2-DISSANAYAKE v. UNIVERSITY OF SRI JAYAWARDENAPURA AND TWO OTHERS

022-SLLR-SLLR-1986-V-2-DISSANAYAKE-v.-UNIVERSITY-OF-SRI-JAYAWARDENAPURA-AND-TWO-OTHERS.pdf


DISSANAYAKE
v.
UNIVERSITY OF SRI JAYAWARDENAPURA ANDTWO OTHERS
SUPREME COURT.
SHARVANANDA. C.J.. ATUKORALE. J. AND H. A. G. DE SILVA. JS C. APPLICATION No. 120/85FEBRUARY 27 and 28, 1986MARCH 12, 13 AND 14. 1986.
Fundamental rights — Freedom of speech and publication – Freedom ofmovement—Articles 14(lj(a), (cj and (h) and 15(2) and (7) of the Constitution —Rule16(1 1) of University Handbook-Abridgement or restriction of fundamental rights byregulation-Prior restraint-University discipline.
The fundamental rights guaranteed by Article 14 of the Constitution are not absolutebut are subject to the elemental need for order without which the guarantees of. civiirights to others would be a mockery. The guarantee of freedom of speech spelt byArticle 14(1)(a) of the Constitution is subject to the qualification that it should notviolate or infringe the rights of others. The right of freedom of speech has also to besubordinated to the obligation of the State and its agencies to maintain order anddiscipline. The right is not free from regulation imposed in the interests of efficiency,discipline, health, morality, public order and the like.
Article 1 4 (1) (a) does not give a carte blanche to University students to violate the rightsof the Vice-Chancellor by publishing baseless allegations respecting his administrationor by defaming him. The students' rights must be measured and applied in the light of.the special exigencies of the University environment. Students are bound by reasonablerules governing conduct. A student who enrols himself in the University places himself'.under the disciplinary control and powers of the Vice-Chancellor. In prescribing andcontrolling conduct in the name of.discipline, the Vice-Chancellor however should haveregard to the Constitutional rights of the students and should not restrict those rightsbeyond what is reasonably required by the imperatives of discipline. A student1 cannotbe faulted if he in the exercise of his rights protests to the proper authorities against theconduct or shortcomings of the Vice-Chancellor. But calculated falsehood as distinctfrom mere erroneous statement is outside Constitutional protection. Adjudication of the■students' complaint requires such complaint to be considered as a whole and in a fairfree and liberal spirit. Such adjudication should not be on stray sentences and phrasesand isolated passages. In judging the effects of the writing the standard to be employedmust be of a reasonable person and not of one who scents malice in every hostile pointof view. It is not permissible to stifle all airing of grievances by attributing motives. Thecorrect test is: was the statement made in criticism of the official conduct of theVice-Chancellor or was a false statement made with a high degree of awareness of itsprobable falsity.
The petitioner may be entitled to report the conduct of the 2nd respondent to HisExcellency the President or to any other authority who has supervisory power over hisactivity but he would be exceeding his right, if he publishes the report to others whoexercise non-supervisory control over the Vice-Chancellor. It is the Fundamental Rightof a University student to approach the President with grievances and suggestions forbetter University administration. His right of unimpaired access to the President cannot,in the name of discipline be inhibited by the Vice-Chancellor. To the extent that Rule16:11 of the University handbook fetters the students' right of access to the President,it infringes the students' fundamental right of speech and expression and is invalid.
Even if the petitioner falsely claimed to act on behalf of the students of the University itis he who would be responsible for the contents of the complaint and it would be amatter for the President to act on it or not.
A university is entitled to take measures to protect its interests and reputation and thoseof its staff from being trenched upon by its students. Compelling University interest isthe justification for antcipatory prior restraint of freedom of speech and expressionwhere such speech and expression materially and substantially interferes with schoolactivities or the rights of other students and the staff. Hence Rule 16:11 does notimpose unreasonable restrictions on the petitioner's freedom.
The restraint on speech does not exceed the ambit of permissible regulation. There isno justification for issuing the contents of the memorandum which containeddisparaging or defamatory statements about the Vice-Chancellot and sections of thestaff to the newspapers. Public criticism of the Vice-Chancellor by students wouldseriously undermine the Vice-Chancellor's authority in the University. The University hasa legitimate interest in preventing disruption of its examinations and taking preventiveaction against such disruption. There is no question of a violation of petitioner's rights offree speech or any other right when disciplinary action is taken against him for disruptingexaminations and he is suspended from college and the University premises are placedout of bounds for him.
Cases referred to:
Adkins v. Childrens' Hospital-261 U.S. 525. 56.
Amand v. Thompson-(1968) 390 U.S. 727. 737.
Baumquartner v. U.S.-(1944) 323 U.S. 665. 673, 674
Near v. State of Minnesota-! 1931) 283 U.S. 697. 715, 716.
Chaphnsky v. State of New Hampshire-! 1942) 315 U.S 568. 571. 5 72
R. K. VI. Gunasekera with J. Yusoof. Senaka Weeraratne and Bandula Wijesmghe forthe petitioner.
K. N. Choksy. P.C. with D. H. N. Jayarnaha. A. L. B. Brnto Mutunayagam and Miss TRodrigo, instructed by 0. F. R. Jayarnaha for 1 st and 2nd respondents
Cur. adv. vuIt.
June 23. 1 986.
SHARVANANDA, C.J.
The petitioner is a third year internal student of the University of SriJayawardenapura and is reading for the special degree in BusinessAdministration of that University. The 2nd respondent is the ViceChancellor of the University of Sri Jayawardenapura (the 1strespondent) and is its principal executive officer. He is responsible,inter alia, for the direction, supervision and control of the University,including its administration and for the maintenance of discipline withinthe University.
In his petition to this court, the petitioner states that on September20. 1985, the day when internal examinations in the University werebeing held, an internal student was assaulted and cut by a sword bysome outside persons, within the premises of the University. Thepetitioner and other students questioned the officials in charge ofsecurity of the University, as to why they failed to prevent theoccurrence of such events. The petitioner and others were then set
upon by the Security Officials who had in their possession, an arsenalof weapons, which included swords, guns and bottles and iron clubs.An unsettled condition spread over the entire, campus and somestudents fearing for their lives left the campus grounds. The Universityauthorities then announced that the University had been closedindefinitely and the examinations were postponed and ordered thestudents in the hostels to leave them immediately. The students thenleft the University premises, but left most of their belongings in thehalls of residence. On September 24, 1 985 the halls of residence ofthe University were broken open and the, belongings of the studentsincluding their books and notes were burnt and destroyed. OnSeptember 27, 1985,,the Vice-Chancellor announcedi that the
examination for Management Studies and Commerce students wouldbe held commencing on October 11,1 985. The petitioner and someother students then requested the. Vice-Chancellor to postpone theexamination and to give the students a period as study leave in view ofthe recent disturbances at the campus. The 2nd respondent, howeverrefused to accede to the request and indicated that the examinationwould be held as notified! On 7th October 1985, the petitionerpurporting to act on behalf of the students of the University sent thefollowing memorandum to His Excellency the President, who is alsothe Minister-in-charge of Higher Studies.
P2
"University of Sri Jayawardenapura,Nugegoda.
October 7, 1985.
His Excellency J. R. Jayewardene. -•
President,
Democratic. Socialist Republic of Sri Lanka.
Your Excellency.
We had the occasion even earlier to draw Your Excellency's attention to theimmense damage done on or about 20th September and the uncertain and confusedsituation that arose thereafter under the autocratic and distructive administration of thepresent Vice-Chancellor Mr. Karunasena Kodituwakku of Sri JayawardenapuraUniversity.
From the moment Mr. Karunasena Kodituwakku took over the UniversityAdministration up to date he has never listened to the voice of the peace-lovingstudents who value fairness and justice. In the face of present happenings theautocratic administration of the Vice-Chancellor, can lead to the collapse of Universityadministration.
Therefore with a genuine desire to restore a peaceful environment in theUniversity we forward the following suggestions to Your Honour. We appeal to you tobe kind enough to act accordingly to ensure the safety of lives of students.
Our proposals:
The Police should be permitted to conduct inquiries in accordance with normallaw of the land on the pillage, robbery and destruction of books, lecture notes,clothes belonging to the students in the hostels, and on threats to the life ofstudents, assault of students perpetrated in the University premises on or aboutFriday. 20th September. 1985 with the connivance, tacit approval andassistance of the University Administration.
The immediate removal of Mr. Karunasena Kodituwakku. the Vice-Chancellorwho is totally responsible to this great calamity.
(i) Desist from creating parallel posts such as the Competent Authority to take
over powers and duties of the Vice-Chancellor
Appoint to the vacancy of Vice-Chancellor a Professor who is nominated bythe Academic Staff Union at a General Meeting on a two-third majority andcommanding acceptance of students, academic staff and the non-academicstaff.
Under no circumstances should an outsider be appointed to the post ofVice-Chancellor.
(i) Immediate steps should be taken to stop the acts of thuggery now carried on
surreptitiously by the Security Section, Maintenance Section and some othersections of the University.
Dismiss the chief of the Security Section who contributed to this immenserampage and reorganise the Security Section.
Remove the main Warden who assisted in the destruction of life and propertyof students at the hostels and re-organise the hostel administration.
Take immediate steps to stop the trespassing of outsiders within theUniversity premises.
Desist from calling Police forces into the University premises under anycircumstances.
The University Administration must assure the safety of students life andproperty.
A special committee made up of representatives of the general studentship andrepresentatives appointed by the academic staff union on a two third majorityvote should be appointed immediately and the tasks of monitoring the securitywithin University premises and the provision of advisory service to theadministration to be handed to it.
A formal student body should be instituted as. provided for under the 1978Universities Act to maintain official relations with the University Administration.
The proceedings of the Committee of Inquiry appointed by the University Councilat the Special Meeting held on 26th September, 1 985 to inquire into and reporton the incidents that occurred in the University premises on or about 20thSeptember, 1 985 should be stopped immediately and the committee should bedissolved. We strongly condemn the shameless witch hunt of students activitieswho value justice and fair play, by this pseudo inquiry committee which has beenappointed from among the University Council which is devoid of independence.
The holding of examinations according to the time tables now announcedwithout holding formal Police inquiries with the general acts and robbery that hastaken place and without any guarantee or responsibility students, should bestopped immediately. Specially notes, books, equipment and clothes of a large 'number of students who were residents of hostels have been destroyed orrobbed. Therefore, in order to prepare for the impending examinations adequatestudy leave should be provided. Hostels and all sections of the Library should bekept open during the period of study leave. •
His Excellency the President should appoint a Commission of Inquiry consisting ofi three retired Judges of the Supreme Court to inquire into alh irregularities.
administration lapses and dictatorial administration of Mr. KarunasenaKodituwakku'ffom the time he was appointed as the'Competent Authority Of theUniversity of Sri Jayawardenapura to date.
•Thankyou. •
Yours faithfully.'
Sgd. Bandara Dissanayake;
On behalf of the Students of theUniversity of Sri Jayawardenapura.
Copies to:
Vice Chancellor. Sri Jayawardenapura University.
All Lecturers of Sri Jayawardenapura University,
All heads of non-academic sections of Sri Jayawardenapura University.
Chairman, University Grants .Commission;
?5. Deputy Minister of Higher Education.
Vice-Chancellors of all Universities of Sri Lanka.
All members of the Parliament'of the Opposition.
Governor. Inter University Students Federation."
Copies of this memorandum were distributed to the teaching staff of the Universityalso. On October 15. 1985, the petitioner received a letter P3 dated 10th October.
1 985 from the 2nd respondent charging him with a number of allegations.:He received.
also the letter dated October 15.1985 marked P4 from the Vice-Chancellor, declaringthe University premises out of bounds to the petitioner. The Charge Sheet marked P3 isas follows:
P3
"UNIVERSITY OF'SRI JAYAWARDENAPURA. SRI LANKA
Nugegoda.
Sri Lanka.
October 10. 1985.
My. No/1.
Mr. Dissanayake Mudiyanselage.Muthubanda Dissanayake.
Registered No. A 15766.
Faculty of Management Studies and Commerce.
CHARGE SHEET
As it has been reported that, while being a student of the Faculty of ManagementStudies and Commerce in this University, you have violated university rules by resortingto the following acts of indiscipline, you are hereby, required to submit to me in writingwithin one-week your explanation therefor to be forwarded to the disciplinary board.
J. Issuing and publishing on'7th October. 1985. without any permission from theUniversity authorities, a leaflet claiming to be 'on behalf of the students of SriJayawardenapura University.'
Acting in such a manner as to bring the University into disrepute by the issue of thecontents of this leaflet to the newspapers.
Acting in such a manner as to cause insult to officers of the Sri JayawardenapuraUniversity by the inclusion of untruths in the leaflet.
Distributing- this leaflet on 07.10.1985 at the time of holding end-of-the-yearexaminations at the Bandaranaike Flail of the Sri Jayawardenapura University
Disrupting the following examinations that were scheduled to be held at theBandaranaike Hall on 07.1 0.1 985:
Compulsory English B A. (General) Degree IICompulsory English B.A. (Special) Degree II
2. You are also further informed that if your explanation is not received by me withinthe stipulated time, it will be presumed that you have no explanation to. offer and thatthe matter will be referred to the disciplinary board for further disciplinary action onthese charges preferred against you:
Sgd. Karunasena Kodituwakku.Vice-Chancellor.
Copy to:
Mr. D. M. .Muthubanda Dissanayake.
. 39. Attarag'alla. '
Galgamuwa."
P4 reads as follows:
"UNIVERSITY OF SRI JAYAWARDENAPURA. SRI LANKA
Nugegoda,
Sri Lanka.15.10.1985.
My. No. /1.
Mr. D. M. M. Dissanayake,
Regd. No. 1 5766.
Faculty of Management Studies and Commerce.
Further to the charge sheet dated 10.10.1985 of even number.
As it has been reported that even after the events stated in this charge sheet you havebeen engaged in such things as disrupting ^examinations by creating unnecessarytrouble, you are hereby informed that until the disciplinary board makes a decision onthis matter, the University premises are made out of bounds for you with immediateeffect.
Sgd. Karunasena.Kodituwakkd.u. Vice-Chancellor.
Copies to
Dean
Chief Security Officer"
Sub Warden. Lady Margerent Hostel
Senior Assistant Registrar, Exams
Assistant Registrar. Academic
Parents-Guardian-Mr. D.'. M. Kiribanda.
No. i39, Ataragalla,
'Galgamuwa."
The petitioner states that he has been,a student leader,and that'heexpressed, whenever necessary., the views of the student body andhad consequently earned the displeasured the-2nd respondent. Thepetitioner complains that.the "2nd respondent's attempt to punish himon the grounds set out in. his letter, dated 10th October 1.985 (P3) iscontrary to and is in violation of the freedom of speech and expressionincluding publication guaranteed ■ by Article ;14(1-)(a) of theConstitution and his act of keeping the petitioner out of bounds of theUniversity premises is in violation of the freedom of associationguaranteed by Article I4(1)(c) of the Constitution. The petitionerfurther states, that the prohibition of his, entry into the University
campus by the Vice-Chancellor, as conveyed by his letter dated15.10,1985 constitutes an infringement of his fundamental right offreedom of movement guaranteed by Article 14(1)(h) of theConstitution.
The Vice-Chancellor (2nd respondent) has, in his affidavit, set outhis version of the tense situation that prevailed in the University whichnecessitated the closure of the University. He has also stated thereason for the action contemplated in charge sheet P3 and P4. Hestates that he was compelled to issue P3 and P4 on account of thepetitioner's own wrongful acts namely-
(1) the unauthorised publication of'the memorandum dated
985 (P2), and
(•2). the disruption of the examinations by the petitioner.
He said that the memorandum to.His Excellency the President had notbeen submi’tted through the normal channel and that thememorandum contained false statements against him and theUniversity staff-,’bringing the University and its staff into disrepute. Hesaid that the'petitioner had no right to sign or distribute the saidmemorandum on behalf of the students as the petitioner did not holdany office in any organisation representing the students. He referred toa booklet marked R17, issued to students on admission which setsout the procedure that should be-followed in making complaints. Hestated that the petitioner had breached section 16:11 of R17 TheVice-Chancellor has also stated that the petitioner had disrupted theexaminations held on 7th October 1985 at the Bandaranaike Hall. Hesaid that the charge sheet P3 was, in the circumstances issued by himcalling upon the petitioner to explain his conduct He further statedthat the petitioner continued his wrongful conduct and together withothers disrupted the conduct of the examination on 14th October1 985.-He has-' filed report marked R19 from Dr. MahanamaKarunaratne, Supervisor of the examination and report marked R20from the student-councillors Prof. K. A. Munasinghe, Dr, Nanayakkara.Dr. Abaya Bandaranayake and Dr. Edwin Ganihigama. which testify tothe disruption of theTexaminatioh by the petitioner and others. Hefurther stated that other’students A. P, K. Dharmapriya. H. M. C.Seneviratne and M-.’-M: Asa’nka Guhatillakehave also been suspendedfor disruption of the 'examinations and that after suspension of theoffending students-'th'e-examinations were conducted withoutincidents. The 2nd respond’eht claims th’at the suspension of thestudents had to be done in the interest of discipline of the Universityand that he had acted in accordance with the' provisions of theUniversity Act No. 16 of 1978, especially section 34(b) whichprovides that-
"The Vice-Chancellor shall be responsible for the maintenance of
the discipline of the University."
He categorically denied that there was any infringement of thefundamental rights of the petitioner.
The 1st and 2nd respondents have, urged, that the petitioner is notentitled to .any relief in view of the serious acts of misconduct,committed by him, by the publication and distribution of memorandummarked ,P2 and the disruption of the examination caused by him.'
Absolute or unrestricted individual rights do not and cannot exist in amoderri'State. -"Theliberty- of the ihdividual'to do as-he pleases even' iniTinocent'matters',- is not absolute.1 It1 must frequently yield to thecommon'good." Adkins v. Children's Hospital (T).‘'Social contrail'sneeded1 to 'preserve* the very liberty guaranteed. All rights are-onlyrelative and not'absolute. The principle, on which the power-of-theState to impose restriction is based, is*.that all individual rights-of *aperson are: held subject to such r.easonable-limitationsi.and regulations'as may be necessary or vexpedient for the protection of. the generalwelfare. Complete freedom -unfettered, and: undirected-there.neveris. The.State has inherent-power, to regulate-the hovy.-and where of ;theexercise of-the.fre.e.doixi. A-.balance has to be struck between individualand social control. The-fundamental rights guaranteed.by. Article 1-4 ofthe Constitution are subj.ect to the, elemental.need for order without,which the.guarantees of civil rights to others would.be a mockery. Theguarantee of freed,om of .speech, rspeltvby,-.Article 14.(1) (a) of. theConstitution, does not give an absolute protection for every utterance.Libellous utterance is not. within th,e area of constitutionally protectedspeech The right conferred by this Article must not'violate the rightsof. others. That right is subject to the qualification that it should notviolate or infringe the rights .of’others. Further the right of freedom ofspeech has to be subordinated"to the obligation of the State and itsagencies to maintain'order and discipline. So'long as'society andcivilization exist,' it is difficult to conceive an absolute right. Every right
has a corresponding duty limiting the exercise of that very right. Thisrenders the 'right' to be reasonably exercised so as not to come intoconflict with the rights of others. The exercise of any right must notlead to any wrong on individuals, institutions, society or State.Individual rights have therefore, necessarily to be restricted by certainlimitations in the interests of decency, public order, morality, securityof the State etc. Thus for instance, the right to free speech should notjustify a man shouting fire in a crowded stadium or causing a panic orraising a false alarm that bombs are planted in various buildings andworkplaces. Freedom of speech does not mean freedom to shout outneedlessly or to communicate one's views at all times and places many manner that may be desired. Exercise of right of free speechdemands observance of the co-equal duty not to abuse such right, butrather to utilise it with reason and discretion.
It is a total misconception to say that because the exercise andoperations of the fundamental rights declared by Article 14 may berestricted only by law in the areas specified in Article 15(2), (7). the
exercise of the rights cannot be regulated or that every regulation ofthose rights would be an abridgment or restriction of those rights, norights however absolute, can be free from regulation. Regulationsmade in the interests of efficiency, discipline, health, morality, publicorder and the like may undoubtedly be imposed. Such regulations arenot restrictions on the operation of the guaranteed rights. Freedomhas never been antithetical to regulation. A man may be denied theprivilege of speaking' at a meeting because someone else has thefloor; freedom of speech is not thereby abridged. A person has a rightof'access to the authorities but the time and the manner ofpresentation of his complaint may be determined not by his ownchoice but by carefully prescribed regulations. To interpret Article 14as forbidding such regulation is to misconceive the meaning of thatarticle. Therefore the freedom which Article 14 protects is not theabsence of regulation. It only means that no law shall be madeabridging the freedom except for the purposes set out in Article 15.Speech in areas not covered by Article 1 5 can be regulated in orderthat the exercise of the fundamental freedom of speech may notconflict with similar rights of others. The State has the right to regulate
the exercise of a fundamental right in order to prevent it being abused,though it cannot curtail the right itself except on permissible grounds.The question is whether the particular measure is regulatory orwhether if transgresses the zone of possible regulation and gets intothe forbidden territory of restriction or abridgement. Any regulatoryscheme impinging upon fundamental rights should therefore beclosely scrutinised. The right of free, speech may not be abridged in theguise of regulation… (
Article 14 of the Constitution deals with those great and basic rightswhich are recognised as the natural rights-inherent in the status of acitizen. It assures that every citizen is entitled'to the freedom'senumerated therein. The petitioner complains that the actio,n of theVice-Chancellor violates his fundamental rights of speech .andassociation,,In determining the validity of-this complaint, one has to'-bear in mind that Article .14(1 )(a) does not give a carte blanche toUniversity students to violate- the- rights of-.-.the Vice-Chancellor by.publishing baseless allegations respecting, his administration or -by.defaming him..,
The University is not an enclave immune from the sweep of theFundamental Rights guaranteed by the Constitution." A student doesnot discard, or shed his fundamental rights of speech, association'etc,, when he enters the University, gate. But. he consents, to theregulation of his constitutional, rights in keeping, with, the specialcharacteristics of the University environment. Rights, of Universitystudents cannot be co-ex.tensive with those of adults, While a studentis entitled to protection,of his constitutional rights, his rights -are. subjectto certain restriction not imposed on adult citizens; his rights must bemeasured and applied in the, light of. t-he special exigencies of theUniversity environment-.- Students, are bound by reasonable rules;governing conduct. A student who enrols himself in the Universityplaces himself under the disciplinary control and powers of theVice-Chancellor. What is discipline is well-known ,and .needs nodefinition. The Vice-Chancellor is responsible for maintainingdiscipline. The disciplinary authority vested in him- is absolutelynecessary for the peaceful functioning of the'University.- The student'srights have to yield to the. authority of .the Vice-Chancellor in the matterof discipline. The Vice-Chancellor is entitled to expect that' the
students adhere to generally accepted standards of conduct. Thepower of the Vice-Chancellor to take disciplinary action extends toaction which materially and substantially disrupts the activities of theUniversity. In prescribing and controlling conduct, in the name ofdiscipline, the Vice-Chancellor, however should have regard to theConstitutional rights of the students and should not restrict theserights beyond what is reasonably required by the imperatives ofdiscipline. The disciplinary authority vested in him cannot be used bythe Vice-Chancellor to deprive students of their fundamental rightsaltogether. It should be stressed that right of free speech is nowheremore vital than in Universities.
Though the Vice-Chancellor has inherent statutory authority tomaintain order and is permitted latitude and discretion in formulatingrules and regulations regarding general standards of conduct, even alegitimate interest in University discipline does not outweigh astudent's right to peacefully express or communicate his views orgrievances in an appropriate manner. The right to air grievances, isincluded in the concept of freedom of speech. It is the constitutionalright of every citizen to petition the authorities for redress ofgrievances real or imagined. A student cannot be faulted if he in theexercise of this right protests to the proper authorities against theconduct or shortcomings of the Vice-Chancellor. Censorship of lettersto the authorities critical of University administration and suggestingremedial measures inhabits students from availing themselves of theirconstitutional right of speech and would be violative of that freedomHowever use of calculated falsehood would put a strain on thisconstitutional right. Although honest utterances and criticism, even ifinaccurate may be protected, it does not follow that a lie. knowinglyand deliberately published should enjoy a like immunity. A falsestatement made with a high degree of awareness of its probablefalsity, as distinct from erroneous statement, puts a different cast onconstitutional protection.
Having regard to the dimensions of a University student's freedomof speech the question arises whether the 2nd respondent asVice-Chancellor is entitled to question the propriety of the petitionerpublishing the document P2 to the various recipients and to make theorder contained in P4 against the petitioner for disrupting theexamination conducted by the University.
Adjudication on the petitioner's complaint requires the writing P2 tobe considered as a whole'and in a fair, free and liberal spirit. It wouldbe wrong to view the document with an eye of narrow and fastidiouscriticism. Regard must be had to the substance of the writing and its'tenor. It is not right to pick up a strong expression .here and there . It isnot permissible to form an opinion, about,the nature and c,ontents,,ofthe writing and its possible effect by. dwelling too much upon straysentences or phrases and isolated passages. One must not read toomuch between the lines of the writing. An endeavour should be madeto gather the general purpose of the writing. In judging the effects ofthe writing, the standard to be employed must be of a reasonableperson and not of one who scents malice in every hostile point of view.It is not permissible to stifle all airing of grievances by attributingmotives. The correct test is: was the statement made in criticism ofthe official conduct of the Vice-Chancellor or was a false statementmade by the petitioner with a high degree of awareness of its probablefalsity. A student may also exceed his constitutional rights of speechand expression by adopting methods of expression that materially andsubstantially interferes with the Vice-Chancellor’s right to hisreputation. For, nobody can use his freedom of speech or expressionas to injure another's reputation. The petitioner may be entitled toreport the conduct of the 2nd respondent to His Excellency thePresident, or to any other authority who has supervisory power overhis activity, but-he would be exceeding his right, if he publishes thereport to' others who exercise no supervisory control over theVice-Chancellor.
The burden of the charge-sheet. (P3) is that the petitioner hasviolated University rules by issuing and, publishing the leaflet (P2)claiming to be on behalf of the students of Sri JayawardenapuraUniversity. The rule which the petitioner is alleged to have.breached isRule 16:11 of the University handbook (R17). The rule provides that:
"No publication causing insult or blemish to the University or toany person connected to the University should be made during theperiod in the University as student. Publication bearing no namesand addresses should not be distributed within the University. Theprior written permission of the Vice-Chancellor should be obtainedwhen necessity arises to make such a statement or publication. TheVice-Chancellor is empowered to take any disciplinary action againstanyone responsible for distributing any unauthorised statement."
In respect of the alleged breach by the petitioner, the 2ndrespondent has stated in his affidavit:
'"I state that the memorandum dated 7.10.85 to His Excellencythe President, has not been submitted through the normal channeland no communication has been received from the office of thePresident regarding the matter. I deny that the petitioner has anyright to sign or distribute the said memorandum on behalf of the- students as the petitioner did not hold any office in any
organisations representing studentsThe petitioner has without
authority released the said memorandum to newspapers called'Divayina' of 8.9.85 and 'Dinakara' of 10.10.1985 marked R16(a)and Ff16(b). The memorandum contains false statements bringingthe staff and the University into disrepute."
If is to- be noted that the memorandum P2 is addressed to HisExcellency, the President who is not only the Head of the State, butalso the Minister of Higher Education, responsible for the generaldirection of University education and the administration of theUniversities Act No. 1 6 of 1978 as amended by Act No. 7 of 1985.Amended section 34 of the Act provides that:
(.1) (a) The Vice-Chancellor shall be appointed for a term of threeyears by the President upon the recommendation of theCommission (University Grants Commission) from a panelof three names recommended by the Council of thatUniversity.
■ (b) The Vice-Chancellor of a University may be removed fromoffice by the President, after consultation with theCommission.
It is the’ fundamental right of a University student to approach thePresident- with grievances and suggestions for better Universityadministration. His right of unimpaired access to the President cannot,in the name of discipline, be inhibited by the Vice-Chancellor. To theextent that Rule 1 6h‘:Tl of the University handbook fetters thestudent's right' of access to ’the President, it infringes the student'sfundamental right of speech and expression and is invalid. The 2ndrespondent has overreached himself in demanding of the petitionerthat the petitioner should get his prior permission before he sent thememorandum to the President, permission which he could, in hisabsolute discretion give or withhold. This censorship constitutes animpediment to the right of access to the President. The requirementthat a student should obtain prior permission as a prerequisite of hishaving access to the President, constitutes an impediment to.his rightof access to the President and abridges his freedom of speech and.expression. A student may hesitate to make a complaint against theVice-Chancellor to the President for fear that he may be accused ofcommitting the offence of making a false and maljcious allegation.
It is said that the petitioner, in sending the memorandum to thePresident, has falsely claimed to send it on behalf of the students of SriJayawardenapura University. It is a matter for the President to act on'the memorandum or not. The petitioner, since he has signed thememorandum, is responsible for the contents of the memorandum,whether he purported to petition the President on behalf of thestudents of the University or not. It is not necessary that the petitionershould be a member of any union, society or other association,recognised or registered under section 1 15 of the Universities Act toclaim to speak on behalf of the students of the University. He did notclaim to write on behalf of any such Union or Association; all that hisrepresentation means is that a certain section of the University,students have authorised the petitioner to forward the petition. It is forthe President to determine what value should be attached to thedocument and what action should be taken on it. The President willnot ordinarily initiate any action grounded on that memorandumwithout checking on the authenticity of the writing. I hold that thequestioning of the propriety of the petitioner sending thememorandum to the President impinges on the petitioner'sfundamental right of speech and expression. The truth of theallegations against the Vice-Chancellor contained in thatmemorandum is not relevant for determining whether that right .existsAmand v. Thompson (2). The right to criticise public men andmeasures is not confined to informed and responsible criticism butincludes the freedom to speak 'foolishly and without moderation"Baumquartner v. U.S. {3).
Freedom of speech and expression includes the freedom ofpropagation of ideas and this freedom is ensured by the freedom ofcirculation. Liberty of circulation is as essential to that freedom as theliberty of publication. This freedom is not intended to protect everyutterance; libellous utterances are not within the area ofconstitutionally protected speech. This freedom does not confer alicence to defame another citizen. Nobody can so use his freedom ofspeech as to injure another's reputation." Rule 16:11 of the Universityhandbook prohibits publication causing insult to the- University or toany person connected to the University. The charge sheet P3 allegesthat the petitioner issued and published, without any permission fromthe University authorities the leaflet P2 and issued the contents of theleaflet to the newspapers. Admittedly the petitioner had published thememorandum not only to the President and the Chairman, UniversityGrants Commission but sent copies of it to the persons set out in P2and to the staff of the University and to the papers 'Divayina' and'Dinakara'.
It was submitted by counsel for petitioner that-'Freedom of Speech'predicates freedom from ’prior, restraint'. Imposing pre-censorshipor prior restraint is a restriction on the freedom of speech. Freedom ofspeech in its essence involves no previous restraint on utterance orpublication. As freedom of speech is not absolute, previous restraint isnot necessarily unconstitutional under all circumstances. Theprotection as to previous restraint is not absolutely unlimited. Certainlimitation is recognised in certain exceptional cases. The primaryrequirement of .decency may be enforced against obscenepublications,; the security of the community-life may be protectedagainst incitements, to. acts,of violence and the overthrow by force.Vide Near v. State of Minnesota (A).
"There are certain well-defined and narrowly limited classes of’speech, the prevention and "punishment of which have never been: thought to raise' any constitutional problem. These include the lewdand obscene, the-profane, the libellous and the insulting or fightingwords – those which by their very utterance" inflict injury or tend toincite an immediate breach of the peace."
Chaplinsky v. State of New Hampshire (5). Time, place and content ofproposed speech or publication are relevant considerations indetermining whether the speech or publication should be restrained inadvance. Hence a University is entitled to take measures to protect its'interests and reputation and those of' its staff from being trenchedupon by its students. Prevention is better than cure. Expression byUniversity students can be prohibited if it materially and' substantiallyinterferes with school activities or with the right of other students orteachers or if the Vice-Chancellor has reasonable cause-to,believe thatthe speech would engender such material and substantialinterference. Compelling University interest is the justification for suc.hanticipatory, restraint. Publication of a defamatory matters may be thusprohibited or prior written permission .for such publication, may beinsisted on. A University must have power appropriately to, protectitself.
As stated earlier the fundamental rights of students must always beviewed in the perspective of the special characteristics of varsityenvironment. Interest of proper education calls for discipline, underthe head of public order and morality, which has to be enforced by theVice-Chancellor within reasonable limit?. For the above reasons Rule16:11 cannot be said to impose unreasonable restrictions on thepetitioner's freedoms. The restraint on speech does not exceed theambit of permissible regulation. There is no legal justification forissuing the contents'of the memorandum which contained disparagingor defamatory statements about the Vice-Chancellor and sections ofthe staff to the newspapers. Public.eriticism of the Vice-Chancellcr bystudents would seriously undermine his authority in the University. TheVice-Chancellor is entitled-to take proceedings against the petitionerfor breach of Rule 16:11; such action does not infringe thepetitioner's freedom,of.speech and expression.
If the petitioner had been engaged in disrupting examinations anddisciplinary action is taken against him as being suspended fromcollege, and the University premises made out of bounds, withimmediate effect, there is no question of violation of his rights of freespeech or any other right. The University has legitimate interest: inpreventing disruption of- itsmxaminations and taking preventive actionagainst such’disruption.
It is to be noted that no question of restriction of academic freedomarises in this case. The liberty to discuss publicly and truthfully-allmatters of' public cbncfe'rn or to Interchange ideas for bringingabout political and social change has not been restricted by the 1stand 2nd respondents. The freedom, not only for the thought wecherish but also for the thought we hate, is intact for the students.There has been no attempt to assume guardianship of the student'smind. The University has not restricted speech or association on theground that the views expressed by the petitioner are hateful to it. Thestudents remain free to discuss, study, advocate and propagate ideas.
Subject to what is stated of the petitioner's right of sending withoutobtaining the prior permission of the Vice-Chancellor, thememorandum P2 to the President and Chairman, University GrantsCommission, the contention that the petitioner's fundamental rightshave been violated by the 1st and 2nd respondents and that theletters P3 and P4 are in violation of his rights under Article 14(1)(a),(c) and (h) cannot be upheld.
I refuse the petitioner's application and vacate the interim ordermade by this Court. In the circumstances there will be no order forcosts.
ATUKORALE, J.-l agree.
A. G. DE SILVA, J.-l agree.
Petition dismissed.