038-SLLR-SLLR-1981-1-VELMURUGU-v.-THE-ATTORNEY-GENERAL-AND-ANOTHER.pdf
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VELMURUGU
v.
THE ATTORNEY-GENERAL AND ANOTHER
SUPREME COURT
ISMAIL, J„ WEERARATNE, J., SHARVANANDA, J.
WANASUNDERA, J. AND RATWATTE, J.
S. .C. NO. 74/81.
OCTOBER 19, 20', 21 AND 30, 1981.
Fundamental Rights — Fundamental rights of freedom from torture or cruel, inhumanor discriminatory treatment or punishment — Fundamental right of freedom from arrestexcept according to procedure established by law — Articles 11 and 13 of the Constitu-tion — Administrative practice.
The petitioner a member of the District Development Council for Amparai wasprevented by army officers when travelling in a car with 3 others to go to the 4thColony. He was stopped at the junction on the 4th colony and obliged to turn back and goback towards Kalmunai.On'the way he apparently received various complaints of housesbeing burnt and assault. The petitioner put down the 3 persons who were in his car andproceeded back again towards the 4th Colony.
On the way he met Fr. Elmo Johnpulle who was going on a motor cycle towards the4th Colony ostensibly regarding the safety of his parishioners. The petitioners then goton to the pillion of the motor cycle and both of them went on the motor cycle to thejunction of the colony.
At this junction on the orders of the 2nd respondent the petitioner was taken intocustody by army personnel end put into a jeep. The petitioner was not informed of thecharge nor given the reasons for his arrest. The'2nd respondent told the army and policeofficers that they could take petitioner and do as they like with him and left the place.In consequence of what the 2nd respondent said the petitioner was then put on the floorof the truck and subjected to torture 8nd/or cruel, inhuman and/or discriminatory treat-ment or punishment by the army personnel. Thereafter the petitioner was taken to theCentral Camp Police Station where his statement was recordedon-directions of the 2ndrespondent. The 2nd respondent instructed the recording officer not to take down any-thing about the torture. He was made to sign the statement without reading it.
On the night of 9.8.1981 the petitioner was produced before the Magistrate to whomhe complained of difficulty to walk. The Magistrate however does not support the peti-tioner on this point.
The Doctor found injuries on the petitioner but the petitioner although he had com-plained of assault by army men had told the Doctor nothing about the 2nd respondent.
The petitioner complains of illegal arrest and torture and/or cruel, inhuman or degra-ding treatment and punishment.
Held: (Sharvanandar J. and Ratwatte, J. dissenting)
1. The test applied is the degree of proof, that is, preponderance of probability, usedin civil cases which is not so high as is required in criminal cases. But there can be degrees
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of probability within this standard. The degree depends on the subject-matter. Where theallegation is a serious one of torture and inhuman treatment by the executive and admi-nistrative authorities of the State, a high degree of probability which is proportionate tothe subject-matter is necessary.
2. Under our Constitution it is the illegal acts of.the executive organ alone thatcould be the subject-matter of proceedings under article 126.
The liability of the State extends to the unlawful acts of a wide class of publicofficers, including subordinate officers at peripheral levels who in nowise constitute thedecision making core of the administration. This is a new liability imposed directly onthe State by constitutional provisions. The common law test of tortious liability cannotprovide a sufficient test.
Article 11 which gives protection from torture and ill-treatment is the only funda-mental right that is entrenched in the Constitution in the sense that an amendment ofthis clause would need not only a two-third majority but also a Referendum. It is alsothe only right in the catalogue of rights set out in Chapter III that is of equal applicationto everybody and which in no way can be restricted or diminished. This right occupies apreferred position and it is the duty of this court to give it full play and to see that itsprovisions enjoy the maximum application..
The State should be held strictly liable for any acts of its high state officials. Theliability in respect of subordinate officers should apply to ail acts done under colour ofoffice, i.e. within the.scope of their authority, express or implied, and should also extendto such other acts that may be ultra vires and even in disregard of a prohibition or specialdirections provided that they are done in the furtherance or supposed furtherance oftheir authority or done at least with the intention of benefiting the State.
The application of a concept of administrative practice can extend State responsibi-lity to cases where the material before court can show that occurrence of the acts com-'plained.of can be attributed to the existence of a general situation created or broughtabout by the negligence and indifference of those in authority. In the instant case ifliability is to be imputed to the State, it must be on the basis of an administrative prac-tice and not on the basis of an authorisation, direct or implied, or that these acts weredone for the benefit of the State. It is not possible to characterise those acts, if they hadtaxen place as alleged as acts incidental to the authority and powers vested in thosepersons nor have they been performed to further some objective of the State. They seemto be in the nature of individual-and personal acts due to some aberration or idiosyn-cracy. They are also suggestive of the venting of some grievance of a personal or privatenature or in consequence of some strong passion, prejudice or malice. They are admit-tedly illegal and criminal acts and not merely acts that are unauthorised and ultra vires.
The alleged acts of torture and ill-treatment cannot impose liability on the State asa matter of law. The alleged acts have not been authorised, encouraged, or' counte-nanced or performed for the benefit of the State.
The Commission of the acts has also not been proved.
Cases referred to:
Maharaja v. Attorney-General of Trinidad and Tobago, (1978J 2 AH £8 670,679 PC: (No. 2) 119791 AC385. 396.
Thornhill v. Attorney-General [1980J 2 WLR 510, 519, 520 (P.C.).
Ex parte Commonwealth of Virginia 100 US 339, 346.
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(1981) 1 S. L. R.
Virginia v. Rives (ex parte Commonwealth of Virginia) 100 U.S. 313,321.
Neat v. Dataware 103 US 370.
Holme Telephone and Telegraph Company v. City of Los Angeles 227 US 278
57 L. ed. 510. SIS.
Raymond v. Chicago Union Traction Company 11907) 207 US20 — 52 L. ed. 78.
Iowa — Das Moines National Bank v. Bennett (1931) 284 US 239 — 76 L. ed.
265.
United States v. Classic (1941) 313 US 299.
Civil Rights Cases (1883) 109 US 3.
Shamdasani v. Central Bank of India Ltd. AIR 1952 SC 59.
Thadchanamoorti v. A. G. (S. C. 63/80 – S C. Minutes of 14.8.1980).
Ireland v. United Kingdom (Jan. 18, 1978 — Decisions of the European Court ofHuman Rights).
Sunday Lake Iron Co., v. Wakefield (1918) 247 US 350; 62 L. ed. 1154.
Kathiraning Bawat v State of Saurashtra AIR 1952 SC 123
Baten v Baten [ 1951) Probate 35
Blyth v Blyth [1966] I All ER 524
Loveden v Loveden (1810) 2 Hagg. Con. 1.3
University Grants Commission Case (S.C 57 of 1980) — S.C. Minutes of 8. 8. 1980
Application for Infringement of Fundamental Rights under Articles 11 and 13'of theConstitution.
V. S. A. Pullenayagam with R. Siriniwasam, S. C. Chandrahasan, G. Kumaralingam,C. V. Vivekanandan, Miss M. Kanapathipillai and T. Pakyanathan for petitioner.
G. P. S. da Silva Add!. S. G. with D. C. Jayasooriya S.S..C. and S. Ratnapala S. C for 1strespondent.
K. N. Choksy with Henry Jayamaha and P. Illeperuma for 2nd respondent.
Cur. adv. vult.
November9, 1981
ISMAIL, J.
The petitioner in this case is an elected member of theAmparaiDistrict Development Council, is a retired teacher and a prominentmember of the Tamil. United Liberation Front in that area. The2nd respondent had earlier served in the Kalmunai District as anAssistant Superintendent of Police and was presently stationed atNuwara Eliya in the same capacity until he was drafted tempora-rily and assigned duties as the Co-ordinating Officer in charge ofthe Central Camp Police area in the Amparai District. It wouldappear that this posting has been made in consequence ofcommunal disturbances which had flared up in that area inparticular some days prior to the date on which the incident inrespect of which this application is made by the petitioner hadoccurred. It is obvious that the 2nd respondent had been broughtdown from Nuwara Eliya and entrusted with special functions byreason of his knowledge of the locality, the people and otherfactors.
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In these proceedings the petitioner has invoked the specialjurisdiction of the Supreme Court under Article 126 of the Consti-tution on the basis that being a citizen of Sri Lanka, he has thefundamental right enshrined in the Constitution not to be subject-ed to torture or cruel, inhuman or discriminatory treatment orpunishment, as well as the fundamental right not to be arrestedexcept according to the procedure established by law, and thatwhen arrested he had to be informed of the reason for his arrest,which rights have been declared and recognised in articles 11 and13 of the Constitution.
The petitioner on this day in consequence of the communaldisturbances that had occurred for several days in that area hadconferred with the Tamil United Liberation Front Members ofParliament for Nallur, Udupiddy and Pandirippu and severalothers. While discussions were going on, as a result of certaininformation which had been conveyed to him and the others, hestates he left in a car with four others including the driver to go tothe 4th colony which came within the area covered by theAmparai District Development Council.
They left at about 4.30 p.m. and as they came up to the junctionof the 4th colony a jeep had come from the opposite directionmanned by army personnel and stopped in front of this car.The petitioner states that he got down from his car and introduc-ed himself to the army officer, who appeared to be the leader ofthe group, that he was.a Member of the District DevelopmentCouncil for Amparai..He says that the officer was adamant andtold him he did not care whether the petitioner was a member ofthe District Development Council or whether he was a Memberof Parliament and ordered him and others who were with him toturn back and go away. He at that stage made further remonstra-tion but the army officer was adamant He thereupon turned back,returned with the others in the car towards Kalmunai.
On the way back he had apparently met certain otherpersons who made various complaints to him of- houses beingburnt and assault He then put down the other three persons inthe car, turned back and proceeded towards the 4th colony, inspite of the order earlier given by the army officer.
Whilst he was so proceeding he states he met one. Rev. ElmoJohnpulle who was also proceeding towards the 4th colony on amotor bicycle ostensibly regarding the safety of his parishioners.The petitioner states he then got on to the pillion of the motorbicycle of Fr. Elmo and the two of them proceeded and came up
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to the junction of the 4th colony. There he had seen a shop ownerwho was known to him' standing in front of his-'shop with twoarmed constables on either side of him. As he went up, he sawfour or five jeeps and two army trucks with army and policepersonnel came up to the spot where the petitioner was andhalted there. He then states that the 2nd respondent who was inone of the jeeps had recognised the petitioner and gave an orderto arrest him, whereupon some of the army personnel, who werearmed had come running up to him, had taken him into custodyand put him into the rear of the jeep in which the 2nd respondentwas.
The petitioner complains that he was not informed of thecharge nor was he given any reasons for his arrest. In the meantimeFr. Elmo on orders of the 2nd respondent had been taken to thepolice station by an armed constable. He also referred to anincident at about 6 or 6.30 p.m. while they were proceeding inthe course of which certain accusations were made against him bythe 2nd respondent in the presence of army and police officers, irithe course of which the 2nd respondent had berated him and hesays that ultimately in paragraph 12(d) of the petition, the 2ndrespondent told the army and police officers to take the petitionerand to do as they like and thereafter the 2nd respondent left theplace leaving the petitioner in the hands of the army and policepersonnel. Thereafter he has in paragraph 13( 1 a) to (1g) specifiedthe acts of torture and or cruel inhuman and or discriminatingtreatment or punishment he had been subjected to by the armypersonnel. He states all these acts were done to him after he was •put on the floor of the truck in which there were about 20 or 30army personnel. It is important to bear in mind that it is thepetitioner's case that’this treatment was meted out to him inconsequence of what the 2nd respondent is alleged to have statedin paragraph 12(d).
Subsequently he states that the truck was stopped in a lonely,spot and he was asked to walk without looking back. He walkedsome distance and when he looked back he saw two soldiersstanding with guns aimed at him as if to shoot him. At thatstage some other soldiers he states ran up to those two soldiers andprevented them from shooting. Then he was ordered back intothe truck and when he got into the truck they had proceeded tothe Central Camp Police Station. He states that thereafter he wasordered to get down and he walked into the police station, As heentered the police station the 2nd respondent who was watchingfrom inside the station had made certain remarks in Tamil andsubsequently had ordered a police officer to record a statement
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from the petitioner but the 2nd respondent had ordered therecording officer not to take down petitioner's complaint aboutthe 2nd*respondent's conduct and the torture he was subjected to.He states that he was then made to sign the statement withoutit being read to him.
In respect of recording of this statement there is an affida-vit of M.A. Kamaldeen who was the officer who had recordedthat statement of the petitioner at the Central Camp PoliceStation (P.S. 10889). He in his affidavit had denied the severalallegations.made by the petitioner in respect of the recordingof that statement and denied that the petitioner made anyreference to any illegal conduct by the 2nd respondent or thathe had been subjected to-torture. He also stated that there was nooccasion for 2nd respondent to order that certain matter shouldnot be recorded by him since the petitioner did not make any suchcomplaints. He has specifically denied the averments in paragraph18 of the petition and affidavit.
To the averments made in paragraph 13(b), (c) and (d) aridparagraph 17 of the petition one A. G. Weerasekera a Major in theSri Lanka Army has filed an affidavit expressly denying the,allegations in the several paragraphs. In the affidavit he statesthat he saw the petitioner inside the police station sometimeafter 6.30 p.m. that evening and the petitioner had introducedhimself as the District Development Council Member for Amparaiand had askea him for his name and the unit to which he wasattached. He had told him that he was in command of the ArmyOperation Room at Amparai. He states that the petitioner didnot at that time complain to him that he had-been subjectedto torture or assault by army personnel or any other persons.He says if any such complaint had been made he would haveimmediately investigated into that complaint He has alsospecifically denied the entire incident referred to in paragra-ph 13(1a),(b).
The next step is when the petitioner was produced before theMagistrate at his bungalow on the night of 9th August 1981.The petitioner had made various allegations regarding whatis stated to have happened in the presence of the Magistratein paragraph 19 of the petition. In the course of the averments inthis paragraph of the petition the petitioner states theMagistrate had requested the 2nd respondent to drop thepetitioner at a convenient point on the petitioner, telling theMagistrate that he was finding it difficult to walk.
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There is a comprehensive report by the Magistrate whichhad been filed in this case and the Magistrate categoricallystates that the petitioner's statement that he had told him hewas finiding it difficult to walk was absolutely and categori-cally false. He stated that the petitioner at no stage mentionedto him about any difficulty in walking or any discomfort nordid he even complain of any physical assault, degrading treatmentor bodily abuse. The Magistrate further stated that he walked andtalked as a normal person. It is quite clear therefore when oneexamines the Magistrate's report to this Court .the record ofwhat had occurred and what he had observed during the period thepetitioner was before him, no complaint whatsoever of anyphysical discomfort or of his being harassed or of his being subjectto any torture or of his sustaining any injury had been made bythe petitioner to the Magistrate. This report is also to the effectthat.as far as the Magistrate could observe the petitioner did notappear to him to suffer from any physical discomfort, pain orinjury. When one reads the petition and the affidavit it is clearthat the petitioner does not appear to have any complaint withregard to the conduct of the Magistrate. On the other hand itappears from the facts stated by the petitioner that the Magistratehad been very sympathetic towards him and considering the tur-bulent times and the communal violence that had been prevalentin that area and in spite of the persistent urging by the 2ndrespondent, the Magistrate had refused to remand the petitionerand had taken the petitioner at his word and released him oncertain undertaking given by him and had asked him toreportatthe Magistrate's Court on the 12th. It is manifestly clear thereforethat the Magistrate had acted fairly and sympathetically towardsthe petitioner, and the petitioner nowhere in his affidavit orpetition makes any complaint of prejudice or bias or ill-will on thepart of the Magistrate. It is also clear.when one reads the petitionand affidavit that the petitioner had told the Magistrate certainthings in response to the 2nd respondent's requests to the Magi-strate and it appears to me from these facts that there was noimpediment whatsoever preventing the petitioner from informingthe Magistrate that he was subjected to cruel and inhuman treat-ment at the instance of the 2nd respondent. The petitioner has notset out any tangible or possible reasons as to why he did not tellthe Magistrate that he had been subjected to torture, assault orinhuman treatment etc. at the instigation of and instance of the2nd respondent. The failure on the part of the petitioner to havetold the Magistrate what had happened to him is to my mind verysignificant.
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In paragraph (2) of the petition there is reference to an applica-tion made by the petitioner's attorney for a private practitioner toexamine the petitioner as the DMO was not available. THis motionhad been dated 10.8.81 but the Magistrate states that this motionwas really supported on 11.8.81 and by that time DMO hadalready returned. In that motion there is no reference whatsoeverto the 2nd respondent being responsible for any of the injuries orwhat injuries were inflicted at the instance of the 2nd respondentIt is to be noted that this motion had been filed by one Mr. Siva-palan an Attorney at Law on behalf of the suspect
On the 12th the suspect had been present in Court and he wasrepresented by Attorneys M. Samsudeen, Mustapha, Kandiah andSivapalan. The journal entry indicates what the suspect had statedviz. that he be permitted to enter hospital, and that he had beenpermitted to do so. Even on that date no indication was given toCourt that injuries which necessitated an order of hospitalisationby the Magistrate, had been inflicted at the instance or instigationof the 2nd respondent
The next matter which merits attention is the medical reportof DMO Kalmunai dated 11.8.81. The doctor had described thevarious injuries he had found on the petitioner. He states thepetitioner gave a history bf assault by army men on 9.8.81. Evento the D.M.O. apparently the petitioner had not stated that thoseinjuries were inflicted on him at the instigation or at the instanceof 2nd respondent The 2nd respondent's name does not evenfigure at all in that complaint
Subsequently the petitioner has been examined by the JMO on
whose medical legal report has been marked P2. The shorthistory given by the petitioner to the JMO is assault by armypersonnel, even in this there is no reference whatsoever to the2nd respondent or his being responsible for the injuries sufferedby the petitioner.
The next important document which has a bearing on thematters in issue in this case is the document 2R15. 2R15 is arecording of the petitioner's statement at Ward No. 11 of theBatticaloa hospital by the Batticaloa Police. This statement hasbeen recorded on 14.8.81. It is in evidence that the 2nd respon-dent was not attached to the Batticaloa police and had no connec-tion with the Batticaloa police at any relevant period. The petiti-oner in 2R15 had made a comprehensive and detailed statement ofeverything which he states had occurred on this date. The maincomplaint Of the petitioner in this case against the 2nd respondent
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in so far as the injuries on him are concerned is what is stated inparagraph 12(d) of the petition and affidavit Though this state-ment 2R15 had been made five days after the alleged incident yetthis statement does not contain any allegation against the 2ndrespondent on the basis of what is stated in paragraph 12(d) of thepetition. When one reads this document it is clear that there is noreference whatever to the 2nd respondent instigating or urgingarmy personnel and others to do what they like with him. Accord-ing to the sequence of events indicated in 2R15 after ChandraPerera and the army officer left the petitioner had stated that thearmy personnel had put him into the lorry and from thereonproceeded to subject him to inhuman treatment When one readsthe trend of events as disclosed in 2R15 the impression one getson what the petitioner had told the police is that after the 2ndrespondent and the army officer had gone away from the scene,the army men had put him into the lorry and had proceeded toassault him. 2R15 is in Tamil which is the language of the petition-er. The statement had been read out to the petitioner who hadadmitted it was correct and had signed it P.C. 671 Raveendrarajahhad certified that he had accurately and faithfully recorded thestatement of Velmurugu, that is the petitioner.
As far as I can see from the facts in this case until this petitionwas filed in this Court on the 9th September 1981 there had beenno complaint made to any person in authority or to any responsi-ble person, whatsoever, that it was at the 2nd respondent's instiga-tion or urging that the army personnel had proceeded to attackthe petitioner in this case and cause those injuries.
Mr. Pullenayagam contended that there was no reason for thepetitioner to falsely implicate the 2nd respondent and saddle himwith this charge of being responsible for the several injuriessustained by the petitioner. One has to remember that die petitio-ner is the elected member of the Amparai District DevelopmentCouncil, is a retired teacher and a man who is actively engaged inpolitical activity for the Tamil United Liberation Front On hisown admission he had been in close association even on this daywith the higher-ups in the TULF, namely, Messrs. M. Sivasitham-param, T. Rasalingam and P. Ganeshalingam, Members of Parlia-ment for Nallur, Udupiddy and Pandirippu respectively andMr. Sivasithamparam is the President of the Tamil United Libera-tion Front It is clear therefore that the petitioner consideredhimself a man of some importance and a man of some standing inthat area and that people did generally look up to him for actionat least in the political sphere. What therefore would have beenthe reaction of the petitioner to the various acts against the
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petitioner attributed to the 2nd respondent in several paragraphsof the petition? In paragraph 12 he states that the 2nd respondenthad recognised the petitioner and shouted out, "You are here,arrest him". Even when they were proceeding at about 6 or 6.30p.m. he states the 2nd respondent ordered the vehicles to stop at alonely spot, the petitioner was then asked to get down from thejeep on the orders of the 2nd respondent The army and policestood around in a circle having put the petitioner along with the2nd respondent and their commanding officer in the centre (videpara 12). The 2nd respondent had then addressed the army andpolice officers and told them inter alia that (a) Mr. Amirthalingamwas a leader of the Tamil United Liberation Front and the tigermovement and that the petitioner was the local leader for theAmparai District, that Mr. Amirthalingam was causing the banksto be robbed and was distributing the money so got through thepetitioner, that the petitioner was the cause of all the communalviolence against the Sinhala people in the area and even for the1977 incident in Jaffna,that he was behind the burning of theTimber Depot at Pandirippu and such other false, mischievous andutterly malicious allegations. He further said that the petitionerand the said Messrs Sivasithamparam, Rasalingam and Ganesha-lingam Members of Parliament have been roaming the area incitingthe people, that they were Jaffna people who had no business inthat area.
In paragraph 19 the petitioner states that the 2nd respondentmade all sorts of malicious, communal and false allegations againstthe petitioner and even falsely stated that there were number ofcomplaints against the petitioner and strongly urged the learnedMagistrate to remand the petitioner. Further on he states that the2nd respondent then began to make some communal statementagainst the petitioner and that the learned Magistrate had askedthe 2nd respondent to keep quiet
In paragraph (20) the petitioner states that on coming out ofthe learned Magistrate's bungalow after the Magistrate hadswitched off the lights and locked his door the 2nd respondentgot hold of the petitioner by the collar of his shirt and told him inTamil "that so long as this Perera lives, Perera will some day shootthe petitioner7'. In the same paragraph he states that a little whilelater while dropping the petitioner at the junction the 2ndrespondent has stated "if I see you at the Central Camp area I willshoot you".
It appears to me therefore that if reasons were needed forimplication of the 2nd respondent by the petitioner, the peti-
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tioner's statement with regard totheconductofthe2nd respondentto which I have made reference would be enough motive forpetitioner to implicate the 2nd ‘respondent falsely. One has tokeep in mind that if the 2nd respondent had used this languageattributed to him as described in the petition both in the presenceof the army and police personnel and in the presence of theMagistrate and.the threat held out to the petitioner indicatedin paragraph 20, the petitioner would have been a person whowould have had ample ground to falsely implicate the 2nd res-pondent Accordingly Mr. Pullenayagam's contention that therewas no motive for the petitioner to falsely implicate the 2nd res-pondent in a charge of this nature appears to me withoutsubstance. There is no doubt that if the 2nd respondent had usedthe words at various instances ascribed to him the petitioner musthave felt utterly humiliated, resentful, hurt and even infuriated.
Even in petitioner's statement 2R15 he had stated that ChandraPerera ASP had the intention to make the police and army officer. have a bad opinion about him and attributed to him these words:
"This is the District Development Council Member. He is abig rogue. He is the organiser of the Tiger group. He wasresponsible for the communal riots. This fellow with Mr. Siva-sithamparam, Mr. Rasalingam and Mr. Ganeshalingam havegone round the place and instigated racial violence, theyshould be taught a proper lesson".
He ran him down further and abused him as a terroristMr. Chandra. Perera asked him "How are you", then he said"What business have you got here", "I replied, 'I would definite-ly come as a Member of the District Development Council in orderto find out the needs of the people' then he said that he had cometo know that Mr. Sivasithamparam and others came and addedwhat business have they got — he also abused them."
Therefore when one takes into consideration talks and behaviourattributed to the 2nd respondent by the petitioner in the petitionand in 2R15 can one say that the petitioner was without a motiveto implicate the 2nd respondent without justification, particularlysince the petitioner states that all the allegations made by the 2ndrespondent were false, without foundation and were mademaliciously in order to disgrace him and diminish his standingin the eyes of various people.
Therefore when one considers the various opportunities thatexisted for the petitioner, if he was truthful, to state the realcause of his injuries was attributable to the instigation offered by
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the 2nd respondent and that injuries were inflicted upon him inconsequence of such implication, then it is patently clear that thepetitioner had several opportunities open to him at which he couldhave mentioned the 2nd respondent as a person who caused thoseinjuries to be inflicted on him. The petitioner had not mentionedthe 2nd respondent as being responsible for these injuries inhis first statement recorded by D. C. Kamaldeen. The army officerWeerasooriya in his affidavit states no mention was made to himof any injuries being inflicted on him oh this evening and it ispatent that no allegation in respect of injuries were made to himimplicating the 2nd respondent. Then when one considers thefact that the petitioner was produced by the 2nd respondentbefore the Magistrate, the Magistrate makes quite clear that at nostage had any complaint been made to him of any injuries suffe-red by the petitioner nor any accusations made that the 2nd res-pondent had been responsible for instigating the army personnelto deal with him as they chose. If the petitioner's story is’true thatthe injuries were inflicted at the instance of or at the instigation ofthe 2nd respondent he could have mentioned the 2nd respondentby name or description to the DMO or JMO. He has failed to do soand finally even in the comprehensive statement made by the peti-tioner to P.C. 671 Raveendrarajah at the Batticaloa General Hospi-tal there is no reference whatsoever to the 2nd respondent askingarmy personnel to take him and do as they wish and injuries beinginflicted upon the petitioner in consequence of such conduct bythe 2nd respondent. All these facts which I have enumeratedthrow considerable doubt.on petitioner's allegation that injurieswere inflicted on him by army personnel at the instance or at theinstigation of the 2nd respondent.
The evidence in this case discloses that as a result of communaldisturbances there have been several cases of looting, arson, assaultand other violent crimes prevailing in this area for several daysprior to this incident. The evidence also discloses that the 2ndrespondent had been specially drafted to serve in this area fromNuwara Eliya because of his knowledge of the locality, terrain andthe general background of the people in this area. Vie had beendesignated as the Co-ordinating Officer between various police‘ stations in the area and also between police and army detachments— vide paragraphs 10, 11, 12 of the 2nd respondent's affidavit. Itis also in evidence that earlier as a result of communal disturbancesin 1977 this entire area had been subjected to a great deal ofunrest and violence particularly since there were a large number ofcolonies populated both by the Sinhalese and Tamils and therewere also Muslim settlements. In view of the recent history of thisarea the authorities had been apparently apprehensive, and may bejustifiably so, that eruption of communal violence in that area had
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to be dealt with effectively. Perhaps it is with this background inmind that the 2nd respondent had been specially sent to thisarea since he had considerable knowledge of the area as he hadearlier been stationed at Kalmunai.
The facts also indicate that even at the time of this particularincident there had been a series of other incidents consequent ascommunal violence had flared up between the major communities.In this background it has to be borne in mind that the 2nd respon-dent had been saddled with a great deal of responsibility and inorder to effectively deal with the various situations that arose andwere likely to arise, he had been entrusted with the task of co-ordinating action between the police and the army. When oneviews this matter in the light of the 2nd respondent's responsibili-ties and his duties and the demands that would be made on hispersonal services, it is clear that once the petitioner had been arres-ted in view of the prevailing situations in that area one could nothave reasonably expected the 2nd respondent to have kept thepetitioner under his eye so to speak throughout the entire periodhe was in custody from time of arrest till he was handed in at theCentral Police Station later on in the evening. It is also clear fromthe evidence that immediately after the 2nd respondent had arres-ted the petitioner, the 2nd respondent had entrusted the petitio-ner to either the army or police personnel who were present andthe 2nd respondent had had to rush to the 3rd colony in order todeal with certain incidents involving arson, looting and physicalassault taking place there. The responsibility placed on the 2ndrespondent clearly and manifestly indicate that he had to be alertto everything that was happening in that area and he himself hadto personally co-ordinate security forces to deal with situations asand when they arise. It is in this light that one has to view theaction of the 2nd respondent when after he arrested the petitionerhe had to rush in order to deal with a situation which had arisenin the 3rd colony.
Mr. Pullenayagam impressed on us that after the 2nd respon-dent had taken the petitioner into custody, in the interval betweenthe convoy of vehicles leaving the 4th colony and the 2nd respon-dent's meeting it again at the 3rd colony, the 2nd respondent hadfailed to satisfy this Court as to how the petitioner had beenplaced in custody and who was responsible for his custody and onhis failure to explain this, one must necessarily accept the petitio-ner's version of what is stated to have occurred during this period.As I have pointed out it would have been humanly impossible forthe 2nd respondent to have kept a fatherly eye on the petitionerthroughout the the period he was in custody, in view of the urgent
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and ugly situation that had prevailed at this time. Quite apart fromthat the 2nd respondent in his affidavit in paragraphs 17 to 20had given, a summary of what had occurred at this time. Then inparagraph's 30,31 and 32 the 2nd respondent had specifically deniedthe various averments contained in paras 12 and 13 of the petitio-ner's affidavit and had in several paras given his version of whathad actually occurred on this date.
In the circumstances it appears to me that at the most the con-tention of the petitioner and of the 2nd respondent is wordagainst word. The petitioner's allegation in respect of what the2nd respondent has stated to have done to him or caused to havedone to him received no corroboration whatever from severalsources which would have corroborated his story if it were true.As I have indicated in the course of my order the petitioner'sversion of how he came by his injuries received no corroborationfrom any of these sources.
Then again one has to keep in mind that the petitioner is aperson who has on his own admission been very much concernedwith the welfare of his people. Even during this time of tensionand terror when he was ordered by the army officer earlier thatday to go back to Kalmunai and not to be in the vicinity ofthe 4th colony, he had proceeded back dropped three of hiscompanions and had come back again to the junction of the4th colony where he was confronted by the army and thepolice and the 2nd respondent. Viewed in this light and in theabsence of independent evidence to corroborate that he wasinjured on the evening of the 8th during the period of his arrestand custody one is left to wonder whether he could not have beeninjured in some other incident after the 2nd respondent haddropped him consequent on the orders of the Magistrate nearhis home. There is not an iota of evidence apart from theassertion of the petitioner to indicate that he had sufferedany kind of injury or physical discomfort during the periodup to the time he was released by the Magistrate. I amadverting to this aspect of the matter purely for the reason thatSenior Attorney appearing for the petitioner contended thatit was incumbent on the 2nd respondent to explain theinjuries on the petitioner. Such explanation in my opinion,could only arise if the facts point to the conclusion thatinjuries were sustained by the petitioner after arrest andduring the period of his custody. To my mind there isconsiderable doubt as to how and when the petitioner cameby his injuries.
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Mr. Pullenayagam submitted that two questions of law emergefor consideration in this case, firstly the burden of proof requi-red in a case of this nature and secondly whether an act of thisnature by an individual which is outside the scope of his legitimateduties would come within the ambit of executive or adminis-trative action. Both these questions have been comprehensivelydealt with by Justice Wanasundera and I am in entire agreementwith his views as expressed in his judgment. I do not think itnecessary for me, in view of the findings of fact I have arrived at,to deal at any length or repeat my conclusions on the two ques-tions of law that have arisen for determination in this case.
Even on the basis that the standard of proof required in acase of this nature is on a balance of probability, I am of the viewthat the petitioner has failed to prove his allegations as againstthe 2nd respondent. In the circumstances I dismiss this app-lication with costs payable to the 2nd respondent.
WEERARATNE, J.
I am in agreement with the judgment and order of my brotherIsmail, J. to the effect that the petitioner's allegations against thesecond respondent have not been established on the facts whichhave transpired in this case. In view of this finding the questionsof law raised before us do not arise.
SHARVANANDA, J.
By his application dated 9th September, 1981 made to this Courtunder Article 126 of the Constitution, the Petitioner has allegedthat one D. K. Chandra Perera, who at the relevant time was aPolice officer in the service of the Government holding the rankof Assistant Superintendent of Police, had infringed the funda-mental right conferred on him by Article 11 of the Constitution,namely, freedom from torture, by causing the Army to commitvarious acts of torture on 9th August 1981 while the Petitionerwas in his custody. The Petitioner along with his application hasfiled his affidavit testifying to the circumstances in which he wastaken into custody by the 2nd Respondent when he was functio-ning as the Co-ordinating Officer of the Central Camp Police in theAmparai District, along with the Army, in charge of securityarrangements, and how, while he was in such custody, the 2ndRespondent, saying, inter alia, that the Petitioner was the causeof all the communal violence against the Sinhalese people of the
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area, told the Army to take him and do as they like with him andhow in consequence various acts of torture were committed onhim by the Army. He has cited the Attorney-General and the saidD. K. Chandra Perera as 1st and 2nd Respondents, respectively, tothis application. The 2nd Respondent has filed affidavit admittingtaking the Petitioner into custody on 9th August 1981, butdenying that he instigated the Army to torture the Petitioner, andalso denying that the Army ever indulged in the acts of torturedescribed by the Petitioner in his affidavit.
Article 11 of the Constitution guarantees that "no person shallbe subjected to torture or to cruel, inhuman or degrading treat-ment or punishment." The practice of torture is prohibited in allcivilized societies. Article 11 is on the same lines as Article 5 ofthe Universal Declaration of Human Rights. The fundamentalnature of the human right of freedom from torture is emphasizedby the fact that no derogation is permitted from this right underany conditions, even in times of war, public danger or otheremergency. This human right of freedom from torture is vouchednot only to citizens, but to all persons, whether citizen or not. TheConstitution is jealous of any infringement of this human right.This care is not to be exercised less vigilantly, because the subjectwhose human dignity is in question may not be particularlymeritorious.
By way of preliminary objection to the application, the Attor-ney-General submitted that the material before the Court did notdisclose an infringement by "executive or administrative action"of the fundamental right guaranteed by Article 11 of the Consti-tution. He stated that only violations of fundamental rights by exe-cutive or administrative action attracted the remedy prescribedby Article 126 of the Constitution. He contended that the phrase"executive or administrative action" in Article 126 signified"State action" and that a wrongful act of a Public officer, assu-ming it to be done under colour of office, was no more than anindividual or private wrong, unless it was sanctioned by the Stateor done under State authority. Counsel for the 2nd Respondentadopted the said objection and associated himself with the sub-missions of the Additional Solicitor-General who appeared for the1st Respondent at the argument before this Court. He urged thatwhen a State officer commits an act in contravention of Chap. Illof the Constitution, such an act is not justiciable under Article126, although performed in the course of his public duties, unlesssuch act is supported by the executive branch of the State. Hestressed that unless there is the element of State support, givenantecedently or subsequently, the executive or administrative
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action postulated by Article 126 is not there. His argument wasthat "executive action" represented "the action of the collectivewill of the State and not that of the individual Public officer."
The preliminary objection raises questions of great publicimportance regarding the dimension of the Constitutional remedyafforded by Article 126 of the Constitution for infraction offundamental rights. The essence of a fundamental right lies inits enforceability against the organs of the State. The freedomsand rights enshrined in Chap. Ill of the Constitution are butempty formulae if they may be infringed upon with impunitywithout incurring any sanction. Judicial review is necessarily thebulwark of the freedoms guaranteed by the Constitution. Article4(d) of the Constitution provides that "Fundamental rightswhich are by the Constitution declared and recognized shall berespected, secured and advanced by all the organs of the Govern-,ment and shall not be abridged, restricted or denied, save in themanner and to the extent hereinafter provided". The framers ofthe Constitution, however, have made justiciable only the infrin-gement or imminent infringement by executive or administrativeaction of the fundamental right or language right declared andrecognised by Chap. Ill or Chap. IV of the Constitution. ThisArticle is directed against the Executive and is designed as acorrective for executive excesses only. Under the Constitution, theSupreme Court is the Court charged with the duty of safeguardingthe fundamental rights and liberties of the people by the grant ofspeedy and efficacious remedy under Article 126, for the enforce-ment of such rights. The importance and beneficial effect of thisjurisdiction cannot be overestimated. This Court has been consti-tuted the protector and guarantor of fundamental rights againstinfringement by State action of such rights; in view of the vitalnature of this Constitutional remedy, it is in accord with theaspirations of the Constitution that this Court should take a liberalview of the provisions of Article 126, so that a subject's right tothe remedy is in no manner constricted by finely spun distinc-tions concerning the precise scope of the authority of Stateofficers and the incidental liability of the State.
It is to be noted that the claim for redress under Article 126 forwhat has been done by an executive officer of the State is a claimagainst the State for what has been done in the exercise of theexecutive power of the State. This is not vicarious liability; it isthe liability of the State itself; it is not a liability in tort at all;it is a liability in the public law of the State. — vide Maharaja v.Attorney-Genera! of Trinidad ((1978)2 A.E.R. 670 at 679 P.C.)H)
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If the State invests one of its officers or agencies with powerwhich is capable of inflicting the deprivation complained of, it isbound by the exercise of such power even in abuse thereof; theofficial position makes the abuse effective to achieve the floutingof the subject's fundamental rights. The State had endowed theofficer with coercive power, and his exercise of its power, whetherin conformity with or in disregard of fundamental rights, constitu-tes "executive action". The official's act is ascribed to the Statefor the purpose of determining responsibility, otherwise theConstitutional prohibition will have no meaning.
The idea underlying Article 126 is that no one by virtue of hispublic office or position should deprive a citizen of his fundamen-tal rights without being amenable to Article 126, even thoughwhat the official did constituted an abuse of power, or exceededthe limits of his authority. This sweep of State action, however,will not cover acts of officers in the ambit of their personal pur-suits, such as rape by a Police officer of a woman in his custody,as contended by the Additional Solicitor-General; such act has norelation to the exercise of the State power vested in him. Theofficer had taken advantage of the occasion, but not his office, forthe satisfaction of a personal vagary. His conduct is totally uncon-nected with any manner of performance of his official functions.
The "Executive" may be broadly defined as "the authoritywithin the State which administers the law, carries on the businessof the Government and maintains order within and security fromwithout the State." (Wynes — Legislative and Executive Powers inAustralia (Third Edition at p. 507). Executive functions thusinclude, in addition to execution of the law, the conduct ofmilitary operations, the provision of supervision of such welfareservices as education, public health, transport, etc.
The 2nd Respondent is a Police officer charged with law enfor-cement duties. In the performance of his duties, he represents theexecutive arm of the State. "It is beyond question that a Policeofficer in carrying out his duties in relation to the maintenance oforder, the detection and apprehension of offenders and the brin-ging of them before a judicial authority is acting as a Public officercarrying out an essential executive function of any sovereign State
— maintenance of law and orderIt is also beyond question
that in performing these functions. Police officers are endowedwith coercive powers by the common law, even apart from anystatute. Contravention by the Police of any of the human rights orfundamental freedoms of the individual ….. thus fall squarely
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within what has been held by the Judicial Committee in Maharajav. A.G. of Trinidad and Tobago (1979 A.C. 385 at 396)'^' to bethe ambit of the protection afforded by section 6, viz. contraven-tion by the State or by some other public authority endowed bylaw with coercive powers." (Thornhill v. Attorney-Genera/ (P.C.)(1980) 2 W.L.R. 510 at 519, 520)<2).
The Fourteenth Amendment of the United States Constitutionprovides that "no State shall make or enforce a law which shallabridge the privileges or immunities of the citizen of the United
Statesnor deny to any person within its jurisdiction the
equal protection of the laws." The prohibitions of this Amend-ment extend to State action through its judicial, as well as throughits legislative, executive or administrative branch of Government.The judgments of the Supreme Court of the United States, ofAmerica as to what actions constitute "State action," vis-a-visthe Constitutional prohibition, furnish helpful guidance for theresolution of the question in issue.
n Ex parts Commonwealth of Virginia (100 US p. 339 at 346 ^))speaking by Mr. Justice Strong, the Court said, referring to theprohibitions of the Fourteenth Amendment:
"They have reference to actions of the political body deno-minated a State by whatever instruments or in whatever modes,that action may be taken. A State acts by its legislative, itsexecutive or its judicial authorities. It can act in no other wav.The Constitutional provisions therefore must mean that no agen-cy of the State or of the officers or agents by whom its powersare exerted, 'shall deny to any person within its jurisdictionthe equal protection of the laws. Whoever by virture of publicposition under a State Government deprives another of pro-perty, life or liberty without due process of the .law, or deniesor takes away the equal protection of the laws, violates theConstitutional inhibition; and as he acts in the name and for theState, and is clothed with the State's power, his act is that ofthe State. This must be so, or the Constitutional prohibition hasno meaning, when the State has clothed one of its agents withthe power to annul or evade it."
In Virginia v. Rives – ex parte Commonwealth of Virginia— 100 US p. 313 at 321W, the Supreme Court, dealing withthe question of discrimination in the selection of jurors bythe Sheriff, stated:
"If the officer to whom was entrusted the selection of personsfrom whom the juries for the indictment and trial of the peti-
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tioner were drawn, disregarding the statute of the State, confi-ned his selection to white persons and refused to select anypersons of the coloured race, solely because of their colour,his action was a gross violation of the spirit of the State's laws,as well as the act of Congress which prohibits and punishes suchdiscrimination. He made himself liable to punishment at the ins-tance of the State, and under the laws of the United States. Inthe one sense, indeed, his act was the act of the State andwas prohibited by the Constitutional Amendment."
In Neal v. Delaware (103 US p. 370)(5). a discriminatingenforcement in practice of laws which were in their terms undi-scriminating was again held to be within the aforesaid Amend-ment. "The action of those officers, in the premises, is to bedeemed to be the act of the State." The above passage fromex parte Virginia 339 was reiterated in support of this proposition.
In Holme Telephone and Telegraph Company v. City of LosAngeles (227 US p. 278 – 57 L. ed 510)(6), the Supreme Courtheld that the prohibitions and guarantees of the FourteenthAmendment were addressed to and controlled not only theStates, but also every person, whether natural or juridical,who is the repository of State power, and that a case whereone in possession of State power uses that power to the doingof wrongs which are forbidden by the United States Consti-tution Fourteenth Amendment is within the purview of thatAmendment, even though the consummation of the wrong maynot be within the powers possessed, if the commission of thewrong itself is rendered possible or is efficiently aided by theState authority lodged in the wrong-doer. Chief Justice Whitein delivering the judgment of the Court said, with referenceto the argument that an unauthorised act of a State agent isnot State action within the meaning of the Fourteenth Amend-. ment of the Constitution of the United States (57 L. ed. at515), that:
"The proposition relied upon pre-supposes that the terms ofthe Fourteenth Amendment reach only acts done by Stateofficers which are within the scope of the powers conferredby the State. The proposition hence applies to the prohibitionsof the Amendment, the law of principal and agent governingcontracts between individuals and consequently assumes that noact done by an officer of the State is within the reach of theAmendment unless such act'can be held to be the act of theState by, the application of such law of agency. In other words,the proposition is that the Amendment deals only with the actsof State officers within the strict scope of the special powers
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possessed by them and does not include abuse of power by anofficer as a result of a wrong done in excess of the powersdelegated. Here again, the settled construction of the Amend-ment is that it pre-supposes the possibility of an abuse by aState officer or representative of the powers possessed and dealswith such a contingency. It provides, therefore, for a casewhere one who is in possession of State power uses that powerfor the doing of the wrongs which the Amendment forbids,even although the consummation of the wrong may not bewithin the powers possessed if the commission of the wrongitself is rendered possible or is efficiently aided by the Stateauthority lodged in the wrong-doer. That is to say, the theoryof the Amendment is that where an officer or other represen-tative of a State, in the exercise of the authority with which heis clothed, misuses the power possessed to do a wrong forbiddenby the Amendment, inquiry concerning whether the State hasauthorised the wrong is irrelevant and the Federal judicialpower is competent to afford redress for the wrong by dealing
with the officer and the result of his exertion of power."
Th.e Court referred with approval the holding in Virginia v.Rives (100 US p. 313)^) that the enforcement by a State officialof a non-discriminating statute in a discriminatory manner waswithin the Amendment.
In Raymond v. Chicago Union Traction Company ((1907) 207US 20 — 52 L. ed. 78) (7), the Supreme Court stated that theprohibitions of the Fourteenth Amendment related to and coveredall the instrumentalities by which the State acts and reiterated thatwhoever by virtue of public position uder a S.tate Governmentdeprives another of any right protected by the Amendment againstdeprivation by the State, violates the Constitutional inhibition;and as he acts in the name of the State and for the State and isclothed with State power, his act is that of the State.
In lowa-Des Moines National Bank v. Bennett ((1931) 284 US239 — 76 L. ed. 265)^®), the Court held that although the prohibi-tion of the Fourteenth Amendment has reference exclusively toaction by the State as distinguished from action by private indivi-duals, the rights they protected may be invaded by the act of aState officer under colour of State authority, even though he notonly exceeded his authority, but also disregarded special com-mands of the State law. "When a State official acting under colourof State authority invades in the course of his duties a private rightsecured by the Federal Constitution, that right is violated even if
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the State officer not only exceeded his authority but also dis-regarded special commands of the State law.
Misuse of power possessed by virtue of State law and madepossible only because the wrong-doer is clothed with the authorityof State law is action taken under colour of State law. — videUnited States v. Classic ((1941) 313 US 299) <9>.
Thus, in the U.S.A. it has been established that the guaranteeof the Fourteenth Amendment extends to all State action and thatthe 'State,' in this context, includes every repository of Statepower. "State action" even extends to acts done by public officersmisusing their power; it is immaterial whether the State has autho-rised the act or not, provided it is done under colour of law orauthority.
The Additional Solicitor-General relied on the following passagein the judgment of the Supreme Court of the United States in theCivil Rights cases (109 US p. 3)^0) in Support of his submissionthat the Constitutional remedy is not available against violation offundamental rights by individuals.
"It is proper to state that civil rights such as are guaranteedby the Constitution against State aggression cannot be impairedby the wrongful acts of the individuals unsupported by Stateauthority in the shape of laws, customs, or judicial or executiveproceedings. The wrongful act of an individual, unsupported byany such authority, is simply a private wrong or a crime of thatindividual; an invasion of the rights of the injured party, it istrue, whether they affect his person, his property or his reputa-tion; but if not sanctioned, in some way by the State or notdone under State authority, his rights remain in full force,'andmay presumably be vindicated by resort to the laws of theState for redress."
The above passage must be understood in its context. There, theCourt rested its decision upon the explicit language of the Four-teenth Amendment, which is that "no State" shall deny equal,protection of the laws or due processes of the law; it does not
say that "no person shall deny". State action alo.ne is
■ forbidden to deny fundamental rights. Private individuals areno so enjoined. Constitutional guarantees of fundamental rightsare directed against the State and its organs, both under section14 of the United States Constitution and under Article 126 ofour Constitution. But when a person is deprived of his Constitu-tional rights by a State officer in the performance of his duties.
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a quite different situation is presented. A "State officer'' is the'State' against which the provisions of the Fourteenth Amend-ment and of our Article 126 are intended.
IV'r. Choksy, in support of his submission, referred to the follo-wing passage in Chaudhuri — Law of Writs and FundamentalRights (2nd Ed, Vol. 1,p. 17):
"Fundamental rights afford protection against State actionand not against action of private individuals — Constitutionalsafeguards are, as a rule, directed against the State and itsorgans and not against private individuals. Civil rights guaran-teed against State action cannot be infringed by (surely privateconduct, except when it is supported by State authority."
To the same effect is a citation by the Additional Solicitor-General from Basu — Commentary on the Constitution of India(Vol. I, 3rd Ed. at p. 70). After referring to the passage in theCivil Rights cases ((1883) 109 US p. 3) ^ quoted above, theauthor, states:
"The rights guaranteed by Articles 19(1) and 31(1) of ourConstitution (Indian Constitution) are available only against .State action. Violation of such rights by individuals is not -. within the purview of these Articles."
Reference was also made to the judgment of the IndianSupreme Court in Shamdasani v. Central Bank of India Ltd.(A.I.R. (1952) S.C. 59)^ ^ where it was stated:
"Neither Article 19(1) nor Article 31(1) on its true cons-truction was intended to prevent wrongful individual acts or to
provide protection against merely private conductThe
language and structure of Article 19 and its setting in Part IIIof the Constitution (Indian) clearly shows that the Article wasintended to protect those freedoms against State action otherthan in the legitimate exercise of its power to regulate privaterights of property in the public interest. Violation of rightsof property by individuals is not within the purview of theArticle."
In the above case, the petition was for the enforcement of thepetitioner's fundamental rights under Article 19(1 )(f) and Article31(1) of the Indian Constitution against the Central Bank of IndiaLtd. a Company incorporated under the Indian Companies Act,1882. The Central Bank of India Ltd. (respondent) was admittedly
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not a State agency or department and hence its action was not Stateaction. The State was therefore in no way involved. The Constitu-tional remedy is available only against a case of infringement byState action. Hence it was correctly held that the petitioner hadmisconceived his remedy in applying for a Constitutional remedy tothe Supreme Court for the infringement of his fundamental rights bya private person.
In this case, if the 2nd Respondent had committed those actsof torture complained of by the Petitioner when he was notperforming his official duty but in the course of his personalpursuits, the Constitutional remedy under Article 126 will certainlynot be available to the Petitioner. The distinguishing factor in thiscase is that the Respondent, acting under colour of the law, hadcaused the torture to be inflicted when he was holding the Petitionerin custody.
The Respondents relied also on the judgment of this Court inThadchanamoorti v. A. G. (S. C. 63/80 – S. C. minutes of 14thAugust 1980)(12) jn support of their proposition as to what ismeant by "executive or administrative action" as required byArticle 126. The decision in Ireland v. United Kingdom '^) bythe European Court of Human Rights was referred to, and thefollowing comment of Harris in his book "Cases and Materialsof International Law" was considered pertinent in decidingwhat is meant by "executive or administrative action ":
"In its – judgement (the Irish case), the Court approvedthe rule that has been developed in the Commission'sjurisprudence by which local remedies need not be associatedwhere the act or acts claimed to be in breach of the Convention isor are shown to, be in consequence, of 'administrative practice',namely,,a practice which, although unlawful under the defendant'sState Law, has been adopted or tolerated by its official or agent andnot just an isloated act or acts in breach of the Convention."
There is no justification for equating "executive or administra-tive action" in Article 126 to "administrative practice" or to actsresulting from administrative practice. "Practice" denotes "habitualor systematic performances" and contemplates a series of similaractions. No known canon of statutory interpretation warrants such anarrow or limited construction of the phrase "executive or admini-strative action", which, ordinarily understood, embraces in its sweepall acts of the Administration, especially when what is at stake is thesubject's Constitutional remedy. In my view, all that is required of apetitioner under Article 126 is that he should satisfy this Court thatthe act of infringement complained of by him is the action of a State
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official or repository of State power. Any violation of fundamentalrights by public authority, whether it be an isolated individual actionor consequent to administrative practice, furnishes, in my view,sufficient basis for an application under Article 126.
The motive for the infringement by the State officer is notrelevant. In Sunday Lake Iron Co. v. Wakefield (1918) 247 US 350:62 L. ed. 1154),^4) the complaint was against the Tax Officer whowas alleged to have assessed the plaintiff's properties at their fullvalue, while all other persons in the country were assessed at notmore than one-third of the worth of their properties. It was held thatthe equal protection clause could be availed of against the TaxOfficer. A charge of violation of equal protection (fundamentalright) thus lies against an officer of State who is guilty of discrimi-natory conduct in his official capacity when carrying out the provi-sions of a law which are not themselves discriminatory. In Kathiran-ing Bawat v. State of Saurashtra (A. I. R. (1952) S. C. 123)(^B.K.Mukerjee, J. observed as follows:
"It is a doctrine of the American Courts which seems to mewell founded on principle that the equal protection clause can beinvoked not merely where discrimination appears on the expressterms of the statute itself, but also when it is a result of improperor prejudiced execution of the law: vide Weaver on Constitu-tional Law, p. 404."
The complainant under Article 126 is concerned only with theimpact of a State officer's action on a person's fundamental right;it is sufficient for him to show that he is aggrieved by such transgres- •'si on. Thadchanamoorti's case mentioned above suffers from the factthat the judgments of the Supreme Court of the United States or ofIndia which are very elucidatory of the question in issue have notbeen considered.
It is to be noted that in Maharaja v. Attorney-General of Tri-nidad (1979 A.C. 385)(1' and Thornhill v. Attorney-General ((1980)
2 W.L.R. 510 '*) cited above), the complaint in each case wasof isolated acts of infringement of fundamental rights by a Stateofficial. The Privy Council held that the fundamental right of thepetitioner in each case had been violated by the State. To decidethe issue, the Privy Council did not embark on any investigationwhether there was an administrative practice countenancing suchinfringements.
The facts in issue on this application have to be decided on theevidence placed before this Court in the shape of affidavits andexhibits marked by the parties.
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According to the petitioner:
He is a retired teacher and an elected Member of the AmparaiDistrict Development Council, having won the election to the saidCouncil as a Member of the Tamil United Liberation Front. On 9thAugust 1981, there was communal trouble in the 3rd and 4th colo-nies. He had, about 4.30 pirn, that day, become aware that a numberof houses belonging to the Tamils in that area were burnt down. Thesaid colonies came within the area covered by the Amparai DistrictDevelopment Council. Being concerned about the happenings there,he went to the 4th colony. He was going towards the Central Camparea Police Station with a view to meeting the Officer-in-Chargethereof to urge protective action. As he was going past the 4thcolony junction, he was taken into custody by the 2nd Respondent,who was going in a convoy of 4 or 5 jeeps and about two armytrucks with Army and Police personnel towards Sadayanthalawai. Ata lonely spot, the 2nd Respondent ordered the vehicles to be stoppedand the Petitioner was then asked to get down from the jeep inwhich the 2nd Respondent was travelling. On the orders of the2nd Respondent, the Army and Police officers stood around in acircle, with the Petitioner in the centre. The 2nd Respondent thenaddressed the Army and Police officers and told them, inter-alia,that the Petitioner was the cause of all the communal violence agai-nst the Sinhalese people in the area and that the Petitioner with theTamil Members of Parliament of the Tamil United Liberation Frontwere roaming the area inciting people. The 2nd Respondent there-after told the Army and Police Officers to take the Petitioner and doas they like with him and left the place leaving the Petitioner in thehands of the said Army and Police personnel. The Petitioner wasthen put on the floor of the truck with about 20 or 30 Army per-sonnel, and while the truck was moving, the Petitioner was sub-jected to, inter alia, the following acts of torture and cruelty anddegrading treatment by the said Army personnel:-
He was kicked all over the body with shod feet and trampledon his back with shod feet;
He was ordered to speak in Sinhala and when he said he didnot know Sinhala, he was. hit on his face by the Armypersonnel with their fists;
The petitioner was then, asked to repeat after the Armypersonnel disparaging and obscene statements that theymade in Sinhala regarding Mr. A. Amirthalingam arid Mrs.Amirthalingam, and when the Petitioner pretended thathe did not hear them properly, they pulled and twisted hisears;
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The Petitioner was then asked to stand in the truck andthen kicked on his chest with shod feet by a soldier whohung on the bar of the truck with his arms and swung hisfeet so as to kick the Petitioner, and when the latter jerkedbackwards due to the force of the kick, he was hit and pus-hed forward by other Army personnel who were standingbehind him;
Tufts of his hair and beard were twisted and pulled andstrands of hair were plucked; portions of his beard and hairwere also burnt with lighted matches;
If) When the petitioner, tried to protect his beard and hair beingso burnt, with one of his arms he was made to lie on the floorof the truck and his arm was twisted and placed on his backand then trampled upon with shod feet; and
He was hit with gun butts on his head, and other parts ofthe body.
When the truck reached the Central Camp area Police Station,the 2nd Respondent was there at the Police Station. The 2ndRespondent then asked the Petitioner: "How are you feeling now"?Thereafter, on the orders of the 2nd Respondent, a Policemanrecorded a statement from the Petitioner, and when he referred tothe 2nd Respondent's conduct and the torture he was subjected to,the 2nd Respondent ordered that such matters be not mentionedand he was made, to sign the statement which was in Sihhala. There-after, at about 11.00 p.m., he was taken to the Kalmunaj Magis-trate's bungalow. There, the 2nd Respondent urged the Magistrateto remand .the Petitioner. The Magistrate, however, did not makeany order remanding him, but requested him to stay indoors andappear in Court on 12th August 1981. He did not tell the Magis-trate about the torture inflicted on him by the. Army, but hadtold him that he found it difficult to walk. In his statement to theBatticaloa Police on 14th August 1981 recorded at the Batticaloahospital, he had stated the reason why he did not tell the Magis-trate that he was assaulted by the Army. He said: "Because I fearedthat I would be attacked and I was, to be taken by them again.When I was put into the jeep again, he (2nd Respondent) showedme his revolver and said that he would one day or other shoot me.I kept silent.'"(2R15)
According to the 2nd Respondent:
He was posted to the Central Camp Police with instructions tointensify security arrangements in the Central Camp Vellavalai
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and Uhana Police areas with the assistance of the Army. He wasdirected by the Inspector-General of Police to take steps to bringunder control the communal violence in the area and also to takenecessary steps to prevent its escalation or continuance. Hisfunctions included liaison between the Po|ice Stations in his areaand also between the Police and Army detachments and ensuringadequate patrolling and prevention of physical violence, arson andlooting. From inquiries and Police intelligence he became awarethat the Petitioner was one of those who incited violence. On9.8.81, when he was at the Vellavalai Police Station, shortly after4.00 p.m. he received a message that a Sinhalese man in the No. 3colony had been stabbed and his wife had been assaulted and inconsequence a large number of huts in the No. 4 colony which waspopulated by Tamil persons had been set on fire. He immediatelyproceeded by jeep accompanied by two other jeeps — one a Policejeep and the other an Army jeep — with Police and Army personnel. ‘On the way he met the Petitioner at the junction of the No. 4colony. He took the Petitioner into custody pending further inqui-ries on suspicion of his instigating and inciting communal dishar-mony and violence, as he suspected the Petitioner of instigation inconnexion with the incidents that had just taken place.On reaching the No. 4 colony, he found several huts burnt andsome still smouldering. Most of the inhabitants had previouslyentered refugee camps. The remaining people had informed himthat some villagers had come across the paddy fields, set fire to thehuts, saying that the Tamil people had stabbed Sirisena of theircolony. He observed a crowd of people in the paddy field at adistance and thereupon he gave chase with tha assistance of thePolice and Army personnel. On reaching the No. 3 colony, he madeenquiries and questioned the villagers in order to ascertain thepersons responsible for burning the huts in the No. 4 colony. Whenhe was questioning the colonists, Lt. Col. Mohandas Sumanasenaarrived there with Sirisena and two suspects, Vallipuram andPonnadurai, who were suspected of having stabbed Sirisena. There-after he sent a message for the vehicle which was still in the No. 4colony to be brought to the junction of the roads leading to theNo. 4 colony and No. 3 colony. His jeep came to the No. 3 colonyand he got into the jeep and proceeded to the junction. At the junc-tion he found that the other vehicles had arrived from the No. 4colony and that Lt. Col. Sumanasena had also come to the junctionwith his vehicles. All the occupants, including the Petitioner, hadalighted and were awaiting him. Major Arianda Weerasekera had alsocome there. They all decided to return to the Central Camp areaPolice Station. He travelled back in his jeep, while the Petitioner,Sirisena and the other two suspects got into the other vehicles inwhich the Police and the Army personnel travelled. On arrival at the
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Central Camp area Police Station, at about 6.30 p.m. he instructeathe Officer-in-Charge and P. S. Kamaldeen to record the statementsof the suspects. Thereafter, at about 11.00 p.m. he produced thePetitioner before the Kalmunai Magistrate and moved that he beremanded. There, the Petitioner stated to the Magistrate that hewould be leaving for Peradeniya on 12.8.81 after reporting to Courtthat day and gave an undertaking to remain indoors till 12.8.81.The Petitioner made no complaint to the Magistrate of any assaultor incitement by him to be assaulted. Thereafter he took thePetitioner in his jeep and left him in the Kalmunai town. He deniedthe allegations made by the Petitioner against him.
According to the record maintained by the Magistrate:
On 10.8.81, Mr. Sivapalan, Attorney-at-Law for the Petitioner,filed a motion in the Magistrate's Court that "permission be grantedto take Dr. Murugesupillai and treat the suspect at his residence, asthe D.M.O. was not available at Kalmunai." On that date itself,-theMagistrate had made order: "D.M.O. to examine and report if thepatient needs hospitalisation or other treatment." The D.M.O. in hisreport dated 11.8.81 to the Magistrate states:
"I examined Mr. K. Velmurugu (petitioner) of Pandiruppu
today at your request. He gives me a history of assault by Army
men on 9.8.81 evening with boots, hands and rifles.
On examination —
He is a case of mitral incompetence (valvular heart disease)which necessitates treatment by a physician. Probably due toassault, he has
contusions and abrasions on the back of the chest;painful swelling of left wrist;
abrasions on legs and left ear-lobe;
swelling of both ankle-joints;
tender and painful left jaw-joint on movement;
tender and swollen left mastoid process where fracturecannot be excluded.
I am of opinion that he should be kept under observation andtreated in a hospital where investigation facilities and Consultantsare available."
On 12.8.81 the Petitioner appeared in Court. The record states:"Suspect states he desires to enter hospital. He is permitted to doso. D.M.O. should mention his condition."
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The Petitioner was admitted to the General Hospital, Batticaloa,at 4.50 p.m. on 12.8.81 and he was examined by the J.M.O. atat 8.00 a.m. on 13.8.81. The doctor's report P2 reads as follows:
"Short History:
Assault by Army personnel with boots and rifle. Patient wassuffering from mitral incompetence, heart disease."
The medical report proceeds to set out in detail a number ofinjuries found on the Petitioner and states that the injuries werecaused by blunt weapon. The J. M. 0. further states that the X'raysrevealed "fracture of neck of left side of mandible."
The Petitioner was discharged from the hospital only on 25.8.81.
When the present application was supported on 24.9.81 in thisCourt, this Court called for the observations of the Magistrate withregard to the Petitioner's version of what happened on 9.8.81 inthe Magistrate's presence.
In his report, the Magistrate has stated that the 2nd Respondentstrenuously urged the remanding of the Petitioner, on the groundthat the Petitioner was inciting communal feelings and that securitycould not be maintained if the suspect was at large. He fartherstated that he did not remand the Petitioner as’ 'the petitioneragreed to self-imposed confinement in his residence till 12th Au-gust. Thereafter he was to leave the area for Peradeniya till theend of the month to sit for his Degree examination". The Magis-trate has further stated that: "The petitioner's statement that hetold me that he was finding it difficult to walk is absolutely andcategorically false. The petitioner at no stage told me of any diffi-culty in walking or bodily discomfiture; nor did he hint at havingbeen subjected to physical assault, degrading treatment or bodilyabuse. But the 2nd respondent and the petitioner were seatedon chairs at the same table as I was, and the petitioner showedno external signs of physical strain or exhaustion. He walked,sat and talked as a normal person. I saw no evidence of singeingof his beard nor other marks of any injuries. The shirt he waswearing was grimy and soiled".
With reference to the Petitioner's averment in paragraph 23of his affidavit, "On the motion of my Attorney-at-Law Mr. Sivapa-lan, on thee next day, 10th August, the learned Magistrate orderedthat I be examined by the D.M.O., Kalmunai, and the said doctorexamined me on 11th August 1981", the Magistrate observes:
"The application made by the petitioner's'Attorney wasfor a private practitioner to examine the petitioner as the
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D.M.O. was not available. Although the application was journa-lised on 10.8.81, it was not supported till the following day,by which time the D.M.O. had already returned. He was there-fore ordered to examine and report on the need for hospitalisa-tion."
This observation of the Magistrate is contradictory of the record(M. C. Kalmunai 84155) , according to which it would appear thatthe Magistrate had, on the motion of the Petitioner's Attorney,made order on 10.8.81 itself that the D.M.O should examine andreport. The Magistrate further states: "On 12th August 1981,in the presence of a large throng of supporters, the petitioner wasassisted into the well of the Court with much ceremony". In journalentry dated 12.8.81, the record states : "Suspect states he desires toenter hospital. He is permitted to do so. The D. M.O. should men-tion his condition". Howerver, the Magistrate in his observationstates that though the D.M.O. had detailed the Petitioner's injuriesand recommended that the Petitioner be kept under observationand treated in a hospital, "there was no reason to deny the appli-cation that hospitalisation would even more effectively ensure hisabsence from the area, thus eliminating all possibility of incite-ment." It is difficult to appreciate the relevance of this prejudicialobservation. The Magistrate appears to have pre-judged the Petitio-ner.
That the Petitioner had not mentioned to the Magistrate when hewas produced before the Magistrate by the 2nd Respondent on thenight of 9.8.81 that he was assaulted by the Army ordinarily shouldcount against the Petitioner. But he has given a good reason in hisstatement 2R15 to the Police dated 14.8.81 for failing to do so. Inthe face of the D.M.O.'S reports dated 11.8.81 and of the MedicalOfficer, General Hospital, Batticaloa, dated 13.8.81, it cannot bedisputed that the Petitioner had been brutally assaulted after he wastaken into custody by the 2nd Respondent on the evening of9.8.81; we have only the version of the Petitioner how the Armyhad, at the instance of the 2nd Respondent, inhumanly treated himwhile he remained in the 2nd Respondent's custody. After the 2ndRespondent, had dropped the Petitioner at midnight on 9th August1981, the Petitioner had stayed at home in compliance with theundertaking he had given to the Magistrate. The motion filed by thePetitioner's Attorney on 10.8.81 shows that the Petitioner wasconfined to his house on 10.8.81 and had wanted the doctor tocome and treat him there. On the sequence of events, it cannot beseriously denied that the injuries that the doctors found on thePetitioner resulted from the brutalities committed by the Army on9.8.81. The injuries speak for themselves and confirm the Petitio-
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tier's version of how he came by them. The 2nd Respondent admitsin his affidavit that the Petitioner was taken in the Army truckafter the arrest by him. It is significant that the Magistrate shouldthink of hospitalisation of the Petitioner when he made order on
on the application made to him that a doctor should beallowed to see and treat the Petitioner at his house.
The conclusion is irresistible that the Petitioner received hisinjuries on the evening of 9th August 1981 after he was takeninto custody. There is no suggestion by the 2nd'Respondentthat prior to his taking the Petitioner into custody, he wasalready having those injuries. In my view, the 2nd Respondentis untruthful when he denies the averments in paragraph 14of the Petitioner's affidavit that the Army personnelinflicted the acts of torture referred to therein.
The Petitioner was taken into custody by the 2nd Respondentat about 4.30 p.m. on the 9th and continued to be in his custodyuntil he was taken before the Magistrate at about 11.00 p.m.that same night. He was responsible for the custody and itwas his duty to see that the Petitioner was not ill-treatedwhile in such custody. The 2nd Respondent has thereforeto explain what happened to the Petitioner while he wasthus in custody. He has however not chosen to tell thisCourt as to how the Petitioner came by his injuries while thePetitioner was in such custody. He has also failed to explain why. the Petitioner was put in the Army truck and why he gave chargeof the Petitioner to the Army personnel to take him to theCentral Camparea Police Station when he could have taken himin his jeep to the Police Station. The conclusion is unavoidablethat the 2nd Respondent arranged with the Army officers for thePetitioner to be taken by them to the Central Camp area PoliceStation. The Petitioner, being in custody, had no choice inthe matter. In my opinion, the Petitioner's version as to how the2nd Respondent handed the physical charge of the Petitioner tothe Army with instructions tfjat are highly improper and illbecome an officer of his responsible position 'represents the truefacts.
The 2nd Respondent did not become functus after taking thePetitioner into custody. The 2nd Respondent, as a Police officerendowed with coercive powers, was carrying out his official duty inkeeping the Petitioner in his custody until the Petitioner wasproduced before the Magistrate that night. In carrying out suchduty, he was acting as a Public Officer performing an essential
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executive function of the State – the maintenance of law andorder, and any contravention by him of the detainee'sfundamental rights constitutes contravention by the Executive,as referred to in Article 126. According to the Petitioner, the2nd Respondent had addressed the Army and Police officers thatthe Petitioner was the cause of all the communal violence andhad asked them to take him and do as they like. The 2ndRespondent, the Police officer charged with the duty ofbringing under control the communal violence in the area,appears to have conceived that if the Petitioner could besilenced bytorture, the communal violence could be contained.Hence, he chose to achieve that object by having the Petitionertortured by the Army personnel. He thus violated the fundamen-tal right guaranteed to the Petitioner by Article 11 of the Consti-tution, namely, freedom from torture. As stated earlier, where anofficer of a State, in the exercise of the authority which he isclothed with, uses the power to do a wrong forbidden by theConstitution, inquiry whether the State had authorised thewrong is irrelevant; the State is bound by the way the 2ndRespondent exercised the coercive powers vested in him.
The European Commission on Human Rights in the 'Greekcase' commented on the difficulties faced by litigants allegingthat public officers had inflicted or instigated acts of torture:
"There are certain inherent difficulties in the proof ofallegations of torture or ill-treatment. First, a victim or witnessable to corroborate his story might hesitate to describe or revealall that has happened to him for fear of reprisals upon himselfor his family. Secondly, acts of torture or ill-treatment byagents of the Police or Armed Services would be carried out asfar as possible without witnesses and perhaps without theknowledge of higher authority. Thirdly, where allegations, oftorture or ill-treatment are made, the authories, whether thePolice or Armed Services or the Ministries concerned, mustinevitably feel that they have a collective reputation to defend,a feeling which would be all the stronger in those authoritiesthat had no knowledge of the activities of the agents againstwhom the allegations are made. In consequence there may bereluctance of higher authority to admit or allow inquiries to bemade into facts which might show that the allegations are true.Lastly, traces of torture or ill-treatment may with lapse of timebecome unrecognizable, even by medical experts, particularly
where the form of torture itself leavesfew external
marks." — Vide Journal of Universal Human Rights, Vol. 1, No.4, Oct-Dec. 1979 at p.42.
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Velmurugu v. The Attorney-General and Another
439
It is well to bear the above comment in mind in investigativeallegations of torture by the Police or Army.
The case discloses a shocking and revolting episode in law-enforcement. If fundamental rights assured by our Constitutionare to be meaningful, trampling underfoot the fundamentalfreedoms of subjects by law-enforcement officers should not betolerated.
In my view, the Petitioner has established that he was subjectedby the 2nd Respondent and the Army personnel to torture andcruel, inhuman and degrading treatment in violation of Article11 of the Constitution. The 2nd Respondent by the misuse of hisofficial powers has compromised the State and has made theState liable for his grave misconduct.
I allow the Petitioner's application. He is entitled to thedeclaration that his freedom from torture and cruel, inhuman anddegrading treatment guaranteed to him by Article 11 of theConstitution has been violated by the 2nd Respondent and theArmy personnel.
In my view it is just and equitable that the State should payfair compensation for the distress, humiliation and sufferingundergone by the Petitioner as a result of the aforesaidcontravention by its officer. I direct the State to payRs. 10,000/= as such compensation to the Petitioner. *l alsodirect that the State take appropriate disciplinary action againstthe 2nd Respondent for his aforesaid misconduct.
The Respondents shall pay the Petitioner the costs of thisapplication.
RATWATTE, J.
I agree with the judgment and order of Sharvananda, J. andallow the Petitioner's application with costs.
WANASUNDERA, J.
I am in agreement with my brother Ismail's statement of thefacts and his evaluation of the evidence in this case. It is rpy viewtoo that even adopting the standard of proof advocated by Mr.Pullenayagam, the petition must fail. But, since a number ofimportant legal questions have been argued at the hearing, and
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more particularly since my judgment in Thadchanamoorti v.Attorney-Generalhas come in for some criticism, I thinkfairness to counsel I should deal with these submissions.
There is first Mr. Pullenayagam's submission regarding thenature of the burden of proof that lies on him to establish his case.
This question has assumed some importance because there is asharp conflict in the material the petitioner on the one hand andthe respondents on the other have placed before us. Probably con-scious of certain infirmities in his case, Mr. Pullenayagam emphasi-sed that we should follow the standard of proof usually adopted incivil cases, namely proof by a preponderance of probability.Accordingly, he criticised a suggestion thrown in Thadchana-moorti's case(12) where I said that we could profitably adopt,with suitable modifications., the test formulated in the Irish case.There, the European Court on Human Rights said-
"161. To assess this evidence, the Court adopts the standardof proof 'beyond reasonable doubt’ but adds that such proofmay follow from the co-existence of sufficiently strong, clearand concordant inference or similar unrebutted presumptions offact."
In coming to our own findings on the facts set out earlier, wehave taken the view that the petitioner must prove his allegationsto the satisfaction of the Court. We have, in this case, tried to steer• clear of using a formula or language that may lead to any mis-understanding. But, we make clear that the test we have applied isthe degree of proof used in civil cases which is not so high as isrequired in criminal cases.
When we find from case law that the words "reasonable doubt"is an ambiguous expression and could be used aptly not only withreference to a criminal case but also in regard to a civil case,' it is -doubtful whether the European Court intended to say anythingdifferent from what we have in mind. Although the expression"beyond reasonable doubt" has a criminal flavour, it is possible touse that expression in other contexts.
The following passage from the judgment of Lord Denning inBaten v. Baten, [1951] Probate 35,^*) cited by Mr.'Pullenaya-gam is particularly Interesting for the manner in which he hashandled the formulae relating to the burden of proof in civil andcriminal cases without allowing himself to be lost in the verbiage.
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"The difference of opinion which has been evoked aboutthe standard of proof in recent cases may well turn out to bemore a matter of words than anything else. It is of course truethat by our law a higher standard of proof is required in crimi-nal cases than in civil cases. But this is subject to the qualifica-tion that there in no absolute standard in either case. In crimi-nal cases the charge must be proved beyond reasonable doubt —but there may be degrees of proof within that standard ….
So also in civil cases, the case may be proved by a prepon-derance of probability but there may be degrees of probabilitywithin that standard. The degree depends on the subject-matter.A civil court when considering a charge of fraud will naturallyrequire for itself a higher degree of probability than which itwould require when asking if negligence is established. It doesnot adopt so high a degree as a criminal court even when it isconsidering a charge of criminal nature; but still it does requirea degree of probability which is commensurate with the occa-sions. Likewise a divorce court should require a degree of
probability which is proportionate to the subject-matter
'The only general rule that can be laid down upon the subject isthat the circumstances must be such as would lead the guardeddiscretion of a reasonable and just man to conclusion.' Thedegree of probability which a reasonable and just man wouldrequire to come to the conclusion – and likewise the degree ofdoubt which would prevent him coming to it – depends on theconclusion to which he is required to come. It would depend onwhether it was a criminal case or a civil case, what the chargewas and what the consequences might be; and if he were left inreal and substantial doubt on the particular matter, he wouldhold the charge not to be established: he would not be satisfiedabout it.
But what is a real and substantial doubt ? It is only anotherway of saying a reasonable doubt; and a reasonable doubt issimply that degree of doubt which would prevent a reasonableand just man from coming to the conclusion. So the phrase'reasonable doubt' takes the matter no further. It does not saythat the degree of probability must be high as 99 per cent or aslow as 51 per cent. The degree must depend on the mind of thereasonable and just man who is considering the particular sub-ject-matter. In some cases 51 per cent would be enough but notin others. When this is realised the phrase 'reasonable doubt' canbe used just as aptly in a civil case or in a divorce case or in acriminal case."
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In a later House of Lords' case Blyth v. Blyth, 1966 (1) A.E.R.524,H7) i_orcj Denning quoted with approval the following state-ment from an Australian case as correctly setting out the law:—
"While our decision is that the civil and not the criminalstandard of persuasion applies to matrimonial cases, includingissues of adultery, the difference in effect is not as great as is
sometimes represented. This is becausethe nature and
gravity of an issue necessarily determines the manner of attai-ning reasonable satisfaction of the truth of the issue andbecause the presumption of innocence is to be taken intoaccount."
Mr. Pullenayu. n submitted that the proper test should begathered from the definition of the word "proved" as contained insection 3 of the Evidence Ordinance. The definition is as follows:
"A fact is said to be proved when, after considering thematters before it the court either believes it to exist or considersits existence so probable that a prudent man ought under thecircumstances of the particular case to act upon the suppo-sition that it exists."
I do not think that those words are any different from the lan-guage quoted by Lord Denning from Lord Stowell's judgment inLoveden v. Loveden, (1810) 2 Hagg. Con. 1.3'l0* when he said,"The only genera! rule that can be laid down upon the subject isthat the circumstances must be such as would lead the guardeddiscretion of a reasonable and just man to the conclusion." Incoming to our conclusions we have taken into consideration bothMr. Pullehayagam's submission that this Court must not in anyway lay an undue burden on a petitioner complaining of an infrin-gement of a human right if we are to safeguard those rights andthe counter submission by the respondents that the liability thathas been imposed is one against the State and since the allegationis a serious one of torture and inhuman treatment by the execu-tive and administrative authorities of the State, a high degree ofprobability which is proportionate to the subject-matter is nece-ssary. These rights which are alleged to have been infringed appearalso to reflect certain obligations that the Government had recog-nised under the U.N. Declaration of Human Rights. I
I turn next to a consideration of the main submissions made bycounsel relating to the nature and extent of the liability of theState for an infringement of the provisions of Article 11 of theConstitution.
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Mr. Pullenayagam cited a number of local and foreign casesand his submission in brief was that when a public officer acts inthe name of the State and is clothed with the authority of theState, his act must be considered as action of the State for whichthe State is liable.
He relied on certain dicta in my brother Sharvananda's judg-ment in the first application to this Court against the UniversityGrants Commission (S.C. 57 of 1980)^9) ancj jn particular onThornhill v. Attorney-General, 1980(2) W.L.R. 510,(2) ancjMaharaja v. Attorney-General, [1979] A. C. 385.
Both the Deputy Solicitor-General G. P. S. de Silva and Mr.Choksy sought to distinguish these cases. They suggested an inter-pretation of Article 11 of our Constitution, which is much morerestrictive and narrower than that outlined by Mr. Pullenayagam.
Of the two important cases relied on by Mr. Pullenayagam, thefirst is Maharaja v. Attorney-General of Trinidad, [1978] (2)A.E.R. 670^ a decision of the Privy Council. In this case theappellant, a member of the Bar of Trinidad and Tobago was im-prisoned for contempt of Court. In charging the appellant withcontempt, the Judge had not made plain to him the particulars ofthe specific nature of the contempt. In his appeal, the appellantalleged that the judge had inadvertently failed to observe a funda-mental rule of natural justice and that this constituted a depriva-tion of liberty otherwise than by due process of law guaranteed asa human right and fundamental freedom by Chapter I of theConstitution of Trinidad and Tobago, 1962
The Constitution of Trinidad and Tobago contained, inter alia,provisions setting out certain human rights and fundamental free-doms and the machinery for granting redress for their infringe-ment. The most important of these provisions for the purpose ofour case are the following:—
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“CHAPTER 1
1. it is hereby recognised and declared that in Trinidad andTobago there have existed and shall continue to exist withoutdiscrimination by reason of race, origin, colour, religion or,sex, the following human rights and fundamental freedoms,namely —
the right of the individual to life liberty, security of theperson and enjoyment of property, and the right notnot to be deprived thereof except by due process of law;
(0
Subject to the provisions of sections 3, 4 and 5 of this Cons-titution no law shall abrogate, abridge or infringe or autho-rise the abrogation, abridgment or infringement of any ofthe rights and freedoms thereinbefore recognised and declaredand in particular no Act of Parliament shall —
authorise or effect the arbitrary detention, imprisonment or
exile of any person
impose or authorise the imposition of cruel and unusual
treatment or punishment
deprive a person who has been arrested or detained
(ii) of the right to retain and instruct without delay a legal .adviser of his own choice and to hold communication withhim.
deprive a person of the right to a fair hearing in accordancewith the principles of fundamental justice for the deter-mination of his rights and obligations.
deprive a person of the right to such procedural provisionsas are necessary for the purpose of giving effect and protec-tion to the aforesaid rights and freedoms.
Sections 1 and 2 of this Constitution shall not apply in relationto any law that is in force in Trinidad and Tobago at the com-mencement of this Constitution.
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6.11 For the removal of doubts it is hereby declared that ifany person alleges that any of the provisions of the fore-going section or sections of this Constitution has been,is being or is likely to be contravened in relation to him,then without prejudice to any other action with respect1 to the same matter which is lawfully available, thatperson may apply to the Higher Court for redress.”
In interpreting these provisions, their Lordships of the Privy Coun-cil said:—
"Read in the light of the recognition that each of the highlydiversified rights and freedoms of the individual described is s.1already existed, it is in their Lordships view clear that the protec-tion afforded was against contravention of those rights or free-doms by the State or by some other public authority endowed bylaw with coercive powers. The chapter is concerned with publiclaw, not private law. One man's freedom is another man's res-triction; and as regards infringement by one private individual ofthe rights of another private individual s. 1 implicitly acknow-ledges that the existing law of torts provided a sufficient accom-modation between their conflicting rights and freedoms to satisfythe requirements of the new Constitution as respects those rightsand freedoms that are specifically referred to."
Thereafter their Lordships held that•
"the order of Maharaj, J., committing the appellant to prisonwas made by him in the exercise of the judicial power of the State,the arrest and detention of the appellant pursuant to the Judge'sorder was effected by the executive arm of the State. So if hisdetention amounted to a contravention of his rights under s. 1(a)it was a contravention by the State against which he was entitledto protection."
In considering the question of the contravention of section 1, itwas necessary to find out whether the law in force before the Consti-tution came into, effect had required that the Judge must specifysufficiently the nature of the contempt charged before a personcharged with contempt could be convicted. This was because thissection proceeds on the basis that fundamental rights which it coversare already secured to the people of that country by existing law.Such a requirement was found to exist in the common law, antf theirLordships said that it would have been sufficient even if such a righthad been enjoyed de facto, as the constitutional provisions haddignified those rights to the level of a constitutional right under theconstitutional provisions.
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Before granting relief to the appellant, their Lordships went onto deal with a formal objection raised by the State. The Attorney-General argued that relief should not be granted to the petitionerbecause it was a long established rule of public policy that a judgecannot be made personally liable in law for anything done by himin the exercise or purported exercise of his judicial functions. It ismainly on this point.that Lord Hailsham dissented from the majorityview. The majority in overruling this objection said:—
"In the first place no human right or fundamental freedomrecognised by Chapter I of the Constitution is contravened by ajudgment or order that is wrong and liable to be set aside onappeal for an error of fact or substantive law, even where the errorhas resulted in a person serving a sentence of imprisonment. Theremedy for errors of these kinds is to appeal to a higher court.When there is no higher court to appeal to then none can say thatthere was error. The fundamental human right is not to a legalsystem that is infallible but to one that is fair. It is only errors inprocedure that are capable of constituting infringements of therights protected by s. 1(a) and no mere irregularity in practice isenough, even though it goes to jurisdiction, the error must amountto a failure to observe one of the fundamental rules of naturaljustice. Their Lordships do not believe that this can be anythingbut a very rare event."
Straightaway it should be mentioned that Mr. Choksy sought todistinguish this case and the other case coming from this same juris-diction, to which I will presently refer, on the ground that theyare based on a wider application of those rights than under our cons-titutonal provisions. It would be convenient if I now turn to Mr.Choksy's submissions.
Mr. Choksy first referred to "Article 4 of our Constitution and drewour attention to th.e use of the terms "executive" in contradistinc-tion to the terms "legislature" and "judicial" in these provisions.He submitted that the words "by executive or administrative action"contained in Article 126 must necessarily be limited to the acts ofpnly one of the traditional triumvirate of State organs, namely, thelegislative, the executive, and the judiciary.
He next referred to Chapter V11 titled "The Executive" whichdeals with the President of the Republic, Chapter V111, also titled"The Executive", dealing with the Cabinet of Ministers, and toChapter 1X again titled "The Executive", dealing with thePublic Service. Similarly it would be found that Chapters X. XI andX11 are headed "The Legislature" and Chapters XV and XV1
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deal with the judiciary and the Courts. It was Mr. Choksy'ssubmission that we have in the above provisions a definition ofthe term "Executive "and unlike in the cases from the West Indiescited by Mr. Pullenayegam, our jurisdiction in respect of violationsof fundamental rights is confined to such "infringement byexecutive or administrative action" and does not have the widthand range of the jurisdiction obtaining in the West Indies where viola-tions "by the State or other public authority" is made justiciable. Infact in Thornhill v. Attorney-General (supra), which followed the Ma-haraja case (supra), the Privy Council explained what is meant by publicauthority and said that it must be understood as embracing local aswell as central authorities and include any individual officer who exer-cises executive functions of a public nature.
Although there is a great deal of force in Mr. Choksy's submis-. sion on this point, it is possible for us to dispose of this case on anarrower basis without a discussion of the matter at the level ofthe fundamental constitutional structure of the two countries.Mr. G. P. S. de Silva has sought to distinguish this case on a muchnarrower basis, namely that in Maharaja's case we have an instanceof an inadvertent omission on the part of the judge to complywith a fundamental right, whereas the allegations in the instantcase is in respect of certain positive and illegal acts quite outsidethe ambit of the officer's normal functions or such functions asare incidental thereto. Thornhill's case is in some respects closer tothe present case, in that it concerns certain wrongful acts or omi-ssions on the part of the police which took place in the course ofan investigation and was done in furtherance of such investigation.Thornhill's case, therefore, may have greater relevance to the pre-sent case than Maharaja's case.
It may however be mentioned that even in the Maharaja's casethere was some reluctance and hesitation on the part of thePrivy Council to make the acts of the judiciary justiciable underthese provisions. It would appear that some pains have been takenin an effort to shift liability as much as possible.away from thejudicial sphere and bring the impugned act, if not within the exe-cutive sphere, at least as close as possible- to it. It was stated that,though redress was claimed from the State for a violation of thefundamental rights by the judicial arm of the State for making anorder of commitment to prison, the arrest and detention of theappellant however was effected by the executive arm of the State. I
I shall now deal with Thornhill's case. The appellant in this casewas arrested and taken to a police station in consequence of ashoot-out with the Police. As guaranteed in section 2 c (ii) of the
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Constitution. The appellant made several requests to be given theopportunity of communicating with his lawyer. The police did notaccede to his request. The appellant was suspected by the policeof committing other crimes about which they wished to interro-gate him. It would appear that there was nothing in connectionwith the investigation that would have made it inconvenient forhim to be allowed to consult his lawyers. The only reason why hewas not allowed to do so was because the police officers interro-gating him were of the view that if the appellant were to obtain alawyer's advice as regards his legal rights, he may.decline to answersome of the questions that would have tended to incriminate himand the police would have been less -likely to obtain from him aconfession as regards the commission of earlier offences.
The reasoning in this case is somewhat complex and involvedand turns on the interpretation of sections 1, 2 and 3 of thatConstitution. Although the right claimed by the appellant is con-tained in section 2 (c)(ii), it was contended for the respondents,which included the Attorney-General, that the effect of section 3of the Constitution was to reduce the ambit of sections 1 and 2and limit them to rights that had obtained and which could havebeen enforced by a person under a written law or in terms of thecommon law prior to the coming into operation of this Consti-tution. The respondents submitted that the petitioner had no suchenforceable right at the relevant point of time.
The Privy Council however held that section 2 only spells outexpressly and in greater detail what is described in more generalterms in section 1 and section 2 c(ii) and has adequately securedthe rights of the appellant to have access to a lawyer. So interpre-ted, it was unnecessary to embark on a consideration as to whe-ther or not such a right subsisted under the law at the commence-ment of the Constitution. Their Lordships however proceeded tointerpret section 1 and said that they caught up only de jurerights, but included de facto rights enjoyed by a person as a resultof settled executive policy or the manner in which administrativeor judicial discretion had been exercised. They said that the rightto consult a lawyer had in fact been a matter of settled practice.
Having given a ruling on the legal provisions, their Lordshipsproceeded to consider the question of the liability of the Statefor the acts of the police officers. It would appear from the judg-ment that there had been some discussion about the precise rela-tionship of a police officer to the executive particularly becausethere had been previous authority for the proposition that personswho have been responsible for appointing a constable were not
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held to be vicariously responsible for his tortious acts done by himin purported exercise of his common law powers of arrest. Dealingwith this aspect of the matter, their Lordships said –
"It is beyond question, however, that a police officer incarrying out his duties in relation to the maintenance of order,the detection and apprehension of offenders and the bringingof them before a judicial authority is acting as a public officercarrying out an essential executive function of any sovereignstate — the maintenance of law and order or to use the expres-sion originally used in English "preserving the King's peace."
It is also beyond question that in performing those functionspolice officers are endowed with coercive powers by the com-mon law even apart from statute. Contraventions by the policeof any of the rights or fundamental freedoms of the individualthat are recognised by Chapter I of the Constitution thus fallsquarely within what has been held by the Judicial Committeein Maharaja v. Attorney-General of Trinidad and Tobago, No.(2) 1979 A.C. 385—396^) to be tho ambit of the protectionendowed by section 6 viz. contraventions 'by the state or bysome other public authority endowed by law with coercivepowers.' In this context public authority must be understood asembracing local as well as central authorities and including anyindividual officer who exercises executive functions of a publicnature. Indeed the very nature of the executive functions whichit is the duty of police officers to perform is likely in practice toinvolve the commonest rule of contravention of an individual'srights under section 1 (a) and (b) through over-zealousness incarrying out those duties."
Mr. Pullenayagam relied heavily on the above passage for thesubmission that acts or omissions on the part of a police officerdone under colour of office or in the purported exercise of hispowers would involve the state in liability. Nevertheless he madea significant concession, namely that there could be acts whichcan be regarded as an individual or personal act not entailing lia-bility on the State. As an example he gave the case of a policeofficer arresting a woman, then taking her to the police stationand raping her. This concession however is prima facie inconsiste-nt with the width of his main submission, but unfortunately Mr.Pullenayagam made little effort to reconcile these two positions.
It may be mentioned that it is precisely in this area that onehas to search for an answer in the present case. This is particularlyso because the statement of law contained in the foregoing passage
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in Thornhill's case as Mr. G. P. S. de Silva argued, need not be giventhe wider meaning contended for by Mr. Pulienayagam and by nomeans provides a ready-made answer. Mr. de Silva submitted thatthis statement was an obiter dictum and it was not permissible to givea wider construction to the words than was warranted by the facts.
It would be convenient if, at this stage, I return to the secondaspect of Mr. Choksy's argument where he had sought to demarcatethe liabilty of the State for the acts of its officers and thereafterdeal with Mr. de S’lva's submissions.
Proceeding from his submission that under our Constitution it isthe illeqal acts of the executive organ alone that could be thesubject-matter of proceedings under Article 126, Mr. Choksycontended further that the act of a public officer, even in theexecutive sphere, would not attract the liability of the State unlesssuch act can be said to constitute the act of the executive. Heexplained this to mean that an act to qualify for such liability mustsignify the will of the collective body called the Executive. In thisconnection he drew our attention to the provisions of the Consti-tution which provides for the collective responsibility of theCabinet and stated that likewise an act of an executive officerfrom the highest level to the most subordinate must represent andbe in accordance with the collective will of the government, if it isto be regarded as constituting executive action. He was howeverprepared to concede that an unlawful act occurring as part of asettled administrative practice could legitimately be included inthe category of executive acts.
The effect of this argument is to further restrict the ambit ofArticle 126. If only such acts as representing the will of the State ordone in consequence of a settled administrative practice can alonebe admitted as falling within the ambit of Article 126, then thebulk of unlawful and illegal acts committed by executive andadministrative officers would be left without redress. Such aninterpretation would even exclude unlawful acts committedthrough over-zealousness in carrying out duties which the PrivyCouncil said involves the commonest risk of the contravention ofan individual's right, and for which the State should be held liable.
1 agree with Mr. Pulienayagam when he said that such a constructionwould empty these provisions of nearly all content and makethese safeguards ineffective and void.
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For the purpose of his argument Mr. Choksy laid undue empha-sis on the word "executive" to the exclusion of the connectedword "administrative" in Article 126. Article 126 uses the expre-ssion "executive or administrative action." When my brotherSharvananda drew his attention to this, he said that the two wordswere synonymous and interchangeable and meant the same thing,namely the concept of the executive. Such a view was apparentlynecessary for the purpose of his argument. In my view the termi-nology in Article 126 has been chosen with some care and thejuxtaposition of these two terms conveys certain nuances of mea-ning suggesting that the liability of the State extends to theunlawful acts of a wider class of public officers, namely, subordi-nate officers at peripheral level who in nowise constitute the deci-.sion making core of the administration. I would adopt Mr. Pulle-nayagam's description of executive officers as those whose, handsare on the levers of power. All those not falling within this cate-gory are designated administrative officers. I find Mr. Choksy'sinterpretation of Article 126 far too restrictive with the resultthat if accepted it would whittle down considerably the protectionof fundamental rights guaranteed and protected by the Consti-tution. Further reasons for my taking a different view will becomeevident from this judgment.
I next turn to the submissions made by Mr. G. P. S. de Silva.The interpretation he placed on the relevant provisions was lessrestrictive than Mr. Choksy's interpretation and he conceded thatArticle 126 would catch up unlawful acts of an executive oradministrative officer provided they are performed in the courseof his duties and under colour of authority. At the time theseevents took place, a state of emergency had not been proclaimedand the army was merely assisting the police. Mr. de Silva submit-ted that the army personnel had no more authority than anycivilian. He stated that when the 2nd respondent handed thepetitioner to the army personnel and left saying, "Take him anddo as you like," the 2nd respondent had actually relinquished allcontrol he had over the petitioner and was literally to use coun-sel's words, "throwing him to the wolves."
It is strange that the State has chosen to put the entire weightof its argument on a statement alleged to have been made by the2nd respondent – but denied by him- and which interpreted in themanner suggested by the petitioner is certainly indefensible. For-tunately, I think, this argument is not entitlec’ o prevail either onthe facts or in principle. Mr. Silva also soug it suoport for hisargument from certain dicta in the judgments cited by Mr. Pulle-nayagam, which I do not again think are very much in his favour.
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in Thornhill's case, the infringement was by way of omissionand it related to a positive requirement expressed as a fundamentalright, namely the duty of the Police to aMc . the appellant toconsult a legal adviser. In Maharaja's case too, the infringementcomplained of was of an omission, namely the failure of the judgeto comply with a legal requirement to specify the nature of thecontempt that was alleged.
Firstly, it could validly be said that the facts in the instant caseare different in kind rather than degree from the facts in thosecases. For the purpose of this discussion I shall confine myself tothe alleged assault by the army personnel on the assumption thatthe burden of proof lying on the petitioner in that respect hasbeen discharged. Even this assumption will be shown later to beunjustified. The allegation against the 2nd respondent has beenruled out and .those facts are not relevant here. Here we have aninstance of an act of commission — the performance of a positiveact which is both ultra vires and illegal in nature. To that extent itcould be said that the cases cited by Mr. Pullenayagam are not ofreal assistance in this matter. Mr. de Silva's argument, if I unders-tood him right, included a further distinction that in those deci-sions the unlawful acts or omissions took place in furtherance ofthe matter or proceedings which those officers were lawfullyauthorised to do, or in the context of powers that could beimplied or incidental thereto. Here, there was the total absence ofany authority and it is a case of a wanton assault. He invoked insupport the concession made by Mr. Pullenayagam contained inthe example of a woman being ravished by the police officers andwanted to know how that example differed from the present case.
Although some of the distinctions made by Mr. de Silva in res-pect of these cases have a certain validity and the dicta relied onby him could be pressed to serve his arguments; I do not think hisanalysis of the problem any more than Mr. Pullenayagam's hasdealt satisfactorily with the underlying principles governing Stateliability for unlawful acts performed by these executive andadministrative officers.
The learned Deputy Solicitor-General sought to advance hisargument further by relying on certain decisions relating to vica-rious liability of a master for the acts of his servant in the sphereof the law of tort. I am in agreement with Mr. Pullenayagam thatthe test of liability formulated in those cases is not an appropriateor safe test for application in the present case. We are here dealingwith the liability of the State under public law, which is a newliability imposed directly on the State by the constitutional provi-
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sions. While the decisions relating to the vicarious liability of amaster for the acts of his servant may be useful to the extent thatall cases where a master can be held liable in tort would undoub-tedly fall also within the liability of the State under the constitu-tional provisions, the converse need not be true unless we are togive a restricted interpretation to the constitutional provisions.The common law test of tortious liability therefore cannot pro-vide a sufficient test and we have to look elsewhere for the appro-priate principles.
In this regard I should like to mention that an indication ofwhat those principles are has to some extent been foreshadowed inThadchanamoorti's case (supra), although in that case the courtmerely quoted certain excerpts from foreign authorities but didnot think it was necessary, in the circumstances of that case, toenunciate those principles in any detail. When I expressed thoseviews I was generally having in mind a situation like the presentcase. The excerpts are taken from the decision of the EuropeanCourt of Human Rights in the Irish case and certain observationsabout that case that appear in Harris's "Cases and Materials onInternational Law," Mr. Pullenayagam alleges that in Thadcha-namoorti's case (supra) this Court had misunderstood the effect ofthe ruling in the Irish case: The reference to an "administrativepractice" in that material, he states, is with reference to the pleaof the need for the exhaustion of domestic remedies required byArticle 26 of the Convention and has no relevance whatsoever tothe present context. I shall examine that contention later in thisjudgment.
Article 11 which gives protection from torture and ill-treatmenthas a number of features which distinguish it from the other funda-mental rights. Its singularity lies in the fact that it is the onlyfundamental right that is entrenched in the Constitution in thesense that an amendment of this clause would need not only atwo-thirds majority but also a Referendum. It is also the only right ,in the catalogue of rights set out in Chapter III that is of equalapplication to everybody and which is no way can be restricted ordiminished. Whatever one may say of, the other rights, this rightundoubtedly occupies a preferred position.
Having regard to its importance, its effect and consequences tosociety, it should rightly be singled out for special treatment. It istherefore the duty of this Court to give it full play and see that itsprovisions enjoy the maximum application.
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Brandeis J. in .Iowa – Des Moines National Bank v. Bennett,(1931) 284 US 3239'®) . dealing with the liability of the Statefor acts of public officer said –
"The prohibition of the 14th Amendment, it is true hasreference exclusively to action by the State as distinguishedfrom action by private individuals. But acts done by virtue ofa public position under a State Government and in the name and
for the Stateare not to be treated as if they
were the acts of private individuals, although in doing them theofficial acted contrary to an express command of State Law.Where a State official, acting under colour of State authorityinvades in the course of his duties a private right secured by thefederal Constitution, that right is violated, even if the Stateofficer not only exceeded his authority, but disregarded specialcommands of the State Law"
Whatever be the application of this statement to the otherfundamental rights, in our country, in my view. Article 11 willbe rendered ineffective unless we interpret it on more or lessthe lines set above. But I think the guarantee contained in Article11 is capable of further refinement.
Earlier in this judgment, when, dealing with Mr. Choksy'ssubmissions, I favoured the view that in the relevant provisions,a distinction has been drawn between high State officers andsubordinate personnel. Such high State officers constitute theExecutive, but subordinate officers act for and on behalf of theState. Article 126 lends itself to this interpretation though I findrightly or wrongly text writers and tribunals have thought onsomewhat the same lines when dealing with the liability of aState for the acts of its officials in international law.
I am inclined to the view that the State should be held strictlyliable for any acts of its high State officials. I should think, in thepresent case, if the allegations against the 2nd respondent had beenproved, this would have constituted an act of the State itselfand entailed the liability of the State for such acts.
The liability in respect of subordinate officers should applyto all acts done under colour of office, i.e., within the scope oftheir authority, express or implied, and should also extend tosuch other acts that may be ultra vires and even in disregard of aprohibition or special directions provided that they are done inthe furtherance or supposed furtherance of their authority or doneat least with the intention of benefiting the State.
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The above principles appear to be generally supported by thecase law and Mr. de Silva, I think, was prepared to admit liabilityto this extent or almost to this extent. The illustration Mr. Pul-lenayagam, gave on his own admission falls outside these limits.As I stated earlier, Mr. de Silva's position is that the instant caseis practically.identical with the exception indicated by Mr. Pul-lenayagam.
My own view is that the liability indicated in the cases citedby counsel need not be the last word on the subject. Justice andcommon sense demands a further elaboration of these principlesof State liability to dispose of cases like the present one. Mr. Pul-lenayegum, I am sure, would not have fought this case with somuch tenacity if he had not felt a sense of injustice about thewhole affair. It is the marginal character of cases such as this —assuming that the assault by the army personnel took place asalleged — that make them so disturbing. If going by the case law,we were to draw the line here so as to exclude liability, in thosesituations, I am not at all sure that we would have done all wecan to discharge the trust placed in us to safeguard these rights.
International tribunals and jurists do not appear to agreeon the precise principles that should govern State liability insituations such as this. It is in this context that I found myselfthinking of the concept of "administrative practice" referred toearlier, which has come in handy in analogous situations. The appli-cation of such a concept could help to extend State liability tocases like this and the one given by Mr. Pullenayagam so that thevtoo can be brought within State responsibility itthe material beforethe Court can show that the occurrence of the acts complained ofcan be attributed to the existence of a general situation created orbrought about by the negligence and indifference of those in au-thority.
In the Irish case (Ireland v. U. K., Jan. 18, 1978) '131 the IrishGovernment complained to the European Human Rights Commis-sion against the U.K. Government's policy of internment, inves-tigation and detention ip Northern Ireland. The Royal UlsterConstabulary (R.U.C.) Special Branch had established a number ofinterrogation centres throughout the province and applied variousmethods of interrogation in order to secure confessions andinformation about the outlawed I.R.A. One of the allegationsmade against the U.K. Government was that some of the personsarrested had been subjected to interrogation in depth involving theuse of five techniques, namely, wall standing, hooding, subjectionto noise, deprivation of sleep, and deprivation of food. These
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devices were used to deprive prisoners of the normal exercise oftheir senses to facilitate the obtaining of confessions. At the PalaceBarracks Centre, the R.U.C. forced prisoners to stand spread-eagled against a wall and severely beat them up. At other centresvarious punishments were inflicted on the prisoners. The IrishGovernment alleged that these acts constituted an "administrativepractice" *m violation of Article 3 of the European Convention onHuman Rights.
It may be of interest to know that although the U.K. Govern-ment admitted from the start that the use of the five techniqueswas authorised at "high level", such authority was "never com-mitted to writing or authorised in any official document, the tech-niques had been orally taught to members of the R.U.C. bythe English Intelligence Centre at a Seminar". It was thereforeapparent that the Irish Government came before the Commissionclaiming a violation based on an "administrative practice", and noton the basis of known and specific directions given by the U.K.Government authorising such wrongful acts. Apart from the com-plaint of the Irish Government, there were also individual com-plaints made on the same basis, namely, the violation of Article 3
by means of an "administrative practice". These individualcomplaints were consolidated and dealt with under the nameDonnally and others v. United Kingdom. It should be notedthat the accusation of the Infringement of Article 3 was foundedsolely on the basis of an administrative practice. The followingparagraph from the judgment makes this clear.—
"158. Following the order of 11th February 1977 (see Para-grahp 8 above) the Irish Government indicated at the hearing inApril 1977, that they were asking the court to hold that therehad been in N. Ireland from 1971 to 1974 a practice or prac-tices in breach of Article 3 and to specify if need be where theyhad occurred."
The findings of both the Commission and the Court also putsthe matter beyond any argument. In paragraph 147 the Court repro-duces the conclusions of the Commission, In sub-paragraphs iv andvi, the Commission holds —
"iv. unanimously that the combined use of the five tech-niques in the case before it constituted a practice of inhumantreatment and of torture in breach of Art. 3.
vi. Unanimously that there had been at Palace Barracks,Holywood in the autumn of 1971 a practice in connection
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with the interrogation of persons by members of the R. U. C.which was inhuman treatment in breach of Art. 3 of the Con-vention."
The Court's own conclusions regarding the violation of Article 3are as follows:-
"3. holds by sixteen votes to one that the use of the firetechniques in Aug. and Oct. 1971 constituted a practice ofinhuman and degrading treatment which practice was in breachof Art. 3.
6. holds unanimously that there existed at Palace Barracksin the Autumn of 1971 a practice of inhuman treatment, whichpractice was in breach of Art. 3."
The confusion in Mr. Pullenayagam's mind has apparently ari-sen because the question of an administrative practice can alsohave particular relevance in another connection. The Court said:
"The concept of practice is of particular importance for the
operation of the rule of exhaustion of domestic remedies."
Article 26 provides that before a complaint can be entertainedunder the Convention, a party must exhaust all domestic remedies.In the Irish case apparently that had not been done. So, when thatplea was taken in that case, it was countered by the complainantGovernment that if a Government countenances an administrativepractice that is a violation of the Convention, domestic remediesin that country are likely to be non-existent or ineffective andaccordingly a plea under Article 26 should be ruled out. Theallegation of the existence of an "administrative practice" wasthus relied on by the Irish Government not in subsidiary mannerby way of defence — though it came in useful also as a defence —but it constituted the main thrust of the complainant Govern-ment's case. A practice, the Court said, does not itself constitutea violation separate from the act complained of, meaning that incertain circumstances where there is the need to rely on the exis-tence of an "administrative practice", the specific act complainedof becomes a violation only when it is viewed against the back-ground of-such practice. This ought to be sufficient to dispel anymisunderstanding that Mr. Pullenayagam may have that Thadcha-namoorti's case has substituted the test of "administrative prac-tice" as against the test of executive or administrative action" req-uired by Article 126 of our Constitution.
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The concept of "administrative practice" therefore appearsto carry with it certain features that give it wide-ranging applica-tion in a number of different situations. In the Greek case, a com-plaint was made in 1967 by the three Scandinavian countries,Denmark, Norway and Sweden against Greece, after army officersin Greece had seized power by a coup d'etat. One of the chargeswas that of torture and ill-treatment of political prisoners.
The Commission, after carefully reviewing all evidence, conclu-ded that torture had been inflicted in a number of cases and thatthere was a strong indication that the acts of torture or ill-treat-ment were not isolated or exceptional, nor limited to one place.It was of the view that there was a practice or torture and ill-treatment by the Athens Security Police of persons arrested forpolitical reasons, that the Greek authorities, confronted withnumerous and substantial complaints and allegations of tortureand ill-treatment, had failed to take any effective steps to investi-gate them or remedy the situation.
In the course of its order, the Commission gave a ruling on theimpact of an "administrative practice" in relation to a plea ofthe exhaustion of domestic remedies. The Commission said:
"25. Where, however, there is a practice of non-observanceof certain convention provisions, the remedies prescribed willof necessity be side-stepped or rendered inadequate. Thus ifthere was an administrative practice of torture or ill-treatment,judicial remedies prescribed would tend to be rendered ineffec-tive by the difficulty of securing probative evidence and admini-strative enquiries would either be non-instituted or if they werewould be likely to be half-hearted and incomplete"
The Commission then went on to give a definition of the expres-sion "administrative practice" which can by no means be limitedin application only to a case where plea under Article 26 is taken.The Commission said:
"28two elements are necessary to the existence of an
administrative practice of torture or ill-treatment; repetitionof acts and official tolerance. By repetition of acts is meant asubstantial number of acts of torture or ill-treatment whichare the expression of a general situation. The pattern of such actsmay be either on the one hand, that they occurred in the sameplace, that they were attributable to the agents of the samepolice or military authority or that the victims belonged to
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the same political category; or on the other hand, that theyoccurred in several places or at the hands of distinct authorit-ies or were inflicted on persons of varying political affiliations.
29. By official tolerance is meant that though acts oftorture or ill-treatment are plainly illegal, they are tolerated inthe sense that the superiors of those immediately responsiblethough cognisant of such acts takes no action to punish themor prevent their repetition; or that the higher authority, in theface of numerous allegations manifest indifference by refusingany adequate investigation of their truth or falsity or that inin judicial proceedings, a fair hearing of such complaints isdenied."
In the Irish case these principles have been further elucida-ted when the court observed –
"159 A practice incompatible with the Convention consistsof an accumulation of identical or analogous breaches which aresufficiently numerous and inter-connected to amourt notmerely to isolated incidents or exceptions but to a pattern or
systema practice does not of itself constitute a violation
separate from such breaches. It is inconceivable that the higherauthorities of a State should be, or at least should be entitledto be, unaware of the existence of such a practice. Furthermoreunder the Convention those authorities are strictly liable for theconduct of their subordinates, they are under a duty to imposetheir will on subordinates and cannot shelter behind theirinability to ensure that it is respected."
Mr. Pullenayaqam's submission, as I stated earlier, is wide en-ough to take in an alternate ground irrespective of the chargeagainst the 2nd respondent, that in any event the evidence wasadequate to establish the probability of the petitioner coming byhis injuries at the hands of the army personnel. He has arguedbackwards from the medical reports and sought to link the injurieswith the events of the 9th August. The reports show that he hadten injuries, nine of them contusions and abrasions and one a frac-ture of neck of left side of mandible, said to be grievous. Thepetitioner is also said to have a heart complaint (mitral incompe-tence) which has nothing to do with the alleged ill-treatment.Incidentally, the inflictment of these injuries would not constitutetorture if we are to go by the definition given to that term in theIrish case. The injuries were found on the petitioner on the 11thAugust and since the petitioner had been exposed to a situation onthe 9th night when he was in the custody of army personnel
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who he alleges assaulted him, Mr. Pullenayagam submits thatwe should hold that the charges against the army personnel havebeen established irrespective of whether or not the charge of in-citement against the 2nd respondent is proved.
I have set out above as to what the burden of proof should bein a case of this nature and how it should be applied. In all thecircumstances of this case, I am unable to say that the petitionerhas proved those matters to my satisfaction. The conduct andbehaviour of the petitioner leaves a seriout doubt in my mind asto whether or not the incidents spoken of by him happened inthe manner narrated by the petitioner. In fact, Mr. Choksy statedthat the material before the Court shows that the petitioner leftthe custody of the authorities on the night of the 9th Augustas a free man without any injuries on him or without his drawingthe attention of the Magistrate to any injuries on him and, there-fore, there is no burden on the authorities to discharge as tohow the petitioner came by the injuries set out in the medicalreports.
Even if we were to assume that this allegation has been provedadopting the lowest degree of probability in the range permittedby the rule of a balance of probability, I still entertain a doubtas to whether the liability of the State for these alleged acts couldbe established as a matter of law.
In the instant case if liability is to be imputed to the State, itmust be on the basis of an administrative practice and not on thebasis of an authorisation, direct or implied, or that these actswere done for the benefit of the State. If we rule out the allega-tions against the 2nd respondent, we have here the case of thepetitioner being roughly handled by some army personnel whilethe petitioner was being transported to Kalmunai town from thespot where he was taken into custody. This involved a drive ofabout half an hour or a little more. This assaulting is alleged tohave occurred on the high road, in public apparently under thecover of darkness. It may be noted that the instructions and theresponsibility of the army to which he was temporarily handedover was only to transport him and hand him over to the police atthe other end. The learned Deputy Solicitor-General has informedus that at this time no emergency had been proclaimed and thearmy authorities had no more powers over the petitionerthan any civilian. This does not appear to be identical withthe case of an assault or ill-treatment by, say the police, whohaving arrested a person, ill-treats him in the confines of the policestation and in the privacy of a secluded cell in the course of andfor the purpose of an investigation.
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The incident has also to be viewed in the context of the extra-ordinary conditions prevailing in the locality. It is apparent thatthe base passions of many persons in that area had been excitedby communal passions. There was tension in the air. Mr. Pullena-yagam suggested that the army personnel were all Sinhala persons,but there is no definite evidence of it. That a few persons belong-ing to other races could have been among the personnel cannotbe ruled out. As far as the police personnel were concerned, wefind them not confined entirely to one race or community. Thepetitioner himself says that on one occasion some of the othersoldiers cautioned those who were assaulting him. The insinuationbeing that they cautioned his tormentors against their leaving tell-tale marks of violence on the petitioner's body. The petitionerhas also said that at another point, on the journey, some soldiersintervened and prevented the petitioner from being shot by theothers. All in all the acts complained of, if they had taken place asalleged, seem to be in the nature of individual and personal actsdue to some aberration or idiosyncracy. They are also suggestiveof the venting of some grievance of a personal or private natureor in consequence of some strong passion, prejudice or malice.They are admittedly illegal and criminal acts and not merely actsthat are unauthorised and ultra vires. It is also not possible to cha-racterise those acts as being incidental to the authority and powersvested in those persons nor have they been performed to furthersome objective of the State.
This does not of course mean that an individual can be exposedand abandoned to the mercies of the army or police personneland left without redress. A high standard of discipline is expectedof the armed services and the police. Complaints made againstsuch personnel must be promptly and fairly investigated. Disci-plinary action should be taken where necessary and suitable com-pensation by way of an ex gratia payment paid to innocent per-sons who may have suffered at their hands.
In the Irish case the Court has adverted to some of the measurestaken by the U.K. Government which were designed to preventill-treatment and to grant redress in such instances. These provi-sions can provide a useful guide to the authorities in this country.Apart from the normal regulations requiring humane treatment,certain special directives had been issued in this regard. There wasa directive on interrogation prohibiting the use of coercion.Medical examinations, the keeping of comprehensive records andthe immediate reporting of complaints were made mandatory.But the Court added that mere directives would be insufficientand there must be satisfactory evidence that there has been the
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diffusion and enforcement at all levels of these directives andthat they were in fact implemented and obeyed in practice. Afterthe Parker Commission Report, complaints both against police andarmy personnel were referred to an outside authority for investi-gation and there was evidence of prosecution ordisciplinaryactionin numerous cases. In many cases compensation had been paid.
We have before us the affidavits of the three Service Comman-ders — the Commanders of the Army, the Navy, and the AirForce — and also of the Inspector-General of Police. They state incategorical terms that they have at no time authorised, encouragedor condoned unlawful acts or breaches of discipline among theirpersonnel. Statute law, regulations and directions also outlawsuch acts in categorical terms. They state that when such in-fringements are brought or come to their notice they have nothesitated to set in motion disciplinary or criminal proceedingsto punish the offender.
The Inspector-General of Police refers in particular to actionhe has taken in similar cases. In 1980 alone, in consequence ofcomplaints against members of the Police force, 108 officers havebeen prosecuted, 10 officers have been dismissed, the enlistmentof 48 persons has been cancelled and 235 other officers havebeen interdicted. In regard to the incidents that took place inJaffna in 1981, a committee of senior police officers Headed byR. Suntheralingam, D.I.G. had conducted a full scale investigationarid proceedings have been set on foot against nearly 175 policeofficers.
As far as this case is concerned, the I.G. states that when itwas found that the petitioner had complained of an assaultand was warded at the Batticaloa hospital, the HeadquartersInspector, Batticaloa, was directed to record the petitioner's state-ment. In consequence of the statement recorded from the peti-tioner, the Superintendent of Police, Batticaloa, has instructedA.S.P., Amparai, to hold an investigation. The petitioner, thoughsummoned by letter dated 11th September 1981 to attend aninquiry, has failed to do so.
The Army Commander has stated that no complaint what-soever has been made to the army authorities by the petitioneralleging that he was tortured or ill-treated by army personnel.Had he received any such complaint, he would have taken promptsteps to cause investigations to be made and if the allegations weretrue, action would have been taken against the personnel guilty ofsuch indiscipline. He has drawn the attention of Court to a telegram
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sent by the petitioner to His Excellency the President which hadbeen referred to him for action and on which he had initiatedproceedings. The telegram reads:
"18 morning public of Kalmunai assaulted by Army per-sonnel. Beg to initiate action to stop please — Kandiah Velmu-ruge D.D.C. Member Amparai."
It would be observed that this complaint by the petitioner him-self made to the head of State does not contain one word abouthis own alleged torture and ill-treatment. In the face of materialsuch as this, could any tribunal have confidence in the veracityof the petitioner or place any reliance on the allegations he hassought to make in this case. It is for this reason that I agree withmy brother Ismail, J's conclusion that even his allegation of armyassault has not been proved to our satisfaction.
On the face of this material, I do not think that the alleged actsof torture and ill-treatment administered by army personnel hasbeen made out or could be imputed as a liability of the Stateas a matter of law. The alleged acts have not been authorised,encouraged, or countenanced or performed for the benefit ofthe State. The material before us shows that they would also nothave been tolerated by the authorities, and redress in all probabi-lity granted if there had been a genuine complaint. In these cir-cumstances I am of the view that no legal liability under theconstitutional provisions can be imputed to the State.
For these reasons I am of the opinion that this application fails.I would also make an order for costs in favour of the 2nd res-pondent.
Application dismissed.