Gunawardeaa v. Perera
RATWATTE, J., COLIN-THOME, J.,
AND SOZA, J.
S.C. APPLICATION NO.20/83.
May 25,31, June 1, 2, and 6, 1983.
Fundamental Rights – Violation – Illegal arrest and deten-tion – Cruel, inhuman and degrading treatment. Articles 11■ and 13 of the Constitution – Section 77 of the PoliceOrdinance – Section 32())(f) of the Code of Criminal
Proceduree Act. No. 15 of 1979.
The petitioner Mrs. Vivienne Gunawardena a veteranpolitician, along withothersstaged a
demonstration opposite the American Embassy on8-3-83 and thereafter walked back along the GalleRoad. When passing the Kollupitiya Police Station,a posse of policemen snatched the banners ' whichthey were carrying. The cameraman who was walkingalong with them took photographs of the saidincident.
On information that the cameraman was taken to thePolice Station the petitioner and two others walkedinto the Police Station to request the release ofthe cameraman.
While inside the Police Station, the 1st respondent(Officer-in-Charge of the Kollupitiya PoliceStation) arrested and detained the petitioner and
■Sri Lanka Law Reportstl9$3jl Sri Li?.
also subjected her to cruel, inhuman and degradingtreatment in violation of her fundamental rightsset out in Articles 11 and 13(1) Ofthh
Constitution. The let _ respondent denied theallegations against him. The 2nd respondeat(Inspector General of Police)among other
documents, filed an affidavitby one Vi
Ganesbanantham, (Sub-Inspector ofPolice)who
averred that it was he, who arrested thepetitioner, and that the arrest was made while: thepetitioner and others were walking along the GalleRoad, in a procession which whs. being conductedwithout ths authority of a lawful permit.
(1'That the petitioner had not established, , byproof to the high degree of probability required*,that she had been subjected to cruel, inhuman anddegrading treatment by the 1st respondent,
That the petitioner had been arrested, not bythe 1st respondent but by the Sub — InipectorGanesbanantham and that the arrest constitutes aninfringement of-a fundamental right sat dht inArticle 13 (1) of the Constitution.
Thet whether the State adopted it or dot; theaction taken by Sub-Inspector Ganeshanatitham, wasan executive action and . thereby the State wasliable for the said*; infringement* Thi . State wasalso ordered to pay compensation to the petitioner.
Held further (obiter);
That cross examination on the Affidavits, whenthere is a sharp conflict of testimony on aquestion of fact, could be permissible.
-Cases referred to
Velmurugu v; Th* tttdrney General and another
SCGunawarttena v. Perera (Soza, J.f307
S.C. application No* 74/81. – S.C. Minutes of 9-11-1981.
.Maharaj v, The Attorney General of Trinidadand Tobago (No. 2) –  A.C, 385, 399.
. Thornhill v. Attorney General of Trinidad andTobago –  22,, W.L.R. 510, 519.
.. Mariyadas Raj v. Attorney General and another- S.C. application No. 130/82 – S.C. Minutes of 14-2-1983.
. APPLICATION under Article 126 of the Constitutionfor violation of fundamental rights.
Dr. Colvin R. de Silva with V.S.A. PullenayagamR. Weerakoon and Miss., 5. de'Silva' for petitioner.H.L. de Silva, Senior attorney-at-law with V. Rat-nasabapathy for the 1st respondent.
Sunil de Silva Additional Solicitor General with K.Kumarasiri S.C. and A.K. Wickramanayake S.C. for2nd and 3rd respondeat.
Cur. adv. vuli.'
June 8, 1983.
In this application the petitioner complainsthat she was on March 8, 1983 subjected to illegalarrest and. detention- and cruel, inhuman anddegrading treatment in violation of her fundamentalrights by ".the 1st respondentwho isthe
Officer-in-Charge of the Kollupitiya PoliceStation. She now seeks relief and redress underArticle 126 of our Constitution of 1978.
The petitioner is a _ veteran politician 66years of age. .She has been a Member of Parliament
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[1983J1 Sri LR.
and in 1964 she was a Junior Minister. She is todaythe President of the Lanka Sama Samaja KanthaSansnelanaya – a Women's organisation interested andactive in local and foreign affairs. March 8, 1983was International Women's Day. As part of theprogramme of this day at about 8.45 a.m. thepetitioner along with members of her organisationand representatives of certain other women'sorganisations staged a demonstration displayingbanners and placards opposite the American Embassyemphasising the need to preserve the Indian Oceanas a Peace Zone and protesting against theestablishment of a nuclearised military base In theisland of Diego Garcia. They also handed over atthe Embassy a letter signed by the petitioner andthe leaders of two other women's organisations andaddressed to President Reagan. Thereafter thedemonstrators dispersed. The working women left fortheir places of work. The remainder along with thepetitioner started walking back along the left sideof the Galle Road towards Kollupitiya junction withthe object of going over to the petitioner's housein Kollupitiya. As they passed the KollupitiyaPolice Station a posse of policemen snatched thebanners which were being taken along to be storedin the petitioner's house. A short time later thepetitioner was informed that the newspapercameraman who had been walking along with them hadbeen taken to. the Police Station for taking snapsof the Policemen snatching banners. Thereupon thepetitioner along with Mrs. Ouida Keuneman and Mrs.Srima Wijetilleke walked into the Police Station torequest the cameraman's release. At the PoliceStation she found Mrs. Nanda de Silva already therespeaking on behalf of the Cameraman. The policeofficer there requested them to await the arrivalof the Officer-Tin- Charge of. the Police Station.About half an hour later the Officer-in- Charge whois the 1st respondent to this application arrived.The petitioner walked up to him and requested therelease of the cameraman. The 1st respondent
Gunawardena v. Perera ' (Soza. J.)
shouted at her, "Shut up, you are under arrest”.She explained that she was not under arrest but hadcone to the Police Station of her own accord toseek the release of the cameraman. Thereafter sheattempted to walk out of the- room where she wasseated to inform those outside not to trait forthem. She was then physically stopped by apoliceman and almost immediately the 1st respondentheld her and threw her oh the floor. While she layfallen the 1st respondent kicked her and put hisfoot on her leg. Mrs. Ouida Keuneman came to assisther to get up. She too was attacked by the 1strespondent and her saree was torn* Later the partyleaders and several others came but by then the 1strespondent had left the scene. The petitioner andthe others were later allowed to leave the PoliceStation. On her insistence her statement and thoseof her companions were recorded before they .leftthe Police Station. The police officers gave noreason for her arrest and detention. Apart from the1st respondent, the petitioner has named theInspector- General of Police and the Attorney-General as the 2nd and 3rd respondentsrespectively.
The petitioner filed with her affidavitthe annextures marked A to D. After the respondentsfiled their, affidavits and documents the petitionerfiled a counter affidavit and the document E. On19.5.1983 she was able to obtain the statement shemade to the police on 8.3.1983. This was handedover to her in Court and produced marked G with itstranslation Gl. What I have given above is aresume pf the petitioner's account of the incident.
On 20.5.1983 the petitioner filed theaffidavit dated 19.5.1983 of Mrs Ouida Keuneman.Strong objection was taken to the admission of thisaffidavit.Learned Senior Counsel for the petitionersubmitted that this affidavit was prepared by wayof response to what was alleged in the affidavits
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filed by the respondents. It could not be filedwith the counter affidavit of the petitionerbecause Mrs. Keuneman was campaigning in the recentby-elections and could not be contacted for thepreparation of an affidavit before the elections.This affidavit would not ordinarily have beenadmitted as it was. belated. Yet we admitted itbecause we felt that the excuse given sufficientlyexplained the delay. This affidavit was marked F.The learned Additional Solicitor-General then movedto mark Mrs. Keuneman’s statement to the policemade on the day of the incident. This was notobjected to and the application was allowed. Thisstatement was marked 2 R 3.
The version placed before this Court- onbehalf of the respondents is as follows : About10.15.a.m. of the day of the incident,that is, on8.3.1983, Sub-Inspector Ganeshanantham saw a crowdof over fifty.persons carrying banners and shoutingslogans, and walking along Galle Road from thedirection of Galle Face Junction towardsKollupitiya Junction. He went up with fourconstables to the lady at the head of theprocession and asked her whether "they had a permitto go in a procession'1 but neither she nor anyother member of the procession produced a permit.On thus becoming aware that the procession wasbeing conducted "without the authority of a lawfulpermit" and that the participants were committingan offence under section 77 of the PoliceOrdinance, in performance of his duty to ‘ preventthe conduct of the precession he directed themembers of the procession to 'discontinue theprocession and disperse. . The petitioner howeverpushed him aside and proceeded with the processionand thereby obstructed him in the performance ofhis lawful duty. With the assistance of the otherfour constables he arrested the petitioner and fourother persons and took charge of the banners of theprocessionists. At the time when he arrested the
SCGunawardena v- Perera (Soza, J.)^311
five persons be informed them of the reason fortheir arrest. The reason itself is not divulged inany of the affidavits filed by the respondents butduring the argument we were informed that it wasobstruction of a police officer while in theexecution of his duty for which section 32(l)(f) ofthe Code of Criminal Procedure Act, No. 15 of 1979authorises arrest without a warrant. It is onlyfair to add that this reason is adumbrated in theaffidavit of Sub-Inspector Ganeshanantham. TheSub-Inspector produced the five arrested persons at£he Police Station and made his entries in theRoutine Information Book at 10.45 a.m.
The 1st respondent who had come to the PoliceStation on hearing that a procession of women wasmarching from Galle Face towards KollupitiyaJunction in a protest demonstration, found that thepetitioner and three other ladies and oneSaranapala Pamunuwa had been arrested by Sub-Inspector Ganeshanantham for failing to dispersewhen ordered to do so and were being detained inthe Crime Bectective Bureau of the Station. Thepetitioner then tried to walk out of the PoliceStation. Sub-Inspector Ganeshanantham tried torestrain her but she pushed him aside. ConstableThaveendiradas also went up to prevent thepetitioner from going away but she slapped him. Atthis stage the 1st respondent intervened and heldher firmly by her hand. She struggled to freeherself and in doing so slipped and fell. Uhen shegot up a woman constable Ratnaseeli Perera detainedthe petitioner in the Crime Detection Bureau of thePolice Station on the directions of the 1strespondent. Later she was released on bail on Mr.Bernard Soysa signing as surety.
Along.with his affidavit the 1st respondenthas filed the affidavit (1R1) of Police ConstableThaveendiradas. The 2nd respondent has filed theaffidavits of Sub- Inspector Ganeshanantham (2R1)
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and Reserve Woman Police Constable RatnaseeliPerera (2R2) along with his own affidavit. Hie 1strespondent has also filed a typewritten document intwo pages . marked X which is subscribed with asignature si/jailt. to that of the petitioner. On thetop of the first" page of the letter there is somehandwritten matter making reference to a letterdated 18th March from the "Secy, to H.E. thePresident." Just before the typewritten matterbegins are written the words "Statement of Mrs.V.Goonawardene". The typewritten matter in document X-purports to be an account of the. incident by thepetitioner. In her counter affidavit however shedoes not make herself clear as to whether thetypewritten matter in document X is a statement ofhers or whether she admits or denies her signatureon it. The 1st respondent has stated in hieaffidavit that this document was received at hisPolice Station bf post.
It will be seen that we have before me twowidely different versions of the incident. The mainquestions of fact on which there is controversy are!
Was the. petitioner arrested by the 1strespondent inside the Kollupitiya PoliceStation or was she arrested (along with fourothers) by Sub-Inspector Ganeshanantham whenshe and the others arrested were walking alongGalle Rofe<! towards the Kollupitiya Junction ina procession of several persons carryingbanners and shouting slogans ?
Did the petitioner push Sub-InspectorGaneshanantham and slap constable Thaveen-dirades when they tried to restrain her fromwalking away from the Police Station and didthe 1st respondent then merely hold her firmlyby her hand to prevent her. from going awaywhereat she struggled to free herself andslipped and fell or did the 1st respondent
Gunawardena v. Penn (Son, J.)
throw her down and kick her and place his feeton her when she lay fallen?
Before I deal with the facts a word about theburden of proof. There can be no doubt that theburden is on the petitioner to establish the factson which she invites the court4 to grant her therelief she seeks. This leads to the next question.What is the standard of proof expected of her?Wanasundera,J. considered the question in the caseof Velmurugu v. the Attorney-General and another(l)and held that the standard of proof that isrequired in cases filed under Article 126 of theConstitution for infringement of fundamentalrights is proof by a preponderance of probabilitiesas in a civil case and not proof beyond reasonabledoubt. 1 agree with Wanasundera, J. that thestandard of proof should be preponderanceof
probabilities as in a civil case. It is generallyaccepted that within this standard there could bevarying degres of probability. The degreeof
probability required should be commensurate withthe gravity of the allegation sought to be proved.This court when called upon to determine questionsof infringeent of fundamental rights will insist ona high degree of probability as for instance acoart having to decide a question of fraud in acivil suit would. The conscience of the court mustbe satisfied that there has been an infringement.
The court has to be satisfied firstly thatthere has been an infringement of fundamentalrights and secondly that such infringement has beenby executive or administrative action.
The infringement complained of in this casefalls under two heads : 1
1.Degrading treatment of' the petitioner incontravention of Article 11- of the Consti-tution.
914Sri Lanka Law Report 1 Sri L1L
Arrest of thepetitioner contrary toprocedure established by ^lav. and withoutinforaing her of thereas©a8,in contravention
of Article I?. (l)of the Constitution*
The 1st respondent is accused of throwing thepetitioner down and kicking her and placing hisfoot on her leg when she lay fallen. Apart from theaffidavit of the petitioner herself and her ownstatement to the Police we have the followingmaterial on this point :
Affidavit of Mrs. Ouida Keuneaan where she says
she saw the 1st, respondent throw down thepetitioner. In the aeantiae sheherself was pushedabout and she saw the petitioner lying on the
fleer. when she west to help' the' petitieasr she, ssw;the first"'respondent’s boot ob, the petitionersbody.
S fitntrTiit of Mrs. Ouida-'Beuseuan to the .Bo&iee.*Here she says the Police Officers pushed thepetitiener and she fell down. Hben she fall she waskicked. -She does not single but the 1st respondentos being the perpetrator of any of these acts.
Bo specific allegation of kicking or degradingtreatment by the -1st respondent haa been Bade bythe petitioner ’ a, lawyer in. three^lettirar.a B,S| ffiady®written obviously on petitioner's instructions oo18.3.1983.
A. An affidavit of the . press photographer whosearrest, according to the petitioner, sparked offthis incident has not been filed. Heedless to sayhis testimony would have been very valuable yet ithas not been nade available.
SCCuMawartfeae v. Pemra (Sota, J.)JiJ
5. The 1st respondent and the ether Police Officerseke here filed affidavits have of course denied theallegations. The Police Officers for their -partsesase the petitioner of having poshed Sub-Inspector Ganeshananthem and slapped ConstableThaveesdlradas. Farther there is a statement in the .letter 1 that the petitioner twisted the era of aPoliceaan.
In this state of the.eyidence I regret I asnnahle to hold that the allegation of degradingtreatment has been aatabiisdiedby proof to the highdegree of probability required.
The Material relied on for the allegation thatthe 1st respondent wrested the petitioner is her.statement that when she pleaded for the release ofthe press photographer at the Police Station the 1strespondent's response was; "Shat up; you are underarrest". The petitioner asserted that she had comeinto the Police Station voluntarily to secure therelease of the press photographer but this was notheeded. There are also the affidavit and statement tothe Police of Mrs. Ouida Keuneaan to support thepetitioner. But the words "you are under arrest” areof ambiguous import. They could seen " you havealready been arrested" just as such as "I am nowplacing you under arrest".
The version of the respondents is that thearrest took place on the Galle Road before the 1strespondent came to the Police Station. The questionof who arrested and where is bound up with thequestion whether there was a procession beingconducted by the petitioner and the other ladiesalong Galle Road. On this we have conflictingtestimony. In the letter X the return trip of thepetitioner and the others with her is described as aMarch and again as a procession. There is also
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reference to banners. Here too the failure of thepetitioner to place before the Court an affidavit ofthe press photographer oust be regarded as a seriousshortcoming.
The rival versions on the question whetherthere was a procession have their infirmities.. Theburden of proof however is on the petitioner. In theresult it cannot be said that the petitioner hasaffirmatively proved in the manner required that shewas first arrested by the 1st respondent inside thePolice Station.
But here the petitioner has two strings to herbow. If it is not accepted that it was the 1strespondent who arrested her there is the admission bySub-Inspector Ganeshanantham that he arrested her andfour others as they were coming along Galls Road in aprocession about 50 strong carrying banners andshouting slogans. The petitioner can rely onSab-Inspector Ganeshanantham's claim to have arrestedher to prove her case. Sub-Inspector Ganeshananthamhas* stated. that he questioned the leader cf theprocession and asked her whether they had a permit.No permit was produced. He then directedthe
processionists to disperse but they attempted tocontinue in defiance of his orders. Hence he arrestedthe petitioner and the other leaders ofthe
procession and the press photographer and took themto the Police -Station^ He has . averred in hisaffidavit that he gave the reason for the arrest tothe arrestees at the time he arrested them. He hashowever not disclosed in his affidavit what thereason was which he gave.
Let it be borne in mind that it is importantthat the reason given should be stated to Court* Nodoubt failure to mention what the reason was to Courtwould not necessarily mean that no reason was givenat the time of arrest. But it is necessary that theCoer.: should have the reason given for the arrest
SC .Gunawardena v. Perera (Soza, J.).327
before it, because the legality of the reason•can be,'as it is here, a live issue in the case. The omission'to mention the reason given at the time of arrest isno doubt a grave lapse. Bfcs that as it may, Counselfor the respondents have given us the reason whichSub-Inspector Ganeshanantham gave the arrestees -obstructing him while an the excution of his duties.
1 will proceed on the footing that the reason for thearrest was given*. But was 1 ae arrest according toprocedure established by law?
The petitioner and her companions are allegedto have conducted a "procession "without the authorityof a lawful permit" and thereby contravened section77 'of the Police Ordinance. Section 77(1) forbids anyprocession being taken out or held in any publicplace in any urban area unless notice of- theprocession has, at least six hours before the time ofits ce^encement, been given to the officer in chargeof the police Station nearest to the place at Wsichthe procession is bo< commence.' Under subsections 2and 5 of this section every person who in1contravention of section 77(1) organises a
procession or does any act in furtherance of .theorganization or assembling of a procession, commitsan offence punishable by a fine not exceeding fivehundred rupees or imprisonment of either descriptionfor a term not exceeding six months or both such fineand imprisonment. Contravention of the provisions ofsection 77(1) of the Police Ordinance is aHon-=congnizable offence for which arrest without jawarrant is not permissible – see First Schedule ofthe Code of Criminal Procedure Act, No. 15 of 1979 atpage 241. Section 77(1) of the Police Ordinance doesnot make it an offence to take out or' holdprocession on a public road in an urban area withouta valid permit. No permit or even permission isrequired but only notice has to be given. TheOrdinance does not even prescribe written notice. Itcan be oral. Once notice is given or even otherwiseit would no doubt be lawful under section 77(3) for
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 1 Sri LR.
aii officer of police of a rank not below the grade ofAssistant Superintendent, if he considers itexpedient so to do in the interests of thepreservation of public order f to give directions(whether orally or in writing) prohibiting the takingout of any procession, or imposing on the person orpersons organizing or taking part in the processionsuch conditions as appear to him to be necessary,including conditions prohibiting or restricting thedisplay of flags, banners or emblems. But so far asthe organisers of the procession are concerned theonly legal requirement is to give notice and complywith the directions, if any, of an officer of policeof a rank not below the grade of AssistantSuperintendent.
It was submitted that during this period thePolice Stations in this area were placed in a stateof alert owing to the possibility of disturbances andSub-Inspector Ganeshanantham would have been awarethat no notice had been given of this procession tothe officer in charge of the Eollupitiya PoliceStation to which he was attached. But here we are inthe field of surmise. Sub-Inspector Ganeshananthamhimself says nothing of no notice having been givenin his affidavit. It is obvious that he was acting onthe footing that without a valid permit no processionis permissible. It must be emphasised that there wasno state of emergency on the 8th March,1983.
Accordingly there was no legal basis for Sub-Inspector Ganeshanantham*s order to the proces-sionists to disperse. The absence of a. permit did notmake the continuance of the procession an offence orany of the processionists liable to arrest. Thepetitioner and. the others who were with her were wellwithin their rights to ignore the orders of Sub-Inspector Ganeshanantham to disperse. I might addthat under Article 14 (1) (b) of the Constitution thefreedom of assembly is a fundamental right guaranteedto all citizens.
– SCtuaawardena v. Perera (Soza, J.) '■3i9
As his order to disperse was in thecirConstances illegal Sub- Inspector Ganeshananthaa isin no position to conplain that the petitionerobstructed him while in the execution of his duty.Therefore he is in no position to justify arrestingthe petitioner without a warrant by invoking theprovisions of section 32 (1) (f) of the Code ofCriminal Procedure Act, No IS of 1979.
On his own showing Sub-Inspector Ganeshananthnmwas guiltyofarresting the petitioner in
contravention of the Constitutional prohibition ofarrest except according to procedure established bylaw. The arrest constitutes an infringement of afundamental right. Sub-InspectorGaneshananthaa's
action no doubt proceeded from a wrong appreciationof the Law, but the infringement remains.
.Executive or administrative action.
I will now turn to a question on which we heardmuch argument from both sides. Was the infringementby executive or administrative action ?
Learned Senior Counsel for the 1st respondentwith support from the learned Additional Solicitor-General submitted that liability on the basis ofexecutive or administrative action can be establishedonly if the State has either expressly or impliedlyauthorised or ratified or adopted or condoned oracquiesced in the acts constituting, the infringement.The 2nd respondent has expressly sworn to the factthat he has not and will not authorise or condone anyillegal acts on the part of his officers. In hisaffidavit he states he has read the affidavit ofSub-Inspector Ganeshananthaa and being satisfied withthe truth of the averments therein he is producing itto Court marked 2R1. It is a reasonable inferencethat the 2nd respondent is adopting the action takenby Sub-Inspector Ganeshananthaa which no doubt wasfelt at that tine to be within the pale of the law. '
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Bence the infringement undt-i ‘iisc«3sioa passes eventhe test formulated by learned Senior Counsel for 1strespondent. Ijhave no difficulty in holding that theInfringment wife by executive faction for which theState is liable'. This should have been sufficient: todispose of thip case but in vjiew of the fact, that thequestion was argued at length before us., I willproceed to deal with it.
Hie remedy prescribed by Article 126 of theConstitution is available only where there is aninfringement or imminent infringement of a funda-mental right by executive or administrative action.The question is whether an act violating fundamentalrights committed under colour of office by a publicofficer constitutes executive or administrativeaction unless it is expressly or ispHedly authorised©r adopted or condoned or acquiesced in by the State.,
On behalf of the respondents it is argued thatconstitutional safeguards are directed ©gainst teheState and its organs and not against individuals.Hence fundamental rights guaranteed against Stateaction cannot be infringed by the conduct of publicofficials not impliedly or expressly authorised bythe State. To make the State liable for the acts ofits officials which it has not authorised expresslyor impliedly-would be to widen State liability toaH&ost- uncontrollable proportions.
The principle of liability fcowever-must not bedetermined on the basis of the extensiveness ornarrowness of its field of operation. Chapter 3 onFundamental Rights in our Constitution is concernedwith public law. Hie protection afforded is againstcantraver.S.ivs, of these rights by executive oradgiaistratlve action of the State and its organs.Public authorities clothed by law with executive andadministrative powers are organs of the State. Apolice officer using the coercive powers vested inhis by law acts as an organ of the State. As much as
jfir . . SmKmmdma v. Awera . f&ota, J.) 3&
the State is served when he enforces the Law, theState is liable for the transgressions of fundamentalrights he commits when he is enforcing the law.
Fundamental fights were secured and guaranteedeven by the 1972 Constitution but no specialmachinery for enforcement was provided. The Consti-tution of 1978 spells out in detail the FundamentalBights it recognizes and it has provided a specialforum and special machinery for enforcement and forthe grant of relief and redress. But the old forms ofprocedure and the old remedies still co-exist withthe new.
The question we are considering has been thesubject of judicial decisions in our Courts.Sharvananda,J. explained the principles on whichliability for infringement of Fundamental Eights isimputed to the State in the Velsserugn case (supra) asfollows :
"If the State invests one of its officers oragencies with power which is capable ofinflicting the deprivation complained of 5 itis bound by the exercise of such power even inabuse thereof; the official position makes theabuse effective to achieve the flouting of thesubject's fundamental rights. The State hadendowed the officer with coercive power, andhis exercise of its power, whether inconformity with or in disregard of fundamentalrights, constitutes 'executive action'. Theofficial's act is ascribed to the .State forthe purpose of determining responsibility,otherwise the Constitutional prohibition willhave no meaning."
The nature of the liability has been neatlyexplained by Lord Diplock in the Privy Councildecision in Naharaj v. The Attorney – General ofTrinidad and Tobago. (Mo.2) (2) in the followingwords:
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"? ..is is not vicarious liability; it is aliability of the State itself. It is not aliability in tort at all; it is a liability inthe public law of the State… .which has beennewly created…..”
lord Hailshaa oiL $t. Narylebone in his minoritydissenting judgment in this case did not agree withthis formulation because he found ” it difficult toaccomodate within the concepts of the law a typeof liability for damages for the wrong of anotherwhen the wrongdoer hlaself is under no liability atall and the wrong itself is not a tort or delict”.His Lordship found it equally difficult tounderstand that this was "some sort of primaryliability”. But what Lord Liplcck was emphasising .was that this was a new liability in public lawcreated by the Constitution ©£ Trinidad and Tobago,not to be considered'from the angle of the existing,bases of liability. InSriLanka too oar
Constitution has created a new liability in public■ law.
On the nature- of police duties Lord Mpleckagain made an authoritative pronouncement in thecase of Thornhill v. Attorney-General of Trinidad andTobago (3).
” It is beyond question, however,that a policeofficer in carrying out his duties in relation tothe maintenance of order, the " detection andapprehension of offenders and the bringing of thembefore s judicial authority is acting as a publicofficer carrying out an essential executivefunction of any sovereign state – the maintenanceof lav and order or, to use the expressionoriginally used in England, 'preserving the King'speace*."
Lord Diplock went on to point out that policeofficers are endowed with coercive powers to
■ SC. ■Gunawanlena v. Panra , (Sozs, *.}•,
perfora their functions. This is so in Sri Lenkatoo. Hence contravention by"the police of any ofthe Fundamental Rights guaranteed by the'
^Constitution east attract State liability.
The State no doubt cannot be cade liable forsuch infringements as may be committed in thecourse of personal pursuits of a public officer orto pay off his personal grudges. But infringementsof Fundamental Mights .committed under colour of ■office by public officers must result in liabilitybeing cast on the State.
Reliance was placed by learned Senior Counselfor the 1st respondent on the judgment of
Wanasundera^ J. in the Velsauruga case (supraX inthat case the majority view was that cm the factsthere was no.infringement of fundamental rights.Eeace the decision so far as it relates to theinterpretation of executive or administrativeaction must be regarded as obiter. Wanasundera, J.took the view that the State should be strictlyliable for the acts of its .high officials. OSsubordinate officials he says as follows:
"The liability in respect of subordinateofficers should apply to all acts done under -colourof office, i.e.t within the scopeoftheir
authority, express or implied, and should also'extend to such other acts that may be ultra viresand even in disregard of a prohibition or specialdirections provided that they are done in thefurtherance or supposed furtheranceoftheir
authority or done at least with the intention ofbenefiting the State".
This passage appears indeed to support whatthe petitioner is contending for. With greatrespect, 1 do hot'agree that any distinction shouldbe drawn on the. basis of the rank of the official.I can find very .. little in this judgment which
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supports the proposition which learned SeniorCounsel for the respondents have invited us toaccept.
The principle that the State is liable forinfringements of fundamental rights connitted undercolour of office by its public officers wasapplied by Sharvhnanda,J. in the case of MariyadasRaj v, Attorney-General and another1. He explainedthe principle of liability as follows:
" What the the petitioner is complaining ofis an infringement of his fundamental right byexecutive or administrative action', that the Statehas through the instrumentality of an over-zealousor despotic official committed the transgression ofhis constitutional right. The protection affordedby Article 126 is against infringement . e£fundamental rights by the State, acting by somepublic amtherity endowed by it with the necessarycoercive powers. The relief granted is principallyagainst the State, although the delinquent officialmay also be directed to sake amends and /or sufferpunishment.".
With this formulation I respectfully agree.In the instant case the action taken by. Sub-Inspeetor Ganeshanatham was 1 executive actionwhether the State adopted it or not.
Accordingly I hold that the arrest of thepetitioner was unlawful and contravened Article13(1) of the Censtitition. The State is liable forthe infringement. Therefore I order the State topay Rs. 2500/- as compensation to the petitioner.As this award is based on material placed beforeCourt by the Police Officers, I order mo costs.
Before I part with this – judgment I would lifceto advert to one last matter which has caused my
. SC.'Wigonesweron •/…325^
brothers and sts ssjss concern. As there was a sharpeoafltai of testimony on the question of cruel,inhuaan and degrading treatment we may haveexamined the question ofpermitting cross*
examination on the affidavits. However s&ch acourse was not in any event feasible as underArticle 126 (3) of the Constitution ve are obligedto deliver oar or4er today. In the circumstances wedirect the 2nd respondent to proceed with his,inquiries and tnke appropriate action in accordancewith the law in respect of the various allegationsmade against the 1st respondent.
. RATtfATTE* J„, ■ ; .1 agree. .
CQLXN-lMMEs Jo,: T agree.
Application nl&omtd and coppens&tiait entered.
GUNAWARDENA v. PERERA AND OTHERS