sc Fernando v. The S.L.B.C.

and Others 157

FERNANDO
V.
TH E SRI LAN KA BRO ADCASTING CORPORATION AND O THERS

S U P R E M E CO URT.
F E R N A N D O , J.
D H E E R A R A T N E , J. A N D
W IJ E T U N G A , J.
S. C. A P P L IC A T IO N N O . 8 1 /9 5 .
2 2 , 2 3 and 3 0 JA NUARY, 19 96 .

Fundamental Rights - Right o f freedom of speech and expression including

P ublication -C onstitution, A rticle 14 (1) (a)-Stoppage o f N on-Form al
Education Programme (NFEP).

F o r m a n y y e a r s th e S ri L a n k a B ro a d c a s tin g C o rp o ra tio n ’s ( S L B C ’s )
E d u c atio n S e rv ic e (originally, th e School S ervice ) b ro ad cast ed u ca tio n a l
p ro g ram m es intended prim arily for students in the form al education system
b a s e d on school cu rricu la and largely e x a m -o rie n te d . In J u n e 1 9 9 4 th e
S L B C la u n c h e d th e N o n - F orm al E d u c atio n P ro g ram m e (N F E P ) of its
E d ucation S ervice dealing with a variety of topics such as hum an rights,
ethnicity, sociology, leg al an d m edical issues, a rts and cu lture, politics,
cu rren t affairs, th e environm ent, behavioral science, history, archaeology,
literatu re, d ram a, w o m e n ’s rights and pre-school te a c h e r training. It w a s not
a collection of irregular, sporadic or infrequent program m es but p lann ed to
co ver a long period with a regu lar schedule of program m es. T h e particip ation
w a s not restricted to S L B C staff and specially invited experts and reso urce
persons, but ex ten d e d to listeners as well. T h e petitioner had tak en p a rt in
discussions on se ve ral pro gram m es concerning current affairs, hum an rights
an d eth n ic issues and had also asked q uestions as a listen er from vario u s
reso urce p erson s live on several program m es.

By a C a b in e t decision ta k e n on 2 6 .1 0 .9 4 th e new G o vern m en t a p p ro ve d a

“S ta te m e n t on P. A. G o v ern m en t’s M ed ia Policy” which inter alia reco gn ized
th e m e d ia 's right to expo se corruption and m isuse of power, w id en ed th e
sc o p e of th e constitutional g u a ran tee of fre ed o m of expression by including
th e Right to Inform ation, assured to the electronic m edia the right of gath erin g
an d d issem inatin g new s, offered g overnm ent’s co-operation to m e d ia an d
Jo u rn alis ts’ A ssociations to w ork tow ards form ulating a ch arter th a t will s e t
a c c e p ta b le p a ra m e te rs of new s program m es in all electronic m e d ia , g ran ted
m e d ia person n el in th e s ta te-s ecto r m edia institutions th e fre ed o m to d e c id e
th e co n ten t of new s bulletins and new s fe a tu re program m es, b ase d p rim arily
on th e new sw orthin ess of even ts and undertook to am en d or rescind th e
re le va n t legislation and Standing O rders of Parliam ent.
158 Sri Lanka Law Reports [1996] 1 Sri L.R.

This C a b in et decision w as conveyed on 1 .1 1 .9 4 to th e S ecretary, M inistry of

Inform ation, Tourism an d A viatio n fo r c irc u la tio n by him to th e re le va n t
officials for im plem entation. By a circular d a te d 1 4 .1 2 .9 4 th e 2nd respondent
(C h a irm a n , S L B C ) fo rw ard ed co p ie s to all S L B C directors and h e a d s of
d ep artm en ts and requested th em to comply.

T ila k Ja ya ratn e w ho had been th e C o n tro ller of th e E d ucation S e rv ic e since

1 9 8 8 a p p e a re d to h a v e b e e n p rin c ip a lly re s p o n s ib le fo r d e s ig n in g and
operating NFEP. His qualifications an d c o m p e te n c e for th e job w as not in
is s u e in th e p ro c e e d in g s , n o r th e c o s ts . T h e N F E P b ro a d c a s ts w e re
acknow ledged to b e of a high stand ard.

According to the p etitio n er on 6 .2 .9 5 a b o u t 6 .3 0 a .m . an N F E P p ro g ram m e

entitled “K am karu P ra jaw a” (T h e W orking C o m m un ity) w as on th e air. T h e
p ro g ram m e inclu d ed a te le p h o n e in te rv ie w w ith th e H o n . M in is te r C . V.
G oo n eratne. In th e p rogram m e se v e ra l w o rke rs of K u n danm als Ltd., w ere
in te rv ie w e d in c o n n e c tio n w ith a s trik e a n d th e p ro m is e s g iv e n b y th e
a u th o ritie s to th e w o rk e rs . T h e H o n . M in is te r o f In d u s trie s (M r. C . V.
G oo n era tn e ) said th at this did not co m e w ithin his p urview but only th e Hon.
M inister of Labour. T h e n the w orkers s ta ted th at th e Hon. M inister of L ab ou r
had stated that he w as not responsible an d it w a s th e M in iste r of Industries
who w as responsible. W orkers said th a t b efo re th e G en eral Election 19 9 4 ,
th e Hon. M in iste r G o o n e ra tn e c a m e to th e w o rk p la c e and p ro m ise d to
solve all th e p ro blem s but now he h a d fo rg o tte n ev eryth in g . T h e re w as
indication th at th e H on. M inister of L a b o u r w a s also to b e interview ed but
su d denly th e p ro g ram m e w a s sto p ped a n d th e re w a s an a n n o u n c e m e n t
th at songs would b e b ro ad cast th e re a fte r. T h e re w a s not a single N F E P
b roadcast afte r this and th e N F E P virtu ally c a m e to an end.

A few w ee ks ea rlier on 1 .1 .9 5 th e post of D ire cto r Education S e rv ic e had

fallen vacant and T ila k Jayaratn e w as ap p o in ted Acting Director. O n 4 .2 .9 5
it w as announced on S L B C new s bulletin th a t N elson J a y a w e e ra had b een
appointed to cover th e duties of th e D irector, E d ucation S e rv ic e and a n o th e r
officer had b een appointed as Acting C ontroller. S o m e of th e staff of the
E ducation S ervice subm itted a w ritten p ro test on 1 6 .2 .9 5 . T h e re a fte r by
letter dated 1 7 .2 .9 5 N elson J a y a w e e ra w a s re le a s e d from his duties in th e
Education Service and th e Education S e rv ic e w a s p laced directly u n d er the
3rd respondent (D ire cto r-G en eral, S L B C ).

By a notice d ated 1 8 .2 .9 5 th e 3rd re s p o n d e n t d ire c te d th a t only fo rm al

education program m es b e broadcast, th a t th e responsibility for th e N F E P
be vested in th e D irectors in ch arg e of th e N a tio n al S ervice and th e new s
and that the non-form al p ro gram m es b e b ro ad ca st on th e N atio n al S ervice.
By an o ther notice issued on th e s a m e day, T ila k Ja ya ratn e w as directed,
sc Fernando v. The S.L.B.C. and Others 159

until 2 0 .2 .9 5 to bro ad cast songs during the periods sched uled for th e N F E P
p ro g ra m m e s and a decision regarding those pro gram m es w ould b e tak en
a fte r 2 1 .2 .9 5 . O n 3 .3 .9 5 T ilak Ja ya ratn e w as directed, b eca u se his section
w a s n o lo n g e r p ro d u c in g N F E P p ro g ra m m e s , to re ta in tw o c a s s e tte
reco rd ers an d return th e rem aining fourteen to th e stores. By letter d ated
6 .3 .9 5 th e 3rd resp on d en t inform ed the D ire c to r-G e n e ra l of th e N atio n al
In stitu te of E d u c atio n th a t th e Education S e rv ic e of th e S L B C h as b een
co n fin ed to fo rm al ed u catio n program m es a n d the n on-form al p ro gram m es
h a v e b e e n b ro u g h t u n d e r th e co n tro l of th e L a n g u a g e D ire c to rs . T h e
p etitio n er a lle g e d th at th e ch an g es w h e th e r by w a y of “restructuring and
re fo rm a ttin g " o r o th e rw is e w e re so d ra s tic th a t th e re re m a in e d o n ly a
p re te n c e th a t th e N F E P w a s still being broadcast.

Justification fo r th e d iscontinuance of th e N F E P w as based in four grounds:

1. T h e ir r e le v a n c e o f th e s u b je c t m a tte r o f th re e p ro g ra m m e s : P a s u
V im a s u m a , a review of th e N F E P itself, “Puvath A d ah o raw a” w hich d ealt
w ith th e s p e c u la tio n a b o u t Lionel F e rn a n d o ’s re sig n a tio n from th e fo u r
m e m b e r G o v e rn m e n t deleg ation to the 1 9 9 5 P ea ce Talks with LTTE and the
“S u b h a r a t h i” p r o g r a m m e a s k in g fo r th e v ie w s o f th e p u b lic on th e
b ro a d c a s tin g policy of th e E d ucation S e rv ic e , as w ell a s th e “K a m k a ru
P ra ja w a ” p ro g ram m e.

2 . T h e possible liability of th e S L B C and its top m a n a g e m e n t for defam ation ,

civil an d crim inal, b e c a u s e of the content of th e program m es.

3. T h e criticism s (co n tained in “Pasu V im a su m a” of th e P ro g ram m e, an d of

th e S L B C , its ad m in is tra tio n , an d its top m a n a g e m e n t, w e re irre le v a n t,
in a p p ro riate an d u n accep tab le; further the staff w ere using th e N F E P to air
th eir ow n view s, and th eir requests for listen er support for N F E P w e re out of
p la ce .

4 . Public d isco ntent w ith th e NFEP, as indicated by th e com plaints received.

H e ld :

1. All th e four reason s given by w ay of justification, a re w ithout m erit.

2 . A rtic le 14(1 )(a ) of th e Constitution is not to be interp reted narrowly. N ot

only d o e s it include e v e ry form of expression, but its protection m ay be
invoked in com bination with other express g u a ran tee s (such as th e right to
eq u ality); and it ex te n d s to and includes im plied g u a ran tee s n ece ss ary to
m a ke th e express g u a ra n te e s m eaningful. T h u s it m ay include th e right to
o b ta in a n d re c o rd in fo rm a tio n , m ay b e b y m e a n s o f o ra l in te rv ie w s ,
 160 Sri Lanka Law Reports [1996] 1 Sri L.R.

publications, tape-recordings, photographs and the like, and, arguably, it

may even extend to a privilege not to be compelled to disclose sources of
information, if that privilege is necessary to make the right to information
“fully meaningful". Likewise other rights may be needed to make the actual
exercise of the freedom of speech effective: rights in respect of venues,
amplifying devices, etc.

(S e m b le per Fernando, J : “I doubt, however, that it includes the right to

information s im p lic ite r".)

3. The freedom of speech of the petitioner, q u a participatory listener has

been infringed, because the stoppage of the NFEP prevented further
participation by him.

Cases referred to:

1. E k a n a y a k e v. H e ra th B a n d a S .C . 2 5 /9 1 S C M o f 1 5 .1 2 .9 1 .
2. S e c re ta ry , M in is try o f In fo rm a tio n v. C ric k e t A s s o c ia tio n o f B e n g a l ( 1 9 9 5 ) 2
S C C 161, 2 9 2 .
3. R e d Lion B ro a d c a s tin g C o., v. F .C .C . ( 1 9 6 9 ) 3 9 5 U S 3 6 7 , 3 7 6 ( R e d L io n
C a s e ).
4. P ra b h a D u tt v. U n io n o f In d ia , A IR 1 9 8 2 S .C . 6.
5. L e a n d e r v. S w e d e n 2 6 M a r c h 1 9 8 7 , S e rie s A N o. 1 1 6 (E u ro p e a n C o u r t o f
H u m a n R ig h ts ).
6. O p e n D o o r C o u n s e llin g a n d D ublin W ell W o m a n C e n tr e v. Ire la n d , 2 9
O c to b e r 1 9 9 2 , S e r ie s A N o. 2 4 6 (E u ro p e a n C o u rt o f H u m a n R ig h ts )
N .B . C a s e s 5 x 6 c ite d in ‘T h e A rtic le 1 9 F re e d o m o f E x p re s s io n M a n u a l
A u g u s t 1 9 9 3 ).
7. S ta n le y v. G e o rg ia 3 9 4 U S 5 5 7 .
8. M a rtin v. C ity o f S tru th e rs 3 1 9 U S 14 1 , 143.
9. G ris w o ld v. C o n n e c tic u t ( 1 9 6 5 ) 3 8 1 U S 4 7 9 .
10. J o s e p h P e re ra v. A G ( 1 9 9 2 ) 1 S ri L R 199.
11. V isu va lin g a m v. L iy a n a g e ( 1 9 8 4 ) 2 S ri L R 1 2 3 , 132.
12. N a ra y a n a n v. K e ra la A I R 1 9 7 3 K e ra la 9 7 .
13. L a m o n t v. P o s tm a s te r G e n e r a l ( 1 9 6 9 ) 3 3 1 U S 3 0 1 , 3 0 8 .

PETITION complaining of infringement of the fundamental right of freedom

of speech.

R . K. W. G o o n e s e k e ra with J. C. W e lia m u n a for the petitioner.

K. C . K a m a la s a b a y s o n , D S G with S . G a m la th S S C a n d C h a n a k a d e S ilv a
SC for respondents.
Cur. adv. vult.
sc Fernando v. The S.L.B.C. and Others (Fernando, J.) 161

3 0 January, 1 9 9 6 .
FERNANDO, J.

T he P etitioner is a retired teacher: since his retirem ent in 1990, he

has been the O rganizing S ecretary of the C eylonTeachers’ U nion; and
also the N ational C oordinator for the M ovem ent for Free and Fair E lec­
tio n s w hich m onitored the 1994 G eneral and P residential Elections.
The Petitioner com plains that his fundamental right of freedom o f speech
and expression, including publication (which I will refer to as the “fre e ­
dom of sp e e ch ”), guaranteed by A rticle 14(1) (a) of the C onstitution
w as infringed by the 1st Respondent, the Sri Lanka B roadcasting C o r­
poration (“S LB C ”), and the 2nd to 4th Respondents (the C hairm an, the
D irector-G eneral and the Deputy D irector-G eneral (Program m ing), re­
spectively, of the S LBC ), by the sudden stoppage of the N on-Form al
Education P rogram m e (“ NFEP”) of the S LB C ’s Education S ervice.

THE FACTS

For m any years the SLBC’s Education Service (originally, the School
Service) broadcast educational programmes, intended prim arily for stu­
dents in the fo rm a l education system : they w ere based on th e school
cu rricu la and w ere, largely, exam -oriented. In June 1994 th e SLBC
launched the N FE P as part of its Education Service, on a new c h a n ­
nel; it w as aim ed a t a different section o f the com m unity; a nd it co n ­
sisted of a se rie s of program m es, dealing w ith a very w ide range of
topics, such as hum an rights, ethnicity, sociology, legal and m edical
issues, a rts and culture, politics, current affairs, the e nvironm en t,
behavioral science, history, archaeology, literature, dram a, w om en’s
rights, and pre-school teacher training. W hile the topics th em selves
suggest a greater em phasis on practical m atters relevant to every-day
life and issues o f general interest, th e ir broad scope reflects th e w idth
of the ta rg e t group.

The NFEP w as estim ated to cost Rs. 4.5 m illion annually, and the
R espond ents have not suggested that there w as any d iffic u lty in o b ­
taining those funds. T ilak Jayaratne w ho had been the C ontroller of the
E ducation S ervice since 1988, and had follow ed training co u rse s on
educatio nal broadcasting, appears to have been principally re sp o n si­
ble for desig n in g and operating the NFEP, w ith the a ssista n ce o f a
team of perm anen t and casual staff. At the hearing, the R espondents
162 Sri Lanka Law Reports [1996] 1 Sri L.R.

did not question the qualifications, com petence and experience ofTilak
Jayaratne and his team .

Two other aspects o f the N FEP need to be stressed. It was not a

collection of irregular, sporadic or in fre q u e n t program m es, but was
p la n n e d to c o v e r a lo n g p e r io d w ith a r e g u la r s c h e d u le c:
program m es.Thus the schedule fo r the w hole o f 1995 was available
early in 1995, and provided for alm ost 24 hours broadcasting (in Sinhala)
per w eek: approxim ately 6 hours each on Sundays, M ondays, Tues­
days, and W ednesdays. T h e re w ere sim ila r program m es in Tamil on
Saturdays, T hursdays and Fridays. A second im p o rta n t feature was
that p articipation w as not restricted to S LBC sta ff and specially in­
vited experts and resource persons, but extended to listeners as well.
The P etitioner averred that he had taken p a rt in discussions in several
program m es concerning cu rre n t a ffa irs, hum an rights and e th n ic is­
sues, and had also a sked que stio n s as a listener from various re­
source persons live on several program m es. T h a t w as not denied by
the Respondents.

The NFEP com m enced before th e A ugust 1994 P arliam entary

General Election, and continued thereafter. By a Cabinet decision taken
on 26.10.94 the new G overnm ent approved a “S tatem ent on PA G ov­
ernm e n t’s M edia Policy” , which in cluded the follow ing:

‘T h e subject of media freedom has gained considerable importance

in the past few years, p a rticu la rly due to th e direct and indirect
restrictions im posed on the m edia by the previous governm ent,
and the new broad-based a ctiv itie s by jo u rn a lists to expand the
scope of m edia freedom in the co u n try . . .

. . . T he threats levelled in the re ce n t past against jo u rn a lists as

well as m edia institutions have la rg e ly em anated in response to
th e ir attem pts to expose and to b rin g to the notice of the public
corruption and abuse o f political power. In order to eradicate one
m ajor th re a t to m edia fre e d o m , o u r governm ent recognizes the
m edia’s right to expose co rru p tio n and m isuse of power.

2. Freedom of Expression: In order to ensure media freedom , the

follow ing m easures w ill be im m e d ia te ly taken:
sc Fernando v. The S.L.B.C. and Others (Fernando, J.) 163

i. Freedom of Expression is already guaranteed to all m edia through

th e present C onstitution , and it shall be our endeavour to ca rry out all
reform s w ith regard to the media in keeping w ith this salutary provision
in the C onstitution . In future am endm ents to the C onstitution, th e gov­
ernm ent shall seek to w iden the scope of this c onstitutional guarantee
by including th e R ight to Inform ation.

ii. All e le ctro n ic m edia w ill be granted the right of g a th e rin g and
d issem in a tin g news. W e urge the state-ow ned and p rivate e lectronic
m edia to p resent balanced coverage of news, exercising freedom with
responsibility. T h e governm ent w ill (extend) its co o p e ra tio n to m edia
and jo u rn a lists’ associations to w ork tow ards form ulating a ch a rte r that
w ill set a cce p ta b le param eters o f news program m es in all electronic
media.

iii. M edia personnel in the state-sector m edia institutions w ill have

th e freedom to decide the content of news bulletins and new s feature
program m es, based p rim a rily on the new sw orthiness o f events. We
w ill not use s tate-ow ned m edia for partisan political propaganda.

iv. In ord e r to rescind or am end where necessary, the G overnm ent

w ill draft legislation , reform ing the Press C ouncil Law, th e O fficia l S e­
crets A ct, P arliam entary Powers and P rivileges Act, and th e existing
laws relating to C abinet secrets and contem pt of c o u rt so th a t the
freedom o f e xpression as w ell as the public right to in fo rm a tio n co n ­
cerning the sp h e re s of governm ental a ctivity (will) be ensured.

P riority w ill be given to rescinding the existing P arliam entary P rivi­

leges A ct and replace it w ith a new Act. T he provisions o f th e new A ct
w ill not be an o bstacle to free and fair reportage o f the proceedin gs of
Parliam ent; it w ill also transfer to the higher ju d icia ry th e re sponsibility
of inquiry and punishm ent fo r any breaches of parliam entary p rivilege.
W e will also seek to am end the Standing O rders of Parliam ent to perm it
jo u rn a lists to c o v e r the proceedings of P arliam entary C o n su lta tive
C om m ittees.”

T h is C ab in e t decision w as conveyed on 1.11.94 to th e Secretary,

M inistry o f Inform ation, Tourism and Aviation, for circu la tio n by him to
the relevant o fficia ls fo r im plem entation. By a c ircu la r d a te d 14.12.94,
164 Sri Lanka Law Reports [1996] 1 Sri L.R.

the 2nd Respondent forw arded copies to all SLBC directors and heads
of departm ents, and requested them to comply. By letter dated 27.12.94
the M inister appoin tedT ilak Jayaratne as C hairm an/M em ber of a C om ­
m ittee established to im plem ent o n e aspect of that decision, by m ak­
ing recom m endatio ns to im prove th e econom ic condition s and status
o f journalists.

On 6.2.95 the NFEP bro a d ca sts com m enced at 5.30 a.m . w ith a
program m e entitled “S u bhara thi” (w hich, the P etitioner says, m eans
“the vo ice that ca rrie s know le d g e ”). A ccording to a tra n scrip t (2R7)
produced by the R espondents, rem arks w ere m ade to the follow ing
effect: the NFEP w as o f a high standard, and had set an exam ple to
the electronic m edia; its q u a lity w as largely due to the suggestio ns
and criticism s of listeners; it had re tained its independence, both be­
fore and after the new G o vernm ent cam e into power; th e producers of
the NFEP w ere not prepared to tu rn back from that path; however, now
there w ere obstacles to progress; should the producers proceed inde­
pendently as before, o r should th e y be puppets of the m anagem ent?
Listeners w ere invited, if th e y co u ld , to co nvey their view s on tw o
specified telepho ne lines w h ich w e re kept open.

Thereafter, says the P etitioner:

“On 6-2-95, at or a bout 6.30 a.m ., I w as listening to the E ducation

S ervice and there w as a live presentation w ith sh o rt recorded p o rtions
on tap e .T h e program m e w as c a lle d “Kam karu Prajawa” (“The W orking
Com m unity” ) which included a telephone interview with the Hon. M inis­
te r C. V. G ooneratne. To th e best o f m y know ledge, in the said pro­
gram m e, several w orkers o f the K undan m als Ltd. w ere interview ed in
connection w ith a strike and the p rom ises g iven by the a u th o ritie s to
the w orkers. The Hon. M inister o f Industries stated (that) he is not
responsible fo r labour m atte rs as th is did not com e under his purview
but only the Hon. M inister o f Labo u r.T h e n the w orkers stated th a t the
Hon. M inister of Labour had sta te d th a t he w as not responsible a nd it
w as the responsibility of the M in iste r o f Industries w ho is responsible
fo r (the) labour w hich falls w ithin his purview. W orkers said that before
the G eneral Election 1994, th e Hon. M inister G ooneratne cam e to the
w ork place and prom ised to solve all the problem s but now he has
forgotten everything. T hen th e M in iste r said th a t anyway now it is the
sc Fernando v. The S.L.B.C. and Others (Fernando, J.) 165

responsibility of the Hon. M inister of Labour.There w as {sic) indication

that the Hon. M in iste r of Labour was also to be interview ed but su d ­
denly the program m e w as stopped and there was an announcem ent
th a t songs w ould be broadcast from then onw ards. On th a t day there
was not a single N FEP broadcast until the close of tra n sm ission in the
m orning session.”

These averm ents w ere not denied by the R espondents. The Peti­
tio n e r adds th a t th e re a fte r the NFEP virtu a lly cam e to an end:

“. . . alm o st all th e program m es with quality and e d ito ria lly inde­
pendent program m es are not broadcast now. In one program m e, legal
counselling w as broadcast but im portant issues in hum an rights or any
controversial legal issues w ere not dealt w ith. A lthough a very few
program m es are broadcast in the nature of Non Form al P rogram m es,
there is no quality, intellectual discussion o r p eople’s p a rticip a tio n . . .
(the) aforesaid program m es are broadcast only in order to please the
G overnm ent and to give a biased, one-sided picture to th e people and
to pretend th a t the NFPs are still broadcast."

A few w eeks earlier, the post of Director, Education S ervice, had

fallen vacant on 1.1.95. On 1 1 .1 .9 5 T ila k Jayaratne was appointed as
A cting Director. A ccording to the Petitioner, it w as annou n ce d on the
SLBC new s bulletin on 4.2.95 th a t N elson Jayaw eera had been a p ­
pointed to cover the duties of the Director, Education S ervice, and that
another o ffice r had been appointed as A cting C ontroller. Som e of the
sta ff of the E ducation S ervice subm itted a w ritten p ro te st on 16.2.95.
Thereafter, by lette r dated 17.2.95 N elson Jayaweera w a s released
from his d u tie s in the Education Service, and the E ducation Service
was placed directly under the 3rd Respondent, Director-G eneral, SLBC.
In his affidavit, the 2nd R espondent claim s that w hen th e post of Di­
rector fell vacant, “ in accordance with the usual practice th e next se n ­
ior officer, in th is case Mr. Jayaratne, w as requested to co ve r the d u ­
tie s of th e D irector until a suitable replacem ent w as a p p o in te d ” ; no
explanation w as ventured, however, as to how T ila k Jayaratne w as
superseded - not by a “replacem ent” - but by another o ffic e r also “co v­
ering up duties” , and how that officer was then released w ith o u t a “suit­
able (perm anent) replacem ent”.
166 Sri Lanka Law Reports [1996] 1 Sri L.R.

By a notice dated 18.2.95 the 3rd R esp o n d ent directed that only
form al education program m es be broadcast, th a t the responsibility for
the NFEP be vested in th e D ire cto rs in charge o f th e N ational S ervice
and the News, and th a t th e n on-form al program m es be broadcast on
the National S ervice. By a n o th e r notice issued the sam e day, T ilak
Jayaratne w as directed, until 20.2.95 , to b ro a d cast songs during the
periods scheduled fo r th e N FEP program m es, and he w as also told
that a decision regard in g th o se p rogram m es w ould be taken after
21.2.95. On 3 .3 .9 5 T ila k Jayaratne w as directed, because his section
w as no longer p roducing N F E P program m es, to retain tw o cassette
recorders and to return the re m aining fo u rte e n to the main stores. By
letter dated 6.3.95, th e 3rd R espond ent inform ed th e D irector G eneral
of the N ational Institute o f E ducation th a t the E ducation S ervice o f the
SLBC:

“has been confined to form al education program m es and the non-

form al p rogram m es have been b rought un der the control o f the
Language Directors. These arrangem ents will enable the Education
Service to devote m ore tim e fo r pla n n in g th e ir program m es in
consultatio n w ith y o u .”

Despite th is the R e spond ents cla im that, a p a rt from restructuring

and reform atting ce rta in program m es, no c hanges have been m ade in
the Non-Form al Education program m es (except fo r the changes during
the period up to 2 0 .2 .9 5 ). They have produced neither the schedule of
broadcasts n o r any o th e r d o cu m e n ts sh o w in g th e nature and co n te n t
of the program m es b ro a d ca st a fte r 20.2.95 . T h u s they have failed to
te n d e r m aterial to rebut th e P e titio n e r’s a lle g a tio n s that the changes
(whether by w ay o f “ restructuring and reform atting” , or otherw ise) were
so drastic th a t th e re re m a in e d o n ly a p retence th a t the NFEP w as still
being broadcast.

T H E C O N T E N T IO N S

Mr. Goonesekea contend ed th a t the NFEP had been stopped a rb i­

tra rily and w ithout reason; and th a t the re b y the Petitioner’s fu ndam en­
tal right of freedom o f speech had been infringed. His principal subm is­
sion m ay be sum m arized thus: freedom of speech is the right o f one
person to convey view s, ideas and inform ation to others; com m unica-
sc Fernando v. The S.L.B.C. and Others (Fernando, J.) 167

tion is the essence of that right; such co m m u n ication necessarily pos­

tu la te s a recipient, because w ithout a re cip ie n t th e right is futile; and
there fo re freedom of speech im plies and in clu des the right of the re­
cip ie n t to receive the view s, ideas or info rm a tion sought to be co n ­
veyed. So, he argues, the P etitioner as a re g u la r liste n e r to the N FEP
had the freedom o f speech to receive w h a te v e r w a s broadcast on the
NFEP, and w hen it was suddenly stopped th a t freedom w as im paired.
His subsidiary contention, advanced w ith n o ticeab ly less enthusiasm ,
w as that the p etitione r w as not sim ply a listener, but a p a rticip a to ry
listener - because he w as not just passively receiving inform ation, but
w as him self active ly com m unicating view s, ideas and inform ation by
m eans of the NFEP; and th a t stopping the N FEP infringed his right as
a p a rtic ip a to ry listener, and thereby his fre e d o m o f speech.

Mr. Kam alasabayson, DSG, for the R espondents, su bm itted that

it w as fo r va lid reasons th a t the NFEP had been stopped on 6.2.95,
and th a t in any event it had not been p e rm a n en tly stopped, but had
later been resum ed.

Mr. G oonesekera strenuously denied th a t there been any such re ­

sum ption, stating that w hatever w as being b roadcast now w as co m ­
pletely d ifferent in ch aracter to the NFEP. Mr. K am alasabayson a d m it­
ted that, as noted earlier, the Respondents had subm itted no evidence
to prove th e resum ption o f the NFEP.

On th e legal issue, Mr. Kam alasabayson co ntend ed th a t if a th ird

party had caused the stoppage of the bro a d casts, a listener m ight
have been able to com plain that that infringed his freedom of speech;
but a liste n e r had no such right w here the sto p pag e w as the decision
of the broa d ca ste r itself: fo r if a person ch o se not to speak, how, he
asked, could any one else claim a right to lis te n ? T h e firs t subm ission
seem ed to concede a fundam ental rig h t to a m ere listener, and so w e
asked him w h e th e r (w here a third party stopped the broadcasts) if the
broadcaste r him self did not com plain of the infringem en t, a listener
had an indepe ndent right to receive inform ation, w hich w ould e ntitle
him to com plain of that stoppage? He h e sita ted to conce d e such a
right, and it thus becom es necessary to c o n s id e r w h e th e r a listener
does have any such right.
168 Sri Lanka Law Reports [1996] 1 Sri L.R.

JUSTIFICATION FOR STOPPINGTHE NFEP

Both C ounsel agreed that if the Respondents were justified in stop­

ping the NFEP on 6.2.95, no question of infringem ent of fundam ental
rights w ould arise. Mr. G oonesekera subm itted that it w as because of
the “ Kam karu P rajaw a” program m e th a t the R espondents had acted,
and that, he said, a ffo rd e d no ju stifica tio n w hatever fo r the stoppage.

Mr. K am alasabayson contend ed th a t although the stoppage to o k

place m idw ay through the “ Kam karu P rajaw a” program m e, it w as be­
cause of other, m ore w eighty, reasons connected with previous pro­
gram m es, th a t the d e cisio n w as taken to stop the NFEP. In his a ffid a ­
vit the 2nd R espond ent a ccepted the re sponsibility for th a t decision,
which he to o k on 6.2 .9 5 soon afte r the contents of the “S u b hara thi”
program m e had been b rought to his notice. He urged the follow ing
m atters in ju stifica tio n :

Som e of the N FE P program m es w ere ceasing to be educational

in character; tw o w e re m entioned, namely, “Pasu V im asum a”
(“Review") of 15.1.95, and “Puvath Adahorawa” (“News Half Hour”)
of 5.2.95, and tra n s c rip ts w ere produced as 2R1 and 2R2.

This w as due p a rtly to the fo rm a t o f the said program m es, and

partly to the fact th a t the general public were allowed direct access
by telepho ne to th e broadcasts.

The said program m es were being used to air the views of certain
s ta ff m e m b e rs o n ir r e le v a n t m a tte r s , re la tin g to S L B C
adm inistration.

C om plaints w ere received, and th re e of these (dated 25.11.94,

2.12.94, and 5.12.94) w ere produced.

The program m e fo rm a t and im plem entation exposed the SLBC to

crim inal and /o r c iv il liability, and em barassm ent.

Certain steps w ere proposed for the restructuring and reformatting

of the said p ro gram m e - w hat these steps w ere and the process
of consultation w ere not disclosed; a m em orandum was prepared
seeking C abinet approval - this w as not produced.
sc Fernando v. The S.L.B.C. and Others (Fernando, J.) 169

C ertain sections o f the E ducation S ervice appeared to oppose

the above proposals, but w ith o u t endeavouring to m eet the 2nd
R espondent, they sought to s o licit support from the public on a
m atter w hich w as purely internal to the SLBC. T ilak Jayaratne
went to the e xte n t of sending a questionnaire, dated 2.3.95, in
his ca p a city as C ontroller, directing that answ ers be sent to an
outside organization.

The “ S ubhara thi” program m e, broadcast on 6.2.95, asked the

public fo r th e ir view s on the broadcasting policy of the Education
Service.

The co n te n ts of the tw o program m es m entioned (2R1 and 2R2)

may be sum m arized as follow s. “ Pasu V im asum a” was a review of the
NFEP itself. R eference w as m ade to political pressures before the
1994 G eneral E lection,an d the e ffo rts m ade to establish a tradition of
a free m edia; the high exp e cta tio n s afte r the new G overnm ent was
elected; the exposure o f the fo rm e r regim e’s w rongdoings, and espe­
c ia lly v io la tio n s o f th e h u m a n rig h ts o f the p e o p le ; th e se w ere
com m ended by the new m anagem ent; when som e officials tried to
stop certain program m es, the Free M edia M ovem ent opposed this,
and the M in iste r agreed to the la tte r’s requests; the PA m anifesto on
M edia Freedom was converted from election prom ise to operative law.
S pecific com plaints w ere m ade th a t necessary fa cilitie s w ere not pro­
vided: a guest speaker had not been provided with transport, although
prom ised; and p u b licity fo r th e NFEP had not been given on other
SLBC broadcasts, desp ite approval by the C hairm an. A program m e
w hich provided for liste n e r p a rticip a tio n w as stopped. Finally, it was
said that although the G o vernm ent d esires m edia freedom , political
appointees try to su p p re ss it.

“Puvath Adahorawa” dealt w ith speculation about Lionel Fernando’s

resignation from the fo ur-m em ber G overnm ent delegation to the 1995
Peace Talks w ith the LTTE. B ecause no reasons had been given, there
w as w ide speculatio n w hy he had resigned; som e said that he had
refused to proceed w ith talks u n d e r the LTTE flag; o thers claim ed that
the LTTE had w anted the G overnm ent to rem ove him from the delega­
tion, and th a t he resigned because the G overnm ent did not include him
in the second round; it w as a lso said th a t he resigned on account of
170 Sri Lanka Law Reports [1996] 1 Sri i_.fi

allegations first heard over LTTE R adio; and it was believed by some
that there m ust have been som e substantia l reason fo r his conduct,
because he resigned although the P resident had w anted him to w ith­
draw his le tte r of resignation. T he com m ent w as also m ade th a t the
success of the Talks depends on the acceptance of the proposals by
both sides, and not on the presence of a p a rticu la r person, and so his
resignation w ould not affect the outcom e.

The R espondents do not suggest th a t there were co n stra in ts in

respect of money, tim e, equ ip m e n t or personnel which required the
discontinuance of the N FE P .Their claim of ju stification has fo u r com ­
ponents:

1 .The irrelevancy of the subject-m atter of three programmes (2R 1,

2R2 and 2R7), as well as the “ Kam karu P rajaw a” program m e.

2 . The possible liability (of the SLBC and its top m anagem ent) for
defam ation, civil and crim inal, because of the content o f pro­
grammes.

3. T he criticism s (contained in “ Pasu Vim asum a”) of the Pro­

gram m e, and o f the S LBC , its adm inistration, and its top m an­
agement, w ere irrelevant, inappropriate and unacceptable; further,
the staff w ere using the NFEP to air th e ir own view s, and their
requests (in 2R 7) for liste n e r su p p o rt fo r the NFEP w ere out of
place.

4. Public d isconten t w ith the NFEP, as indicated by th e com ­

plaints received.

I find all these contentio ns to be w ith o u t m erit. If the reason for

Lionel Fernando’s resignation had not o fficia lly been d isclosed, the
public had an in te re st in know ing th a t reason. On the o th e r hand, the
G overnm ent may have had som e ju stifica tio n fo r not disclosing it, at
that p a rticular point of tim e. But so long as there were no legal re stric­
tions - and the R espondents have not referred us to any - on th e dis­
closure or the discussion o f th a t reason, public discussion w as le g iti­
mate. Likew ise, industrial unrest, its causes and its resolution, w ere
m atters of public interest, e s p e cia lly to w orkers who m ust have been
sc Fernando v. The S.L.B.C. and Others (Fernando, J.) 171

an im portant target group of the NFEP: and as I observed (although in

a d ifferent co n te xt in E kanayake v H erath B anda,(1) “every concerned
citizen w ould have discussed these issues with g reat interest and agi­
ta tio n ”. Indeed, the G o vernm ent’s M edia Policy am ply ju stifie d such
program m es. A s fo r Mr. K am alasab ayson’s subm ission that it was for
the m anagem ent of th e NFEP to determ ine w hat w as relevant to non-
form al education, and that there was no point in ascertaining the ideas,
the view s and the needs of the “student” , by w ay of a review of the
NFEP, th a t is a narrow and out-dated view of education, especially of
non-formal or adult education. However com petent the “teachers” m ight
have been, it w as useful for them to know the shortcom ings of the
NFEP, w hat im provem ents w ere possible, and the needs of the lis ­
tener, in ord e r to plan m ore fru itfu lly for the future.

Mr. K am alasabayson has not been able to show us anything even

faintly defam atory in the three program m es specifically m entioned (i.e.
2 R 1 , 2R2 and 2R7), o r in “K am karu Prajaw a” , o r otherw ise; the possi­
bility of legal action is thus m ere speculation,and in any event it has
not even been suggeste d th a t there w as any d ifficu lty in scrutinizing
the script of program m es before broadcast. The 2nd R espondent's a l­
legation th a t there w ere dangers in the public being allow ed direct a c­
cess by tele p h o n e to the NFEP broadcasts, is unacceptable: the Peti­
tioner stated in his c o u n te r-a ffid a vit that such calls w ere subject to
screening before broadcast, and Mr. K am alasabayson conceded this
at the hearing.

The three program m es do contain som e criticism s. The Respond­

ents have not averred th a t these are untrue or exaggerated, and it
must be presum ed that w hat was said was factually correct.Their Coun­
sel says th a t the SLBC could not allow itself to be criticised in its own
broadcasts. The criticism s w ere not som ething irrelevant, but related
to m atters co nnecte d to the success of the NFEP. W hat is more, the
criticism s w ere restrained in language and balanced in content: thus
the C hairm an w as com m ended fo r his positive response, w hile subor­
dinates w ho fa ile d to com ply w ith orders from the top w ere criticised.
Mr. Kam alasabayson argued that these issues should have been raised
internally. However, the R espondents have not averred that this was
not done; and in a n y e ve n t such a d efault w ould, a t m ost, have ju s ti­
fied a reprim and to the officer concerned but not the stoppage of the
172 Sri Lanka Law Reports [1996] 1 Sri L.R

whole NFEP. As to its right to stifle criticism of itself on its own broad­
casts, it is w ell to rem em ber th a t the m edia asserts, and does not
hesitate to exercise, the right to criticise public institutions and per­
sons holding public office; w hile, of course, such criticism m ust be
deplored when it is w ith o u t ju stifica tio n , the right to m ake and publish
legitim ate criticism is too d eeply ingrained to be denied. Here, too, it is
relevant to note th a t the G o vernm ent’s M edia Policy was intended to
encourage criticism , in the public interest, in order to expose sh o rt­
com ings. If nothing else, the right to eq u a lity requires that the m edia
itself is not im m une fro m ju stifia b le criticism , internally and externally.
And in the context o f broadcasting, the observations o f the Suprem e
Court of India, in Secretary, M in is try o f Inform ation v C ricket A s s o c ia ­
tion o f B engal,(2) are apposite:

"Broadcasting m edia by its very nature is d ifferent from press.

Airwaves are public p ro p e rty . . . It is the obligation of the S tate . . . to
ensure that they are used for public good.”

The frequencies ava ila b le fo r television and raido broadcasts are

so lim ited that only a handful o f persons can be allow ed the privilege
of operating on them (cf. R e d Lion B roadcastin g Co. v F.C.C.{3)) Those
who have that privilege, including the State, are therefore subject to a
correspondingly gre a te r obligatio n to be sensitive to the rights and in­
terests of the public.

I also cannot acce p t the 2nd R espondent’s reference to the ques­

tionnaire which T ilak Jayaratne sent as being any ju stifica tio n fo r the
conduct of the R espondents.T hat w as sent only on 2.3.95, and could
not have constituted ju stific a tio n fo r the tw o decisions taken long be­
fore that date: to rem ove Tilak Jayaratne from the post of A cting D irec­
tor, and to stop the NFEP.

The three com plaints produced w ere to the effect that w hile m edia
freedom was necessary, yet there should be som e lim it to criticism s
of the Governm ent, the SLBC and high officers. As I have pointed out,
the criticism s w ere fa r from excessive.

In any event, all these m atters - irrelevancies, possible legal lia b il­
ity, criticism s and com plaints - should have been com m unicated to
sc Fernando v. The S.L.B.C. and Others (Fernando, J.) 173

T ilak Jayaratne and his team ; if he could not explain or ju s tify them ,
he should have been reprim anded and directed to avoid repetition; and
if he declined to do that, the offending program m es should have been
replaced. The baby should not have been throw n out with the bath
water. T he undue haste with w hich the 2nd R espondent acted sug­
gests that the stoppag e w as not bona fide.

D ifferent co n sid e ra tio n s m ight have arisen if the NFEP had been
ju stifia b ly stopped, e.g. with proper notice, or in response to listener
opinion, or even sim ply discontinued afte r the expiry of the current
schedule. I express no opinion on that aspect of the case. I hold that
the sudden and a rb itra ry stoppage of the NFEP was not justified, and,
if done w ith o u t the consent of those responsible fo r its production,
w ould have am ounted to an infringem ent o f th e ir freedom of speech,
b e s id e s b e in g in c o n s is te n t w ith G o v e rn m e n t p o lic y on M e d ia
Freedom .But those persons have not com plained, and I make no fin d ­
ing in respect of th e ir rights.T he question is w hether the Petitioner can
com plain, qua listener.

F R E E D O M O F S P E E C H A N D E X P R E S S IO N , IN C L U D IN G
PUBLICATION

T h ere are d icta in decisions, both local and foreign, w hich appear
to support Mr. G oonesekera’s subm ission th a t m ere listeners can com ­
plain, because th e freedom of speech includes the right o f the recipi­
ent to receive inform ation. It is necessary to exam ine these decisions
in order to a sce rta in th e ir true ratio decidendi, and their relevance to
the in te rp re ta tio n of A rtic le 14(1) (a) of our C onstitution.

T he first group of decisions deals w ith a p e rso n ’s right to receive

inform ation, w hich is e ith e r related to or n e cessary fo r the exercise of
his own freedom o f speech. Prabha D utt v U nion o f India,w seem s to
fall into th is category. The C ourt upheld the right o f jo u rn a lists to inter­
view prisoners under sentence of death, w ho w ere w illing to be inter­
view ed, thus acknow led ging th e ir right to obtain inform ation, through
the inte rvie w s (cf. also R ed Lion B roadcastin g Co v F.C.C., {supra))
but it by no m eans follow s that there is a right to inform ation sim pliciter
(i.e., fo r o n e ’s ow n edification only), and not intended to facilitate the
exercise o f the freedom of speech.
174 Sri Lanka Law Reports [1996] 1 Sri L.R.

O ther decisions w hich have upheld the right to receive inform ation
are not helpful because they deal w ith C onstitutional provisions which
- unlike ours - expressly recognise that rig h t.T h u s the European Court
of Human R ights has held th a t the right to receive inform ation “basi­
cally prohibits a G overnm ent fro m restricting a person from receiving
inform ation th a t o thers may w ish or may be w illing to im part to him ”
(Leand er v S w eden,(5> and O pen D o o r C ounselling a n d Dublin Well
Woman C entre v Ire la n d ,(6) both cited in “The A rticle 19 Freedom of
Expression M anual” , A ugust 1993). In the latter case the C ourt noted
that fam ily planning cou n se llo rs w ished to im part, and w om en w ished
to receive, inform ation about w here to obtain a bortions outside Ire­
land. An injunction w hich prohibited counsellors from giving such infor­
m ation was held to violate A rtic le 10(1) o f the E uropean C onvention,
which expressly provides:

“ Everyone has the right to freedom of expression. T h is right shall

include freedom . . . to receive and im part inform ation.”

A third ca te g o ry o f de cisio n s deals w ith rights of listeners to reply

to adverse com m ents m ade a b o u t them ; thus in R ed Lion B ro a d ca st­
ing Co v F.C.C., (supra) w here a listener had been subjected to a per­
sonal attack by a guest speaker, it was held th a t the broadcasting
station was bound to provide him with the tape, a transcript, o r a sum ­
m ary of the broadcast, and tim e to reply, free o f charge. It w as ob­
served that:

“ It is the right o f the p ublic to receive suitable access to social,

political, esthetic, m oral and o th e r ideas and experiences which is cru­
cial here.That right may not constitutionally be abridged either by C on­
gress or by the FCC.” (at p.390)

The decision, however, did not turn upon the broad prin cip le of a
listener’s right, passively, to receive inform ation, but w as based on
two other rights: his right to equality, and his right to inform ation needed
to make his freedom of speech effective. The broadcasting station had
perm itted the guest speaker tim e to attack him; it was therefore bound
to treat him equally; equal tre a tm e n t dem anded equal tim e to reply,
and a reply through the very sam e m edium ; and that reply w as an
exercise of his freedom of speech. In ord e r to exercise th a t freedom
sc Fernando v. The S.L.B.C. and Others (Fernando, J ) 175

effectively, he needed inform ation about the attack, and therefore he

had a right to the tape or a transcript. So that case did not involve just
the right to inform ation, but a right to inform ation ancillary to the fre e ­
dom o f speech.

Fourthly, there are decisions, under Constitutional provisions similar

to ours, conta in in g statem ents suggesting that listeners (or readers)
do have a right to receive inform ation. Thus in S tanley v G eorgia, (7)
the Suprem e C o u rt set aside a State obscenity statute insofar as it
penalised m erely private possession of obscene m atter:

“ It is now w ell established that the C onstitution protects the rights

to receive inform ation and ideas. T h is freedom (of speech and
press) . . . necessarily protects the right to receive . . . M artin v
C ity o f Struthers,™ . . . This right to receive inform ation and ideas,
regardless of th e ir social w orth. . . is fundam ental to o ur free
society.

M oreover, in the context of this case . . . that right takes on an

added dim ension. For also fundam ental is the right to be free,
e x c e p t in v e ry lim ite d c ir c u m s ta n c e s , fro m u n w a n te d
governm ental intrusions into o n e ’s privacy.” (at p.564)

I find it d iffic u lt to treat this as being a decision based on freedom

of speech. It seem s referable, rather, to the freedom of thought:

“ If the F irst A m endm ent m eans anything, it m eans that a State

has no business telling a man, sitting alone in his own house,
w hat books he m ay read or w hat film s he m ay w atch. O ur whole
constitutional heritage rebels at the thought of giving governm ent
the pow er to control m en’s minds." (at p.565; cf. also G risw old v
Connecticut,™ “freedom of speech. . . includes . . . freedom of
thought”).

S harvananda, CJ. observed in Joseph Perera v A G ,m that;

“Freedom of speech and expression co nsists prim arily not only

in the lib e rty of the citizen to speak and w rite w hat he chooses,
but in the lib e rty of the public to hear and read, w hat it needs. No
176 Sri Lanka Law Reports [1996] 1 Sri L R

one can doubt if a de m o cra cy is to w ork sa tisfactorily that the

ordinary man and w om an should fe e l that th e y have som e share
in G overnm ent. T he basic assum ption in a dem ocratic polity is
that G overnm ent shall be based on the consent of the governed.
The consent of the governed im plies not only that consent shall
be free but also that it shall be grounded on adequate inform ation
and d iscussion aided by the w idest possible dissem ination of
inform ation from diverse and antago nistic sources. The crucial
point to note is th a t freedom o f expression is not only politically
useful but that it is indispensable to the operation of a dem ocratic
system . . .

Public opinion plays a crucial role in m odern democracy. Freedom

to form public opinion is o f great im portance. Public opinion, in
order to m eet such re sp o n sib ilitie s, dem ands the condition of
v irtu a lly u n o b stru cte d a cce ss to and d iffu sio n o f ideas. The
fundam ental principle involved here is the people’s right to know.
The freedom of speech guaranteed by the C onstitution em braces
at the least the liberty to discuss publicly all m atters of public
co n c e rn , w ith o u t p re v io u s re s tra in t o r fe a r o f s u b s e q u e n t
punishm ents (T h o rn h ill v S tate o f A la b a m a ).. .The w elfare of the
com m unity requires that those w ho decide shall understand them.
The right of the people to hear is w ithin the concept of freedom of
speech.” (at 223-224).

The three Petitioners were arrested w hile they w ere taking steps to
organise a meeting; one Petitioner was the intended speaker. The Court
held that an E m ergency R egulation, w hich w as relied on to ju stify the
arrest, w as ultra vires A rticle 12; (by a m ajority) that the original arrest
and detention w as not illegal; and th a t the subsequent detention was
unduly prolonged. There w as no finding th a t th e ir freedom of speech
had been infringed, and thus o bservation s regarding the right to hear,
read, and receive inform ation, are obiter.

Finally, there are a few decisions the ra tio de cid e n d i of w hich is

that the right to inform ation sim p lic ite h s part of the freedom of speech.
In Visuvalingam v Liyanage.iU) a new spaper had been banned. Two
applications w ere file d by several p e titio n e rs w ho w ere regular read­
ers; one w as also a re gular co n trib u to r to a colum n, fo r w hich he was
sc Fernando v. The S.L.B.C. and Others (Fernando, J.) 177

paid.They alleged that the ban violated th e ir fundam ental right of free­
dom of speech, and also their right to equality (because other new spa­
pers had not been bannd, but only subjected to censorship).The Deputy
S olicitor G eneral had argued that the petitione rs had no locus standi
because the order w as against the printers, publishers and distributors
of the newspaper, and they alone w ere e ntitled to com plain. W hat had
been restricted w as the right to publish; the right to read flow ed from
publication; and th e re could be no right to read w hat had not been
published.T he P etitioners had replied th a t w ithin the am bit of the free­
dom of speech is included the freedom of the recipient of inform ation;
in order to give a m eaning to the freedom of speech one has of neces­
sity to recognise the freedom of the recipient to inform ation, news, and
views.

The C o u rt held th a t public discussion w as im portant in a dem oc­

racy, and th a t for its full realisation public discussion dem anded the
recognition o f th e right of the person w ho is the recipient of inform a­
tion; and said;

“. . . the fundam ental right to the freedom of speech and expression

includes the freedom of the recipient. A ccordingly the Petitioners
have a lo c u s s ta n d i to seek relief u n d e r A rticle 126. But like all
fundam en tal rights, the fundam ental right of the recipient is also
subject to the sam e restrictions.” (at p.132)

However, d e a lin g w ith the m erits, the C ourt held that, in the c ir­
cum stances, the ban w as a law ful restriction on the fundam ental right
of the p ublishe rs o f the new spaper; and a cco rdingly that fundam ental
right of the P etitioners, as readers and contributors, had also been
law fully restricted.

In the s trict sense, w hen A m erely reads (or hears) w hat B w rites
(or says) in the exercise o f B’s freedom of speech, it does not seem
th a t A receives in fo rm a tio n in the exercise o f A ’s freedom of speech,
because th a t w ould be to equate reading to w riting, and listening to
speaking. A ccordingly, w hile preventing A from reading or listening
would co n stitu te a vio la tio n of B’s freedom of speech, it may not in­
fringe A ’s fre e d o m of speech. A ’s right to read or listen is much m ore
appropria tely refe ra b le to his freedom of thought, because it is in fo r­
m ation that e nable s him to exercise th a t right fruitfully.
178 Sri Lanka Law Reports [1996] 1 Sri L R

I have sim ilar reservations about Narayanan v Kerala,{' 2) The ques­

tion was w h e th e r restrictions could be placed on books provided to a
person in detention. It was held that w hile books conducive to in stig a t­
ing violence, disturbing public order, etc., could law fully be denied,
nevertheless o th e r books could not. It w as observed that the freedom
of speech m eant th a t “a person under detentio n can continue to give
expression to his view s, indulge in w riting books, in reading books,
and in learning subjects, and generally in acquiring know ledge” .

In Lam o n t v P ostm aster G eneral,(13) the S uprem e C ourt co n sid ­

ered the constitutionality of a statute w hich required the detention and
destruction of m ail containing “com m unist political propaganda” un­
less the addressee requested delivery by fillin g and returning a reply
card. Lam ont w as engaged in publishing and distributing pam phlets. It
was held th a t the statute, as construed and applied, w as unconstitu­
tional because it im posed a lim itation (viz. returning the reply card) on
the unfettered exercise o f the freedom o f speech:

“It is true that the First Am endm ent contains no specific guarantee
of access to publications. However, the protection of the Bill of
R ights goes beyond the s p e cific g u a ra n te es to protect from
congressional abridgem ent those equally fundam ental personal
rights necessary to m ake the express guarantees fully m eaning­
ful . . . the right to receive publicatio ns is such a fundam ental
right.” (p.308)

However, so fa r as Lam ont w as concerned, he was receiving the

publications fo r the purpose o f distribution, and his claim to the publi­
cations w as thus fo r the purpose of exercising his freedom of speech.

Lam o n t’s case was considered tog e th e r with another sim ilar case
(Fixa v H eilberg). O nly one ju dgm ent w as given, and that does not
disclose the purpose fo r w hich the plaintiff, H eilberg, w anted the pub­
lications. In the absence of a finding that he w anted them fo r the exer­
cise of his freedom of speech, the ju d g m e n t seem s to support a right
to inform ation sim pliciter.

N either these decisions nor the argum ents of M r G oonesekera

persuade me th a t the right to receive inform ation, sim pliciter, is in­
cluded in the freedom of speech and expression. T hose decisions do
sc Fernando v. The S.L.B.C. and Others (Fernando, J.) 179

not set o u t the process o f reasoning by w hich the conclusion was

reached th a t the freedom of speech does include the right to receive
inform ation, sim p lic ite r.T h e o bservation s in S tanley v G eorgia™ su g ­
gest a b etter ratio n a le that inform ation is the staple food of thought,
and that the right to inform ation, sim pliciter, is a co ro lla ry of the fre e ­
dom of th o u g h t guaranteed by A rticle 10. A rticle 10 denies govern­
ment the pow er to control m en’s minds, while A rticle 14(1) (a) excludes
the pow er to curb th e ir tongues. And that m ay explain and ju s tify d if­
ferences in regard to restrictions: e.g. th a t less restrictions are per­
m issible in regard to possession of obscene m aterial fo r private use
than for distribution. In our C onstitution no restrictions are perm itted in
relation to freedom of though t, w hile A rticle 15 perm its som e on fre e ­
dom of speech. B ut leave to proceed was not sought, and the case
w as not presented in the pleadings or at the hearing, on the basis of
A rticle 10, and so no finding is perm issible on that basis.

CONCLUSION

The decisions I have considered dem onstrate that A rticle 14(1) (a)
is not to be inte rp re te d narrowly. Not only does it include every form of
expression, but its protection may be invoked in com bination with other
express g u arante es (such as the right to equality, as in th e R ed Lion
case,{supra) and it extends to and includes im plied guarantees “nec­
essary to m ake the express guarantees fu lly m eaningful” (as noted in
Lam ont(supra). T h u s it m ay include the right to obtain and record
inform ation,and th a t m ay be by m eans of oral interview s (as in D u tfA\ )
publications (as in Lam ont), tape-recordings (as in the R ed Lion Case),
photographs, and the like; and, arguably, it m ay even extend to a p rivi­
lege not to be com pelled to disclose sources of inform ation, if that
privilege is n e ce ssa ry to m ake the right to inform ation “fu lly m eaning­
ful” . Likew ise, o th e r rights m ay be needed to make the actual exercise
of the freedom of speech effective: rights in respect of venues, a m pli­
fying devices, etc. I doubt, however, that it includes the right to infor­
m ation sim pliciter.

However, I have no hesitation in holding that the freedom of speech

of the Petitioner, qua participatory listener, has been infringed, because
the stoppage of the NFEP prevented fu rth e r p a rticipation by him. He
w as thus in the sam e p o sitio n as the c o n trib u to r o f a colum n in
V is u v a lin g a n i11) and the p la in tiff in Lam ontS '^
180 Sri Lanka Law Reports [1996] 1 Sri L.R.

The evidence does not disclose any resp o n sibility on the p a rt of

the 3rd and 4th R espondents fo r that infringem ent. I declare th a t the
1st and 2nd R espondents have infrin g e d the P etitioner’s fundam ental
right under A rticle 14 (1) (a). As for relief, this application was only
taken up fo r hearing in January 1996, by w hich tim e the 1995 schedule
fo r the NFEP had expired. C onsidering also that the question involved
arose for the firs t tim e, a d irection to resum e the NFEP is in a p p ro p ri­
ate. I direct the 1st R espondent to pay the P etitioner a sum o f Rs.
15,000 as com pensatio n and Rs. 5,000 as costs.

D HEER AR ATN E, J. - 1agree.

W IJE TU N G A , J . - 1agree.

R elief granted.