010-NLR-NLR-V-72-C.-SUNTHERALINGAM-Appellant-and-R.-HERATH-Inspector-of-Police-Respondent.pdf
•54
H. N. G. FERNANDO, C.-J.—Santheralingam v. Herath
.1969Present: H. K. G. Fernando, C.J.
C. SUNTHERALINCAM, Appoliant, and R. HERATH(Inspector of Police), Respondent
S. C. 1192168—M. G. Mcillakam, 4700
Prevention of Social Disabilities Act, No. 21 of 1967—Sections 2 and 3—Temple entry—Discrimination on ground of caste—Culpability—Ceylon (Constitution) Orderin Council (Cap. 379), s. 29 (5) {(/)—Tesawalamai Regulation. (Cap. 03), s. 4—Penal Code, s. 1S3—Maxim generalia spocialibua non deroganb.
A person who prevents or obstructs, afc tho instance of the High Priest andhereditary trustee of a Flindu templo which constitutes a public religious trust,a Hindu worshippor of a different caste from entering into or beyond tho innercourt-yard of tho temple in breach of tho constitution of the religious trust and• of the custom or ancient usage observed in that temple, contravenes thoPrevention of Social Disabilities Act. In such a case, it cannot bo contendedthat the Prevention of Social Disabilities Act is ultra vires of tho provisions ofsection 29 (2) (cl) of the Constitution of Ceylon or of section 4 of the Tesawala-mat Regulation (Cap. 63).
Dictum in Scvvanthinathan v. Nagalingam (60 N. L. R, 419) disapproved.
.AlPPEAL from a jugdment of tho Magistrate’s Court, Mallakam.
C. Suntheralingam, with S. N. Rajadurai, R. R. Nallicth, P. Nagendran• and V. Shan.Tmigana.than, for tho accused-appellant.
D. Gurusivamy, Crown Counsel, for tho Attorney-General.
Cur. adv. vult.
May 13, 1969. H. N. G. Fernando, C.J.—
This is an appeal against the conviction of the appellant on a chargethat in contravention of the Prevention of Social Disabilities Act, No. 21of 1957, he did prevent or obstruct ono Sinniah, being a follower of thoHindu religion, from or in entering or being present in or worshipping ata place of worship to which followers of that religion have access.
The appellant did not at tho trial deny that he prevented or obstructedSinniah from entering the inner court yard of a Hindu Temple, or thatSinniah is a follower of the Hindu religion. The grounds of his appealare based on matters of haw.
The appellant firstly referred to a decree of Court declaring this Templeand its appurtenances to be a public religious trust, and declaring thoHigh Priest of the Temple to be its hereditary trustee, responsible inter<ilia for the proper conduct and performance of poojahs in tho Temple.
H. N. G. FERNANDO, C-J.—Svnthcralingam v. Ilcrath55
The High Priest had by the document DG authorised the appellant toact on his behalf in taking steps to secure that the customs and ancientusages of this Temple are observed, and the appellant’s position wasthat his act of prevention or obstruction (in relation to Sinniah) wasnecessary to prevent defilement of the Temple by the entry of a personof low caste; if there had been such defilement, he argued, poojahs couldnot be thereafter performed in the Temple. On this basis, the appellanturged that the Act of 1957, in purporting to penalise the prevention ofthe entry of persons of low caste into this Temple, has the consequencethat its operation can prevent the High Priest- from performing poojahsin this Temple, and that it is thus a law which alters the constitutionof a religious body; not .having been passed with the consent ofthe governing body, this law offended the provisions ofs. 29 (2) (d) of theConstitution of Ceylon, and was therefore void.
I agree with the learned Magistrate in rejecting this argument. Evenif all the " facts ” on which the appellant’s argument is based be correct,the question whether some persoil may or inaynot enter-or be preventedfrom entering, premises controlled by a religious body, is not one whichrelates to the “ constitution ” of that body. Section 29 (2) (d) of theConstitution of Ceylon would in my opinion apply only to a law whichpurports to alter the mode by which a religious, body is elected,appointed or otherwise set up, or to commit any power or function of sucha body to some other person, or to change the principles governing therelationship inter se of members of the body.
The appellant relied also on s. 4 of the Tesa walamai (Cap. 63) whichprovides as follows :—
“ All questions that relate to those rights and privileges whichsubsist in the said province between the higher castes, particularly theVellaJes, on the one hand, and the lower castes, particularly the Covias,Nalhias and Palluas, on the other, shall be decided according to thesaid customs and the ancient usages of the province. ”
The appellant’s contention was that it was a custom or ancient usageof the Northern Province that persons belonging to certain alleged“ low ” castes were not permitted entry into or be}7ond the inner court-yards of certain Temples, including the Temple to which this case relates,and that this custom or usage is a special law relating to Temple entry.This special law, he urged, was not superseded b3r any provision of theAct of 1957 because of the operation of the maxim “ generalia specialibusnon deroganfc The simple answer to this argument is that the Actcontains several provisions directly intended to afford to persons ofall castes the freedom to enter places of several specified descriptions ;these provisions thus constitute a special law which prohibits the obstruc-tion of the entry of persons into such places on the ground of t-heir caste.Even therefore if s. 4 of the Tesaivala>nai can be regarded as a speciallaw regulating Temple entry, the later special law contained in theAct must prevail over the former. •
■56
H. N. G. FJERi'JANDO, C.J.—Suiilheralingam v. Herath
The appellant also relied heavily on an observation in the judgmentin Sevvanthinathan v. Nagalingam 1 to the following effect :—
" I am inclined to agree also with the argument of Mr. Kanganathanthat sections 2 and 3 of the Prevention of Social Disabilities Act,No. 21 of 1957 do not have the effect of conferring on the followersof any religion a right of entering, being present in or worshippingat any place of worship which they did not have before the Act cameinto force ; in other words, the Act penalised only the prevention orobstruction of the exercise of a right which was an existing right atthe time the Act became law. ”
This observation was made obiter in the case under reference, but itis directly in point in the instant case. The Magistrate has found as afact that people of the caste to which Sinniah belongs used to worshipat this Temple only from the outer courtyard, and were not permittedto enter the inner yard. On that finding, the obstruction offered by theappellant did not interfere with rights which people of that caste usedto enjoy before the enactment of the Act of 1957.
With the utmost respect, I am unable to agree witli the very narrowconstruction which was given to the Act in the cited case. Let me■consider the first of the “ lights ” in respect of whch the Act prohibitsdiscrimination on the ground of caste, namely the admission of a studentto a school. If admission is refused on the ground of the student’scaste, there is nothing whatsoever in the Act which even by implicationcan permit the school management to plead,-as a defence to a chargeunder the Act, that students of that caste were excluded from that■school before the Act was passed. Nor is there anything in the Actfrom which it may be implied that in such a case the prosecution mustestablish that students of the complainant’s caste had prior to the Actenjoyed a right of admission to the school.
Having regard to the terms of the Act, a person commits an offenceif “he ‘prevents or obstructs another person in entering ” any of severalspecified places. The terms are substantially the same as those whichoccur in a provision like s. 1S3 of the Penal Code :—" Whoever volun-tarily obstructs any public servant. .. . . . in the discharge of his publicfunctions ”. If, as is manifest, s. 183 covers any obstruction to thedischarge of functions committed to a public servant both before andafter the enactment of the Code, the Act of 1957 equally covers obstruc-tion to any entry' to whch the Act refers, whether or not a right to suchentry had existed before the Act was passed.
The judgment in the 69 N. L. R. case appears to regard the Act of1957 as having been intended merely to prevent the imposition of .“ new ” social disabilities. If that be the intention, then the Act hasachieved nothing in practice, for in my understanding the social evilarising from distinctions of caste in this country at the present time is
1 {I960) 69 N. L. R. 419.
SIRIMAXE, J.—Marikkar v. The Queen
57
only that undemocratic and anti-social forms of discrimination stillpersist in some areas and communities despite popular opposition tosuch discrimination. I much prefer the construction, plainly appearingfrom the Act, that Parliament did intend to prevent forms of discrimina-tion which prevailed in the past.
The reasons stated by the learned Magistrate in this case deal adequatelywith the other matters urged by the appellant in support of his case.The appeal is dismissed.
Appeal dismissed.