Sri Lanka Law Reports
 1 Sri LR.
v.SIRIMAL AND OTHERS(JANA GHOSHA CASE)
DHEERARATNE J. ANDRAMANATHAN J.
S.C. APPLICATION NO. 468/9209 FEBRUARY, 1993.
Fundamental Rights – Article 14 (1)(a) of the Constitution – Right of freedomof speech and expression – Criticism of the Government.
Several political parties including the Sri Lanka Freedom Party decided to showtheir disapproval of the policies and actions of the Government on a range ofissues. It was decided to harmonize their protests, nationwide by means of a15 minute noisy cacophony of protests (Jana Ghosha) : ringing of bells, tootingof motor vehicle horns, beating of drums, banging of saucepans, so that theremight resound throughout the nation, a deafening din of disapproval. Thepetitioner, a member of the S.L.F.P. and a member cf the Pradeshiya Sabhaof Horana was one such participant at Ingiriya.
SCAmaratunga v. Sirimal and Others (Jana Ghosha Case)265
The petitioner voiced his protest by beating a drum. When he did not heed thepolice order to stop beating the drum, he was assaulted and his drum brokenwith a rice pounder. The crowd of protesters shouted slogans against theGovernment and formed a cordon across the road. Tear-gas and a baton chargewere used to disperse the crowd.
The Police did not have reason to apprehend a breach of the peace. Theaction by the Police was simply because anti-Government slogans were beingshouted.
The petitioner's fundamental right of speech and expression was violated.Per Fernando, J.
" The right to support or to criticize Governments and political parties,policies and programmes is fundamental to the democratic way of life, andthe freedom of speech and expression is one which cannot be denied withoutviolating those fundamental principles of liberty and justice which lie at thebase of all civil and political institutions ".
Criticism of the Government, and of political parties and policies, is per se,a permissible exercise of the freedom of speech and expression under Article
Cases referred to :
Carey v. Brown (1980) 447 U.S. 455.
Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 95-96.
Tinker v. Des Monies (1969) 393 U.S. 503.
United States v. O' Brien (1968) 391 U.S. 367, 377.
Strombero v. California (1931) 283 U.S. 359.
Cohen v. California (1971) 403 U.S. 15, 26.
Ekanayake v. A. G. S.C. Application No. 25/91 S.C. Minutes of 18.12.91.
Whitney v. California (1927) 274 U.S. 357.
De Jonge v. Oregon (1937) 299 U.S. 353.
APPLICATION for infringement of fundamental rights.
Ft. K. W. Goonesekera with L C. M. Swamadhipathi and J. C. Weliamuna forpetitioner.
Mohan Pieris S. S. C. for the respondents.
Cur. adv. vult.
Sri Lanka Law Reports
 1 Sri L.R.
MARCH 08, 1993.
Several political parties, including the Sri Lanka Freedom Party(S. L. F. P.), decided to show their disapproval of the policies andactions of the Government on a range of issues – the unbearableincrease in the cost of living, the privatization of public enterprisesand the consequent retrenchment, wasteful expenditure on politicalextravaganzas, corruption, the suppression of discussion on certainmatters of public interest, escalating abductions and killings, andthe North-East War. It was decided to harmonise their protests,nationwide, by means of a 15-minute ” Jana Ghosha " on 1.7.92.Wide publicity was given, and prospective participants were askedto orchestrate their efforts in a noisy cacophony of protest – theringing of temple and church bells, the tooting of motor vehiclehorns, the beating of drums, the banging of saucepans, and thelike — so that there might resound, throughout the nation, adeafening din of disapproval. The petitioner, a member of theS.L.F.P. and a member of the Pradeshiya Sabha of Horana, wasone such participant at Ingiriya. Alleging that the 1st and 2ndrespondent's (two police constables attached to the Ingiriya Police)had destroyed and silenced his drum, and inflicted injuries on him,the petitioner filed this application for the infringement of hisfundamental right under Article 14 (1)(a).
The petitioner's case is that while he was beating his drum nearthe bus stand, at about 12.35 p.m., the 1st and 2nd respondentsthreatened him, and compelled him to give up his drum to the 1strespondent, who threw it on the ground, and struck it with a ricepounder. The petitioner persevered in his protest, proceeding tobeat the remains of his drum near the Ingiriya super market ; the1st respondent again wielded the rice pounder, causing extensivedamage to the drum. Undaunted, the petitioner continued tomanifest his protest by clapping his hands ; the 2nd respondentordered him to stop and, upon his failure to obey, assaulted him.There is no doubt that the petitioner did receive some non-grievousinjuries that day. He claims therefore that the 1st and 2ndrespondents forcibly prevented him from manifesting his protest, thusinfringing his fundamental right under Article 14 (1)(a).
Amaratunga v. Sirirnal and Others (Jana Ghosha Case)
(Fernando, J.) 267
Learned Counsel for the petitioner submitted that thepetitioner's drumming and clapping was a solo effort, distinct fromthe orchestrated performance in the vicinity. However, the petitioner'saffidavit shows that he had been fully aware of the plans forthe protest at Ingiriya, in which he had come to play his part ; hestarted at the bus stand, and later went near the Super Market. Thesupporting affidavit from an eyewitness, Nandasena (another drum-mer), also indicates that both of them were acting in concert withall the other protesters. Thus the question whether the petitioner'sfundamental right was violated has to be considered in the contextof the entire demonstration at Ingiriya that day.
The 1st respondent claims that he was not at the scene. Herelies on entries (" 1R1 ") in the relevant register to the effect thathe left the Ingiriya Police Station at 8.50 a.m. for the Magistrate'sCourt, Horana, in order to hand over some productions ; havinghanded the productions to a clerk, and having obtained anacknowledgement, he returned to the Station at 2.37 p.m. Therefore,he asks us to infer, he could not have been at the site of the protest.
It is difficult to believe that the 1st respondent took nearly six hoursto return to the Police Station after going to Horana merely to handover some productions to the productions clerk ; he does not explainwhy this errand took so long. He had quite enough time to get tothe Ingiriya junction by 12 noon, and to return with the other policeofficers after the Jana Ghosha. The two entries produced by the2nd respondent ('' 2R1 ") show that S. I. Priyadarshana and the2nd respondent returned at about the same time, i. e. shortly before3.00 p.m. Both the petitioner and Nandasena have named the1st respondent and described his part in the incident in detail ; thepetitioner is a person from the area, and it is not unlikely that heknew the 1st respondent by sight. Undoubtedly the petitioner hadbeen involved in an incident which resulted in injury to him ; hehad no particular reason to implicate the 1st respondent falsely, ifhe wished to accuse some one falsely, he could as easily havenamed one of the many other police officers who had been at thespot. What is more, the petitioner also named another policeconstable, Pelpola, as having been there, but did not name him asa respondent as he had not participated in the incidents complainedof; this is not an invention, because 2R1 shows that Pelpola wasone of the officers who went to the scene of the protest. The 2ndrespondent has averred that the 1st respondent was not at the spot,
Sri Lanka Law Reports
 1 Sri L.R.
but he was an interested party, and it was to his advantage to denythe incidents ; Pelpola had no such motive, but he has not swornan affidavit. It is therefore probable that the 1st respondent was atthe Ingiriya junction that day.
The 2nd respondent's description of the events, as recorded inhis notes made at 3.05 p.m. that day, can be summarised thus :
The police party was near the Ingiriya Bo-tree on riot-control duty.At 12.40 p.m., a crowd of about 1,000 protesters came from thedirection of the Ingiriya Super Market and the Ratnapura road,and attempted to pass in front of the police party, shoutingslogans against the Government, lighting crackers, and beatingdrums. They were shouting " riot “ (“zajdg raoS"), 11 chase Abayaout ", " overthrow (the Government) “. Although told several timesto disperse, the protesters, scolding the police, started theirprocession. Thereafter, they formed a cordon across the road,by holding hands and attempted to block the road ; the protestersagain started to pass them, when on the instructions of S.l.Priyadarshana two tear-gas canisters were used on the protesters.Those who were affected by the tear-gas ran away wipingtheir eyes. Afterwards the protesters again came, shouting, towardsthe police. Thereafter, on the instructions of S. I. Priyadarshana,using the minimum amount of force, the police baton-charged,whereupon the protesters dispersed.
His affidavit is to the same effect, the words " s^dO m-zQ " beingrendered as " that the people ought to riot against theGovernment ", but with some significant differences :
that the crowd was “ behaving violently ",
that “ as the procession became unruly, (S. I. Priyadarshana)warned the marchers not to proceed but to dispersepeacefully
that after the use of the tear-gas, " the protesters resumed
their marchand some of them threw missiles at the police,
notwithstanding the warnings to stop their violent conduct" .
The affidavit thus brings in an element of violence, which isconspiciously absent in the contemporaneous record.
Amaratunga v, Sirimal and Others (Jana Ghosha Case)
The respondents have not produced any affidavit from theOfficer-in-charge of the police squad, S.l. Priyadarshana. His notesmade at 3.00 p.m. that day describe the incident in much the sameway as the 2nd respondent ; they do not mention any violence ormissiles ; but they do say that notwithstanding the warnings, theprotesters attempted to continue their procession, " shouting slogansagainst the Government", whereupon the police formed a cordon.
On the material furnished by the respondents, it would appearthat the noisy, slogan-shouting, processionists were warnedrepeatedly to disperse ; when they failed to disperse, tear-gas wasfired ; then they were baton-charged ; and admittedly, four persons,including the petitioner, sustained injuries. It is necessary todetermine therefore, why the police attempted to stop thedemonstration. The respondents position is that S.l. Priyadarshanahad acted in terms of section 78 (1) of the Police Ordinance :
" Officers of police not below the grade of Sub-Inspector may,as occasion requires, direct the conduct of all assemblies andprocessions in any public place, prescribe the routes by whichand the times at which such processions may pass, and directall crowds of twelve or more persons to disperse when they havereason to apprehend any breach of the peace. “
The question that arises therefore is whether he had “ reason to
apprehend any breach of the peace."
According to the 2nd respondent, one of the slogans shouted wasan incitement to riot. Learned Counsel for the petitioner submittedthat in a demonstration of this nature, even if an incitement to riotwas intended, it is most unlikely that the words " m(6Q cnaQ " wouldhave been used. However, that consideration does not rule out thepossibility that those words were in fact uttered at some stage. Atthe same time the only evidence that these words were used, isthe 2nd respondent's affidavit (there being no affidavit from S. I.Priyadarshana) ; and I hesitate to accept that affidavit in view of thesignificant additions not appearing in his contemporaneous notes.However even assuming in favour of the respondents, that some suchwords had previously been used, it is clear that at the time whenS. I. Priyadarshana decided to stop the protest, and procession (ifindeed there was one), what induced him to act was that theprotesters were “shouting slogans against the Government " ; and
Sri Lanka Law Reports
 1 Sri LR.
according to the 2nd respondent, because they were scolding thePolice. It was not because of any incitement to riot or violence. Ifat that point of time protesters were actually inciting people to riot,or any form of violence, it is unthinkable that both S. I. Priyadarshanaand the 2nd respondent would have failed to mention that fact intheir notes.
I therefore hold that S. I. Priyadarshana did not, objectively, have“ reason to apprehend any breach of the peace “, and did not,subjectively, think that a breach of the peace was likely, at the timethe police party decided to stop the protest, or at any time thereafter(when the Police used tear-gas and when they baton-charged). I amsatisfied that he acted simply because anti-Government slogans werebeing shouted.
There is ample authority that " speech and expression “ extendto forms of expression other than oral or verbal – placards, picketing,the wearing of black armbands, the burning of draft cards, the displayof any flag, badge, banner or device, the wearing of a jacket bearinga statement, etc (cf. Carey v BrowrfPolice Department of Chicagov Mosley l2 Tinker v Des Moined®, United States v O' Srieii^,Stromberg v California (5), Cohen v California (6). Learned Senior StateCounsel concedes that drumming, clapping and other sounds,however unmusical or discordant, can, in the context of the JanaGhosha, be regarded as " speech and expression ”.
Learned Counsel for the petitioner submitted that the petitioner'sprotest was disrupted simply because it was against the Government,and that criticism, in any form, of the Government, was well withinArticle 14 (1) (a) ; and although learned Senior State Counselagreed that this was so, he insisted on reminding me of myobservations in Ekanayake v A.B. (7) which I have no hesitation inreiterating :
“ The Constitution demands the protection of the right to thinkas you will, and to speak as you think (Whitney v California, (8)subject to limitations which are inherent, as well as restrictionsimposed by law under Article 15. Subject to that, the expressionof views, which may be unpopular, obnoxious, distasteful or wrong,is nevertheless within the ambit of freedom of speech andexpression, provided of course there is no advocacy of, orincitement to, violence or other illegal conduct.
Amaratitnga v. Sirimal and Others (Jana Ghosha Case)
I am therefore of the view that the fundamental right of thepetitioner under Article 14 (1)(a) has been violated. The right tosupport or to criticise Governments and political parties, policiesand programmes, is fundamental to the democratic way of life, andthe freedom of speech and expression is one “which cannot be deniedwithout violating those fundamental principles of liberty and justicewhich lie at the base of all civil and political institutions " (De Jongev Oregon(9). This is not a borderline case, or a sudden emergencyin which a quick decision had to be taken. Prior publicity had beengiven to the planned protest, and the police had information aboutit ; I cannot accept the 2nd respondent's statement that informationhad been received of a plan to incite the people into committing actsof violence and to cause a riot, because the respondents have notproduced any record of that information, and have not disclosed thenature and source thereof. If in fact a riot or violence had beenanticipated, the police would have known that they had to act whenthere was incitement to riot or violence, or actual violence. Howeverthe 2nd respondent acted when slogans were shouted against theGovernment ; not that he understood those slogans as an incitementto riot or violence ; and not that there was a need to prevent anysuch breach of the peace or obstruction as is referred to in section78 (1) of the Police Ordinance. It was thus a grave, deliberate andunprovoked violation of the petitioner's freedom of speech andexpression, and I am of the view that the petitioner should beawarded compensation in a sum of Rs. 50,000. Stifling the peacefulexpression of legitimate dissent today can only result, inexorably,in the catastrophic explosion of violence some other day. Hencethe obligation cast upon this Court by Article 4 (d) of the Constitution,to respect, secure and advance fundamental rights, would amplyjustify the exercise of our power (under Article 126 (4) to givedirections to the police to ensure that they will respect the citizen'sfundamental right of speech and expression, and will not suppresspeaceful protest. We trust, however, that the Inspector-General ofPolice will of his own volition issue appropriate directions andinstructions to all Officers-in-charge of Police Stations, that criticismof the Government, and of political parties and policies, is, per se,a permissible exercise of the freedom of speech and expression underArticle 14 (1)(a).
272Sri Lanka Law Reportsf1993] 1 Sri L.R.
I hold that the fundamental right of the petitioner under Article14 (1)(a) has been infringed, and award him compensation in thesum of Rs. 50,000 payable by the State.
DHEERARATNE, J. – I agree.
RAMANATHAN, J. – I agree.