One purpose of naming the officials concerned is to identify those whocould help the Court in the exercise of its inquisitorial functions inclarifying disputed facts. Another is to facilitate proof that the act inquestion was an executive or administrative act. The given title ordescription of a state officer or other person could be so indicative as toreduce the petitioner's burden of adducing evidence to establish that theact in question was an executive or administrative action. For instance,to say that Mr.X the respondent was a Police Officer or The Secretary ofa Ministry might provide a clue as to the capacity in which Mr. X acted. It
Samanthilaka v. Ernest Perera and Others (Amerasinghe, J.)
is in no way conclusive of the matter, for it may be established in thecircumstances of a case that Mr. X, whatever his designation or title mayhave been, in doing the act complained of, was not, after all, exercisingan executive or administrative action. It may have been a purely privateact or one which was in no way connected with the performance of hisofficial duties. There would then be no executive or administrative actionand the State would, therefore, not be liable, (See Saman v. Leeladasaand Another (2)).
It has been said, that another purpose of Rule 65 is to give an officernamed as a respondent, the opportunity of defending himself. (See per'Ranasinghe, J. in Ganeshanathan v. Vivienne Goonewardene and ThreeOthers, (3). This is an opportunity primarily for defending his conductwith the object of exculpating the State and incidentally exoneratinghimself personally. However, an investigation of the personal conduct ofofficials is not, in my view, the function of this Court in the matter of anapplication for relief and redress under Article 126 of the Constitution.That is a matter to which the attention of the appropriate persons may, ifthe circumstances warrant, be directed by this Court for such action as itmay deem to be necessary-This has been the practice of this Court in thepast. (e.g. see A.K. Velmurugu v. The Attorney-General and Another
,Vivienne Goonewardene v. Hector Perera and Others (5), Cf.M.K. W.AIwis v. Quintus Raymond and Others (6) and SubramaniamRagunathan v. M. Thuraisingham and The Attorney-General (7). And soI propose todo inthiscase, confirming, with respect, the customary actionof the Supreme Court in this regard. In so doing I am not condemninganyone but assisting the Government to become aware of violations sothat, through appropriate measures, it could restore and ensure therespect for fundamental rights which it expects of its servants, agents andinstitutions. The measures, with deterrence and prevention in view, mayinclude the punishment of transgressors, filling gaps in the laws orprocedures and strengthening protecting institutions.
The person who has infringed or is likely to infringe a fundamental orlanguage right is not a necessary party in the sense in which that phraseis used in connection with ordinary civil litigation. The failure to make aperson who is alleged to have violated or is likely to violate a fundamentalor language right a respondent in a petition for relief under Article 126 ofthe Constitution is not, in my view, a fatal defect. Indeed, such is thenature of the obligation under Rule 65 that the failure of a petitioner to
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personally, as distinguished from officially, identify the person violatinghis fundamental rights, (and presumably, therefore, being unable topersonally, name such person in his petition), or that he was mistaken(with the result that a wrong person is named as a respondent) will notstand in the way of a petitioner's application for relief if the Court issatisfied that a violation of a fundamental or language right had beenoccasioned by executive or administrative action. (See Mariadas Raj v.Attorney-General and Others (8),. at pp. 404,405, per Sharvananda, J.atpp. 404, 405, Ganeshanathan v.Vivienne Goonewardene and ThreeOthers (3) per Samarakoon, C.J. at pp. 330 -331 .See also KatunayakageDamesius Perera and Another v.R.Premadasa and Others (9), (1979)Fundamental Rights Decisions 70 at p.72; Saman v. Leeladasa andAnother (2).
In the case before us, the fact that the second Respondent has beenwrongly added and the fact that the three police officers named by thePetitioner in her Petition have not been mentioned as Respondents areof no consequence with regard to the question of establishing executiveor administrative action, since I am of the view that there is sufficientevidence to show that the infringement of the Petitioner's fundamentalrights was caused by Police officers acting in the course of their dutiesunder colour of office.
Nor was the State placed at any disadvantage by the Petitioner’sfailure to name as Respondents the Police officers she identified. TheState could have submitted the affidavits of those persons if, as thelearned Senior State Counsel suggested, their evidence was important.
Naturally, if their information was to be on the sparse lines of those ofthe second and third Respondents, such affidavits may have beenadvisedly omitted, adding as they would but little to the weight, andnothing at all to the quality of the evidence already adduced on behallf ofthe State. As for the opportunity for the officers who may have wished tohaveexplainedtheir personalconduct, they would. I hope, be given everyopportunity to do so when their conduct, personally, rather than theirconduct as agents of the State, is called in question in another place andat another time by other authorities. For the reasons stated in myjudgment I make order as follows
I hold that Gamaralalage Samanthilaka, the Petitioner in thiscase, was arrested by the Police and held in custody and
Samanthilaka v. Ernest Perera and Others (Amerasinghe, J.)
detained and deprived of her personal liberty by the Policewithout being produced before a Judge and otherwise thanaccording to procedure established by law, and, consequently,that the said Petitioner is entitled to a declaration that the Statehas acted in violation of her rights under Article 13(1) and (2) ofthe Constitution.
I further hold that the said Gamaralalage Samanthilaka wassubjected by the Police to such severe physical and mental painas amounted in law (Cf. Mrs W.M.K.de Silva v. P. Senaratne eta I (10) to cruel, inhuman and degrading treatment and punish-ment and, consequently, that the said Petitioner is entitled to adeclaration that the State has acted in violation of her rightsunder Article 11 of the Constitution.
The State shall be liable to pay a sum of Rs.25,000 to thePetitioner by way of compensation and Rs. 2,500 as costs.
The Inspector-General of Police, who in paragraph 9 of hisAffidavit has informed the Court that he has “given instructions to
' all the Police Stations concerning the manner in which a suspecttaken into custody should be treated by the Police officers and ifit transpires that these instructions have been violated that dis-ciplinary action will be taken against them, and also if there isevidence against any officer steps will be taken to prosecute himin court”, shall give effect to the said undertaking within threemonths of this Order.
For the purpose of assisting the Inspector- General of Police tocomply with the direction contained in paragraph (4) above, theRegistrar of The Supreme Court shall forward to the Inspector-General of Police a certified copy of this judgment together withcertified copies of the Petition and Affidavits filed in this case.
H.A.G. DE SILVA, J. -1 agree.
R.N.M. DHEERARATNE, J -1 agree.
Application allowed.
Compensation ordered.