Amaratunga v, Sirimal and Others (Jana Ghosha Case)
(Fernando, J.)
The respondents have not produced any affidavit from theOfficer-in-charge of the police squad, S.l. Priyadarshana. His notesmade at 3.00 p.m. that day describe the incident in much the sameway as the 2nd respondent ; they do not mention any violence ormissiles ; but they do say that notwithstanding the warnings, theprotesters attempted to continue their procession, " shouting slogansagainst the Government", whereupon the police formed a cordon.
On the material furnished by the respondents, it would appearthat the noisy, slogan-shouting, processionists were warnedrepeatedly to disperse ; when they failed to disperse, tear-gas wasfired ; then they were baton-charged ; and admittedly, four persons,including the petitioner, sustained injuries. It is necessary todetermine therefore, why the police attempted to stop thedemonstration. The respondents position is that S.l. Priyadarshanahad acted in terms of section 78 (1) of the Police Ordinance :
" Officers of police not below the grade of Sub-Inspector may,as occasion requires, direct the conduct of all assemblies andprocessions in any public place, prescribe the routes by whichand the times at which such processions may pass, and directall crowds of twelve or more persons to disperse when they havereason to apprehend any breach of the peace. “
The question that arises therefore is whether he had “ reason to
apprehend any breach of the peace."
According to the 2nd respondent, one of the slogans shouted wasan incitement to riot. Learned Counsel for the petitioner submittedthat in a demonstration of this nature, even if an incitement to riotwas intended, it is most unlikely that the words " m(6Q cnaQ " wouldhave been used. However, that consideration does not rule out thepossibility that those words were in fact uttered at some stage. Atthe same time the only evidence that these words were used, isthe 2nd respondent's affidavit (there being no affidavit from S. I.Priyadarshana) ; and I hesitate to accept that affidavit in view of thesignificant additions not appearing in his contemporaneous notes.However even assuming in favour of the respondents, that some suchwords had previously been used, it is clear that at the time whenS. I. Priyadarshana decided to stop the protest, and procession (ifindeed there was one), what induced him to act was that theprotesters were “shouting slogans against the Government " ; and

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[1993] 1 Sri LR.
according to the 2nd respondent, because they were scolding thePolice. It was not because of any incitement to riot or violence. Ifat that point of time protesters were actually inciting people to riot,or any form of violence, it is unthinkable that both S. I. Priyadarshanaand the 2nd respondent would have failed to mention that fact intheir notes.
I therefore hold that S. I. Priyadarshana did not, objectively, have“ reason to apprehend any breach of the peace “, and did not,subjectively, think that a breach of the peace was likely, at the timethe police party decided to stop the protest, or at any time thereafter(when the Police used tear-gas and when they baton-charged). I amsatisfied that he acted simply because anti-Government slogans werebeing shouted.
There is ample authority that " speech and expression “ extendto forms of expression other than oral or verbal – placards, picketing,the wearing of black armbands, the burning of draft cards, the displayof any flag, badge, banner or device, the wearing of a jacket bearinga statement, etc (cf. Carey v BrowrfPolice Department of Chicagov Mosley l2 Tinker v Des Moined®, United States v O' Srieii^,Stromberg v California (5), Cohen v California (6). Learned Senior StateCounsel concedes that drumming, clapping and other sounds,however unmusical or discordant, can, in the context of the JanaGhosha, be regarded as " speech and expression ”.
Learned Counsel for the petitioner submitted that the petitioner'sprotest was disrupted simply because it was against the Government,and that criticism, in any form, of the Government, was well withinArticle 14 (1) (a) ; and although learned Senior State Counselagreed that this was so, he insisted on reminding me of myobservations in Ekanayake v A.B. (7) which I have no hesitation inreiterating :
“ The Constitution demands the protection of the right to thinkas you will, and to speak as you think (Whitney v California, (8)subject to limitations which are inherent, as well as restrictionsimposed by law under Article 15. Subject to that, the expressionof views, which may be unpopular, obnoxious, distasteful or wrong,is nevertheless within the ambit of freedom of speech andexpression, provided of course there is no advocacy of, orincitement to, violence or other illegal conduct.
Amaratitnga v. Sirimal and Others (Jana Ghosha Case)
(Fernando, J.)
I am therefore of the view that the fundamental right of thepetitioner under Article 14 (1)(a) has been violated. The right tosupport or to criticise Governments and political parties, policiesand programmes, is fundamental to the democratic way of life, andthe freedom of speech and expression is one “which cannot be deniedwithout violating those fundamental principles of liberty and justicewhich lie at the base of all civil and political institutions " (De Jongev Oregon(9). This is not a borderline case, or a sudden emergencyin which a quick decision had to be taken. Prior publicity had beengiven to the planned protest, and the police had information aboutit ; I cannot accept the 2nd respondent's statement that informationhad been received of a plan to incite the people into committing actsof violence and to cause a riot, because the respondents have notproduced any record of that information, and have not disclosed thenature and source thereof. If in fact a riot or violence had beenanticipated, the police would have known that they had to act whenthere was incitement to riot or violence, or actual violence. Howeverthe 2nd respondent acted when slogans were shouted against theGovernment ; not that he understood those slogans as an incitementto riot or violence ; and not that there was a need to prevent anysuch breach of the peace or obstruction as is referred to in section78 (1) of the Police Ordinance. It was thus a grave, deliberate andunprovoked violation of the petitioner's freedom of speech andexpression, and I am of the view that the petitioner should beawarded compensation in a sum of Rs. 50,000. Stifling the peacefulexpression of legitimate dissent today can only result, inexorably,in the catastrophic explosion of violence some other day. Hencethe obligation cast upon this Court by Article 4 (d) of the Constitution,to respect, secure and advance fundamental rights, would amplyjustify the exercise of our power (under Article 126 (4) to givedirections to the police to ensure that they will respect the citizen'sfundamental right of speech and expression, and will not suppresspeaceful protest. We trust, however, that the Inspector-General ofPolice will of his own volition issue appropriate directions andinstructions to all Officers-in-charge of Police Stations, that criticismof the Government, and of political parties and policies, is, per se,a permissible exercise of the freedom of speech and expression underArticle 14 (1)(a).
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I hold that the fundamental right of the petitioner under Article14 (1)(a) has been infringed, and award him compensation in thesum of Rs. 50,000 payable by the State.
DHEERARATNE, J. – I agree.
RAMANATHAN, J. – I agree.
Relief ordered.