BERNARD SOYSA AND TWO OTHERS V, THE ATTORNEY-GENERAL AND TWO OTHERS

006-SLLR-SLLR-1991-V2-BERNARD-SOYSA-AND-TWO-OTHERS-V-THE-ATTORNEY-GENERAL-AND-TWO-OTHERS.pdf


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BERNARD SOYSA AND TWO OTHERS
V.THE ATTORNEY—GENERAL AND TWO OTHERS
SUPREME COURT.
FERNANDO, J., KULATUNOA, J. AND GOONEWARDENA, J.
S.C. APPLICATION NO. 2/91.
AUGUST 29, 1991.
Fundamental Rights – Right to hold Satyagraha at Maha Maluwa of theDalada Maligawa – Articles 14(1) (a) and (b) of the Constitution – Publicplace – Code of Criminal Procedure Act, No. /5 of 1979, S. 95, 97 – PoliceOrdinance S. 56.
The Maha Maluwa of the Dalada M&Iigawa is a place to which publichave access for the purposes of worship. It cannot be treated as a publicplace for the purposes of holding a Satyagraha by persons standing togetherin a single line and displaying posters and placards and sometimes shoutingslogans or other vociferous protest. Satyagraha was a political event forwhich no implied permission can be presumed in relation to the DaladaMaligawa. Express permission would be required for the purpose.
The rights claimed by the petitioners arc subject to such restrictions as maybe prescribed in the interests of public order. The meeting itself was notpeaceful.
The Police were entitled in terms of the duties cast on them by the Codeof Criminal Procedure Act and the Police Ordinance to take steps to dis-perse the Satyagrahas. The Police action was justified and there was noinfringement of their fundamental rights of peaceful assembly and expres-sion.
Cases referred to:
Whitney v. California (1927) 274 US, 357, 375
Schendr v. V.S. (1949) 249 US, 47, 52
Perry Education Association v. Perry Local Educators* Association(1983)460 US 37, 45 – 46
Haque v. C.t.O. (1939) 307 US 496, 515
Railway Board v. Niranjan Singh (1969) 1 SCC 502
APPLICATION for infringement of fundamental rights.
SC Bernard Soysa & Two Others v. The A. G. & Two Others (Fernando. J.)57
Faiz Mustapba P.C. with Jayampathy Wickremaratne, M.S.M. Subaid,Kusal Subasinghe, Gaston Jayakody and Rumy Marook for Petitioners.
Upawansa Yapa D.S.G. with Kaiinga Indatissa S.C. for respondent.
Cur.adv. vult.
October 16, 1991.
FERNANDO, J:
While agreeing with the judgment of my brother Kula-tunga, I wish to state my reasons briefly. The Petitioners weregranted leave to proceed upon averments in their affidavitsthat the Maha Maluwa is a public place, implying thereby thatno permission was required for a satyagraha; and that it hadbeen used on various occasions to conduct satyagrahas, in par-ticular in 1974 by the then Leader of the Opposition. It wasfurther averred that a peaceful assembly was violently dis-rupted by the Police, in violation of Article 14(l)(a) and (b).When the Respondents averred in reply that the Maha Maluwais not a public place, but belonged to the Sri Dalada Maligawaand is under the control of the Diyawadana Nilame, the Peti-tioners modified their position in a counter-affidavit, statingthat it was ‘*a public place to which the public has freeaccess*’; a supporting affidavit added that members of the pub-lic habitually had access for purposes of leisure. In otherwords, deifactoaccess. From this, learned President’s Counselsought to contend that the public had a right of access, i.e. dejure access, and even for other purposes. This is clearly unsus-tainable: firstly, even if the public had been permitted accessfor certain purposes, such permission was revocable; secondly,the grant of permission for one purpose cannot lead to anyinference of permission for other dissimilar purposes. Inregard to the previous occasions on which the Maha Maluwawas said to have been used for satyagrahas, it was not sug-gested that this was without permission from the properauthorities; the fact of such use, with or without permission,cannot create a prescriptive public right to use the Maha Mal-uwa for satyagrahas without permission.
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"Freedom to think as you will and to speak as you thinkare means indispensable to the discovery and spread of politi-cal truth”, and thus vital for a free society (cf Whitney v Cali-fornia) (1). However, freedom of speech (and its associatedrights) is not absolute; it has inherent limitations; "the charac-ter of every act depends upon the circumstances in which it isdone…. The most stringent protection of free speech would notprotect a man in falsely shouting "fire” in a theatre and caus-ing panic” (Schenck v U,S.) (2). What may be said or done inthe exercise of the freedom of speech, expression or peacefulassembly would also depend on the place. In Perry EducationAssociation v, Perry Local Educators Association (3), threecategories of public places were identified: (i) traditional, quin-tessential public forums, "places which by long tradition or bygovernment fiat have been devoted to assembly and debate”,such as streets and parks which "have immemorially been heldin trust for the use of the public and, time out of mind, havebeen used for purposes of assembly, communicating thoughtsbetween citizens, and discussing public questions” (Haque vC.I.O., (4)) ; (ii) limited-purpose, semi-public forums, “publicproperty which the state has opened for use by the public as aplace for expressive activity”; and (iii) "public property whichis not by tradition or designation a forum for public commun-ication”. It is unnecessary to consider whether such a classifi-cation is applicable in Sri Lanka. However, it demonstratesthat what is permissible in a traditional public forum, or asemi-public forum, is not necessarily permissible in other pub-lic places (even assuming the Maha Maluwa to be a publicplace), especially those devoted to or ancillary to religiouspurposes. What is patently proper as being free speech orpeaceful assembly at Galle Face Green or the Pettah bus standmay not necessarily be permissible in the precincts of Parlia-ment or a Court of law, and could well be gravely provocativein the vicinity of places of worship or religious shrines, andtherefore such activities, especially when political or non-religious, require greater scrutiny, where the requisite permis-sion is lacking. Even though their objectives were primarily
SC Bernard Soysa & Two Others v. The A. G. & TVo Others (Ternando, J.)59
political and not religious, the Petitioners and their supporterswould, justifiably, have resented any interference with theirright to pay their respects at the Dalada Maligawa; I cannotsubscribe to a view which would diminish the rights of othersgathered there, with no other motive than to exercise theirreligious freedoms as embodied in Articles 10 and 14 (l)(e) ina calm and serene atmosphere. It is admitted that the Petition-ers had not obtained the permission of the Diyawadana Nilame(and had not even extended the courtesy of informing him) inregard to the use of the Maha Maluwa for a satyagraha. TheDiyawadana Nilame in his statement to the Police stated thathe was informed that some persons were behaving in a mannerwhich would disturb the religious ceremonies being performed;this he investigated; he then observed a group of personsbehaving in a manner detrimental to the peaceful atmospherenormally prevalent in the precincts of the Maligawa; he theninformed the Police Post at the Maligawa; almost simultane-ously he observed the arrival of a Police party which dispersedthose who were causing the disturbance. That statement wassubjected to a minute analysis, detailed comparisons beingmade with another statement made by the officiating monk.Minor discrepancies as to details and the sequence of eventsare inevitable in such circumstances. As against that, it wouldseem that just as the Petitioners have exaggerated the injuriessuffered by them – my brother Kulatunga has referred to theallegation that the 2nd Petitioner’s finger had been fractured -they have sought to minimise the disruptive nature of theirgathering. What is important is that there was some distur-bance, of which the Diyawadana Nilame disapproved, and thathe desired that the peaceful environment be restored by thePolice; and if they had not acted, there might have been anunseemly disturbance in a place venerated by a large section ofthe people of Sri Lanka. In all the circumstances it would beunreal to attribute to their conduct anything more sinister thanthe bona fide dispersal of an unruly gathering near a religiousplace.
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For these reasons, I am of the opinion that the Petitionersdid not have the right to conduct a “satyagraha” at the MahaMaluwa without the prior permission of the DiyawadanaNilame; that in any event what occurred was not a legitimate,proper or acceptable exercise of the freedom of speech, expres-sion or assembly, appropriate to the Maha Maluwa, and thatthere has been no infringement of the Petitioners* fundamentalrights under Article 14(1 )(a) and (b). Their application musttherefore be dismissed with costs.
KULATUNGA, J.
The 1st petitioner is the General Secretary of the LankaSamasamaja Party, the 2nd petitioner is the General Secretaryof the Communist Party of Sri Lanka and the 3rd petitioner isthe General Secretary of the Bahujana Nidahas Peramunabeing political parties recognised under the law. They com-plain that the police have unlawfully disrupted a Sathyagrahaand a picket organised by them in Kandy along with about300 members representing their parties and thereby infringedtheir freedom of expression and peaceful assembly guaranteedby Articles 14(1) (a) and 14(l)(b) of the Constitution.
The petitioners state that in October 1990 the political par-ties referred to above decided to protest against the rising costof living, fall in real wages and the violation of human rightsby the State and the denial of democratic rights. For this pur-pose they held a picket at the Lipton Circus, Colombo inNovember 1990 to which there was no hindrance by the police.They decided to follow it up with a Sathyagraha and a picketin Kandy and similar events in other principal towns. The firstSathyagraha was scheduled to be performed on IS. 12.1990 inthe Maha Maluwa opposite the Dalada Maligawa to be fol-lowed by a picket near George E. de Silva Park.
The petitioners explain that a picket consists of personsstanding together in a single line and displaying posters andplacard. Sometimes slogans too are shouted; there may be
SC Bernard Soysa A Two Others v. The A. G. A Two Others (Kulatuaga, J.)61
“vociferous protest”. Sathyagraha is observed seated and insilence with placards or posters displayed so as to indicate theobject of such action. It was arranged that about 100 suppor-ters from each party should participate in the said eventswhich were scheduled to take place in Kandy.
On IS. 12.1990 at about 9.00 a.m. the petitioners met about300 of their supporters in Kandy. All of them first visited theDalada Maligawa and paid their respects there. While theywere walking to the Maligawa Inspector of Police Senaratnetook into custody one of the participants on the ground thathe had with him a poster. The petitioners protested against thearrest and sought to justify the display of posters on the basisof a letter dated 26.09.90 (PI) addressed by the Minister ofState for Defence to the 1st petitioner informing him that thepolice had been directed not to prevent the distribution of lea-flets. At the same time the Minister hoped that the petitionerswould conduct themselves peacefully. This is not a letter withreference to the proposed Sathyagraha but a confirmation ofthe general right of citizens to peacefully assemble and displayleaflets in public regarding which the 1st petitioner hadaddressed the Minister on 20.09.90. After worshipping at theMaligawa they returned to the Maha Maluwa (which theydescribe as a public place) to perform Sathyagraha. They wereseated on the ground when they observed a large number ofpolice officers standing by. These officers led by the 2ndrespondent (Chief Inspector of Police, Kandy) suddenlypounced on the participants and assaulted them. By suchaction they dispersed the gathering and disrupted the Sathya-graha.
The petitioners allege that the police had planned theassault on the Sathyagrahis and that the 2nd respondent andhis superior officers had conspired in order to deny to the peti-tioners and their supporters their right of peaceful assemblyand expression. They also allege that as a result of the assaultinjuries were caused to them including a fracture of the 2nd
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petitioner’s hand; and that the policemen snatched the camerasof those who were taking photographs and destroyed the usedfilms.
The respondents admit the dispersal of the Sathyagrahisbut deny the alleged violation of fundamental rights. Theirversion is that in view of certain information regarding anattempt by a crowd of persons to hold an unlawful demonstra-tion on 15.12.1990 the Superintendent of Police Kandydirected the 2nd respondent to be on duty near the Sri DaladaMaligawa. At about 9.45 a.m. the 2nd respondent obtainedleave from the S.P. to take his wife to the Peradeniya Hospi-tal; that oh his way to the hospital he overheard a conversa-tion between the S.P. Kandy and I.P. Senaratne who was alsoon duty in the course of which the latter informed over thewalkie-talkie that a crowd which had assembled at the Malig-awa premises was behaving in an unruly manner.
On hearing the above information the 2nd respondentreturned to the scene and found a crowd led by the petitionersconducting an unauthorised demonstration and shouting anti-government slogans and thereby disturbing the peace aroundthe Maligawa premises. This incident took place in the MahaMaluwa which belongs to the Dalada Maligawa and was underthe control of the Diyawadana Nilame of the said Maligawa.The 2nd respondent advised the crowd to disperse peacefully.As this was not heeded he with his officers took steps to dis-perse the gathering.
The 3rd respondent (Inspector-General of Police) statesthat on 15.12.1990 Mr. Neranjan Wijeyaratne, DiyawadanaNilame had himself requested the Police Post at the Maligawapremises to take necessary action to prevent the crowd led bythe petitioners from acting in an unruly manner so as to dis-turb the peaceful surrounding of the Maligawa. In support ofthis the 3rd respondent has produced marked 3R1 and 3R2respectively the statements of Rev. Palipane Siri Nivasa Theroofficiating monk at the Dalada Maligawa and Mr. Neranjan
SC Bernard Soysa & Two Others v. The A. C. & Two Others (KulatUOga, J.)63
Wijeratne Diyawadana Nilame made to the S.P. Kandy on
They had told the police that a crowd led by thepetitioners had attended the morning service at the DaladaMaligawa and had thereafter conducted themselves in anobjectionable manner.
Diyawadana Nilame also told the police that the MahaMaluwa belongs to the Dalada Maligawa and that nobody hadinformed him of the visit to the Maligawa by the petitionersand his men or of the proposed Sathyagraha in the vicinity ofthe Maligawa; nor had he permitted such event. The petition-ers do not claim to have obtained any such permission; leaveto proceed was granted upon averments in their petition thatthe Maha Maluwa is a public place where it is lawful to con-duct a Sathyagraha and that the law does not require anypermission to be obtained for such activity. When confrontedwith the claim in the respondent’s affidavits that the MahaMaluwa is private property owned, by the Dalada Maligawa,the petitioners have filed a further affidavit wherein they nowtake up the position that at some stage the wall that stoodaround the Maha Maluwa was removed and it was joined tothe Madduma Bandara Park which belongs to the KandyMunicipal Council; that as a result an open green stretchingfrom Trincpmalee Street to the Maligawa has come into exist-ence; that the said green is used as a public park wheremembers of the public including children and tourists are seenin the evenings enjoying their leisure; and that the Sathyagra-his were seated at the Maligawa end of the green which is aplace which the public had been habitually using. Mr. FaizMusthapha, President’s Counsel for the petitioners submitsthat as such the petitioners were entitled to meet there withoutthe permission of the Maligawa authorities.
In answer to the allegation that by reason of the policeassault the petitioners sustained injuries including a fracture ofthe 2nd petitioner's hand the 3rd respondent has producedmarked 3R3 and 3R4 Medical Reports according to which the
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1st petitioner had abrasions and the 2nd petitioner had abra-sions and contusions. These are non-grievous. There was nofracture. In reply the petitioners in their further affidavit claimthat the' 2nd petitioner had a fracture of the fourth finger ofhis left hand. In support of this they have produced a requisi-tion for an X-ray marked P4(b) and have stated that the rele-vant X-ray will be produced at the hearing of the application.However, no X-ray was produced before us.
Upon a careful consideration of the evidence, I am satisfiedthat the petitioners had planned the proposed events in Kandywell ahead of the date. They admit having invited about 300supporters to participate in the events. The 2nd respondentstates that the police had information of an unlawful demon-stration. The petitioners state that the proposed Sathyagrahawas a peaceful one having spiritual overtones and that theydid not conduct themselves in an unruly manner or shout slo-gans. Whatever that may be, I am satisfied that the police hadprior information of the events and hence took steps to main-tain the public peace particularly in the premises of the DaladaMaligawa and that the police did not engage in a conspiracyto deny the petitioners their right of peaceful assembly andexpression as alleged in the petition.
The petitioners and their Supporters were not preventedfrom paying their respects inside the Maligawa even thoughtheir mission was different from that of the other devotees.Thus one of them carried a poster while going there. Thesituation appears to have changed when they returned to theMaha Maluwa. I accept the 2nd respondent’s version that atthat stage the Diyawadana Nilame himself had sought policeassistance to maintain the public peace and that some degreeof unrest had arisen by reason of the conduct of the petition-ers and their supporters.
I do not accept the claim that the petitioners were entirelycalm and peaceful. Admittedly some of the participants weretaking photographs which conduct though legitimate shows
SC Bernard Soysa A Two Others v. The A. G. A Two Others (Kutatuoga, J.) 65
that the crowd was very active. One of them had displayed aposter and was arrested whereupon the petitioners protestedrelying upon the letter PI as lawful authority for exhibitingposters in the Maligawa premises; that letter does not consti-tute any such authority. There is also no evidence that the par-ticipants had been given any instructions as to their conduct atthe Sathyagraha as against the picket which was to follow atwhich they were free to shout slogans and display placards. Inall the circumstances, I am satisfied that the crowd viewedwith displeasure the order by the police to disperse andresisted it which in turn required the police to use force.
I now proceed to determine the complaint of the petitionersin the light of the aforementioned findings of fact. The ques-tion is whether their right of peaceful assembly and expressionhas been infringed having regard to:—
the fact that the petitioners had no permission to usethe Maha Maluwa; and
the need to maintain public order.
Firstly, even if an open green joining the Madduma Ban-dara Park belonging to the Kandy Municipal Council with theMaha Maluwa had'come into existence, the petitioners wereseated in the Maha Maluwa area which is the property of theDalada Maligawa. They went there for a political purpose andnot to enjoy their leisure as members of the public. That beingso, they had no right to be there without the permission of theMaligawa authorities. There is no right to hold meetings onthe lands belonging to others Railway Board v. NiranjanSingh, (S). The Maligawa authorities had not permitted thepetitioners either expressly or impliedly to hold a Sathyagrahain the Maha Maluwa that day. The petitioners appear to relyon implied permission; I am of the view that they had no suchpermission. Whether implied permission exists in a given casewould depend on the nature of the proposed activity and thecharacter of the premises. The Sathyagraha was a politicalevent for which no implied permission can be presumed in
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relation to the Dalada Maligawa. On the contrary it seemsthat nothing short of express permission could authorise theproposed Sathyagraha there.
Secondly, even if the petitioners' presence in the MahaMaluwa was per se lawful and they are not guilty of anyoffence by reason of such presence the rights invoked by themshall be subject to such restrictions as may be prescribed bylaw in the interests of public order. Such restrictions are foundin the Code of Criminal Procedure Act, No. 15 of 1979 andthe Police Ordinance (Cap. 53). Chapter VIII of the Code,S.95 empowers a police officer not below the rank of Inspectorof Police to command any assembly -of five or more personslikely to cause a disturbance of the public peace to dispersewhereupon it shall be the duty of the members of such assem-bly to disperse accordingly. If upon being so commanded suchassembly does not disperse or if without being so commandedit conducts itself in such a manner as to show a determinationnot to disperse, the police officer is empowered to proceed todisperse such assembly by the use of such force as may rea-sonably be necessary to disperse such assembly. S. 97 providesto a police officer exercising such power in good faith immun-ity from civil or criminal proceedings for an act purported tobe done under this chapter.
S.56 of the Police Ordinance provides that it shall be theduty of a police officer inter alia, to preserve the public peaceand to collect and communicate intelligence affecting the pub-lic peace.
Whilst the protest planned by the petitioners is within theirrights in a democratic set up, it is to be noted that this was aperiod of unrest and civil disturbance in the country when thelaw enforcement agencies had to act with the utmost vigilanceto ensure the maintenance of public order. Places of religiousworship particularly sacred places such as the Dalada Malig-awa require special protection during such periods. The PoliceOrdinance imposes a duty on the police to take necessary
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action and the Code of Criminal Procedure Act confers neces-sary powers on the police in that regard. In the light of theevidence before this Court and the applicable law I am of theview that all the steps taken by the police are justified.
Had the petitioners paid their respects at the DaladaMaligawa and proceeded to George E. de Silva Park whichwas the main venue without attempting to stage a Sathyagrahain the Maha Maluwa the situation might have been different.If, however, they were keen to conduct the proposed Sathya-graha the appropriate course would have been to give priornotice of their intention to the Maligawa authorities. They didnot do so in the belief that the Maha Maluwa is public prop-erty and that they had a constitutional right to conduct aSathyagraha there. They have no such right; and as I havefound, the meeting itself was not peaceful. Hence the policeTiave not infringed their fundamental rights in dispersing them.In the result, I dismiss this application with costs.
Goonewardena J.— I agree.
Application dismissed.