MENAKA WIJESUNDERA J.

The petitioner in the instant matter is namely Selladurai Yesuraja, the husband of the deceased who had worked as a house maid in a house at Royal Court Cooray mawatha Rajagiriya, has pleaded in his petition dated 12.09.2024 but in fact, it should be dated as 12.09.2023 and filed on 19.01.2024 that the fundamental rights of the deceased have been violated under Article 11, 12(1) of the Constitution by the 1st to the 4th respondents and has urged this Court to declare as such.

The petitioner states that on 05.11.2023, he was informed by the owners of the house in which she had been working that the deceased had been arrested and that the police were assaulting her.

When the petitioner contacted the said police, he was informed that his wife had passed away and on the previous occasion when he called the same number the person who answered abused him in filth and had given the phone to the deceased whom he says was groaning into the phone.

The petitioner alleged that the post-mortem report had said that the injuries inflicted could be due to the torture of the deceased by the police. However, he states that the lady of the house had filed a complaint of theft against the deceased and she had been taken into custody on that.

When this matter was supported for leave the Counsel appearing for the 5th, 6th, 7th and the 8th Respondents raised the objection that the instant application was time barred as per the provisions of the Constitution.

According to Article 126(1) of the Constitution an infringement of any fundamental right has to be brought to the notice of this Court within 30 days of the said violation.

In the instant matter, the violation had taken place on 11.05.2023 and the instant application had been filed on 19.01.2024. The Counsel for the petitioner argued that he had reported the matter to the Human Rights Commission on 30.05.2023, and he had marked and produced the receipt of the Human Rights Commission dated 30.05.2023 which acknowledges the receipt of his complaint. The counsel for the respondents argued that the instant application has been filed well beyond the time limit specified in the Constitution under Article 126(2) of the Constitution. The Petitioner had lodged a complaint in the Human Rights Commission on 30.05.2023 but, has failed to produce any evidence as to whether an inquiry or investigation is pending or has been concluded. Therefore, the Counsel for the Respondents argued that in the absence of such material, the Petitioner cannot claim refuge under Section 13(1) of the Human Rights Commission Act. Section 13(1) of the Human Rights Commission Act No. 21 of 1996 reads as follows:

“Where a complaint is made by an aggrieved party in terms of Section 14, to the Commission, within one month of the alleged infringement or imminent infringement of a fundamental right by executive or administrative action, the period within which the inquiry into such complaint in pending before the Commission, shall not be taken into account in computing the period of one month within which an application may be made to the Supreme Court by such person in terms of Article 126(2) of the Constitution.”

Therefore, according to the above quoted section it is quite clear that a mere act of lodging a complaint in the Human Rights Commission is not sufficient to overcome the time limit stipulated under Article 126 (2) of the Constitution. As per the above section, a period of time to be excluded to fall in line with Article 126 (2) “the period within which the inquiry into such complaint is pending before the Commission”.

In the case of Jayawardena vs Attorney General FRD (1) 175, it has been held that:

“Difficulties have been arisen in the computation of the one-month period in cases of allegations of unequal treatment. The general rule is that an application must be made to the Court within one month of the Petitioner becoming aware of the act of unequal treatment”.

In some cases, it has been held that delay in maki