LILANTHI DE SILVA
v.ATTORNEY-GENERAL AND OTHERS
SUPREME COURTFERNANDO. J.
DHEERARATNE. J. ANDWEERASEKERA, J.
SC (FR) NO. 428/200025th SEPTEMBER, 2000
Fundamental Rights ■ Public Security Ordinance – Emergency (Restrictionon Consumption of Electricity) Regulations – Discrimination – Article 12(1)of the Constitution.
Regulation 6 of the Emergency (Restriction on Consumption ofElectricity) Regulations No. 1/2000 published on 31.05.2000 requiredevery consumer of electricity to reduce his monthly consumption ofelectricity by twenty percentum of his average monthly consumptionbased on the consumption for the months of March, April and May. 2000in default of which he was made liable to a surcharge amounting totwenty five percentum of the amount of his monthly electricity bill.
Regulation 6 was made appliable equally to all namely (a) public spritedconsumers who had reduced consumption of electricity during therelevant period (b) consumers who being indifferent or anti-socialincreased their consumption (c) consumers who used electricitysparingly for essential purposes: (d) others more affluent who usedelectricity more lavishly for non-essential purposes as well. Theregulation treated unequals equally; it is an unreasonable exercise ofthe power conferred by the Public Security Ordinance, ultra vires andviolative of the petitioner’s right under Article 12(1) of the Constitution.
APPLICATION for relief for infringement of fundamental rights.
Manohara de Silva with David Weeraratne. Athula Perera. NalindaIndatissa and Ms. Kishali Pinto Jayawardena for petitioner.
Palitha Fernando. DSG for respondents.
Cur. adv. vult.
Sri Lanka Law Reports
1200013 Sri LR.
September 25, 2000.
FERNANDO, J.In this application the Petitioner complains that Regulation6 of the Emergency (Restriction on Use of Consumption ofElectricity) Regulations No. 1/2000 published in GovernmentGazette Extraordinary No. 1134/21 of 31.05.2000 was ultravires of the Public Security Ordinance and infringed herfundamental right under Article 12(1).
Regulation 6 provides:
“6(a) Every person who consumes electricity shall reducehis monthly electricity consumption by twenty percentum ofhis average monthly consumption.
(b) Eveiy person who fails to comply with this regulationshall be liable to a surcharge amounting to twenty fivepercentum of the amount of his monthly electricity bill.
For the purpose of this regulation, “average monthlyconsumption" of a person shall be the average of his electricityconsumption for the months of March. April and May 2000.”
Admittedly, it was known in January 2000 that theamount of water stored in the reservoirs was relatively law,and that a power crisis was anticipated by the 2nd Respondent,the Ceylon Electricity Board, by the end of May. In thatcontext, a mandatory reduction in electricity consumptionand/or a surcharge on excessive consumption were legitimatemeasures “for the maintenance of supplies and sendeesessential to the life of the community”. However, the questionthat arises in this case is whether the basis of such reductionand/or surcharge was so arbitrary and unfair to the extentthat it infringed Article 12(1).
The complaint in respect of the mandatory reduction,imposed as from June 2000 and based on average March-May
Lilanthi de Silva v. Attorney-General and Others
consumption, is that Regulation 6(a) failed to take account ofthe fact that as at June all consumers could not be treated asbeing similarly circumstanced.
From one point of view, consumers fell into three categories.Thus, in response to the crisis which was anticipated inJanuary 2000, some public-spirited consumers would havevoluntarily reduced their consumption in March-May; otherswould have been indifferent; and some anti-social consumersmight even have increased their consumption. Whetherconsumers had reduced or increased consumption wouldhave been readily ascertainable from the records of the 2ndRespondent. Hence to compel a uniform 20% reduction, byreference to average March-May consumption, would haveimposed a greater burden on public-spirited and conservation-minded consumers than on others (and not vice versa).
From another point of view, consumers fell into twocategories: a large number who – by necessity or choice – usedelectricity sparingly, for essential purposes only, and thereforeconsumed little; and others – more affluent – who usedelectricity more lavishly, for non-essential purposes as well.The mandatory reduction and surcharge operated unequallyon these two categories: the former would have to curtail usefor essentials, while the latter would only have to cut down on“luxuries”. The failure to recognize, at least to some extent, thespecial needs of the former was unfair and arbitrary.
As for the surcharge, the consumer who made anhonest effort to curtail consumption, and the one who did not,were made equally liable to a surcharge of 25% on total,consumption (and not juatfluthe excess). Thus one consumerwho reduced monthly consumption from 800 units to 650, asecond who maintained his consumption at 650 units, and athird who increased his consumption from 500 units to 650,would all be liable to the identical surcharge of 25% (onmonthly consumption of 650 units). Regulation 6(b) thustreated unequals equally.
Sri Lanka Law Reports
1200013 Sri LR.
Learned Deputy Solicitor-General who appears for theRespondents could suggest no basis whatever to justifyRegulation 6. His only submission was that it was enacted toachieve the lawful and desirable objective of conservingelectricity. However legitimate and proper the objective, themeans selected were in violation of Article 12(1) and were nota reasonable exercise of the power conferred by the PublicSecurity Ordinance.
We therefore hold that Regulation 6 is ultra vires and inviolation of the Petitioner’s fundamental right under Article12(1), and we award her a sum of Rs. 3000/- as costs payableby the 2nd Respondent.
DHEERARATNE. J. I agree.
WEERASEKERA, J. – 1 agree.
LILANTHI DE SILVA v. ATTORNEY-GENERAL AND OTHERS