109-NLR-NLR-V-74-C.-SUNTHARALINGAM-Appellant-and-THE-INSPECTOR-OF-POLICE-KANKESANTURAI-Respon.pdf
Suntharalingam v. inspector of Police, Kankesanturai
457
{Privy Codxcil]
1971 Present: Lord Guest, Lord Wilber! oice, Lord Simonof Glalsdale, Lord Cross ol Chelsea, Sir Gordon Willmer
C. SUNTHARALINGAM, Appellant, and THE INSPECTOR OFPOLICE, KANKESANTURAI, Respondent
Privy Council Appeal No. 10 of 1971
S. G. 1192/68—IT. C. Mallakam, 4700Prevention of Social Disabilities Act No. 21 oj 1057—Validity and scope of Sections2 and 3—Temple entry—Discrimination on ground of caste—Punishability—Ceylon (Constitution) Order in Council (Cap. 379), s. 29 (2) (d)—interpretationand effect of Tesawalamai Regulation (Cap. 63), s. 4—Abolition of SlaveryOrdinance (Cap. 70)—Trusts Ordinance (Cap. 72), s. 99—Interpretation ojstatutes—Inconsistency between two statutes—Inference of abrogation pro tantoof the earlier statute.
The appellant, a Hindu by religion, on 1st July 1963 prevented one M. S-,also a Hindu by religion but socially of a loner caste, from entering the innorcourtyard of tho Maviddapuram Temple for the purpose of worshipping. Heacted with the authority of tho High Priest of tho Temple, and his reason fordoing so was that M. S. belonged to tho Palla caste, people of which caste,according to tho religious usage and custom, did not enter the inner courtyardand worshipped only from outside. He was convicted of an offence undersection 2 (read with seotion 3 (b)) of tho Prevention of Social Disabilities ActHo. 21 of 1957.
In tho present appeal the appellant contended that tho Prevention of SocialDisabilities Act of 1957 was invalid, or inoffectivo, for either, or both, of two,reasons, viz. (1) that tho Act contravened section 29 (2) (d) of the Ceylon(Constitution) Order in Council (Cap. 379), (2) that the governing provision inrelation to customary rights and privileges of the castes to w'hich the appellantand M. S. belonged was section 4 of the Tesawalamai Regulation (Cap. G3),and that this was not displaced or overridden by the 1957 Act.
Held, (i) that, upon tho evidence led regarding the organisation andconstitution of tho Uaviddapurom Temple (a public charitable religious trust),it could not bo said that the Prevention of Social Disabilities Act was invalidby reason of section 29 (2) (d) of tho Constitution.
that even assuming that prior to the Prevention of Social DisabilitiesAct the Tesawalamai Regulation (Cap. 63) applied to and gave legislativesanction to such Hindu customary religious usages as were involved in thepresent case, tho real question was whether these usages survived tho Act of1957.
that tho Prevention of Social Disabilities Act did not merely prohibit,for the future, the imposition of fresh social disabilities but as from its datomade illegal the imposition of any social disability by reason of caste uponany person. Section 3 of tho Act “ brings within the definition of imposinga social disability acts of provention or obstruction, which can only occurafter tho Act comes into force; and it is quite irrelevant that similar actsmay have occurred before. Such acts are directly made illegal. ■ To makethem legal if bas’d on some pre-existing authority, the addition of qualifyingwords would be needed : no Buch words are contained in the section ”
LXXIV—20
!•—X 0100—2,255 (12/71)
458
LORD YILBERFORCE-.SuH</iarafu!ffam v. Inspector of Police,
Kankesanlurai
that section 4 of tha Tesawnlamni Regulation (Cap. 03) was pro tantorepealed by tho passing of tho Prevention of Social Disabiliti s Act. It is awell settled rule of interpretation that if the provisions of a later enactmentare so inconsistent with or repugnant to tho provisions of an earlier one thattho two cannot stand together, the earlier is abrogated by the later. “Thefirm language of sections-2 and 3 of tho Act of 1957, ns its own wording show3,is inconsistent in the fullest senso with tho survival of rights to p:event aperson, by reason of caste, from entering in or worshipping at any place ofworship to which followers of that religion hnvo access, whether or not suchrights aie founded on custom or regulation or on a combination of both. It istho precise negative of whatever positive authority previously existed ”.
Obiter: The exclusion which is mado illegal by sections 2 and 3 (b) of thoPrevention o Social Disabilities Act is exclusion by reason of the caste of theperson excluded. Exclusion of followers or worshippers, from places of worshipwithin a Tomple on religious grounds unconnected with caste, for exampleexclusion of all except tho High Priest from the Moolaistanam, are unaffectedby tho Act.
Appeal, with special leave, from a judgment of tho Supreme Courtreported in {1969) 72 N. L. R. 54.
C. Sunthamlingam (appellant), in person.
F. N. Gratiaen, <2.(7., with 11. K. Handoo and 27. de Silva, for thecomplainant-respondent.
Cur. adv. vult.
October 6, 1971.[Delivered by Lord Wilber force]—
The appellant, by special leave, appeals against his conviction of anoffence under section 2 (read with section 3 (5)) of the Prevention ofSocial Disabilities Act 1957 in respect of which ho was sentenced to a■fine of Es. 50. His appeal from the Magistrate’s Court of Mallakamto the Supreme Court was dismissed.
The facts are that the appellant, a Hindu by religion, on 1st July 1968prevented one Murugesu Simiiah, also a Hindu by religion but sociallyof a lon er caste, from entering the inner courtyard of tho MaviddapuramTemple for the purpose of worshipping.
The appellant, who acted with the authority of the High Priest of theTemple, used no force : tho Magistrate accepted his evidence that heexcluded Sinniah in order to prevent bloodshed and held that his presenceprevented an ugly situation erupting with violence. Ho found howeverthat the appellant prevented Sinniah from entering the inner courtyardby mason of liis caste : Sinniah belonged to the Palla caste which, as theMagistrate found, worshipped from outside, this being the religioususage and custom of the people of his caste.
LORD WILBERFORCE—Suntharalingam v. Inspector of Police,
Kankesanturm
459
The relevant portions of the Prevention of Social Disabilities Act 1057are the following:
THE PREVENTION OF SOCIAL DISABILITIES ACT,
No. 21 OF 1957
" An Act to prevent the imposition of Social disabilities on anypersons by reason of their caste.
******
“2. Any person who imposes any social disability on any otherperson by reason of such other person’s caste shall be guilty of anoffence and shall, on convict ion after summary t rial before a Magistrate,be liable to imprisonment of either description for a term not exceedingsix months or to a fine not exceeding one hundred rupees.
“ 3. For the purpose of section 2, a person shall be deemed toImpose a social disability on any other person—
“ (a) if he prevents or obstructs such other person from or in—
" (i) being admitted as a student to, or being employedas a teacher in, any educational institution ..
“ (6) If he prevents or obstructs such person, being the follower ofany religion, from or in entering, being present in, orworshipping at any place of worship to which followers oft hat religion havo access . .. ”
It is clear, on the Magistrate’s findings, that the action of the appellantfell directly within section 2 as read with section 3 (b) : the appellantdid not submit otherwise.
He contended however that the 1057 Act was invalid, or ineffective,for either, or both, of two reasons :
That it contravenes section 29(2) (tf) of the Ceylon (Constitution)Order in Council (C. 379).
That the governing provisions in relation to customary rightsand privileges of the castes to which the appellant and Sinniahbelong is tho Tesawalamai Regulation (C. 63) section 4, and that thiswas not displaced or overridden by the 1957 Act.
The appellant, in his printed case, referred also to section 29 (2) (a) ofthe Constitution which enacts that no Iav in Ceylon shall “ prohibit orrestrict the free exercise of any religion ”. But the respondent objectedthat no reference had been made to this provision in the judgments ofthe Courts below'. The appellant agreed that this point had not beentaken by him in the Supreme Court- The respondent also argued thatthe evidential material which would be required if it were to be consideredwas not before either Court or before the Board. Their Lordships wereof opinion that so fundamental a question as one which concerned the
400
LORD WILBERFORCE—Suntharalingam v. Inspector of Police,
Kankesanturai
constitutional validity of the 1957 Act, under the “free exercise ofreligion ” provision of the Constitution, could not be entertained in theabsence of any consideration of it by the Courts of Ceylon, and withoutthe necessary evidence as to what is comprised in Ceylon within thephrase " the free exercise of religion Accordingly they upheld therespondent’s objection and allowed argument only on the two pointsstated above.
Their Lordships deal first with the Constitutional objection. Therelevant provisions of the Order in Council are the following :
“ 29.(1) Subject to the provisions of this Order, Parliament shall
,:have power to make laws for the peace, order and good governmentof the Island.
(2) No such law shall—
******
alter the constitution of any religious body except with theconsent of the governing authority of that body7, so, however,that in any case where a religious body7 is incorporated bylaw, no such alteration shall bo made except at the requestof the governing authority of that bodv :… ”
These provisions are to be applied in the light of the well knownprinciple that “ unless .. it becomes clear beyond reasonable doubt
that the legislation in question transgresses the limits laid domi by theorganic law of the Constitution, it must be allowed to stand as the trueexpression of the national will ” (Shell Company of Australia v. FederalCommissioner of Taxation [1931] A.C. 275, 29S, citing Isaacs J.). 1
The evidence as to the organisation of the Maviddapuram Templeconsisted of certain orders of the Supreme Court and of the District Courtof Jaffna in an Action No. 16G0S made between Sth November 1919 and20th November 1954. On the latter date the District Court made a filialorder approving a Scheme of Management for the Temple. This Orderdeclared that the Temple and all its properties constituted a publiccharitable religious trust under section 99 of the Trusts Ordinance, No. 9of 1917 (C. 72) : that one Subramaniakurukkal Duraisamy Kurukkal wasthe hereditary7 trustee and high priest of the Temple, and after him hisheirs; that the Temple and its temporalities should vest in the hereditarytrustee and his successors in title. So far as these provisions are con-cerned there is no basis for contending that anything in the Act of 1957impinged upon them or prevented them from continuing to have effect.The apjiellant however relied upon a further provision (contained in theOrder of the District Court of 20th November 1954) that he (s.c. thehereditary trustee and high priest) shall be responsible for the properconduct and performance of the poojahs
1 {1931) A.C. 275, 293.
LORD WILBER FORCE—Suntharalingam v. Inspector of Police,
Kankesanturai
461
The appellant’s argument was that admission of persons oft he depressedclasses, of the Palla caste in particular, would result in a defilement whichwould make performance of the poojahs impossible. But their Lordshipsare in agreement with the Magistrate and with the Supremo Court bothof whom held that this is not a matter which would affect the constitutionof the Temple within the meaning of section 29(2)(<7)of the Constitution.They should add that they arc not, in any event, satisfied that thenecessary factual premise was established by the evidence, and therewas no finding to that effect by the learned Magistrate.
Thus the Act of 1957 cannot be said to be invalid by reason of section29 (2) (il) of the Constitution.
Their Lordships consider next the alternative submission of theappellant based upon the Tesawalamai, section 4 of which is in thefollowing terms:
4. All questions that relate to those rights and privileges whichsubsist in tho said province between the higher castes, particularlythe Vcllales, on the one hand, and the lower castes, particularly theCovias, Nalluas, and Palluas, on the other, shall be decided accordingto the said customs and the ancient usages of the province. ”
Three questions arc involved : first, were the relevant caste distinctionsrelating to entry to or exclusion from Hindu Temples, or portions ofHindu Temples, part of tho rights and privileges referred to in section 4of tho Tesawalamai and which under that section were to be decidedaccording to the customs and ancient usages of the Jaffna Province.Second : did the Act of 1957 have any effect upon pre-existing social .disabilities, or did it only relate to, and make illegal, fresh disabilitiesimposed after it came into force. Tim'd, does the Act of 1957 prevailover the customary rights and privileges referred to in section 4 of theTesawalamai Regulation and, in particular, does it prohibit the makingof caste distinctions relating to entry to or exclusion from HinduTemples,
On the first point, it was submitted by Counsel for the respondent,in an interesting argument, that distinctions of caste in matters ofreligion, were not. dealt with or preserved by the Tesawalamai at all.
It was pointed out that section VIII of the Tesawalamai, in whichmention is made of the four depressed castes, is a section dealingexclusively with slavery. “ The slaves of this country ” it states “ aredivided into four castes, viz. Koviyars, Cliandars, Pallars and HalavarsIt describes the duties and obligations of these castes, and states that thelatter two are slaves from their origin and remain so “ till the presenttime The status of slavery in Ceylon was abolished in 1844 (OrdinanceHo. 20, 20th December 1844) and all laws and ordinances toleratingslavery were repealed. From then on, and at the present time, so it wasargued, the Tesawalamai ceased to contain any significant provisionrelating to caste : the present Regulation (1956 Revision) appears in fact
K 9109 (12/71)
<62LORD WILBERFORCE—Suntharalingam v. Inspector of Police,
Kankesanlurai
only to contain one reference to caste at all, Part II, para. 7, dealingwith adoption. Thus there is no warrant for supposing that such religiouscustoms as may exist among Hindus, and winch are based upon caste,are validated by the Tesawalamai Regulation. It is true that religioususages have been upheld by the Court's of Ceylon—see Kvruklal v.Nuranny 1 C.L.R. of Ceylon 1910, Vol. II, p. 1S2, where an injunctionexcluding persons of the barber caste from a Temple was granted. Butthis case supports the respondent rather than the appellant, for it was• not based upon any regulation prevailing in Ceylon, but upon the rightsof the managers. A proprietary or quasi-proprietary right is quite adifferent thing from a right validated by regulation, and is one whichthere would be no difficulty in holding to be abrogated by the Act of1957.
The appellant, in answer to this argument, pointed out that section 4of the Tesawalamai Regulation contains no express reference to caste assuch. It referred to customs and ancient usages. The word “ caste ”is a foreign word in Ceylon : what is in issue in this case is a veryancient body of religious usage, unconnected with tho status of slavery.It was these religious usages which were intended to be validated orgiven statutory recognition by the Tesawalamai Regulation.
Their Lordships do not think it necessary in this appeal to decidebetween these two contentions. Indeed they would be reluctant to doso without much deeper research into the history of the Tesawalamaion the one hand and of Hindu religious usages in Ceylon on the other.They will assume for the present purposes, as was the view of the learnedMagistrate, that prior to the Act of 1957 the Tesawalamai Regulationapplied to and gave legislative sanction to such Hindu customary religioususages as are involved in the present case. The real question is whetherthese survived the Act of 1957.
TheirLordshipsareclcarlyof opinion (this is the second point mentionedabove) that the Act of 1957 did not merely prohibit, for the future, theimposition of fresh social disabilities but as from its date made illegalthe imposition of any social disability by reason of caste upon any person.Even if the words of section 2 (“any person who imposes any socialdisability on any other person ”) were equivocal, so that “ imposition ”could refer to some new burden, section 3 (which is that applicablein the present case) puts the matter beyond any doubt. It bringswithin the definition of imposing a social disability acts of prevention orobstruction, wlu'ch can only occur after the Act comes into force; andit is quite irrelevant that similar acts may have occurred before. Suchacts are directly made illegal. To make tliem legal if based on somepre-existing authority, the addition of qualifying words would be needed :no such words are contained in the section. Their Lordships arc thereforeat one with the learned Chief Justice in disagreeing with the expression of
1 (1010) 2 C. L. n. 182
Kothari v. Fernando
403
opinion of T. S. Fernando J. in Sevvanlhinalhan v. Xagalingam 1 (1960)69 N.L.R. 419, where he said that he was inclined to the view that theAct of 1957 only prevented the imposition of new disabilities.
Finall}' (the tliird question), can section 4 of the TcsawalaruaiRegulation survive the passing of the Act of 1957 ? In their Lordships ’opinion it cannot. They do not consider it profitable to discuss whether-either and which of these pieces of legislation was special or general.TI1C3' find it sufficient to apply the well settled rule that if “ ‘ theprovisions of a later enactment are so inconsistent with or repugnantto the provisions of an earlier one that the two cannot stand together ’,the earlier is abrogated by the later; ” (Maxwell on Interpretation ofStatutes 12th edition (1969) pp. 193 ffand cases cited). The firm languageof sections 2 and 3 of the Act of 1957, as its own wording shoes,is inconsistent in the fullest sense with the survival of rights to preventa person, by reason of caste, from entering in or worshipping at any-place of worship to which followers of that religion have access, whetheror not such rights are founded on custom or regulation or on acombination of both. It is the precise negative of whatever positiveauthority previously existed. If these rights were validated by section 4of the Tesawalainai Regulation, section 4 is pro tanto repealed.
The appellant's attack on the validity of the 1957 Act must thereforefail and it follows that his conviction must stand. Their Lordshipswould only add, in order to avoid misunderstanding, that the exclusionwhich is made illegal by sections 2 and 3 (b) of the Act of 1957 isexclusion by reason of the caste of the person excluded. Exclusions offollowers or worshippers, from places of worship within a Temple onreligious grounds uncoiuiected with caste, for example exclusion of allexcept the High Priest from the Moolaistanam, are unaffected by theAct.
– Their Lordshijis, for these reasons, will humbly advise Her Majestythat this appeal be dismissed.
Appeal dismissed.