The Jana Ghosha case stands as a cornerstone in Sri Lanka’s constitutional law, particularly concerning the right to freedom of speech, expression, and peaceful assembly. This landmark Supreme Court judgment in the Jana Ghosha Case not only redefined the limits of state authority over public protests but also reaffirmed the constitutional guarantees enshrined in Articles 14(1)(a) and 14(1)(b) of the Sri Lankan Constitution. Through the Jana Ghosha Case, the judiciary took a firm stance on protecting civil liberties, making it a must-study precedent for law students, legal practitioners, and anyone interested in the development of fundamental rights in Sri Lanka.
Case Title: Amaratunga v. Sirimal and others
Citation: (1993) 1 Sri L.R. 264
Known as: Jana Gosha Case
Court: Supreme Court of Sri Lanka | SC APPLICATION NO. 468/92
Before : Fernando J. , Dheeraratne J. and Ramanathan J.
Decided on: 09 February, 1993
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Factual Background
On July 1, 1992, several opposition political parties, including the Sri Lanka Freedom Party (SLFP), organized a nationwide protest called Jana Ghosha which is a 15-minute noisy demonstration intended to express public disapproval of government policies.
Participants were asked to engage in activities such as beating drums, ringing bells, and sounding vehicle horns. The protest was widely publicized and scheduled for a specific time.
The petitioner, Mr. Amaratunga, an SLFP member and local Pradeshiya Sabha representative from Horana, took part in the protest at Ingiriya.
He beat a drum in public to voice his dissent. And has he refused to stop after being ordered to do so by the police, therefore officers used force and destroyed his drum with a rice pounder, and he was physically assaulted, sustaining non-grievous injuries. Tear gas and a baton charge were also used to disperse the crowd.
Legal Issues of the Jana Ghosha Case
- Whether the petitioner’s fundamental right to freedom of speech and expression under Article 14(1)(a) was violated?
- Whether the police action can be justified under Section 78(1) of the Police Ordinance?
- Whether the protestors’ actions had significantly breached the peace so as the police to intervene?
- Whether compensation and judicial directions were warranted in this case?
Relevant Legal Provisions
- Article 14(1)(a) of the Constitution: Right to freedom of speech and expression.
- Section 78(1) of the Police Ordinance: Authorizes police officers to direct and, if necessary, disperse public processions if they have “reason to apprehend any breach of the peace.”
Arguments by the Petitioner
- The petitioner argued that his participation in Jana Ghosha was a peaceful political protest.
- He argued that it’s a fundamental right enshrined in the constitution.
- He contended that the police action was not based on any imminent breach of peace but was motivated by the anti-Government nature of the slogans.
- The violence inflicted upon him was unprovoked and amounted to an unjustified infringement of his fundamental rights.
Arguments by the Respondents
- The police denied wrongdoing.
- The first respondent claimed he was not at the protest site at the time, as he was involving court-related duties in Horana.
- The second respondent stated that the protest had escalated to violent behavior, thus they had to use force under Section 78(1) of the Police Ordinance.
- It was also claimed that slogans amounted to incitement to riot and therefore warranted preventive measures by the police.
Court’s Findings
- Credibility of Evidence: The petitioner and a witness, Nandasena, clearly identified the first respondent and confirmed that he was there during the protest, despite his denial and lack of a convincing explanation for his absence.
- Evaluation of Police Justification: The police reports did not provide any real threat of violence at the time police intervened. Thus the court concluded that the protest was disrupted because of the anti-Government nature of the slogans not due to any real threat to public order.
Application of Article 14(1)(a)
The Court emphasized that Article 14(1)(a) guarantees not only verbal expression but also symbolic forms of protest, such as drumming and clapping by citing U.S. cases like Tinker v. Des Moines and Cohen v. California
Fernando J. remarked: “The right to support or to criticise Governments and political parties, policies and programmes, is fundamental to the democratic way of life.”
Further, the Court reaffirmed that criticism of the government is a legitimate and constitutionally protected form of expression, unless it promotes violence or illegal conducts.
Why can’t we limit the right under Article 15?
Even though freedom of speech is not absolute and can be limited under Article 15 of the Constitution, such limitations must be reasonable, justifiable, and proportionate.
In this case, the Court found no evidence to suggest that the petitioner’s conduct crossed the line into illegality or posed a threat to peace and order.
Decision of the Court
- The petitioner’s freedom of speech and expression under Article 14(1)(a) had been unlawfully infringed.
- The police acted without lawful justification, and their conduct was driven by a desire to suppress dissent rather than prevent violence.
The Court order and remedies
- The Supreme Court awarded Rs. 50,000 in compensation to the petitioner, payable by the State.
- It also emphasized the duty of the police to uphold and respect fundamental rights.
- The Court advised the Inspector General of Police to issue clear directions to police officers to understand that peaceful political protests are constitutionally protected rights of citizens.
Obiter Dicta
- Legal right to criticize the government: “The right to support or to criticise Governments and political parties, policies and programmes, is fundamental to the democratic way of life, and the freedom of speech and expression is one which cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions.”
This statement, while not essential to the decision on the petitioner’s specific case, reflects a broader constitutional philosophy and has been treated as an obiter dictum with significant persuasive value.
- The dangers of suppressing peaceful dissent: “Stifling the peaceful expression of legitimate dissent today can only result, inexorably, in the catastrophic explosion of violence some other day.”
This warning goes beyond the individual facts and speaks to a general principle about state conduct and political freedom, emphasizing the long-term consequences of repressing expression.
- Judicial responsibility: “Hence the obligation cast upon this Court by Article 4(d) of the Constitution, to respect, secure and advance fundamental rights, would amply justify the exercise of our power (under Article 126(4)) to give directions to the police to ensure that they will respect the citizen’s fundamental right of speech and expression, and will not suppress peaceful protest.”
This is an obiter because, although the Court did not formally issue directions to the police, it highlighted the judiciary’s proactive duty in safeguarding rights.
Significance and Impact of the Jana Ghosha Case
Jana Ghosha case is widely regarded as a landmark in Sri Lankan constitutional law for several reasons:
Affirmation of Civil Liberties
- It strongly affirmed that peaceful dissent, including protest against government policies, is at the heart of democratic freedoms.
Judicial Oversight of State Power
- The judgment reflects the power of the judiciary over executive actions, especially those involving law enforcement bodies.
Development of Constitutional Jurisprudence
- By referencing international jurisprudence and expanding the interpretation of “expression,” the Court enriched the local legal framework on fundamental rights.
Encouragement of Responsible Policing
- The case highlighted the importance of accountability in law enforcement.
Critical Analysis
The Jana Ghosha case highlights the tension between national security and individual rights. While governments have a duty to maintain public order, that duty must not become a weapon to suppress legitimate dissent. The Court skillfully navigated this balance by:
– Recognizing the context of the protest.
– Dismissing vague and belated justifications.
– Restoring the supremacy of fundamental rights over arbitrary state action.
Thus this case is served as a judicial precedent in Sri Lankan legal regime.
Conclusion
Jana Ghosha case is a groundbreaking judgment related to constitutional protection of fundamental rights. It reaffirms that democracy thrives on dialogue, dissent, and debate, not silence or suppression. The case continues to be cited in discussions on protest rights, police conduct, and constitutional freedoms. Its legacy lies in the clarity with which it delineates the boundaries of state authority and the supreme protection it offers to civil liberties.
Cases referred to
- Carey v. Brown (1980) 447 U.S. 455.
- Police Department of Chicago v. Mosley (1972) 408 U.S. 92, 95-96.
- Tinker v. Des Monies (1969) 393 U.S. 503.
- United States v. O’ Brien (1968) 391 U.S. 367, 377.
- Strombero v. California (1931) 283 U.S. 359.
- Cohen v. California (1971) 403 U.S. 15, 26.
- Ekanayake v. A. G. S.C. Application No. 25/91 S.C. Minutes of 18.12.91.
- Whitney v. California (1927) 274 U.S. 357.
- De Jonge v. Oregon (1937) 299 U.S. 353.
Judgments Similar to Jana Ghosha case
1. Joseph Perera alias Bruten Perera v. The Attorney General and Others [1992] 1 Sri L.R. 199
Summary: The petitioner, a member of the Revolutionary Communist League, was arrested and detained under emergency regulations for organizing a public meeting. The Supreme Court held that his fundamental rights under Articles 12(2), 13(1), and 14(1)(a) of the Constitution were violated, emphasizing that freedom of speech and expression is a fundamental right that cannot be curtailed without just cause.
2. Sunila Abeysekera v. Ariya Rubasinghe and Others [2000] 1 Sri L.R. 314
Summary: The petitioner challenged emergency regulations that imposed censorship on military-related publications. The Supreme Court held that while freedom of expression is protected under Article 14(1)(a), it can be restricted under Article 15(7) in the interest of national security. However, such restrictions must be reasonable and not arbitrary.
3. Weerawansa v. Attorney General and Others [2000] 1 Sri L.R. 387
Summary: The petitioner was arrested and detained under the Prevention of Terrorism Act without sufficient evidence. The Supreme Court found that his rights under Articles 13(1) and 13(2) were infringed, as there was no reasonable suspicion to justify his arrest and detention.
4. Seneviratne and Another v. University Grants Commission and Another [1980] 1 Sri L.R. 182
Summary: The petitioners challenged the university admission criteria, alleging discrimination. The Supreme Court held that the criteria violated the right to equality under Article 12(1) of the Constitution, emphasizing that state policies must not infringe upon fundamental rights.
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