 of Penal Code Article 14 (1) (a) of the
Constitution - Freedom of speech and expression including publication.
The petitioner who had printed some leaflets for distribution on the
subject of the referendum to be held for extending the life of the
parliament, complained that the 1st respondent had taken some of the
leaflets into custody The lst respondent had initiated inquiries on the
receipt of a complaint by one Wimaladasa that he had seen a copy of the
leaflets on public display. Subsequently one Rev.Father Basil Nicholas had
complained that he had been deceived by one Father Reid Fernando into
signing a copy of the same document.
The original copy signed by Rev. Father Basil Nicholas was not taken
into custody and Father Reid Fernando was not questioned. Wimaladasa’s
statement had not been produced in court and it was admitted that the
contents of the leaflet were not unlawful.
The lst respondent had not stated under what provisions of the law he
chose to act and the learned Deputy -Solicitor General suggested that ire
could have acted under S 398 and S 453 of the Penal Code.
Held -
S. 398 and S. 453 of the Penal Code had no application and that the
fundamental rights of the petitioner that is the freedom of speech and
expression including publication had been violated.
Case referred to:- Emperor vs. Raghunath Singh - 1946 A.I.R. (Lahore) at
p. 459.
Cur Adv Vult.
2 February 1983
ABDUL CADER J.
The petitioner is the Viharadhipathi of the Sama Vihara situated at
Gampaha.. He has stated that an organisation called the "Pavidi Handa" was
constituted by a considerable number of the clergy, Buddhist and Christian, in
Sri Lanka, who were opposed to the proposal to extend the life of the present
Parliament for a further period of 6 years. At a meeting held on 18th November,
1982, it was decided that a statement of the reasons for their opposition should
be sent to different parts of the Island and signatures obtained from those who
were in agreement and to print and distribute them. Accordingly, some statements
were prepared and sent to the clergy in various parts of the Island for
signature.
The petitioner placed an order for printing 50,000 copies of this
statement with the names of the signatories for the purpose of distribution to
the members of "Pavidi Handa" for being given to or posted to voters. 10,000
leaflets were delivered to the petitioner while the balance was in the course of
printing of which 5,000 copies had been given out or had been posted to the
voters, and the balance was with the petitioner awaiting distribution. He had in
addition in his possession 5,000 copies of the statement in English.
On 8th December, 1982, on. a complaint, the Gampaha Police went to the
press in which there were some copies of this leaflet which had already been
printed. While the other copies were being printed, they seized and removed
about 20,000 printed copies and also composed matter" and stopped further
printing of this statement. Thereafter, the Police went to Sama Vihara and the
Sub-Inspector told the petitioner that they had seized leaflets from the press
and they wanted from the petitioner the originals of the documents signed by the
clergy. The petitioner gave them about a dozen such signed statements.
The petitioner states that when he questioned the Inspector why they
seized and removed the leaflets from the press, he replied that they were taken
away because it is illegal to print them under Emergency Rules and Election Law.
He had also told the petitioner that 3 persons from the press had been arrested
and it is likely that the press would be sealed and that the first three
signatories of whom the petitioner was the third were likely to be arrested. The
Sub-Inspector did not take away the 5,000 copies which were in his possession.
He was asked to report at the Police Station the next day, that is 9th December,
1982.
He filed this petition on the 9th, stating that after his statement was
recorded he feared that these 5,000 copies also may be seized and taken away by
the Police and that he would be arrested and his work in connection with the
Referendum may be obstructed.
He has also expressed the fear that the Gampaha Police would continue not to
give him and other members of the "Pavidi Handa" the opportunity to meet at the
Vihara or elsewhere "to discuss our problem." He has prayed for a declaration
that the steps taken by the 1st respondent in taking away the leaflets printed
at the said press are unlawful and in violation of the fundamental rights of the
petitioner, to direct the 1st respondent to restorethe copies seized from the
said press to the petitioner, and for compensation in a sum of Rs. 25,000/=. I
shall refer to prayer “D”
later.
The 1st Respondent, the Superintendent of Police, Gampaha, with
reference to the above allegations has stated that at 9.55 a.m. on 8.12.82, a
complaint was made at the Police Station at Gampaha by one Wimaladasa to the
effect that he had seen a copy of the document marked “A1” pasted on a letter
box in the Gampaha town, and at 10 a.m., about 5minutes later, Rev. Father Basil
Nicholas complained at the Police Station that he had been deceived into signing
on a blank paper and that his name now appears as the 70th signatory on the said
pamphlets to which he had never consented to be a signatory and that he
requested an investigation; a party of Police Officers was sent to ascertain if
there were any of these pamphlets pasted anywhere; that it was reported to him
that these pamphlets were seen pasted everywhere in town; that he traced the
original of these pamphlets to a printing press in Gampaha; caused the pamphlets
found therein to be seized and, as it transpired that the petitioner was
responsible for getting these pamphlets printed, he visited the Sama Vihara and
recorded the statement of the petitioner.
In his affidavit, he has referred to the statements recorded
subsequently of five other persons, copies of which statements have been annexed
to his affidavit, which are totally irrelevant to these proceedings, as they
were recorded after the seizure of these pamphlets and, therefore, could not
have formed the material on which the 1st respondent acted.
In the affidavit
filed by the 1st respondent, he has not stated under what provisions of law he
chose to act in this manner. The petitioner’s statement that the Sub-Inspector
told him that the pamphlets were taken away ”because it was illegal to print
them under Emergency Laws” has not been expressly contradicted. There is,
however, a general denial in paragraph 2 of the affidavit of the 1st respondent.
The Deputy Solicitor-General, did not support the seizure of these pamphlets on
the ground that the printing of these pamphlets was a violation of the Emergency
Laws and the Election Laws.The Deputy Solicitor-General
referred to Section 50(1) (b) of the Referendom Act No. 7 of 1981, the
violation of which is a cognizable offence. Section 50 (1) (b) reads as
follows:-
"50.
(1) During the period commencing from the date of publication of the
Proclamation under section 2 and ending on the day following
the day of which a poll is taken at Referendum, no person shall, for
the purpose of promoting a Referendum, display-
(b)
any handbill, placard, poster, drawing, notice, symbol or sign on any
place to which the public have a right of, or are granted, access except in
or on any premises on any day on which a meeting to promote the Referendum
is due to be held in that premises;”.
Wimaladasa's statement has not been produced in the Court; the pamphlets
which Wimaladasa saw pasted had not been removed and exhibited in this Court;
nor an affidavit filed from Wimaladasa. Even the statement of the 1st
respondent that it was reported to him that his officers saw these pamphlets
“pasted in the town" is hearsay as no affidavit has been filed from these
officers. In the light of these circumstances, the Deputy Solicitor-General did
not support the action of the 1st respondent under this provision.
The Deputy Solicitor-General then submitted that the lst respondent
could have acted under Sections 398 and 453 of the Penal Code. Section 398 deals
with cheating and Section 453 with the making of a false document. Even assuming
that the petitioner or, for that matter, anyone else had committed the act
complained against by Father Basil Nicholas, there is doubt whether an offence
of cheating or forging a document would arise on that material. However, I
would adopt the submission made by the Deputy Solicitor-General that the 1st
respondent could well make a mistake as regards the application of these
sections to the facts reported to him although in the final result a Court might
hold that no offence had been, in fact, committed under these sections. But what
is significant is that the lst respondent has not stated that he acted under
either or both these sections. It is merely a proposition put forward by the
Deputy Solicitor-General at the argument before us, so that it is yet open to
question whether the 1st respondent acted whilst investigating an offence under
the Penal Code or an offence under the Emergency and Election Laws.
The Deputy Solicitor-General drew our attention to Section 112(l) of
the Code of Criminal Procedure Act and submitted that since the respondent was
investigating a cognisable offence, he was entitled to search for any document
which he considered necessary for the conduct of the investigation and,
therefore, he was justified in charge of the pamphlets.
The burden is on him to satisfy us that he complied with the
requirements of this Section; viz. that:
(1)
he considered that the production of these pamphlets were necessary to
the conduct of the investigation, and
(2)
there was reason to believe that the petitioner…..will not produce these
pamphlets in response to summons or order issued by court under Section 66, or
(3)
that such document is not known to be in the possession of the
petitioner.
In respect of the first of these conditions, Nadesan raised a very
pertinent question whether it was necessary that the respondent should take
charge of about 20,000 printed leaflets to prove the charges of cheating or
forging a document. In fact, the Police had in their possession one of these
printed documents before the respondent seized these leaflets because the
statement of the Rev. Father recorded by the Police commences with the words
that the printed pamphlet was shown to the Rev. Father before his statement was
recorded. I agree with Mr. Nadesan that it was not necessary to take charge of
20,000 pamphlets to prove either of these charges.
In respect of the second requirement, I cannot see how the respondent
could have entertained any doubts that the petitioner would not produce the
printed leaflets when required to do so by Court when the petitioner had
admittedly printed this large number of pamphlets for distribution for a cause
which he believed to be right.
The third requirement is also not fulfilled inasmuch as the lst
respondent himself had disclosed that in the course of the investigation it
transpired "that the petitioner was responsible for getting these pamphlets
printed" and secondly he did not seize the documents that were in the possession
of the petitioner.
An examination of the facts will lend support to my conclusion that this
Section has no application. Assuming that the 1st respondent went out to
investigate one of these two offences, the first and important material document
that he should have taken charge of should have been the original document in
which the Rev. Father placed his signature. He did not do so. According to the
petitioner he took charge of some other original documents. Obviously, the
respondent did not give his mind to the document signed by the Rev. Father.
In fact, it was produced in Court at the hearing by Counsel for the
petitioner. What Father Basil Nicholas had stated was that Father Reid Fernando
saw him and asked him to sign a document on which the data was on one sheet and
the signatures on another, and so far as he could remember, he was the second
person to sign the document and that there were no signatures of any Buddhist
priests on that document. One would expect any intelligent Police Officer to
call for and obtain the documents on which Rev. Father had placed his signature
which, as I said earlier, was not done. Secondly, the respondent has stated that
the statement of the petitioner was recorded, but that statement had not been
produced before us to consider whether the petitioner had been questioned in the
light of the submissions made by the Deputy Solicitor before us. Thirdly, the
Police showed the pamphlet to Father Nicholas before recording his statement
and, therefore, it has to be presumed that the Police had started an
investigation after recording the information furnished by Wimaladasa.
Though the priest had, complained of cheating and requested the Police
to hold an inquiry, it would appear that the motive for the seizure was actually
based on Wimaladasa's complaint. It is significant that apart from the fact
that the respondent has not taken shelter behind the Penal Code, even the
written submissions refer to the complaint of Wimaladasa as one of the reasons
for seizing the pamphlets. Fourthly, if at all any person cheated the Rev.
Father, according to him, it was Father Reid Fernando who took the signature,
but Father Fernando was not questioned before the seizure of these pamphlets.
Fifthly, no affidavit has been filed from Father Basil Nicholas or from Father
Reid Fernando.
Bhandari J. quoted Lord Camdon C.J. in Emperor vs. Raghunath Singh
reported in 1946 A.I.R. Lahore, at page 459 as follows:-
"The great end, for which men entered into society, was to secure their
property. That right is preserved sacred and incommunicable in all
instances, where it has not been taken away or abridged by some public law
for the good of the whole. The cases where this right of property is set
aside by positive law, are various. Distresses, executions, for feitures,
taxes & c., are all of this description; wherein every man by common consent
gives up that right, for the sake of justice and the general good. By the
laws of England, every invasion of private property, be it ever so minute,
is a trespass. No man can set his foot upon my ground without my licence,
but he is liable to an action, though the damage be nothing., which is
proved by every declaration in trespass, where the defendant is called upon
to answer for bruising the grass and even treading upon the soil. If he
admits the fact, he is, bound to show by way of justification that some
positive law has empowered or excused him. The justification is submitted to
the Judges, who are to look into the books if such justification can be
maintained by the text of the statute law, or by the principles of common
law. If no such excuse can be found or produced, the silence of the books is
an authority against the defendant, and the plaintiff must have judgment."
"Good faith" was discussed, but not put forward as a defence for
seizure of these pmphlets. I do not intend to discuss the question whether "good
faith" on the part of a public servant would constitute a defence for the
violation of fundamental rights. Section 51 of the Penal Code defines "good
faith" as follows:-
"Nothing is said to be done or believed in .good faith which is done or
believed without due care and attention."
On the facts in this case, the respondent has, therefore, failed in this
regard, too.
The respondent having admitted the seizure of pamphlets, the burden lies
on the respondent to justify his conduct. In my opinion, the Deputy Solicitor-
General has failed in his attempt to vindicate the conduct of the 1st
respondent.
I hold that the petitioner is entitled to relief in terms of his prayers
"B",”C”,”D”, “E”, and “F”.
Prayer "G" is for a direction to the respondent to permit the
petitioner to hold lawful meetings and "not to carry out the assurance that he
(1st respondent) "gave the unruly mob on the 3rd December, 1982;". The 1st
respondent has denied that he gave any such assurance or that he prevented the
petitioner from holding lawful meetings. He has given the assurance that the
Police do not intend to prevent the holding of a meeting by the petitioner. Now
that the occasion for such meetings is no more and that the respondent has given
the assurance that the petitioner will not be obstructed from holding lawful
meetings, I do not think it necessary to go into the matters raised in
paragraphs 14 and 15 of the petition.
The petitioner has been prevented from exercising his fundamental
rights of "freedom of speech and expression including publication." (Article
14(l)(a) of the Constitution). About 20,000 copies of pamphlets which he printed
for publication to espouse a cause which he believed to be right had been seized
by the 1st respondent and the petitioner had been prevented from distributing
them. The D.S.G. agreed that the contents of these documents were not unlawful
and that he was not relying on the contents to justify the seizure of these
pamphlets. In my view, this is a serious violation of the fundamental rights of
a citizen of this country which calls for the award of substantial damages. A
mere declaration without more in the form of some penalty will not deter such
future abuse of fundamental rights of citizens. This Court does have the power
"to grant such relief or make such directions as it may deem just and equitable
in the circumstance" in terms of Article 126 (4) of the Constitution.
Keeping in mind that 20,000 pamphlets were seized, I direct the lst
respondent to pay a sum of Rs.10,000/- as compensation and costs fixed at
Rs.2,100/- to the petitioner.
WIMALARATNE J.
- I agree.
RATWATTE J
- I agree.
PERCY COLIN-THOME J.
- I agree
RODRIGO J.
- I agree
Application upheld.
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