Hiccups in anti ragging laws
The page contains a summary of a fundamental rights decision
by the Supreme Court of Sri Lanka as well as reference to a recent
judgment in public interest litigation by the Supreme Court of India
which is in line with the intention of JUSTICE to focus on developments
by national courts in our neighbouring countries
By Kishali Pinto Jayawardena
The first thought that strikes one in the aftermath
of the Supreme Court decision ruling that Sri Lanka’s first ever Anti Ragging
Bill is unconstitutional is somewhat humorous. Some levity is after all
called for, when a bill described as intending to prohibit cruel, inhuman
and degrading treatment and punishment in schools and universities is determined
by the highest court in the land to violate that very same right itself.
Jokes apart however, it is important that this decision of the Supreme
Court be taken in its proper context, more so in the present environment
of volatile university politics where some may see the determination as
a misconceived victory for their cause. The Bill has a particularly violent
history where incidents of severe ragging leading to at least two deaths
in higher educational institutions led the government to direct that a
committee of legal experts draft necessary laws to ban ragging in universities
and schools. A Bill was then drafted but was immediately challenged in
the Supreme Court by a student body of the University of Sri Jayawardenepura
and a university student on the basis that it violated their rights to
equality and freedom of expression.
Last Tuesday, the decision of a Supreme Court bench consisting of Justices
Mark Fernando, A. de Z. Gunewardene and D.P.S. Gunesekera that the Bill
is unconstitutional was made public by the Speaker in Parliament.
The Anti Ragging Bill was ruled to violate not only the right to equality
but also the right to be free from cruel inhuman and degrading treatment
and from arbitrary detention and punishment. In addition, certain provisions
of the Bill were determined to infringe the constitutional provision that
directs that the judicial power of the people be exercised by the judges,
and consequently had to be passed not only by a two thirds majority in
Parliament but also by the people at a Referendum.
In actual terms, the displeasure of the Court was very simple. It has
agreed in the main, with the reasoning behind the Bill as to what action
ought to be prohibited, but has drawn the line at certain procedures specified
relating to detention and punishment. The Bill made it an offence for any
student or staff member to commit or participate in ragging within or outside
an educational institution. Ragging was defined 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 staff member and would include
verbal abuse. Again, verbal abuse was said to mean the use of words which
are in contempt of the dignity and personality of a student or a staff
member. The Bill also provided for an enhanced punishment in any case where
ragging was accompanied by sexual harassment or grievous hurt. Sexual harassment
was defined to include the use of words or actions that cause sexual annoyance
to a student or member of the staff.
In their arguments before the Supreme Court, the petitioners had pointed
out that this definition was too wide and that minor acts or omissions
could be penalized as a result. They objected to words like “dignity”,
“personality” and “contempt”, saying that acts and words critical of the
conduct or a student or member of the staff could be caught up in the process.
The Supreme Court however, preferred to agree with lawyers for the state
who explained that these words would be construed in the same manner as
in a case of civil defamation where they have been interpreted in a very
definite manner.
“Students, specially newcomers, are entitled to have their personality
respected by not being subjected even to words which affect their dignity
and personality, whether these words are obscene, abusive, derogatory,
humiliating, degrading or contemptuous” the Court said
The restrictions thus imposed were said to be necessary restrictions
on the freedom of speech in the securing of due recognition and respect
for the rights and freedoms of others. However, the Court was not happy
with the inclusion of the word “embarrassment” in the definition of ragging,
remarking in somewhat poetic language that “ the mischief which the Bill
seeks to prevent is embarrassment that brings tears to the eye or distress
to the mind, but not that which merely brings a blush to the cheek” It
was recommended that “embarrassment” be changed to “humiliation”, “suffering”
or “distress”.
The broad sweep of the Bill as far as the definition of ragging and
of sexual harassment was concerned was therefore substantively upheld by
the Supreme Court. What drew the wrath of the Court were certain provisions
of the Bill that imposed excessively severe punishments on the offenders.
The Bill created the offences of criminal intimidation, wrongful restraint,
unlawful confinement and sexual harassment in relation to ragging generally
corresponding to similar offences in the Penal Code. However, there was
great disparity in the punishments imposed by the Bill and by the Penal
Code. One example of this was where the offence of sexual harassment in
the Penal Code was defined in a more serious manner than the Bill but a
maximum punishment of five years was specified while the Bill laid down
a minimum period of five years. This would mean that even where a trial
judge felt that a lesser punishment should be imposed on a person convicted
of ragging which included mild sexual annoyance, he or she would be compelled
to impose a sentence of five years. The judge would be compelled to impose
identical sentences of five years both where he thinks it is appropriate
as well as most inappropriate.
The Court confessed itself to be at a loss to understand why such harsh
sentencing had been resorted to, stating that if there had been judicial
leniency in these cases before, it might have been understandable, but
in the absence of such laxity, the draft provisions are puzzling. Moreover,
the Bill also permits additional punishments in that together with this
mandatory minimum sentences, school children or students convicted of ragging
would also be automatically expelled from the school or institute. University
students would in addition be unable to enter any other higher educational
institution for the rest of their lives.
The Supreme Court acknowledged that
“ Ragging has for too long been cruel, inhuman and degrading. Our
society has been unable to deal with the root causes of ragging, and the
anxieties, fears and frustrations of youth on which ragging has fed and
flourished. Ragging warrants severe and deterrent punishment.”
However, the Court went on to state that such punishments must be just
and commensurate with the offence.
“ It cannot be a cruel or inhuman over reaction to the problem” their
Justices said.
It was these provisions on mandatory minimum sentences that the Court
ruled infringed the right to freedom from cruel, inhuman or degrading treatment
requiring them to be passed not only by a special majority in parliament
but also by the people at a Referendum. The fact that the Bill imposed
lifelong disability in entering any other higher educational institution
on students convicted of ragging but did not impose similar disabilities
on staff members guilty of the same offence was also said by the Court
to violate the right to equality.
The other main ground on which objection was raised, again related to
judicial discretion being taken away, this time in relation to bail. The
Bill specified that a suspect accused of ragging be compulsorily remanded
for a period of six months, with no judge being given the power to grant
bail even in exceptional circumstances. This provision was conceded by
state counsel in court to be unique in that similar provisions do not exist
in any other law in Sri Lanka. Here again, it was recommended that the
decision whether to remand an alleged offender or release him on bail be
left in the hands of the trial judge.
Responding to the Supreme Court decision, Parliament on Wednesday made
the necessary amendments and passed the Bill. All references to mandatory
minimum punishments were deleted and discretion to grant bail vested in
a judicial officer. It is interesting to note that while ragging has been
redefined to exclude embarrassment, the fact that it could encompass verbal
abuse has also been deleted, by the House in an abundance of caution. Meanwhile,
the disability imposed on university students convicted of ragging in not
being able to enter another higher educational institution has also been
removed.
The passing of the Bill is however of small import. There are greater
issues here. Like in the Broadcasting Authority Bill case, the acknowledgement
of counsel appearing for the state in court that certain provisions of
the Bill were clearly illegal raises the question as to how such obviously
flawed provisions pass by the filtering mechanisms of expert committees,
the Attorney General’s Department and the Legal Draftsman’s Department.
That this Bill was challenged within that all important one week period
was due to its controversial nature. Other similarly unconstitutional bills
are passed with impunity and with citizens having no knowledge of them
being placed on the Order Paper of the House. That stricter monitoring
mechanisms have to be set up is obvious. That the law has to be changed
is even more obvious.
Judgment 1
DECISION OF THE SUPREME COURT OF SRI LANKA/ FUNDAMENTAL RIGHTS
SC Application No 412/97
Capt. D.N.L. Abeynayake Vs The Army Commander & Others
Before Fernando J.
Anandacoomarasamy J
Gunewardene J.
Decided on 12/2 1998
Article 12 (1) of the Constitution/termination of employment/ arbitrary
action/ regulations under the Army Act
Facts : The Petitioner who was a senior army officer alleged that his
fundamental right to equality had been infringed by the abrupt termination
of his services by the Army Commander. He had been in charge of the Special
Investigation Branch of the Military Police Southern Province from 1988
to 1991 and he alleged that his investigations into the activities of certain
senior Army officers had angered high ranking personnel in the Army.
He admitted that he had developed a cardiac problem in 1990 as a result
of which he had to travel abroad for treatment and by February 1997, he
had made six such visits out of the country. In mid 1997, the Army Commander
had directed that the petitioner be released from active service and placed
on the Regular General Reserve.
The Petitioner appealed against this order, stating that the impugned
order resulted in him being placed on the Reserve without any remuneration,
that the order had been made without the proper procedures being followed,
that he had an exemplary and impeccable record of service and that the
Army Commander had acted arbitrarily, capriciously and unreasonably.
Judgment of Fernando J.
(The Court having considered issues connected with the Petitioner’s
health, his fitness for duty, his physical fitness classification, and
his need for further medical examination concluded that the Army Commander
had the power to remove him from active service on those grounds.
The Petitioner was held to have failed to establish that his removal
was in violation of article 12(1) in that it had not been established that
the decision to remove him was made with mala fides.
It had been earlier pointed out that the allegations made by him against
senior army officers were too vague to be taken seriously. The Court went
on however, to make some relevant observations)
“Though the decision ( that removed the Petitioner) cannot be impugned,
the First Respondent was not free to act arbitrarily, capriciously or unreasonably
in implementing it.
Having regard to the length and quality of the Petitioner’s service,
I am of the view that his summary release from active service was arbitrary
and unreasonable.
Reasonable notice of termination is one of the legal protections implied
in article 12(1) and it is in the interests of the individual and the public.
Removal from active service without reasonable notice would seriously undermine
morale in the Army” in my view, in this case, at least three months ought
to have been given.”
State ordered to pay the Petitioner three months salary (with all the
allowances) and costs in the sum of Rs 3,000/=
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Judgment 2
DECISION OF THE SUPREME COURT OF INDIA/ PUBLIC INTEREST LITIGATION
Paschim Banga Khet Majoor Samiti Vs State of West Bengal 1996 4 SCC
37
In this case, an agricultural worker who fell from a running train and
suffered serious head injuries was turned away by seven government hospitals
in Calcutta successively on the ground that there were no vacant beds available.
An organisation that got him privately treated approached the Supreme
Court for compensation and corrective measures to be taken by the State
Government.
The Court declared that the victim’s right to prompt medical attention
had been infringed and directed compensation by the State Government. It
also laid down a blueprint for primary health care to be provided by the
government, with special emphasis on treatment for accident victims.
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