021-SLLR-SLLR-1985-V2-PREMALAL-PERERA-v.-WEERASURIYA-AND-OTHERS.pdf
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Kularatne v. Chandrananda de Silva (Sharvananda, C.J.)
177
PREMALAL PERERA
v.
WEERASURIYA AND OTHERS
SUPREME COURT
RANASINGHE. J. ATUKORALE. J. AND L. H.'DE ALWIS. J.
S.C APPLICATION No. 18 OF 1985.
MAY 16. 30 and 31. 1985.
Fundamental Rights of freedom of thought, conscience and religion, and ofequality – Articles 10. 12 (1) and 14 (1) (e) and 4 (d) of the Constitution – Circular todeduct contribution from salary to the National Security Fund in the absence ofobjection – Can it amount to infringement of Fundamental Rights ?
The petitioner an employee of the Government Railway Department complained that acircular authorising the deduction of a contribution from him to the National SecurityFund in the absence of objection by him infringes < 1) his Fundamental Right of freedomof thought, conscience and freedom (Article 10. 14(1) (e) of the Constitution)because the money is to be used to buy arms and weapons which will be employed inthe destruction of human life and violence which is repugnant to the tenets of theBuddhist faith and belief which he professes and by requiring express objection forceshim to make public his opinions with a view to singling him out for and exposing him toharassment and (2) his right to equality (Article 12 (1) of the Constitution) becauseemployees of the Health Department for instance have not been called upon tocontribute to the National Security Fund.
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Hald-
Ol The Fundamental flight of freedom of thought, conscience and religion is by ourConstitution cast in absolute terms and it will have to give way only to any law. writtenor unwritten, which was in force at the time the Constitution came into operation butonly to the extent of any inconsistency as between them.
Beliefs rooted in religion are protected. A religious belief need not be logical,acceptable, consistent or comprehensible in order to be protected. Unless the claim isbizarre and clearly non-religious in motivation, it is not within the judicial function andjudicial competence to inquire whether the person seeking protection has correctlyperceived the commands of his particular faith. The courts are not the arbiters ofscriptural interpretation and should not undertake to dissect religious beliefs.
A regulation neutral on the face of it may in its application nonetheless offend theconstitutional requirement if it unduly burdens the full and free exercise of a right.
The necessity to express objection openly to the deduction does not and cannotamount to a violation of the precept of petitioner's religion as asserted in the petitionbecause no penal sanctions or disabilities are prescribed for objectors to the deductionand there was no interference in any way with the full and free practice by the petitionerof his religion.
The material before Court was insufficient to decide whether the right to equalityhas been violated by the fact that Health Department employees were not called uponto make the contribution to the National Security Fund.
Cases referred to : –
Reynolds v. U.S.. 98 U S. 145
West Virginia State Board of Education v. Barnette 319 U S. 624.
Braunfek! v. Brown 366 U.S. 599.
Sherbertv. Vemer 374 U.S. 398.
Wisconsin v. Yoder 406 U.S. 205.
(6> Thomas v. Review Board of the Indiana Employment Security Division 450 U S-707.
Gillette v United States 401 U.S. 437.
United States v. Seeger 380 U S. 163.
Welsh v. United States 398 U. S. 333.
Gallagher's case 366 U.S. 517.
Elmore Perera v. Montague Jayawickreme. Minister of Public Administration el al(1985J1 SLR 285.
APPLICATION complaining of infringement of Fundamental Rights.
R.K. W. Goonesekera with Desmond Fernando. J. Yoosoof and N. Punchihewa for thepetitioner.
S.Maharoof, Senior State Counsel for the respondents.
Cur. adv. vult
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Premalal Perera v. Weerasuriya
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July 10, 1985.
RANASINGHE, J.
On 1.7.12.84 the 1st respondent, who is the General Manager,Railway Department, issued the Circular, which has been marked IR2in these proceedings, to the several officers of the Department, setout therein, directing them to deduct, from those employees of theDepartment, who signify their consent, in the specified form, to adeduction of a day's salary (or any larger sum) from their salary for themonth of January 1985 as a contribution from them towards, whatwas then called, the National Security Fund. Thereafter, on 31.12.84,the 1 st respondent issued the further Circular, P2, in regard to theself-same matter. P2 alters the basis upon which the deduction,referred to in the earlier Circular 1R2, is to be made. According to P2such deduction is to be made from all those employed in the RailwayDepartment-, except those who inform the Accounts Section that theydo not consent to the said deduction(®S®cfco^a Qc&),P2 also sets out the reasons why
such alteration in procedure is being made, viz : the need to make thecontribution to the said Fund without delay within the month ofJanuary 1985 itself ; the lack of time within which to make suchdeduction after obtaining the consent, on account of theend-of-the-year transfers.
The petitioner, who joined the Ceylon Government Railway on orabout 8 9 1977 as an unskilled worker, is presently attached to theChief Mechanical Engineer's sub-department workshop atRatmalana ; but has, however, been under interdiction from 5.7.80.The petitioner has made this application to this Court on 28.12.85,
. under the provisions of Article 126 (2) of the Constitution praying for .declarations that the aforesaid Circular P2 violates the FundamentalRights guaranteed to the petitioner by the provisions of Articles 10-and/or 12 (1) of the Constitution and that the deduction made by the1st respondent in pursuance of the said Circular, P2, of a sum ofRs. 1 9 from his salary for the month of January 1985 constitutes aninfringement of the said Fundamental Rights : Orders directing the 1 strespondent to refund the said sum of Rs. 19 so deducted, and not tomake any further deductions from the petitioner's salary.
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The petitioner states : that, when he was paid his salary for themonth of January 1985 on 31.1.85, he found that a sum of Rs. .19had been deducted : that, upon his informing the officer, who paid himhis salary, that he had not expressed his consent to any suchdeduction, he was informed of the Circular P2 which he then foundexhibited on the notice-board : that he had ho intimation of theCircular P2 before the said deduction was made from his salary for themonth of January 1985 : that, tr any event, there was no obligationcast upon him to communicate his objection to any such deduction :that he verily believes that the monies of the said National SecurityFund are to be utilized, inter alia, for the purchase of arms and militaryequipment to be used for the destruction of human life, includingthose of the members of the minority Tamil Community who areprotesting and agitating against the atrocities committed, witn theapproval of the Government, by the armed forces of the Government :that the petitioner, being a Buddhist, is against the taking of human lifeand the use of violence : that the use of violence, and of militaryoperations, by the Government is in direct violation’ of the teachingsand practice of Buddhism : that such deductions have not been madefrom the salaries of all public officers, for instance, the members of theDepartment of Health : that the armed services have also oeen used,by the Government, for the suppression of the protests of theUniversity students and of anti-government literature, for thedisruption of peaceful demonstrations, and against those who losttheir employment as a result of the strike in July 1983 : that theprocedure set out in P2 is a means of picking out those whose viewsare in conflict with the views of the party now in power with a view tosubjecting them to political harassment and victimization : thepetitioner, therefore, pleads that the said Circular, P2, and theconsequent deduction of the sum of Rs. 19 from his salary for themonth of January 1985, constitute an infringement of not only theFundamental Right of the freedom of thought, conscience andreligion, including the freedom to have or adopt a religion or belief ofhis choice guaranteed by Article 10 of the Constitution, but also theFundamental Right of equality before the law and of equal protectionof the law guaranteed by Article 12 (1 > of the Constitution.
Thp 1 st respondent accepts both the issuance of the two Circulars1R2 and P2, and also the deduction of the said sum of Rs 19 fromthe salary due to the petitioner for the month of January '85 ; andfurther states : that the said deduction was made in the belief that the
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petitioner has consented : that the 1 st respondent became aware ofthe petitioner's objection only after the institution of theseproceedings : that, in view of the fact that the petitioner states heobjects to such deduction, he, the 1st respondent, undertakes torefund the said sum of Rs. 19 to the petitioner; the said Circular P2was not issued with any intention of singling out any employee of thedepartment for harassment or victimization. The 1st respondentdenies that P2 was either intended to or does violate any FundamentalRight of the petitioner.
The 3rd respondent, who is the Secretary of the Ministry of NationalSecurity, has. in his affidavit, set out how the contributions made tothe National Security Fund were, and are, to be utilised.
The contents of the Circular P2 themselves, and the affidavit of the1 st respondent make it clear that the deduction referred to in P2 is tobe made only from the salary for the month of January 1985, and thatno further deductions were to be made. The operative period of P2was confined to the month of January 1985 ; and it has ceased to bein operation thereafter.
Learned Counsel appearing for the petitioner submitted that thepetitioner makes no complaint of a violation of any fundamental rightof his in respect of the Circular 1R2. The petitioner's position is that,of the two circulars, it is only P2 that he alleges constitutes a violationof his fundamental rights, viz : those Fundamental Rights referred to inhis petition, 1R2. though dealing with the self-same subject matter thepetitioner submits, gives no room for him to complain of a violation ofany fundamental right guaranteed to him by the Constitution. LearnedCounsel further submitted : that it is the requirement, set out in P2, ofan express objection in writing by those who do not want a deductionto be made, which distinguishes P2 from 1R2 and which makes itobjectionable : that when, in order to prevent the deduction, hesubmits a written objection, he thereby makes public his religiousbeliefs, and also matters connected with his conscience and thoughtswhich he is under no obligation to disclose to anyone : that the saidrequirment compels him to do something which he would nototherwise have done nor could have been required to do concerning amatter in respect of which he had complete freedom to think andbelieve in . that the imposition of such a requirement operates tocompel him to make a disclosure in regard to a matter, which he wasfree to keep to himself; and thereby expose himself to penalties andto harassment.
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Learned Counsel for the petitioner relied on several Americandecisions to support his contention that the said Circular P2 amountsto an infringement of the freedom of thought, conscience and religionthe petitioner is entited to.
Article 10 of our Constitution guarantees to every person the"Freedonvof thought, conscience and religion, including the freedomto have or adopt a religion or belief of his choice’ ; and Article14(1) (e)“assures to every citizen the freedom, either by himself or inassociation with others, and either in public or in private, to manifesthis religion or belief in worship, observance, practice and teaching'.
The First Amendment to the Constitution of the United Statesprovides : 'Congress shall make no law respecting an establishment ofreligion or prohibiting the free exercise thereof
In India Article 25 of the Constitution guarantees to all persons the"freedom of conscience and the right freely to profess, practise andpropagate religion'.
In India, the freedom so assured to every person is, however, madesubject to the limitations set out in the same article in the Constitutionitself. In America, the freedom of religion is declared in absolute termsand it has been left to the Courts to evolve exceptions to suchfreedom. With us in Sri Lanka the freedom of religion spelt out inArticle 10 as set out above, has also been cast in absolute terms. ThisArticle, along with Article 11, are the only rights, from and out of allthe Fundamental Rights declared and recognized by Chapter III of theConstitution, which are not made subject to any restrictions. Whilstthe exercise and operation of the rights set out in Articles 12,13 and14 are all made subject to the respective restrictions set out in Article15, no such restriction can, however, be imposed in Sri Lanka uponthe exercise and operation of the freedom of thought, conscience andreligion so declared and recognized by the Constitution. In view,however, of the provisions of Article 16 (1) of the Constitution anyexisting written or unwritten law. which conflicts with any of theprovisions of Chapter III – which includes the aforesaid Aricle 10 -will prevail over the provisions of the said Chapter.
The content and reach of the Fundamental Right of freedom ofthought, conscience and religion, embodied in our Constitution doesnot appear to have been considered by this Court earlier. Indetermining the nature and the scope of the said cdnstitutional right, a
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consideration of the decisions handed down by the American andIndian Supreme Courts in respect of the corresponding rightsembodied in the American and Indian Constitutions would seem to beboth relevant and helpful.
in the case of Reynolds v U. S. (1) which was decided by theSupreme Court of the United States, Reynolds, who was charged inthe 1870s, while Utah was still a territory, in a territorial court withhaving committed bigamy, testified in his defence that Mormondoctrine, to which he adhered, did not merely permit plural marriagesbut required it, and that, if he failed or refused to practice polygamy“when circumstances would admit", he would be punished by"damnation in the life to come". Reynolds was convicted by the trialcourt; and the conviction was affirmed by the Supreme Court. ChiefJustice Waite, who delivered the opinion of the Court, did, in thecourse of the.judgment, whilst laying down the now' well-known"belief-action' distinction, pose the question whether those who makepolygamy a part of their religion are excepted from the operation of thelaw prohibiting bigamy ; and proceeded to deal with it in this way :
"If they are, then those who do not make polygamy a part of theirreligious belief may be found guilty and punished while those whodo, must be acquitted and go free. This would be introducing a newelement to criminal law. Laws are made for the government, ofactions, and while they cannot interfere with the mere religiousbelief and opinions, they may with practices. Suppose one believedthat human sacrifices were a necessary part of religious worship,would it be seriously contended that the civil government underwhich he lived could not interfere to prevent a sacrifice ? Or if a wifereligiously believed it was her duty to burn herself upon the funeralpyre of her dead husband, would it be beyond the power of the civilgovernment to prevent her carrying her belief into practice ? Sohere, as a law of the organization of society under the exclusivedominion of the United States, it is provided that plural marriagesshall not be allowed. Can a man excuse his practices to the contrarybecause of his religious belief ? To permit this would be to make theprofessed doctrines of religious belief superior to the law of theland, and in effect to permit every citizen to become a law untohimself. Government could exist only in name under suchcircumstances".
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In June 1943, six months after the attack on Pearl Harbour and theentry of the United States into World War II, the Supreme Court of theUnited States delivered the judgment in the case of West VirginiaState Board of Education v. Barnette, (2) which is one of that group ofcases which have since become famous as the "flag-salute" casesWhat came up for consideration in that case was an application madeon behalf of a Jehovah's Witness to restrain the enforcement of aresolution of the Board of Education of West Virginia that all teachersand pupils in the public schools established by the State of Virginia'shall be required to participate in the salute honoring the Nationrepresented by the Flag : provided, however, that refusal to salute theFlag be regarded as an act of insubordination, and shall be dealt withaccordingly' The salute was to be accompanied by the making of alsoa pledge of allegiance. Failure to conform was to be dealt with byexpulsion ; and readmission was denied until compliance. Theexpelled child was considered to be "unlawfully absent'and was liableto be proceeded against as a "delinquent", which meant that theparents or guardians of such child were liable to prosecution, and. ifconvicted, were subject to a fine not exceeding $ 50 and a term ofimprisonment not exceeding thirty days. Justice Jackson, whodelivered the opinion of the Court, stated : that the real issue in thismatter was not whether people with religious scruples had to beexcused from the flag-salute, but whether anyone can be required tosalute the flag against his will: that the freedom asserted by thepetitioners did not bring them into conflict with rights asserted by anyother individual; that the compulsory flag-salute and pledge requireaffirmation of a belief and an attitude of mind ; that that was really anissue of freedom of expression. In coming to the conclusion that theprinciple, which should decide the case, is that no one could becompelled by the government to profess a belief, Justice Jacksonobserved :
"If there is any fixed star in our constitutional constellation, it isthat no official, high or petty, can prescribe what shall be orthodoxin politics, nationalism, religion or other matters of opinion or forcecitizens to confess by word or act their faith therein. If there are anycircumstances which permit an exception, they do not now occur tous".
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The Supreme Court accordingly affirmed the judgment of the lowercourt enjoining enforcement of the said resolution of the West VirginiaState Board of Education. This group – 'flag-salute' cases – has beenconsidered the most "graphic illustration of the- relationship betweenthe constitutional protection of speech and religion".
The question, whether, even if religious belief cannot be a defenceto all criminal charges, there are in America some cases wherereligious conscience can excuse compliance with the law, came to beconsidered by the Supreme Court in 1961, almost a century after'thedecision in Reynold's case (supra), in the case of Braunfeld v. Brown
which said decision is, incidentally, also considered to be the"first-crack" in the "belief-action" distinction drawn by Chief JusticeWaite m the Reynold's case (supra). In this case the Supreme Courtwas called upon to consider the constitutionality of a criminal statuteenacted in 1959 by the State of Pennsylvania (and better known as a"Sunday closing" law) proscribing the Sunday retail sale of certainenumerated commodities. Braunfeld and several other merchants ofPennsylvania, who were members of the Orthodox Jewish faith whichrequires the closing of their places of business and a total abstentionof all manner of work from nightfall each Friday until nightfall eachSaturday, and who were engaged in the retail sale of the commoditiesso proscribed instituted proceedings in the original court seeking apermanent injunction against the enforcement of the said"Sunday-closing" law, on the basis : that the enforcement of the saidlaw will prohibit the free exercise of their religion because; due to thecompulsion to close on Sunday, they will suffer economic loss, to thebenefit of their non-Sabbatarian competitors if they also continue theirSabbath observance by closing their business on Saturday ; that in theresult they will have either to give up their Sabbath observance, whichis a basic tenet of their Orthodox Jewish faith, or face seriouseconomic disadvantage by continuing to adhere to their Sabbath.Chief Justice Warren delivering the opinion of the Court stated : thatthe issue was whether the First and Fourteenth (which guarantee theequal protection of the laws) Amendments forbid application of theSunday Closing Law to the petitioners ; that certain aspects ofreligious worship cannot, in any way, be restricted or burdened bylegislation ; that compulsion by law of the acceptance of any creed orthe practice of any form of worship is strictly forbidden, the freedom tohold religious beliefs and opinion is absolute ; that state action incompelling (as in Barnette's case)(supra) school children to salute the
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flag, on pain of expulsion, from public school is contrary to the FirstAmendment when applied to those students whose religious beliefsforbade saluting a flag ; that the freedom to act, even when the actionis in accord with one's religious convictions is not totally free fromlegislative restrictions ; that (as pointed out in Reynold's case} (supra)legislative power over mere opinion is forbidden, but it may reachpeople's actions when they are found to be in violation of importantsocial duties or subversive of good order, even when the actions aredemanded by one’s religion ; that, if the purpose or effect of a law isto impede the observance of one or all religion or is to discriminateinvidiously between religions, that law is constitutionally invalid eventhough the burden may be characterised as being only indirect ; that ifthe State regulates conduct by enacting a general law within itspower, the purpose and effect of which is to advance the State'ssecular goals, the statute is valid despite its indirect burden onreligious observances, unless the state may accomplish its purpose bymeans which do not impose a burden ; that, in this case, however, thestatute does not make criminal the holding of any religious belief oropinion, nor does it force anyone to embrace any religious belief or tosay or believe anything in conflict with his religious tenets, the lawsimply regulates a secular activity, viz., setting one day of the weekapart from others as a day of rest, and as applied to the petitionersoperates so as to make the practice of their religious beliefs moreexpensive . they are not faced with as serious a choice as making theirreligious practices and subjecting themselves to criminal prosecution ;the option available to them is wholly different than when legislationattempts to make a religious practice itself unlawful. Having set outthese grounds. Chief Justice Warren (with whom the majorityconcurred) held that the said statute cannot be said to be invalid eitheron its face or as applied. Although the majority rejected the claimbased upon the Free Exercise claim (based upon the FirstAmendment), yet both the majority opinion and the dissentingjudgment agreed that there could be cases in which exemption forreligion might be required.
Adell Sherbert had been working in a mill in South Carolina forsometime prior to 1957. In 1957 she became a member of theSeventh-day Adventist Church, a basic tenet of which prohibits labouron Saturdays. The mill, which had been working only five days in theweek, changed over to a six-day work week in 1959. and as A.S.would not work on Saturdays, she was discharged. A S. could not find
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other employment because the jobs, which were available, all requiredher to work on Saturday. A S. then applied for State UnemploymentCompensation. These benefits were also refused on the ground thatshe had failed 'without good cause" to accept available suitable workwhen offered to her. A S. then came into court. In the case,ofSherbert v. Verner (4) the South Carolina Supreme Court rejected hercontention, that the disqualifying provisions of the South CarolinaUnemployment Compensation Act, in terms of which the benefits,which she would otherwise have been entitled to. were denied to her.abridged her right to the free exercise of her religion secured to herunder the Free Exercise Clause of the First Amendment. The StateSupreme Court held that A.S.'s ineligibility infringed no constitutionalliberties because such a construction on the statute "places norestriction upon the appellant's (i.e. A.S.'s) freedom of religion nordoes it m any way prevent her in the exercise of her right and freedomto observe her religious beliefs in accordance with the dictates of herconscience'. Brennan, J., who had earlier dissented from the majoritydecision in Braunfeld's case {supra), delivered the opinion of theSupreme Court of the United States (with which Warren, C.J., Black,
J., Clark, J., who had all formed the majority in Braunfeld's case,(supra) concurred) holding in favour of A S. that A.S.'s conscientiousobjection to Saturday work constitutes no conduct prompted byreligious beliefs of a kind within reach of state legislation : that therewas no compelling State interest enforced in the eligibility provisionwhich justified infringement of A.S.'s First Amendment right ; that thedisqualification from receiving the said benefit imposes a burden onthe free exercise of A.S.'s religion.
The impact of the compulsory school attendance laws of the Stateof Wisconsin on the rights of those who profess the Amish religiousfaith, to the free exercise of their religious beliefs came up forconsideration by the Supreme Court of the United States in the year1 972 in the case of Wisconsin v. Yoder (5). Wisconsin laws requiredthe children to attend school until the age of 16. The threerespondents Y.. Y., and M., who were all members of the Old OrderAmish religion declined to send their children, who were 14 and 15years of age, to public school after completing the eighth grade, andwere convicted of violating the State's compulsory attendence law.The respondents so refused because they believed that' by sendingthem to High School they would not only expose themselves to thedanger of the censure of the Church community but would also
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endanger their own salvation and that of their children. The Stateaccepted the sincerity of the respondent's religious belief. ChiefJustice Burger, who delivered the opinion of the Court affirming thedecision of the Supreme Court of Wisconsin in favour of therespondents, observed : that, in order for the State of Wisconsin tocompel school attendence beyond the eighth grade against a claimthat such attendance interferes with the practice of a legitimatereligious belief, it must appear either that the State does not deny thefree exercise of religious belief by its requirement or that there is aState interest of such magnitude as to override the interest claimingprotection under the Free Exercise Clause ; that to have the protectionof the Religion Clause, the claim must be rooted in religious belief.that a regulation neutral on the face of it may in its applicationnonetheless offend the constitutional requirement for governmentneutrality if it unduly burdens the free exercise of religion ; that theFirst and Fourteenth Amendments prevent the State, however strongthe State's interest in Universal compulsory education is, fromcompelling respondents to cause their children to attend formal HighSchool at age 16.
The nature and the extent of the protection that is accorded m theUnited States to a citizen s belief rooted in religion was once againconsidered by the Supreme Court of the United States of America in1980 in the case of Thomas v. Review Board of the IndianaEmployment Security Division (6). Thomas, who was a Jehovah'switness and who was employed in a foundry and machinery company,was transferred from the roll foundry to another department of thecompany which produced turrets for military tanks. He claimed that hisreligious beliefs prevented him from participating in the production ofwar materials and requested a lay-off. When such request was deniedhim Thomas quit, asserting that his religious beliefs prevented himfrom participating in the production of war weapons. He then appliedfor Unemployment Compensation ; and the respondent Review Boarddenied him such benefits by applying the disqualifying provisions of therelevant statute, viz., that his voluntary termination was not basedupon a “good-cause' arising in connection with his work. The SupremeCourt of Indiana, reversing the decision of the Indiana Court of Appeal,denied Thoqpas relief on the ground : that "good cause’-which justifiesvoluntary termination must be 'job-related and objective incharacter" ; that, as Thomas had quit voluntarily for personal reasonshe did not qualify for benefits ; that denying Thomas benefits would
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create only an indirect burden on his free exercise right, and that theburden was justified by the legitimate state interest in preserving theintegrity of the insurance fund and maintaining a stable work force byencouraging workers not to leave their job for personal reasons. ChiefJustice Burger, delivering the opinion of the Supreme Court of theUnited States, which set aside the judgment of the Supreme Court ofIndiana and gave Thomas relief, observed : that only benefits rooted inreligion are protected by the Free Exercise Clause, which by its termsgives special protection to the exercise of religion ; that thedetermination of what is a "religious’ belief or practice is more oftenthan not a difficult and delicate task, and the resolution of thatquestion is not to turn upon a judicial perception of the particular beliefor practice in question , that religious beliefs need not be acceptable,logical, consistent or comprehensible to others in order to meritConstitutional protection ; that Thomas was put to a choice betweenfidelity to religious belief or cessation of work; that where the stateconditions receipts of an important benefit upon conduct proscribedby a religious faith or where it denies such a benefit because ofconduct mandated by religious belief, thereby putting substantialpressure on an adherent to modify his behaviour and to violate hisbeliefs, a burden upon religion exists : that only interests of the highestorder can overbalance legitimate claims to the free exercise of religion.The principles which had earlier been applied in Yoder's case (supra}and Sherbert's case (supra} were once again applied in this case.
The conscientious objector exemption found in the United StatesSelective Service Act came up for consideration by the Supreme Courtof the United States in 1971, in the case of Gillette v. United States
. Since 1940, the policy of the draft laws has been to extend theobjection to all persons who have religious objections to all wars andto limit the exemption to those persons whose objections to war are'religious". In Gillette's case {supra} the challenge to theconstitutionality of these laws came from Gillette whose objectionswere limited to the Vietnam War, rather than to war in general. Gillettein defending a prosecution for failure to report for induction contendedthat he viewed the Vietnam War as 'unjust', and that based on a'humanist approach to religion' his decision not to serve in an unjustwar was guided by fundamental principles of conscience and deeplyheld views about the purpose and obligation of human existence.Justice Marshall rejecting the claim based on the Free Exercise Clause
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stated : that the conscription laws, applied to such persons as others,are not designed to interfere with any religion, ritual or practice and donot work a penalty against any theological position : that the incidentalburdens felt by persons in Gillette's position are strictly justified bysubstantial government interests that relate directly to the veryimpacts questioned.
In 1948 the American Congress defined, in sec. 6 (j) of theUniversal Military Training and Service Act, 'religious training andbelief' as including "an individual's belief in a relation to a SupremeBeing involving duties superior to those arising from any humanrelation" and excluding "essentially political, sociological or philosophicviews or a merely personal code." In 1957 when Daniel Seegerapplied for conscientious objector status he informed the draft boardJhat he was not sure he believed in God, but that he did have a "beliefin and devotion to goodness and virtue for their own sakes. and areligious faith in a purely ethical creed." The draft board denied Seegerexemption on the ground that his vievys were not "religious" as definedin the said sec. 6 {j) It was contended that the 'Supreme BeingClause" was unconstitutional because it distinguished betweentheistic and non-theistic religious beliefs. The Supreme Court of theUnited States upheld the constitutionality of the saidsec. 6(j) – United States v. Seeger (8). Whilst doing so, the SupremeCourt, however, laid down a definition of 'religion' which took inbeliefs like Seeger's. Observing that a narrow construction of the saidsec. 6 (j) might exclude Buddhists and Hindus as persons whoseviews were not "religious." the Supreme Court stated that a view wasreligious if it was 'a sincere and meaningful belief which occupies inthe life of the possessor a place parallel to that filled by the God ofthose admittedly qualifying for the exemption."
In 1970 the Supreme Court dealt with this issue again in the case ofWelsh v. United States (9). This decision was made, when thereference to the Supreme Being was still part of the aforesaidsec. 6 (/} – the said reference to a Supreme Being was eliminated byCongress in 1967. Welsh’s claim for conscientious objector stateswas turned down by the draft board on the ground that his views werenot "religious". Justice Black, who delivered the opinion of theSupreme Court of the United States, took the view : that Welsh wasentitled to an exemption under sec. 6 (/) because his views werereligious ; that^what is necessary for a conscientious objection to all
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wars to be "religious", within the meaning of sec. 6(y) is that suchopposition to war should stem from the objector's moral, ethical orreligious beliefs about what is right and wrong and that such beliefs beheld with the strength of traditional religious convictions ; that, if anindividual deeply and sincerely holds beliefs that are purely ethical ormoral in source and content but that nevertheless impose upon him aduty of conscience to refrain from participating in war at any time,these beliefs certainly occupy in the life of the individual "a placeparallel to that filled byGod" in traditionally religious persons.
The effect of the corresponding Articles – 25 and 26 – of theIndian Constitution is to provide : that free exercise of religion issubject to the restrictions imposed by the state on grounds of publicorder, morality and health : that the state does not interfere in mattersof religion, not only in regard to its doctrinal and ritual aspects, butalso acts done in pursuance of religion, and that there is thus aguarantee for rituals, observances, ceremonies and modes of worshipwhich are an integral part of the religion : that the "essential part" of areligion is primarily to be ascertained with reference to the doctrine ofthat religion itself, and would include practices which are regarded bythe community as part of its religion.
Just as in the United State of America so too in Sri Lanka 'the rightto free religious expression embodies a precious heritage of ourhistory" ; and in a pluralistic society "the protection of aself-expression, however unique, of the individual and the groupbecomes ever more important" ; and "the varying currents of thesub-cultures that flow into the mainstream of our national life give itdepth and beauty."
A consideration of the provisions in the Constitution of Sri Lanka,which assure to the people of Sri Lanka the freedom to have and adopta religion or belief of their choice together with the freedom tomanifest such religion or belief – Articles 10 and 14{1)(e)-, againstthe background of not only the provisions of Article 4(d) of theConstitution itself, but also the aforementioned principles elucidatedby the Supreme Court of the United States and the Supreme Court ofIndia, makes it clear: that the guarantee of the freedom of religion,thought and conscience, like the rights set out in Articles 11,13(3)and (4) is absolute, unfettered by even the likelihood of the impositionof any restriction whatsoever after the promulaation of the
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Constitution : that such freedom will have to, if at all. give way only toany law, written or unwritten, which was in force at the time theConstitution came into operation, and that too only to the extent ofany inconsistency as between them : that beliefs rooted in religion areprotected : that the determination of what is a "religious” belief orpractice does not depend upon a judicial perception of the particularbelief or practice : that a religious belief need not be logical,acceptable, consistent or comprehensible in order to be protected :that unless where the claim is so bizarre, so clearly non-religious inmotivation, it is not within the judicial function and judicial competenceto inquire whether the person seeking protection has correctlyperceived the commands of his particular faith : that-the courts are notthe arbiters of scriptural, interpretation, and should not undertake todissect religious' beliefs : that evidence of experts and of religiousdignitaries may be considered by court only for the purpose ofdeciding whether the professed belief is rooted in religion : the onlyother issue the court could decide is whether the claimant honestlyand sincerely entertained and held such belief: that no official, high orpetty, can prescribe what is to be orthodox in religion or other mattersof opinion or force citizens to proclaim by word or act their belief inthem . that a regulation neutral on the face of it may in its applicationnonetheless offend the constitutional requirement if it unduly burdensthe full and free exercise of a right : that where an employee is put to achoice between fidelity to a religious belief or cessation of work, thecoercive impact on the employee is unmistakable : that, where thestate conditions receipt of an important benefit upon conductproscribed by a religious faith, or where it denies such benefit becauseof conduct mandated by religious belief and thereby puts substantialpressure on an adherent to modify his behaviour and to violate hisbelief, there exists then a burden on religion . that, in such a case whilethe compulsion may be indirect the infringement upon the exercise isnonetheless substantial: that even if the impugned law does notcompel overt affirmation of a repugnant belief, nor even prohibitoutright any of the complainant's religious practices, yet, if their effectis that the complainant may not simultaneously practise the religion orcarry on his trade or employment without being hampered by asubstantial disadvantage, the effect is that there is then a clog on thefull and free exercise of religion.
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Premalal Perera v. Weerasuriya (Ranasmghe. J.)
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The petitioner, as already set out earlier, makes no complaintagainst the first Circular, 1R2. It is the subsequent Circular P2, dated31.12.84, that, he submits, violates his Fundamental Rights. The vitaldifference between the two Circulars is that the said deduction fromthe pay-sheet for the month of January 1985 was to be made,according to 1R2, only from those vVho expressly signify their consentin writing, in the specified form, to such a deduction. No deductionwas to be made from a person who does not express such consent.All that a person, who did not desire to make such a contribution hadto do to prevent the deduction was merely to remain silent. Accordingto P2, however, the deduction was to be made from the pay-sheet,except from those who communicate their objection (BQ(jasffiris*6 ) The deduction is to be made, unless an
objection was raised. Both circulars required every employee of thedepartment to do an act upon which the deduction by the accountsunit of the department was made to depend. The act of the employee,would, in the one case, be the written expression of consent. In theother, it would be the expression of an objection to each deduction, 1R2 required the deduction to be made only if there is an expressionof consent. P2 required the deduction to be made, unless there wasan expression of objection. P2 directs a deduction only if there is noobjection expressed. If an objection is expressed there is then to be nodeduction. Whether or not a deduction was to be made – whetherunder 1R2 or under P2 – ultimately depended entirely upon thewishes of the petitioner, and upon what he, the petitioner, did. Thepetitioner takes exception to the requirement, set out in P2, of thecommunication of an objection if the petitioner does not desire tomake the contribution. What is being complained of as beingobjectionable is the compulsion to register expressly an objectionwhere an employee does not agree to a deduction.
The petitoner does not want the deduction made because he doesnot desire to contribute towards the said National Security Fund, asthe said Fund is to be used, inter alia, for a purpose which his religiondoes not permit him to subscribe to. viz. : purchase of militaryequipment.
That a' Buddhist cannot, in keeping with the teachings of theDhamma he has taken refuge in, destroy, or even lend support in anyform to the destruction of, the life of any living being does not admit ofany controversy. The respondents have not challenged in any way the
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fact of the existence of such a religious tenet or precept whichconstitutes one of the five precepts – Pancha Seela – which any oneprofessing the religion of Lord Buddha undertakes of his own free will.Nor do they challenge the genuineness and the sincerity of thepetitioner's own assertion that he has undertaken the said precept interms of which he must abstain form taking the life of any living being.
The objection, which has to be made by a person such as the. petitioner, in terms of the requirement set out in P2, is not one which aBuddhist is prevented by the tenets or precepts of the religion heprofesses, from giving expression to. If such objection is not expresslyregistered, a deduction will be made under and t>y virtue of P2. Such adeduction made in the absence of an objection from a person, whohas both the freedom and the opportunity to object, would amount toa contribution made at least with the acquiesence of such person. Theexpression of such a protest openly and without any reservations doesnot and cannot amount in any way to a violation of the precept of hisreligion asserted by the petitioner.
The petitioner further contends that the expression of an objectionwould result in his being singled out for victimization and harassmentby the 1st respondent. The 1st. respondent has categorically deniedany such sinister purpose behind the imposition of the requirementembodied in P2. There is no material before this Court upon which itcould now be said that the fears expressed by the petitioner arejustified. The proclamation of one s views and opinions, which anexpress protest, such as is required by P2, would entail, would be nodifferent from what would ensue from an expression of consent as isset out in 1R2. Whatever the form of expression be-whether as anexpression of consent in terms of 1R2, or as an expression of protestas stipulated by P2-such expression must inevitably and unmistakablymake public the views and beliefs inwardly-entertained by such personupon the subject. If the expression in accordance with 1R2 does notcause any harm, the expression in accordance with P2 cannot causeany greater degree of harm. What injures the religious susceptibilitiesis not the requirement to make a communication – whether ofconsent or of objection-but rather the requirement to make acontribution from the monthly salary to the Fund set out in the saidCirculars P2 and 1R2. If there is a protest, no deduction will be made,and there would be no contribution towards the Fund from suchemployee.
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No penal sanction is attached to a failure to contribute to the saidFund. Nor is a person, who does not contribute made to suffer anydisability. The circular does not compel any overt affirmation of anybelief which is repugnant to the petitioner, as was done in Barnette'scase (supra). Nor does it prohibit outright any religious practice which,the petitioner desires to engage in as the law which was upheld inReynold's case (supra) did. There is no economic or other materialdisadvantage the petitioner would be subject to if he does not agree toa deduction, as Adell Sherbert in Sherbert's case (supra) had to face.The petitioner was not confronted with a situation in which he had tochoose between being true and faithful to an immutable tenet of thereligion he professes and adheres to, or suffering a penalty or theinfliction of a disability, as the petitioners in Braunfetd's case (supra),Gallagher's case (10), Sherbert's case (supra), Yoder's case (supra)and Thomas' case (supra) had to face.
In this view of the matter, I am of opinion that the expression of theobjection which the petitioner had to make, as was required by theterms of the Circular P2, in order to prevent a deduction and therebyavoid making a contribution to the aforesaid National Security Fund,did not interfere in any way with the full and free exercise by thepetitioner of his religion.
The petitioner’s application, based upon a violation of theFundamental Right embodied in Articles 10 and 14(1) (e) of theConstitution must, therefore, stand dismissed.
The petitioner has also complained of a violation of the FundamentalRight under Article 12(1) of the Constitution – right to equality. Thesubmission is : that such deductions have not been made from thesalaries of all public officers : that, for instance, the employees of theDepartment of Health have not been called upon to do so : that,therefore, the petitioner has not been subjected to a disadvantagewhich other public servants have not been subjected to. Apart fromthe bare assertion made in the petition, which was supported in thepetitioner's affidavit, no other independent evidence was exhibited tothis Court along with the petition. The 1st respondent, in his affidavit,denied any such inequality of treatment and discrimination. Towardsthe concluding stages of the argument before this Court, learnedCounsel for the petitioner moved, in his reply, to tender an affidavit tosupport the allegation that the employees of the Health Department
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have not been required to make any such contribution. Learned SeniorState Counsel appearing for the respondents objected to the saidaffidavit being accepted at that stage as he himself would not thenhave an opportunity to contradict the averments in any such affidavitand prejudice would be caused to the respondents. The applicationwas, in these circumstances, refused by this Court.
The content and reach of Article 12 (t) of the Constitution wasconsidered by a Full Bench of this Court recently, in the case of ElmorePerera v. Montague Jayawickreme. Minister of Public Administration,et al. {11). Having regard to the principles set out by this Court 'n thesaid judgment it appears to me that the material placed before thisCourt by the petitioner, to establish his claim under this heading, fallsfar short-of what is required to enable him to obtain relief in respect ofan infringement of the Fundamental Right embodied in the said Article12(1). This claim too must, therefore, fail
The 1 st respondent has. as set out earlier, undertaken to refund theaforesaid sum of Rs. 19. deducted from the petitioner's salary for themonth of January 85. If the said sum has not yet been refunded, the1st respondent should take steps to refund the said sum to thepetitioner forthwith.
In view of the opinion I have formed in regard to the principal matterin issue in this application, I do not propose to consider the preliminaryobjection – which briefly is that, as the 1 st respondent has agreed torefund the sum of Rs 19 referred to in the petition, a furtherconsideration of the application has become academic, and that aCourt will not proceed to consider questions where a matter could bedisposed of on other grounds – raised on behalf of the respondents tothe hearing of this application.
The petitioner's application is, accordingly, refused, but withoutcosts.
ATUKORALE, J – I agree.
L, H. DE ALWIS. J – I agreeApplication dismissed.