ABEYWARDENE V. INSPECTOR GENERAL POLICE AND OTHERS

029-SLLR-SLLR-1991-V2-ABEYWARDENE-V.-INSPECTOR-GENERAL-POLICE-AND-OTHERS.pdf


5C
Afoernardcne r Inspector GcnciaJ Of Police and Others
UQ
ABEYWARDENE
V.
INSPECTOR GENERAL OF POLICE AND OTHERS
SUPREME COURT.
BANDARANAYAKE, J., FERNANDO, J.. AMERASINC.HE, J.
S. C. APPUCATON NO. 92/91.
JULY 23, 24, 25, 1991.
Fundamental Rights – Constitution, Articles 12(1), 12(2) and I4(l)(g) -Emergency (Prohibition of Importation of Instruments and Appliances forGaming) Regulations No. 1 of 1991 – Emergency (Games of Chance) Regula-tion No. I of 1991 – Seizure of Jackpot Machines – Discrimination – Free-dom to do business.
The petitioner owned jackpot machines or jackpots, which were installedand operated in various parts of the country, in shops and eating houses towhich the public had access, The jackpot machines were imported whole orassembled from imported components. The imports were on the basis ofimport licences issued by the Controller of Imports and Exports. On about01 June 1991 the Police, acting in terms of powers vested in them by theEmergency (Prohibition of Importation of Instruments and Appliances forGaming Regulations No. 1 of 1991, and the Emergency (Games of Chance)Regulations No. 1 of 1991 seized and took away the Jackpot Machines. Thepetitioner's complaint of infringement of fundamental rights was entertainedonly in respect of the alleged violations of Articles 12(1), 12(2) and 14(1) (g)of the Constitution,
Held:
(1) What Article 12(1) guarantees is equal justice, that is, that every per-son from the President downward, is subject to the law, and that amongequals, the law should be equal and should be equally administered, the likebeing treated alike, and that, subject to this, all persons should be entitled topursue their happiness and enjoy their property, and have equal access to theCourts in Sri Lanka for the protection of their persons and properly.
There was here no complaint of unequal treatment between jackpot
owners.
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Instruments or appliances used by lotteries conducted by the Stateand public corporations, unlike instruments and appliances used byothers like the petitioner Tor playing games Tor stakes, being exemp-ted from seizure does not amount to a denial of equality becausethe distinction is not between private persons, but between theState, including State sponsored institutions, and private persons.
The petitioner was engaged in one of those pernicious forms ofgaming that placed public order and security in jeopardy. The Statelotteries were not engaged in such activities. The differentiationbetween persons like the petitioner and the State lotteries is, there-fore, quite intelligible.
The object of the Regulations was the preservation of public secur-ity and public order and not the eradication of gaming. The Regula-tions were intended to eliminate specified forms of gaming whichwere regarded by the President, on the basis of information placedbefore him by the Inspector-General of Police, as being particularlyharmful because they threatened public security and the preserva-tion of public order.
Per Amerasinghe, J.:
“Article 12 of the Constitution does not require that a legislativeclassification should be scientifically perfect or logically com-plete A State need not, in order to meet the requirements of
equal protection, provide for abstract symmetry in its legislation,but may mark and set apart the classes and types of problemsaccording to the needs and as dictated or suggested by experien-ceI am bound to assume that those who enact the laws of this
country, understand and correctly appreciate the needs of the
people and that the laws arc directed to problems made manifest byexperience and the discriminations are based on adequate grounds.Those who make the law are free to recognize degrees of harm andto confine the restrictions to those cases where the need is deemed
to be the greatestThat belongs to the realm of legislative policy.
It is not a matter for us. All I need say in that connection is this. Itis a generally recognized, basic principle of law that a piece of legis-lation is not bad merely because the legislature selects one or someevil things for elimination while other evils may, in the opinion ofcertain persons be equally in need of similar attention. Moreoverthe State may choose to deal with different persons and things orgeographical areas at different times owing to the exigencies of con-venience, even though this might necessarily impose varyingburdens.”
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Abcywardene v. Inspector Oencral Of Police and Olhefs
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Per Amerasinghe, J.:
“The making of laws in ihe interests of national security, publicorder and the protection of public health or morality or for thepurpose of securing due recognition and respect for the rights andfreedoms of others or of meeting the just requirements of thegeneral welfare of a democratic society, necessarily involves classifi-cation, differentation and curtailment of individual rights and free-doms. It must almost always result in sonte inequality. But that isnot enough.
So long as the classification is founded upon an intelligible dif-ferentia which distinguishes persons or things that are groupedtogether from those who are left out of the group, and so long asthe differentia have a relation to the object sought to be achievedby the legislation, the discriminatory legislation is not in -violationof Article 12 of the Constitution'and is valid, even though it mighttrench upon the freedom of a citizen.”
Regulation, rather than elimination seems to be the prevail-ing legislative policy. The State lotteries are expressly excluded byRegulation 4 of the Emergency (Games of Chance) Regulations.Therefore such lotteries are, whether this be personally agreeable ornot, lawful. However, even assuming that they are not lawful, it isnot open to the petitioner to claim therefore, that as a matter ofequality, he too should be permitted to engage in an unlawful acti-vity.
Per Amerasinghe, J: “Article 12 of the Constitution guaranteesequal protection of the law and not equal violation of the law. Oneillegality does not justify another illegality.''
There is a clear nexus between the Regulations and their pur-pose. There is also a recogni ’.able and evident connection betweenthe proclaimed reasons for the state of emergency and the Emer-gency (Prohibition of Importation of Instruments and Appliancesfor Gaming) Regulations No. I of 1991 and the Emergency (Gamesof Chance) Regulations. No. 1 of 1991. The decisions as to whetherthere is a state of emergency and what regulations may be consi-dered necessary or expedient to deal with such a situation is a mat-ter for the President and not the courts of law.
There was nothing at all in the newspaper reports to showpersonal hostility to the Petitioner either on the part of the Presi-dent, the members of the Government or the administration includ-ing the police. Nor is there any indication in the news items evenremotely suggesting that the Regulations were designed to particu-larly affect the petitioner’s business as an act of revenge or for anyother reason. There was no proof of lack of bona fides or discrimi-
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nation on political grounds. A Government is entitled to deal withproblems according Jo its own timetable.
Now that Jackpots are illegal the petitioner cannot invokethe protection of Article 14(1 Xg)- He has no fundamental right toconduct unlawful gaming.
Per Amerasinghe, J: “A person who comes before this Court forjust and equitable relief under article 126(4) of the Constitutionmust in his act of supplication show the Court clean hands intowhich relief may be given."
Cases referred to:
State of U.P. v. Deoman AIR 1960 S.C. 1125
Lai Chand v. Union of India AIR 1956 Ajmer 10
State v. Shanker AIR 1958 All 432
Madhya Pradesh Mineral Industries Association v. Regional ProvidentFund Commissioner AIR 1959 Bom. 60
P & O Steam Navigation Co. v. Secretary of State 1968 – 69 5 BombHCR App. I
Seshadri v. Second Additional I.T. Officer, Salaries Circle, Madras AIR1954 Mad 806
Shiv Prasad v. Punjab State AIR 1957 Punj 150
Manohar Lai v. State AIR 1956 Pepsu 14, 16
Amraoti Electricity Supply Co. v. IV. H. Majumdar AIR 1953 Nag. 35
Secretary to the Government Public Works and Transport DepartmentAP v, Adoni Ginning Factory AIR 1959 Andh, Prad, 538
Sheoprasad v. State of M.P. AIR 1955 Nag. 177
Motilal v. U.P. Government AIR 1951 All 257
Finn Jaswant Bai v. Sales Tax Officer AIR 1955 All 585
General Motor Bus Service, Tonk v. Regional Transport Authority, Jai-pur AIR 1955 Raj 14
Saghir Ahamed v. The State of U.P. AIR 1954 SC 728, 740
Chadami Lai v. General Manager, Western Railway AIR 1962 All 159,163
Madden v. Kentucky 1940 309 US 83
Chandrajit Lai v. Union of India AIR 1951 SC 41
State of Bombay v, F.N. Balsara AIR 1951 SC 318
Champakam Dorairajan v. State of Madras AIR 1951 Mad 120
Chowdhury v. Union of India AIR 1951 SC 41
Kanthi Raning v. State of Saurashtra AIR 1952 SC 123
Lachhmandas v. State of Bombay AIR 1952 SC 235
Kedar Nath v. State of West Bengal AIR 1953 SC 404
Sakhi Chand v. Central Co-operative Bank AIR 1955 Pepsu 129, 132
sc
Abeywardent v. Inspector Gen fra/ Of Police and Others
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Ramkrishna Datmia v. Justice Tendolkar AIR 1958 SC 538
Moti Das v. Sahi AIR 1959 SC 942
Barbier v. Connolly (1885) 113 US'27
Saghir Ahamad v. State of U.P. AIR 1954 SC 728
Sakhichand v. Central Co-operative Bank AIR 1955 Pepsu 129
Tilakram Rambaksh v. Bank of Patiala AIR 1959 Punj 440
Manna Lai v. Collector of Jhalwar AIR 1961 SC 828
Lachhman Dass and Nand Ram Tulsi Ram v. State of Punjab Aik 1963SC 222
State of Rajasthan v. Mukaa Chand AIR 1964 SC 1633
Skinner v. Oklahoma (1942) 316 US 535
Qureshi v. State of Bihar AIR 1958 SC 731
Moti Das v. Sahi AIR 1959 SC 942
Lochner v. New York (1905) 198 US 45
The State of Bombay v. RMD Chamarbaugwala 1957 AIR SC 699, 719
C. W. Mackie & Co. Ltd. v. Hugh Molagoda, Commissioner-General ofInland Revenue and Others II 1986 1 Sri LR 300, 309 – 310, 311
T. Venkatasubbiah Setty v. Corporation of the City of Bangalore andothers AIR 1968 Mysore 251, 256
Ram Prasad v. Union of India AIR 1978 Rajasthan 131
Chief Commissioner v. Kitty Puri AIR 1937 Delhi 148, 153
Narain Dass v. Improvement Trust AIR 1972 SC 861, 871
Yasapala v. Ranil Wickremasinghe and others (1980) 1 FRD 143. 159-60
Lipton Ltd. v. Ford 1917 2 KB 647
Attorney-General for Canada and another and Hallet Carey Ltd. &another 1952 AC 427
Mugler v. State of Kansas (1887) 123 US 273, 296-297
Munn v. Illinois 94 US 124
Bhagat Singh v. Emperor AIR 1931 PC III
Reference as to the Validity of Certain Chemical Regulations [1943] SCR13
Carltona Ltd. v. Commissioner of Works and others 1943 2 All ER 560,564
State of West Bengal v. Anwar Ali AIR 1952 SC 75
Krishnachandra and others v. State of Madhya Pradesh AIR 1965 SC307
Stone v. Mississippi 101 US 814
Beer Co. v. Massachusetts 97 US 32
Malekotla v. Mohd. Mustaq 1960 A. Punj 18
Boota Singh v. State 1961 A. Punj 21
U.P. v. Kartar Singh 1964 SCR 679
Rewata Thero v. Horalala (1939) 14 CLW 155, 156
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APPLICATION for infringefhcnt of fundamental rights.
R. Wecrakoon, with Kusal Subasinghe and E. L. Tirimanne for Petitioner.
Sum/ de Silva P.C., Attorney – General with Tilak Maraponc, Solicitor-General, Upawansa Yapa, Deputy Solicitor-General and Kaliaga IndatissaState Counsel for Respondents.
Cur.adv.vuit.
October 23, 1991.
AMERASINGHE, J.
The Petitioner owned instruments or appliances, commonlydescribed as Jackpot Machines or Jackpots. They wereinstalled and operated in various parts of the country in shopsand eating houses to which the public had access. The JackpotMachines were imported whole or assembled from importedcomponents. The imports were on the basis of import licencesissued by the Controller of Imports and Exports. On or aboutJune l, 1991, the police seized and took away the JackpotMachines to Police Stations. The police acted on the basis ofthe powers given to them by the Emergency (Prohibition ofImportation of Instruments and Appliances for Gaming) Regu-lations, No. 1 of 1991 which were made by the President undersection 5 of the Public Security Ordinance (Chapter 40) andpublished in Gazette Extraordinary No. 664/9 – 1991 on 31May, 1991. The Regulations authorized the seizure of specifiedkinds of instruments and appliances used for gaming. By theEmergency (Games of Chance) Regulations No. I of 1991made by the President under Section 5 of the Public SecurityOrdinance (Chapter 40) and published in Gazette Extraordi-nary No. 665/13-1991 on 6 June 1991, among other things,certain categories were excluded from the definition of “play-ing of a game for stake.,”
SC Abcywardcne v. Inspector General Of Police and Others (Amerasinghe, J.) .W
On 17 June, 1991, the Petitioner applied, by a petitionunder Article 126 of the Constitution, for a declaration thathis fundamental rights under Articles 12(1), 12 (2), 12 (6) and14 (1) (g) had been violated and for relief and redress in theform of a return of the confiscated machines, for compensa-tion for any loss or damage to such confiscated machines andcompensation for losses caused by the alleged unlawful inter-ference with his business.
Article 12 has four sub-sections: There is no such thing asArticle 12(6) in the Constitution. Leave to proceed was, there-fore, granted only in respect of the alleged violations of Arti-cles 12(1), 12(2) and 14(1) (g) of the Constitution.
Article 12(1) provides that “All persons are equal beforethe law and are entitled to the equal protection of the law”.With regard to Article 12(1), Mr. Weerakoon said that his caserested principally on the denial of equal protection of the lawand not on the violation of the guarantee of equality beforethe law.
Article 12(1) of our Constitution is based on Article 14 ofthe Indian Constitution, and although some Judges (c.g.Subba Rao, J. in State of U.P. v. Dcoman (1) have, from timeto time, sought to distinguish between “equality before of thelaw” as being a negative concept and “equal protection of (helaw” as being a positive concept, it is not necessary for thepurposes, of this case to consider the differences, if any.Indeed, the Fourteenth Amendment of the Constitution of theUnited States of America, upon which the Indian Article is based,uses the words “equal protection of the laws” and makes noreference to “equality before the law.” In essence, I think,what Article 12 (1) guarantees is equal justice, that is, thatevery person, from the President downward, is subject to thelaw, and that among equals, the law should be equal andshould be equally administered, the like being treated alike,and that, subject to this, all persons should be entitled to
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pursue their happiness and enjoy their property, and haveequal access to the Courts of Sri Lanka for the protection oftheir persons and property.
There is no complaint with regard to equal access to theCourts.
Learned Counsel for the Petitioner admitted that JackpotMachines belonging to all persons whomsoever had been takenaway in a manner similar to the way in which the Petitioner’smachines had been removed. And. so, there was no complaintof unequal treatment between Jackpot owners.
t
The Petitioner, however, complained that, while the Emer-gency (Prohibition of Instruments and Appliances for Gaming)Regulations No. 1 of 1991 permitted the forfeiture of instru-ments and appliances used for the purpose of gaming, Regula-tion 4 of the Emergency (Games of Chance) Regulations No. Iof 1991 removed “the conduct of any lottery by the State or apublic corporation…” from the definition of “playing of agame for a stake.” In this way, instruments or appliances usedby lotteries conducted by the State and public corporations,unlike instruments and appliances used by others, like himself,for playing games for stakes, were exempted from seizure.This, the Petitioner said, was a denial to him of the equal pro-tection of the law guaranteed by Article 12 (1) of the Constitu-tion.
Regulation 4 of the Emergency (Games of Chance) Regula-tions not only exempts lotteries conducted by the State or bypublic corporations, but also those “under the authority of alicence issued under the Lotteries Ordinance.” The Petitionerin his petition, and Mr. Weerakoon on his behalf, were onlyconcerned with the distinction drawn between the State,including State-sponsored institutions, and private persons.
The law, Mr. Weerakoon said, must be the same for allpersons, be it the State or others. Moreover, among equals,like must be treated alike. In paragraphs 4 and 13 of the Peti-
SC Abeyunnlene v. Inspector General Of Police and Others (Amernsitfghe. J.).'.57
tion, and during the argument before us, it was said that thelotteries run by the State known as Scvana. Saturday Fortuneand Mahajana Sampatha were forms of gambling, and if oneform of gambling was prohibited, other forms too must, as amatter of equality, be prohibited. “The gaming principle'’, thePetitioner said, was the “same” for all, whether gambling wasconducted under State auspices or otherwise.
Mr. Weerakoon proceeded on the basis that the public cor-porations engaged in one or more of the lotteries referred to inthe petition were conducting State lotteries. Assuming, for thelimited purposes of this case, that all the lotteries referred toby the Petitioner are, as Mr. Weerakoon submits, State lotter-ies, the first question then is whether the State is a person.Article 12(1) says that all persons are equal before the law andentitled to the equal protection of the law, and, therefore, inorder to support an allegation of unequal treatment betweenpersons, it must be established that the distinction wasbetween persons.
According to some authorities, the word “persons” in theArticle of the Constitution guaranteeing equality ought not tomean or include the State, [e.g. see Lai Chand v. Union ofIndia (2), State v. Shanker (3), Madhya Pradesh MineralIndustries Association v. Regional Provident Fund Commis-sioner (4)]. This is said to be obviously so where the State isacting in, what Sir Barnes Peacock, CJ in P. & O. Steam Nav-igation Co. v. Secretary of State (5) referred to as, its “sover-eign” capacity. For instance, this would be the case in thematter of taxation, (cf. Seshadri v. Second Additional I.T,Officer, Salaries Circle, Madras (6) or the imposition of licencefees, (cf. Shiv Prasad v. Punjab State) (7), or the recovery ofState dues (cf. Manohar Lai v. State) (8) or exercising powers.under public security legislation, (cf. Amraoti ElectricitySupply Co. v. N. H, Majumdar) (9) or in the exercise of itspower to raise the standard of living of the people, in general,and creating a favourable climate for the pursuit of happiness
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and for the* development of the human personality, (cf. Secre-tary to the Government Public Works and Transport Depart-ment A.P. v. Adoni Ginning Factory (10), and, perhaps, wherethe matter is at least incidental to such an ordinary function ofgovernment, (cf. Sheoprasad v. State of M.P.) (II).
It may be argued that, in conducting lotteries, the State isnot exercising a sovereign function or one that is incidental toa traditional function of government and that, therefore, in thecase before us, since the State has descended into an area ofcompetition with private persons like the Petitioner, the Statemust be treated like any ordinary person engaged in similaractivities. There is some authority in support of such a view.(E.g. see per Agarawala, J, and per Malik CJ in Motilal v.U.P. Government (12) Firm Jaswant Bai v. Sales Tax Officer(13) General Motor Bus Service, Tonk v. Regional TransportAuthority, Jaipur (14).
However, Mukherjea, J. in Saghir Ahamad v. The State ofU.P. (15) rejected the argument that the State ceases to func-tion as a State as soon as it engages in a trade like an ordinarycitizen.
The matter was discussed by Srivastave, J. in Chadami Laiv. General Manager. Western Railway (16) who indicated thatthe question was not free from difficulty. And since the matterwas not argued, his Lordship did not express any opinion onthat question. Nor was the matter argued before us and, there-fore, I do not express any opinion on the question whether,when the State engages in activities that are not traditionallywithin the exercise of its sovereign powers or incidentalthereto, the State remains a unique, and for the purposes ofArticle 12 (1) of the Constitution, an incomparable entity.
But this does not end the matter. Admittedly, Regulation4 differentiates between the State and others. But this does notnecessarily make the Regulation otiose and invalid. The Statenecessarily has the power of what is known as “classification”.
SC A beywardene v. Inspector Genera/ Of Police and Others (Amerasinghe. J.)359
and, under that power, it has the greatest freedom to makedistinctions between persons and things. The burden is on theone attacking the legislative arrangement to negative everyconceivable basis which might support it. (See Madden v. Ken-tucky (17). A legislative authority, as Patanjali Sastri, J.observed in Charanjit Lai i . Union of India (18) is
“empowered to make laws on a wide range of subjects must of neces-sity have the power of making special laws to attain particular objectsand must, for that purpose, possess large powers of distinguishing andclassifying the persons or things to be brought under the operation ofsuch laws, provided the basis of such classification has a just and reas-onable relation to the object''
which the legislating authority has in view. The power to makediscriminatory legislation in relation to the advancement ofwomen, children and disabled persons is expressly given inArticle 12 of the Constitution itself. But the power to differen-tiate is not limited to those categories. With regard to theexercise of its “police powers”, the State has a wide discretionwhich is not taken away by the Articles of the Constitutionguaranteeing the fundamental right to equality (Article 12).The fundamental right to freedom from arbitrary arrest anddetention (Article 13 (1) & (2) and the fundamental right tofreedom of assembly, association, to form and join a tradeunion, to manifest his religion or belief, to promote his cul-ture, to use his own language, to engage in any lawful occupa-tion, profession, trade, business or enterprise, to move aboutfreely and to choose his residence and to return to Sri Lanka(Article 14), are all, in terms of Article 15 (7) of the Constitu-tion,
"Subject to such restrictions as may be prescribed by law in the inter-ests of national security, public order and the protection of publichealth or morality, or for the purpose of securing due recognition andrespect for the rights and freedoms of others, or of meeting the' justrequirements of the general welfare of a democratic society.”
For the purpose of Article 15(7) of the Constitution, “law”includes regulations made under the law for the time beingrelating to public security.
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The making of laws in the interests of national security,public order and the protection of public health or morality orfor the purpose of securing due recognition and respect for therights and freedoms of others or of meeting the just require-ments of the general welfare of a democratic society, necessar-ily involves classification, differentiation and the curtailmentof individual rights and freedoms. It must almost always resultin some inequality. But that is not enough. (Cf. State ofBombay v. F. N. Balsam AIR (19).So long as the classificationis founded upon an intelligible differentia which distinguishespersons or things that arc grouped together from those whoare left out of the group, and so long as the differentia have arelation to the object sought to be achieved by the legislation,the discriminatory legislation is not in violation of Article 12of the Constitution and is valid, even though it might trenchupon the freedom of a citi7.cn. (Cf. per Viswanatha Sastri, fTin-Chamakam Dorairajan v. State of Madras (20), Chowdhurv v.Union of India (21) per Mukcrjea. Das and Petanjali Sastri JJin their judgments in Kantbi Raning v. State of Saurashtra(22) Lachhmandas v. .Stare of Bombay (23), Kedar Nath v.State of West Bengal (24), Sakhi Chand v. Central Co-operative Bank (25) Ramkrishna Daimia v. Justice Tendolkar(26) Moti Das v. Sahi (27) Chadmi v. General Manager. West-ern Railway (supra)
So long as the legislation is in conformity with those prin-ciples, the unfortunate consequences for particular individuals,like the Petitioner in this case, are of no consequence. As itwas observed in Barbier v, Connolly (28) the equality provi-sion was not designed to interfere with the “police power” ofthe State, viz.,
“to prescribe regulations to promote the health, peace, morals, educa-tion and good order <*f the people and to legislate so as to increase theindustries oi the State, develop its resources and add to its wealth andprosperity… Regulations lor these purposes may press with more orless weight v.Don one than upon another, blit they arc designed, not it'
SC Abeywardene v. Inspector Genera/ Of Police and Others (Amerasirtghe, J.).16/
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impose unequal or unnecessary rcstrictions^ipon any one. but to pro-mote with as little imii victual inconvenience as possible, the generalgood."
Even assuming that the State has no incomparable andunique position when it descends into areas of activity sharedwith othfers, it may, in using its powers of classification, legit-imately place itself in a separate class and accord itself prefer-ential treatment without violating the equality principle. (SeeSaghir Ahamad State of U.P. (29) – transport. Cf. Sakhichandv. Central Co-operative Bank (30) – banking; Tilakram Ram-baksh v. Bank of Patiala (31); banking; Manna Lai v. Collec-tor of Jhalwar (32) banking; Chandami Lai v. General Man-ager, Western Railway (supra) Lacbhman Dass and Nand RamTulsi Ram v. State of Punjab (33); banking (but see the dis-senting judgment of Subba Rao, J. at paras. 57-58). Theremust, however, be a rational connection between the differen-tiation and the object sought to be achieved by the legislation.Otherwise, the legislation will be in violation of Article 12 (1)of the Constitution. (Cf. State of Rajasthan v. Mukan Chand(34).
•
In terms of Regulation 4 of the Emergency (Games ofChance) Regulations No. 1 of 1991 the State has distinguishedbetween itself and others engaged in the provision of facilitiesfor gambling. There are, 1 think, quite understandable reasonsfor differentiating between State lotteries and others, like thePetitioner. And I am also of the view that there was a rationalnexus between the differentiation and the object sought to beachieved by the Regulations..
Why do I say this? Look at the evidence placed before usby the Inspector-General of Police.
According to the affidavit of the Inspector-General ofPolice, the Regulations in question were made by the Presidentunder section 5 of the Public Security Ordinance (Cap. 40) onhis recommendations. Why? The Inspector-Gc lcral of Policestates in his affidavit that the Police had rectivcd numerous
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requests from members of the public, school principals andvarious religious dignitaries to prevent the use of instrumentsand appliances for unlawful gaming. The places where thevwere installed and operated had become centres of criminalactivity and vice. The activities in these places of gaming werealso linked to trafficking in narcotics, terrorism, pornography,and prostitution, These illegal activities, he said, had an inter-national dimension as a result of certain foreigners collaborat-ing with local persons involved in the gaming business. Thefree flow' of foreign exchange had not only supported terroristactivities, but it had also placed the national economy in peril,
The Petitioner was engaged in one of those perniciousforms of gaming that placed public order and security in jeo-pardy. The State lotteries were not engaged in such activities.The differentiation between persons like the Petitioner and theState lotteries is. therefore, quite intelligible.
The nexus between the object of the Regulations and thedifferentiation is equally clear. There was a clearly visible, andindeed a perfectly rational, relation between the, differentia andwhat seems to me to be the object sought to be achieved bythe Regulations. What was the object of the Regulations?According to Mr. Weerakoon, it was the eradication of gam-ing.
Mr. Weerakoon was mistaken with regard to the object ofthe Regulations. The object of the Regulations was the preser-vation of public security and public order and not the eradica-tion of gaming. This is very clear when the Regulations areread with the Proclamation bringing into operation Part II ofthe Public Security Ordinance, and thereby vivifying section 5,which then enabled the President to make the Regulations.The Regulations were intended to control the business of gam-ing. The contro' of certain forms of gaming by certain personswas a means to the end of achieving those purposes that areascertainable by reading the Regulations with the Proclama-tion, and not the object of the Regulations. The fact that only
SC Abeywardene v. Inspector General Of Police and Others lAmerasmtihc. J.)
certain types of gaming were prohibited is an indication thatthe intention of the Regulations was not simply the eradicationof gaming. Nor was it merely a measure of control of gamingin general. The Regulations were intended to eliminate speci-fied forms of gaming which were regarded by the President, onthe basis of information placed before him*by the Inspector-General of Police, as being particularly harmful because theythreatened public security and the preservation of publicorder. A perusal of the affidavit of the Inspector-General ofPolice filed by the Attorney-General in these proceedingsremoved any doubt one may have on the matter.
Mr. Wcerakoon said that the Regulations should cover allforms of gaming in order to be valid in terms of Article 12 ofthe Constitution. The Petitioner cannot insist on this. Article12 of the Constitution docs not require that a legislative classi-fication should be scientifically perfect or logically complete.(See Kedar Nath v . State of West Bengal) (24). A State neednot, in order to meet the requirements of equal protection,provide for abstract symmetry in its legislation, but may markand set apart the classes and types of problems according tothe needs and as dictated or suggested by experience. (SeeSkinner v. Oklahoma (35). I am bound to assume that thosewho enact the laws of this Country, including Regulationsunder the Public Security Ordinance, understand and correctlyappreciate the needs of the people and that the laws aredirected to problems made manifest by experience and that thediscriminations are based on adequate grounds. Those whomake the law are free to recognize degrees of harm and toconfine the restrictions to those cases where the need isdeemed to be the greatest. (See per Fazl Ali, J. in State ofBombay v. F. N. Balsara (supra;) Ram Krishna Dalmia v. Jus-tice Tendolkar (26). That belongs to the realm of legislativepolicy. It is not a matter for us. All I need say in that connec-tion is this: It is a generally recognized, basic, principle of lawthat a piece of legislation is not bad merely because the legisla-
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ture selects one or some evil things for elimination while otherevils may, in the opinion of certain persons, be equally in needof similar attention. Moreover, the State may choose to dealwith different persons and things or geographical areas at dif-ferent times owing to the exigencies of convenience, eventhough this might necessarily impose varying burdens. (SeeQureshi v. Stare of Bihar (36); Moti Das v. Sahi (37); ChadmiLai v. General Manager, VVesrern Railway (16). Legislationmay be, what Holmes, J. in Lochner v. New York (38) des-cribed as an “installment” of a general regulation of the mat-ter.
Asked whether the legislation in question was an instal-lment on the way to the total elimination of all forms of gam-bling, the Attorney-General said that he had no instructionson that matter.
Regulation, rather than elimination seems to be the prevail-ing legislative policy, as indeed it seems to have been the casesince the Gaming Ordinance was enacted in 18£9. While mostreligious teachers and many learned Judges in various coun-tries have disapproved of gambling, in all its myriad, countlessforms, a few ancient sages like Yajnavakya and Kautilya, haveadvocated control rather than eradication. Indeed, althoughChief Justice Das in The State of Bombay v. R. M. D. Cha-marbaugwala (39)condemned gambling in the strongest terms,his Lordship observed that Kautilya, “as a practical personthat he was, not averse to the State earning some revenue”from gambling. The State lotteries arc expressly excluded byRegulation 4 of the Emergency (Games of Chance) Regula-tions from the definition of “playing of a game for a stake",and, therefore, such lotteries are. whether this be personallyagreeable or not, lawful. However, even assuming that they arcnot lawful, it is not open to the Petitioner to claim, therefore,that as a matter of equality. lie too should be permitted toengage in an unlawful activity. Article 12 of the Constitution
SC Abeywardene v. Inspector Genera/ of Police and Others (AmerastSghe, J.)36s
guarantees equal protection of the law and not equal violationof the law. One illegality does not justify another illegality.(See per Sharvananda, CJ in C. W. Mackie & Co., Ltd. v.Hugh Molagoda, Commissioner-General of Inland Revenueand others (40). See also the decisions in T. VenkatasubbiahSetty v. Corporation of the City of Bangalore and others (41)per Chandrashekar, J: Ram Prasad v. Union of India (42) perShrimal, J at p. 132 para. 6; Chief Commissioner v. Kitty Puri(43) para, 13 per Deshpande, J: and Narain Dass v. Improve-ment Trust (44) per Dua, J.)
The Petitioner challenged the validity of the Regulations.In paragraph 9 (a) of his petition, he states that the Regula-tions are “ultra vires the Public Security Ordinance (Chapter40) in that the said Ordinance as amended by subsequent legis-lation does not provide for the making of Regulations underthe said Ordinance for the matters and purposes set out in theEmergency Regulations. “On that aspect of the matter, I mustsay this at once: In terms of Article 15(7) of the Constitution,I must presumc*thc constitutional validity of the Regulations,as being “law”, declared as they arc to be concerned with pub-lic security. In the circumstances, the burden is upon the Peti-tioner, who attacks the Regulations, to show that there has infact been a transgression of the Constitution. (Cf. RamKrishna Dalmia v. Justice Tcndolkar, (26),
Mr. Weerakoon submitted that the subject of the Regula-tions was gaming. Gaming was not, he said, an appropriatematter to be dealt with by Emergency Regulations made underthe Public Security Ordinance. Emergency Regulations, hesaid, can only be used to “normalize” a situation when therewas a riot or rebellion or something of that nature. Citing thedecisions in Yasapala v. Ranil Wickremasinghe and others(45); Lipton Ltd. v. Ford(46); and Attorney-General for Can-ada and another v. Hallet & Carey Ltd. & another (47). Mr.Weerakoon submitted that the regulations were not “reasona-ble” and “relevant” from “the perspective of the declared
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emergency situation” and that there was no “rational relation-ship between the proclaimed reasons for the emergency andthe object of the Regulations” and, therefore, the Regula-tions must be struck down.
Section 2 (1) of the Public Security Ordinance (Cap. 51)provides as follows:
Where, in view of the existence or imminence of a state of publicemergency, the President is of opinion that it is expedient so to do inthe interest of public security and the preservation of public order orfor the maintenance of supplies and services essential to the life of thecommunity, the President may, by Proclamation published in theGazette, declare that the provisions of Part II of this Ordinance shall,forthwith or on such date as may be specified in the Proclamation,come into operation throughout Sri Lanka or in such part or parts ofSri Lanka as may be so specified.”
On 14 May 1991, the President, by Proclamation, broughtinto operation Part II of the Public Security Ordinance. ThatProclamation, published in Gazette Extraordinary No.662/2-1991 of May 14, 1991, was as follows:.
“Whereas I am of opinion that by reason of a state of public emer-gency in Sri Lanka it is expedient so to do in the interest of publicsecurity, the preservation of public order and the maintenance of supp-lies and services essential to the life of the community: know ye that IRanasinghe Premadasa. President, by virtue of the powers vested in meby section 2 of the Public Security Ordinance (Chapter 40 as amendedby Act No. 8 of 1959. Law No. 6 of 1978 and Act No. 20 of 19881 doby this Proclamation declare that the provisions of Part II of thatOrdinance shall come into operation throughout Sri Lanka on the 14thday of May 1991.”
In accordance with section 2 (4) of the Public SecurityOrdinance, the Proclamation was duly approved by Parliamenton 23 May,1991. A notification to that effect was published inGazette Extraordinary No. 665/27 – 1991 on June 6,1991.
Part IT of the Public Security Ordinance which the Procla-mation brought into operation deals with the subject of Emer-gency Regulations, including section 5, which empowers the
SC Abeywardene v. Inspector General of Police and Others (Amerasmghe, J.)367
President to make emergency regulations. Section 5 (1) of thePublic Security Ordinance states as follows:
"The President may make such regulations (hereinafter referred to as"emergency regulations”) as appear to him to be necessary or expe-dient in the interests of public security and the preservation of publicorder and the suppression of mutiny, riot or civil commotion, or forthe maintenance of supplies and services essential to the life of thecommunity".
1 am unable to agree that Emergency Regulations may bemade under the Public Security Ordinance only in the circum-stances suggested by Mr. Wecrakoon. The plain meaning ofthe section 5 makes it obvious why I must hold Mr. Weera-koon’s restricted interpretation to be entirely unacceptable.The President may not only, as Mr. Weerakoon suggests, makeRegulations to quell a not or rebellion, but he may make anyRegulations as appear to him necessary or expedient in theinterests of public security and the preservation of publicorder. This, it was held in Yasapala’s Case (supra) at p.159,included measures to prevent an anticipated breach of publicorder. In terms of section 5 of the Public Security Ordinance,the President may also make such Regulations as appear tohim necessary and expedient for “the suppression of mutiny,riot or civil commotion or for the maintenance of supplies andservices essential to the life of the community.” In Yasapala'sCase (supra) it was held by Sharvananda, J. (as he then was)that the words in section 5 were “not words of limitation” andthat
“the enumeration of the purposes outlined in section 5 is a compen-dious means of delegating full power of making Emergency Regula-tions. The power to make [Emergency Regulations for the purposesindicated in section 5 is a power to enact any kind of Regulation todeal with the exigencies of the emergency. Section 5 confers on thePresident plenary powers of making Fmcrgency Regulations. Thegamut of the power extends to even superseding existing law."
Mr. Weerakoon submitted that the need for, and theappropriateness of the regulations had to be seen from the
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“perspective of the emergency situation” and the question ofpublic order and security, and these were not matters for thePresident alone to judge. The proclaimed reasons for the stateof emergency must in fact exist and there must, he said, be a“rational and proximate" connection between the Regulationsand the reasons for the proclamation of a state of emergency.In support of this argument. Mr. Weerakoon cited the follow-ing words of Sharvananda. .1. in Yasapala's Case (supra) at pp.159-160:
"As stated earlier, the reasonableness of a regulation will have to bejudged from the perspective of the emergency situation and the infor-mation which the President was possessed of in regard to that. Therelationship between the impugned regulation and the purpose of theregulation must, of course, be rational or proximate. If the regulationis one that is reasonably capable of being a regulation for securingpublic order, that will be sufficient'’
I do not think that Mr. Wccrakoon's suggestion that thereasons for a proclamation of a state of emergency and theappropiiatcness of the Regulations must be objectively decidedis supported by the observations of Sharvananda, J. which hequoted. His Lordship had earlier, at p. 154-156, explained thatthe test is “a subjective one” and that the
“President’s belief in the necessity or expediency of Emergency Regu-lations is conclusive of its validity. His belief that the Emergency Reg-ulations will achieve the object of counteracting the emergency is suffi-cient justification for the Regulation… The test of the need of theRegulations is a subjective one. The words are "as appear to be neces-sary or expedient” and not “as may be necessary", which is objective.The President is made the sole judge of the necessity of the Regula-tions… The President having deemed necessary or expedient to makethe said Regulations, it is not for this Court, in the absence of evidenceof bad faith, to review what the President has done. Nor is it compe-tent for the Court to examine whether the Regulation was reasonablein the circumstances or likely to achieve the object of defusing theemergency. It is not the objective fact but the subjective opinion of thePresident that it is necessary or expedient to pass a regulation that is acondition of the regulation-making power. In the absence of aver-ments of bad faith or ulterior motive, the jurisdiction of the Court is
SC Abeywardeae v. Inspector General of Police and Others (Amerasinghe, J.)369
excluded. Quick decision and effective action must be the essence ofthose powers and the exercise of them must be left to the subjectivesatisfaction of the President charged with the duty of maintaining lawand order. To make the exercise of those powers justiciable and sub-ject to judicial scrutiny will defeat the very purpose of those Regula-tions.”
At p. 156, Sharvananda, J. docs state that the Court maydetermine “the connexion (sic.) between the power to exerciseand the purposes described by statute. ” However, I believehis Lordship, following the observations of Lord Radcliffc inAttorney-General for Canada v. Hallet & Carey Ltd. (47)(supra) at p.450, was merely emphasizing the need for a nexusbetween the Regulations and its general objectives so as toobviate the interpretation of the words in section 5 (1) of thePublic Security Ordinance empowering the President to makesuch regulations “as appear to him to be necessary or expe-dient” to mean that the President may do whatever he mayfeel inclined. In that connection, as Sharvananda, J. observesat p. 160, all that needs to be established is that “the regulationis one that is reasonably capable of being a regulation for sec-uring public ortfer”
I have already said that there was a clear nexus betweenthe Regulations and their purpose, Mr. Wccrakoon said thatthere should be a connection between the Regulations and thereasons for the proclamation of the state of emergency. Hav-ing regard to the affidavit of the Inspector-General of Police, Iam equally satisfied that there was a recognizable and evidentconnection between the proclaimed reasons for the state ofemergency and the Emergency (Prohibition of Importation ofInstruments and Appliances for Gaming) Regulations No. I of1991 and the Emergency (Games of Chance) Regulations No. 1of 1991.
In every civilized society, public security and public ordermust be regulated by some authority. As was said in Mugler v.State of Kansas (48), following Munn v. Illinois (49):
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“While power does not exist with the whole people to control rightsthat are purely and exclusively private, government may require eachcitizen to so conduct himself, and so use his own property, as notunnecessarily to injure another. But by whom, or by what authority isit to be determined whether the use of property will injuriously affectthe public? Power to determine such questions, so as to bind all, mustexist somewhere; else society will be at the mercy of a few. who.regarding only their own appetites or passions, may be willing toimperil the peace and security of the many, provided only they arepermitted to do as they please. Under our system that power is lodgedwith the legislative branch of the government. It belongs to thatdepartment to exert what are known as the police powers of the state,and to determine, primarily, what measures are appropriate or needfulfor the protection of the public morals, the public health or the publicsafety."
Where a public emergency exists or is imminent, our legis-lature has, through the Public Security Ordinance, conferredspecial powers on the President. Section 2(1) of the PublicSecurity Ordinance makes it clear that the person who mustdecide that there is a state of emergency is the President. Andsection 5 (1) gives the President the power to make such emer-gency regulations “as appear to him to be ndbessary or expe-dient in the-interests of public security and the preservation ofpublic order… ” Subject to the provisions of section 2(4) ofthe Public Security Ordinance, which states that a Proclama-tion of a state of emergency shall expire after a period of four-teen days unless the Proclamation is approved by Parliament,it is the President alone who is empowered to decide whetherthere is an emergency and the law gives him the amplest pos-sible discretion with regard to the emergency regulations hemay make to effectively deal with the situation. (Cf. per S/iar-vananda, J. in Yasapaia's Case (supra) at pp. 155-157).
In Bhagat Singh v. Emperor (50) the Court had to decideon the validity of ordinances promulgated by the Governor-General in the exercise of his powers under section 72 of theGovernment of India Act for the peace, order and goodgovernment of British India. Viscount Dunedin in deliveringthe judgment of the Privy Council said at pp. 111-112:
SC Abeywardene v. Inspector General of Police and Others (Amerasinghe, J.)371
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"The petitioners ask this Board to find that a state of emergency did 'not exist. That raises the question who is to be the judge of whether astate of emergency exists. A state of emergency is something that docsnot permit of any exact definition. It connotes a state of matters cal-ling for drastic action which is to be judged as such by someone. It ismore than obvious that someone must be the Governor-General andhe alone. Any other view would render utterly inept the whole provi-sion. Hmergency demands immediate action and that action is pres-cribed to be taken by the Governor-General. It is he alone who canpromulgate the ordinances….It was next said that the ordinances didnot conduce to the peace and good government of British India. Thesame remark applies. The Governor-General is also the judge of that."
The decision as to whether there is a state of emergency andwhat regulations may be considered necessary or expedient todeal with such a situation is a matter for the President and notthe Courts of law. Whether in proclaiming a state of emer-gency or in making emergency regulations the President hasacted reasonably and in a rational, sensible or agreeablemanfter are not matters for our consideration. It is not for meto decide whether a President’s judgment in proclaiming astate of emergency is sound or foolish or absurd or whetherthe steps he has taken by way of emergency regulations arcextravagant or inappropriate.
In Lipton Ltd. v. Ford (46), acting under the Defence ofthe Realm Regulations, a quantity of raspberries had beenrequisitioned for the use of the powers given for securing thepublic safety and defence of the realm. At p. 654 Atkin, J said:
“it was further contended that taking possession of a crop of rasp-
berries could not be necessary for the public safety or defence of therealm. I do not think that those arguments are well-founded. I thinkthat all that I have to sec is whether the regulation is one that is rea-sonably capable of being a regulation for the public safety and defenceof the realm. If it is, I do not think the Court is entitled to questionthe discretion of the Executive to whom Parliament has entrustedpowers in such wide terms."
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In Attorney-GenSral for Canada and Another v Hallet &Carey Ltd. and Another (47), in the ostensible exercise of thepowers conferred on the Governor in Council by the NationalEmergency Transitional Powers Act 1945 of Canada, by anOrder in Council, all oats and barley in commercial positionsin Canada, with certain specified exceptions, were vested in theCanadian Wheat Board. The Privy Council held that it wasnot competent for the courts to canvass the considerationswhich had led the Governor in Council to deem it necessary toeffect the vesting, or to ascribe to the Order in Council a pur-pose other than that which it professed to serve; the measuresauthorized were such as the Governor in Council, not thecourts, deemed necessary or advisable. Lord Radcliffe, whodelivered the judgment of the Privy Council, said at p.444:
“The validity of the vesting provision of the Order in Council has beenattacked on several grounds. It has been said that its “real purposewas not to carry out any of the purposes specified in the Act of 1945but to confiscate the profits that would otherwise have been made by acertain class of owners of barley or to exact an impost from them. Ithas been said that the order was not in fact necessary or related to anyof the purposes of the Act and was therefore not aevalid exercise of thepowers which the Act conferred. It has been said that the order wasinvalid because it discriminated against some out of the whole body ofcitizens or barley owners and that the authority given by the Act didnot extend to the making of such discrimination. All these arc viewsthat found favour with one <>r more of the Court of Appeal for Manit-oba, and they constitute a different class of objection from those whicharc more properly related to the construction of the enabling Actitself, for however expressed, they arc in reality an attempt bv theCourt to take over into its own hands the functions which have beenentrusted by Parliament to the Governor in Council. This is. in theirLordships view, an inadmissible proceeding.”
Later, at p.445, Lord Radcliffe quotes with approval thefollowing words of Chief Justice Duff in Reference as to thevalidity of certain Chemical Regulations (51) —
“I cannot agree that it is competent to any court to canvass the con-siderations which have or may have led him to deem such regulationsnecessary or advisable for the transcendent objects set forth The
SC Abeywardcae v. Inspector General of Police and Others (Amemsin^be, J.)373
words are too plain for dispute: the measures authorised are such asthe Governor-General in Council (not the (^ourts) deem? necessary oradvisable."
In Carltons Ltd. v. Commissioners of Works and Others(52) Lord Greene, MR at p. 564 said:
"It has been decided as dearly as anything can be decided that, wherea regulation of this kind commits to an executive authority the deci-sion of what is necessary or expedient and that authority makes thedecision, it is not competent to the courts to investigate the grounds orthe reasonableness of the decision in the absence of an allegation ofbad faith. If it were not.so it would mean that the courts would bemade responsible for carrying on the executive government of thiscountry on these important matters. Parliament which authorizes thisregulation, commits to the executive the discretion to decide and withthat discretion if bona fide exercised no court can interfere. All thatthe Court can do is to sec that the power which it is claimed to exer-cise is one which falls within the four corners of the powers. given bythe legislature and to see that those powers arc exercised in good faith.Apart from that, the courts have no power at all to inquire into thereasonableness, the policy, the sense or any other aspect of the tran-saction.”
The Petitioner questioned the bona Tides of the President inmaking the Regulations and he made on oblique attack on thevalidity of the Regulations while dealing with the question ofthe alleged infringement of his rights under Article 12 (2) ofthe Constitution. Although it is not incumbent upon a Peti-tioner who complains of a violation of Article 12 of the Con-stitution to assert and prove that, in making the law in ques-tion, the legislating authority was actuated by a hostile orinimical intention against him or a class to which, he belonged(Sfafe of Wesf Bengal v, Anwar Ali) (53) the Petitioner,because he had other things in view, in paragraphs 14,15,16and 17 of his petition, alleged that the Regulations had beenmade so as to affect his business on account of his politicalopinions. Since he had been discriminated against on accountof his political views, there was, he said, a violation of Article12(2) of the Constitution which provides, among other things,that no citizen shall be discriminated against on the ground of
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political opinion. And if the discriminatory regulations hadbeen motivated by vfhdictive considerations, rather than theinterests of the community, then, in terms of the law as laiddown in Yasapala’s Case (supra) and Carltona Ltd. v. Com-missioner of Works & others (supra), requiring bona fides, theRegulations should be regarded as invalid:
The Petitioner alleged that, although he had earlier been asupporter of the United National Party, yet at the most recentPresidential Election, he had not supported that Party’s candi-date, namely, the incumbent President. (The Regulations inquestion, it will be noticed, were made by the President). ThePetitioner also suggested that the Regulations affecting his busi-ness were made because he had helped the Minister of State,the late Mr. Ranjan Wijeratne, with information concerningthe illegal activities of a man named Joe Sim, who was there-fore deported. Sim, a citizen of Singapore, it was alleged,“enjoyed a high level of patronage and support from theGovernment and members and Ministers of the Governmentand persons in the administration including the police”. Anumber of newspaper reports were filed with jjis Petition andread in Court. However, in my opinion, there was nothing atall in them to show personal hostility to the Petitioner eitheron the part of the President, the members of the Governmentor the administration, including the police. Nor was there anyindication in these news items even remotely suggesting thatthe Regulations were designed to particularly affect the Peti-tioner’s business as an act of revenge or for any other reason.The Petitioner states that action against Casinos were takenafter the Jackpot operation, to enable the Government to repelthe charge of discrimination. A Government is entitled to dealwith problems according to its own time-table. If it did takeaction against some forms of gambling, other than those con-ducted with Jackpots, it is evidence of good faith on the partof the Government rather than of arbitrary discriminationagainst the Petitioner and other owners of Jackpots.
SC Abejrwardene v. Inspector Genera/ of Police end Others (Amcfasinghe, J.)375
The Petitioner states in paragraph 9 (b) of his petition thatthe Regulations were
"obnoxious to the 13th Amendment to the Constitution of the Demo-cratic Socialist Republic of Sri Lanka in that the subject of betting andgambling is exclusively allotted to the sphere of powers of ProvincialCouncils in the transfer of political and administrative power underthe Constitution."
During the course of his submissions on that matter, Mr.Weerakoon accepted the suggestion of my brother, Fernando,J. that section 3A of the Gaming Ordinance (Cap. 59) con-cerned the prohibition of-importation into Sri Lanka ofinstruments or appliances that may be used for the playing ofany game of chance or of mixed chance and skill. It was atleast as much a Customs and Import Control matter as it was .a matter concerning gaming. Indeed, section 3A (2) expresslystates that the provisions of section 3A
“shall be read and construed as one with the Customs Ordinance, and,for the purpose of the application of that Ordinance, any instrumentor appliance the importation of which is prohibited by Order madeunder sub-section (I) shall be deemed to be goods the importation ofwhich is prohibited by enactment.'’
Therefore, it was not a matter exclusively reserved for theProvincial Councils. His submission that the word “Minister”in section 3A of the Gaming Ordinance, meant the ProvincialCouncil Minister responsible for the subject of gaming in viewof the allocation of the subject of gaming to Provincial Coun-cils in terms of the 13th Amendment to the Constitution,could not be sustained.
In paragraph 10 of his petition, the Petitioner states that—
"the Proclamation of emergency under which the said Regulationshave been made has not been approved by a Resolution of Parliamentas required by section 2 (b) of the Public Security Ordinance. Peti-tioner annexes hereto marked Cl the first and last pages of the Hans-ard of 23 May 1991 which is the day Parliament considered the Proc-lamation made on 14th May, 1991. The annexure shows that theresolution moved for the approval of the said Proclamation had failedto get a 2/3 majority of a House of 225 members."
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As for the averment in paragraph 10 of the Petition, thatthe Regulations had not been duly passed by Parliament, itwas totally abandoned by Mr. Weerakoon. In the absence ofevidence to the contrary, I must presume that what wasrequired to be done was properly done. Omnia praesumunlerrite esse acta.
The Petitioner complained in paragraph 12 of his Petitionthat by the seizure and confiscation of the instruments andappliances used in his business, he was unable to engage in hislawful occupation, trade, business or enterprise. This, he saidwas in violation of Article 14( 1 )(g) of the Constitution. Article14(l)(g) provides that every citizen is entitled to the freedomto engage by himself or in association with others in any law'-ful occupation, profession,trade, business or enterprise.
Article 14(l)(g) is based on Article I9(l)(g) of the IndianConstitution which provides that “All citizens shall have theright to practise any profession, or to carry on any occupation,trade or business.” Although that Article does not expresslyconfine the occupation, trade or business” to Infill activities,the Courts have consistently held that the Constitution onlyprotects the right to lawful occupations. Gambling, forinstance, has been held in India to be an unmitigated evil andthat legislation to root out gambling was in the public interestand valid. There could be no “trade” or “business” in gam-bling which was entitled to the protection of Article 19(1 )(g) ofthe Indian Constitution, which corresponds to Article 14(l)(g)of our Constitution. (See State of Bombay v. R. M. D. Cha-marbaugwala (39); Krishnachandra and Others v. State ofMadhya Prades (54). Since gambling is not absolutely prohi-bited in Sri Lanka, we may assume that those forms of gam-bling that are permitted may constitute “trade” or “business”.However, transacting Jackpot business, is not somethingwhich is entitled to the protection of the Constitution becauseit is now declared to be unlawful.
5C Abeywardtne v. Inspector General of Police and Others (Amc&singhe, J.)377
Admittedly, it was not always unlawful. Mr, «Weerakoonaddressed us at length on the vicissitudes of Jackpot machinesin the context of the law and law enforcement relating to gam-ing in Sri Lanka in an effort to sandpaper the sensitive con-science of this Court with the fact that the Petitioner hadimported the confiscated machines, at an enormous cost, withthe leave and licence of the Controller of Imports and Exports,at a time when it was lawful to operate such instruments orappliances. The Attorney-General responded to this by statingthat the Regulations provided for the payment of compensa-tion for confiscated instruments and appliances in the circum-stances specified therein.
Section 3A (1) of the Gaming Ordinance provides that —
"The Minister may. by Order published in the Gazette, prohibit theimportation into Sri Lanka of any instrument or appliance that maybe used for the playing of any game of chance or of mixed chance andskill."
Section 3B prohibits the possession or manufacture of anyinstrument or appliance the importation of which is prohibitedby Order mad* under subsection (1) of section 3A. A personwho contravenes that provision is declared to be guilty of anoffence punishable with a fine or imprisonment or both fineand imprisonment.
Whether an instrument or appliance falls within the des-cription of a prohibited instrument or appliance is to be con-clusively determined by a certificate under the hand of theGovernment Factory Engineer. (Section 3C).
Section 22 (3) of the Gaming Ordinance provides that“unlawful gaming” includes
“the act of playing, in any place whatsoever whether for a stake ornot, a game of chance or of mixed chance and skill with any instru-ment or appliance the importation of which is prohibited by Ordermade under subsection (l) of section 3A, whether or not such instru-ment or appliance is one that has been actually imported into SriLanka and whether or not it is one the importation of which into SriLanka has been before the coming into force of that Order.”
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On July •12th, 1957, the Minister made an Order under sec-tion 3A, published in the Gazette of July 19, 1957, prohibitingthe importation of certain instruments and appliances. Theseexpressly included Jackpots. On 5th December 1961, the Min-ister made an Order under section 3A rescinding the Order of1957 and prohibiting the importation of the following instru-ments or appliances;
“(a) Any instrument or appliance which when operated in any mannerwhatsoever after any person inserts therein a coin or any such token orother device as may be provided by ihe person in charge of thatinstrument or appliance upon the payment or delivery to him of anymoney or other thing of value by the first mentioned person, emits ordoes not emit any money or other thing of value to which, by expressor implied agreement between the two aforesaid persons, the first men-tioned person becomes entitled to.
(b) Any instrument or applianct, which when operated in any mannerwhatsoever, after any person pays or delivers any money or otherthing of value to the person in-charge of the instrument or applianceproduces a result which by express or implied agreement between thetwo aforesaid persons, entitles or does not entitle the first mentionedpersons to receive any money or other thing of value".
On 5th March 1987, the Minister, by OrdeT made under
section 3A and published in the Gazette Extraordinary dated
April 3, 1987, amended the 1961 Order by stating that
nothing in the 1961 Order “shall apply to, and in relation to,
the importation into Sri Lanka of Jackpots.”
•
On 22nd September 1987, the Minister made Order undersection 3A, published in the Gazette Extraordinary ofDecember 8th.1987, rescinding the 1961 Order.
On 31 May, 1991, the President made the Emergency(Prohibition of Instruments and Appliances for GamingJRegu-lations No. 1 of 1991 under section 5 of the Public SecurityOrdinance. These Regulations were published in the GazetteExtraordinary of May 31, 1991. Regulation 2 provided that
"The importation into Sri l.anka of any such instruments or applian-ces for the playing of any game of chance or the playing of any game
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of mixed chance and skill as is specified *n the schedule hereto shall bedeemed, for all purposes and with effect from the date on which thisregulation comes into force, to have been prohibited by an Ordermade under subsection (1) of section 3A of the Gaming Ordinance(Chapter 46) and approved by Parliament under subsection (3) of sec-sion 3 of that Ordinance.”
The Schedule described the prohibited instruments andappliances in exactly the same terms used in the 1961 Order.
On June 6th, 1991, the President, acting under section 5 ofthe Public Security Ordinance, made the Emergency (Games ofChance) Regulations 1 of 1991. These Regulations were pub-lished in the Gazette Extraordinary of June 6, 1991. TheseRegulations, inter alia, made the playing of a game for stakean offence and exempted State and public corporation lotteriesfrom the definition of “playing of a game for stake.”
It would appear that, except during the period March 5th,1987, 31st May, 1991, Jackpot machines had been prohibitedfrom importation and that their use at other times was unlaw-ful in terms of the Gaming Ordinance. In the circumstances,the Petitioned cannot, in my opinion, properly claim, as hedoes in paragraph 2 of his Petition, that he has for twentythree years been engaged in lawful gaming if Jackpots consti-tuted his only business. Nor can he complain that he has beenprevented from carrying on a “lawful” occupation, trade, busi-ness or enterprise since May 31, 1991. There was a shortperiod during which he might have been justified in operatingJackpots, and claiming the protection of Article 14' (1) (g) ofthe Constitution. But there was no assurance that his goodfortune would continue indefinitely. No such assurance couldever be given. In Mugler v. State of Kansas (48), the SupremeCourt had to deal with two cases. At a certain time, it waslawful to make liquors in the State of Kansas. During thattime, the defendant, who had been engaged in brewing, hadmade extensive improvements peculiarly adapted to such busi-ness. The State of Kansas then prohibited and made it anoffence to manufacture and sell intoxicating liquor within that
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state except for medical*scientific and mechanical purposes. Itwas held that the legislation did not deprive him of any right,privilege or immunity as a citizen of the United States ordeprive him of life, liberty or property without due processwithin the meaning of the 14th Amendment to the AmericanConstitution. Mr. Justice Harlan, delivering the opinion of theSupreme Court, said at p. 301, as follows:
“It is true, when the defendants in these cases purchased or erectedtheir breweries, the law's of the State did not forbid the manufacture ofintoxicating liquors. But the State did not thereby give any assurance,or come under any obligation, that its legislation upon that subjectwould remain unchanged. Indeed, as was said in Stone v. Mississippi,($6), the supervision of public health and the public morals is agovernment power, “continuing in its nature”, and to be dealt with asthe special exigencies of the moment may require", and that, “for thispurpose, the largest legislative discretion is allowed, and the discretioncannot be parted with any more than the power itself." So in Beer Co.v. Massachusetts, (57) “If the public safety or the public moralsrequire the discontinuance of any manufacture or traffic, the hand ofthe legislature cannot be stayed from providing for its discontinuanceby any incidental inconvenience which individuals or corporations maysuffer.”
Operating as he was. in a sort of twilight area of activity,the Petitioner might have known, and in any case, ought tohave known, having regard to the varying status of Jackpotsthat legislative policy might change once again. He took a risk.A calculated risk, perhaps, knowing very well that theGovernment might change its mind as it had done before. TheGovernment did change its mind. It was entitled to do so. Andlike many a Jackpot player, I suppose, the Petitioner venturedand lost. In this case, the prohibition of the Jackpot businesswas not a matter of mere whim or fancy. It was not a matterof caprice. There were, as it clearly appears from the affidavitof the Inspector-General of Police, sufficient reasons for themaking of the Regulations in question.
And now that Jackpots arc illegal, I hold that the Peti-tioner cannot invoke the protection of Article 14(l)(g). He has
SC Abeyvardena v. Inspector General of Police and Others (Atmcrasinghc, .1.)381
no fundamental right to conduct unlawful gaming for the samereasons that no keeper of a brothJl (Malekotla v. Mohd.Musbtag (57) or a dealer in smuggled goods (Boota Singh v.State (58) or a dealer in adulterated foodstuffs (U.P. v. KartarSingh (59) can claim a fundamental right to do his business.Crime may generate income, and 1 am told that some forms ofcrime are extraordinarily lucrative. However, it does not, ther-eby become an occupation, profession, trade, business orenterprise which the law must rccogniz.c and protect.
Moreover, a person who comes before this Court for justand equitable relief under Article 126 (4) of the Constitutionmust in his act of supplication show the Court clean handsinto which relief may be given. The Supreme Court, as ChiefJustice Sharvananda said in C. W. Mackie v. Hugh Molagoda,Commissioner-General of Inland Revenue and Others (40)“cannot lend its sanction or authority to any illegal act. Ille-gality and equity are not on speaking terms” For the reasonsstated, if I might borrow some words from Mr. Justice Nihillin Rewata Thcro v. Horatala (60), “He who seeks equityshould come with clean hands”. In that case, the hands of thedefendant wc*e described by Justice Nihill as being “very dirtyindeed,”
I have carefully considered each and every word the Peti-tioner has said in his petition; and , with equal care, everysubmission of his counsel, from this angle and that. More than(hat, I cannot do. Yet, for the reasons stated in my Judgment,I make Order dismissing the Petitioner’s application, 1 makeno Order with regard to costs.
Bandaranayake, J. — I agree.Fernando. J, — I agree.
Application dismissed.