Re Supreme Court Special Determinations Nos 6 and 7 of 1998

[1999] 2 LRC 579; (1998) 2 CHRLD 333
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A Bill entitled ‘Prohibition of Ragging and Other Forms of Violence in Educational Institutions’ was drafted in response to the increase and brutality of ‘ragging’ in educational institutions. Section 17 of the Bill defined ‘ragging’ as ‘any act which causes, or is likely to cause, physical or psychological injury or mental pain or fear or embarrassment to a student or a member of staff of an educational institution and includes verbal abuse’. ‘Verbal abuse’ was described as ‘the use of words which are in contempt of the dignity and personality of a student or a member of the staff of an educational institution.’

Section 2 created the offence of ‘ragging’, and together with s 9, prescribed mandatory minimum sentences, automatic penalties and disabilities. Under s 9, inter alia, a student of a higher educational institution who is convicted of an offence under the Act shall be deemed to have been expelled from the institution and ‘shall not be admitted to any other higher educational institution or other institution for tertiary education’ (s 9(a)(ii)).

Sections 3, 5 and 6 created the offences of ‘criminal intimidation’, ‘wrongful restraint’ and ‘unlawful confinement’. These offences broadly corresponded to similar offences under the Penal Code, but carried substantially greater penalties. Section 8 made it an offence for a member of the administrative staff of an educational institution to fail to investigate and report complaints of ragging, and s 10 severely restricted the right to release on bail. Under s 10, a person suspected or accused of committing an offence under the Act may only be released on bail by an order of the High Court, and then only in exceptional circumstances and after the accused has been in pre-trial detention for six months or more.

The petitioners invoked the jurisdiction of the Supreme Court to determine whether various provisions of the Bill violated their constitutional rights to equality before the law (Art 12) and freedom of speech and expression (Art 14(1)(a)). The court also had to consider whether any of the provisions infringed the constitutional prohibition on torture and inhuman or degrading treatment or punishment (Art 11) and the right to freedom from detention except in accordance with procedure established by law (Art 13(2)). Further, Art 15(7) of the Constitution provides: ‘The exercise and operation … of fundamental rights … shall be subject to such restrictions as may be prescribed by law in the interests of national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others…’.

 

[Adapted from INTERIGHTS summary, with permission]

In declaring various provisions of the Bill unconstitutional, it was held that:

  1. The definition of ‘verbal abuse’ in s 17 prohibited obscene, abusive, derogatory, humiliating, degrading or contemptuous words which violated rights in respect of dignity and personality (but not reputation). Their prohibition did not infringe the right to free speech as it constituted a necessary and permissible limitation under Art 15(7) enabling students to benefit from their stay in educational institutions.
  2. The inclusion of the word ‘embarrassment’ in the definition of ‘ragging’ was inappropriate. Embarrassment can result from acts and words which are friendly and well-intentioned, such as a sincere compliment, or a genuine expression of admiration as well as from those which are hostile or malicious. Subject to the omission of the word ‘embarrassment’ and the substitution of some other appropriate phrase, such as ‘humiliation’, ‘suffering’ and/or ‘distress’, s 17 was not unconstitutional.
  3. Section 2(1) was not unconstitutional since the phrase ‘commits, or participates in, ragging,’ did not connote mere presence but requires proof of active, deliberate, participation.
  4. The fact that the Bill exposed students to criminal liability for certain acts which were not criminal in non-educational institutions did not deny students equal protection of the law as there was no comparable problem of ragging in those institutions. Sections 2-8 were, therefore, not inconsistent with Art 12(1).
  5. Mandatory minimum sentences resulted in gross disparity in sentences imposed for similar offences and would not only violate the principle of equal treatment but may even amount to cruel treatment. They also removed judicial discretion to consider the antecedents of the offender (particularly age) and the nature and circumstances of the offence. The imposition of additional penalties and disabilities, moreover, had the effect of ‘piling up punishment on punishment’ whereas these should be left to the discretion of the trial judge. Sections 2(2), 3, 4, 5, 6, 7(2) and 9 were, therefore, inconsistent with Arts 4(c), 11 and 12(1) and could not become law unless passed by a special majority under Art 84 and approved by a referendum in accordance with the provisions of Art 83 (dicta of Ratnasiri Wickramanayaka v State (Supreme Court of Sri Lanka, SC Application No 58/79, 2 October 1979, unreported) followed).
  6. Section 9(a)(ii) imposed a disability on students not imposed on members of the staff of educational institutions. It was therefore inconsistent with Art 12(1) and could not become law unless passed by a special majority under Art 84.
  7. Section 8 failed to penalize acts and omissions of members of the administrative staff of an educational institution in whose presence ragging was committed. It was inconsistent with Art 12(1) and could not become law unless passed by a special majority under Art 84.
  8. The phrase ‘procedure established by law’ in Art 13(2) referred only to the framework within which judicial power was to be exercised, including the criteria, the guidelines, the procedural forms and steps which Parliament must prescribe. Courts could not be directed to exercise their judicial powers in a particular fashion (Maneka Gandhi v Union of India AIR 1978 SC 597, 624 (Ind SC) applied).
  9. The judicial power to grant bail could not be fettered and could only be taken away if authorized by the Constitution. The binding direction to a magistrate in s 10 not to grant bail to any person suspected or accused of an offence under the Act was, therefore, inconsistent with Arts 4(c), 13(2) and 13(4) (SC Special Determination No 1/84 (Supreme Court of Sri Lanka, 23 February 1984, unreported) considered).
  10. By denying bail to all persons suspected or accused of offences under ss 2(2) or 4, s 10 treated those persons differently from others accused of similar offences (or even far more serious offences) to whom the provisions of the Bail Act apply. This also amounted to a violation of s 12(1).
  11. While it might be constitutionally permissible to limit the right to bail, s 10 did so in an overly broad and impermissible manner. It could not become law, therefore, unless passed by a special majority under Art 84 (Re SC Special Determination No 5/79 (Supreme Court of Sri Lanka, 21 May 1979, unreported) followed).
  12. The detention which resulted from a remand order under s 10 was not necessarily a detention ‘pending investigation or trial’ for the purposes of Art 13(4), since a remand order could be renewed even if investigations were complete, and if no trial was pending. In the absence of any provision for a prior judicial decision, or subsequent judicial review, such detention amounted to punishment contrary to Art 13(4).

[Adapted from INTERIGHTS summary, with permission]

INTERIGHTS comment: Ragging has for too long been cruel, inhuman and degrading. Society has been unable to deal with its root causes and the anxieties, fears and frustrations of youth on which it has fed and flourished. Although ragging warrants severe and deterrent punishments, such punishments must be just and commensurate with the offence, and not a cruel or inhuman over-reaction to the problem. Lawyers: For the Petitioners: Manohara de Silva For the Attorney-General: Upawansa Yapa PC (Solicitor General) and A Obeyesekere SC
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