PERERA

VS.

DISTRICT SCOUT COMMISSIONER AND OTHERS

SUPREME COURT
ALUWIHARE, J.
FERNANDO, J.
AMARASEKARA, J.
SC/FR/335/2018
FEBRUARY 5, 2020

Fundamental Rights-Articles 4(d), 12(1), 17, 126 of the Constitution- Executive or administrative action-Ceylon Scout Council (Incorporation) Act, No. 13 of 1957

The petitioner filed this application seeking a declaration that the Wattala- Ja-Ela District Scout Commissioner of the Sri Lanka Scout Association violated his fundamental right to equality before the law and the equal protection of the law enshrined in Article 12(1) of the Constitution by maliciously refusing to authorise his application for the President's Scout Award.

Held :

1. In terms of Articles 17 and 126 of the Constitution, it is an essential pre-requisite that infringement or imminent infringement of a fundamental right recognised by Chapter Ill of the Constitution shall result from executive or administrative action, in that, such action should either be an action of the state or the government itself; or it should be an action of an organ, agency or instrumentality of the government which is subject to governmental control and done in the course of executing a governmental function.

2. Various tests such as the government instrumentality or agency test, the government control test, the functional test, and the sovereign power test are made use of to decide this question.

3. The cumulative application of these tests indicates that the Sri Lanka Scout Council under which the Scout Association operates is not an agency, organ or an instrumentality of the state. Hence its actions are not amenable to fundamental rights jurisdiction.

Cases referred to :

1. Wijetunga v. Insurance Corporation of Sri Lanka [198211 Sri LR 1
2. Rajaratne v. Air Lanka [1987] 2 Sri LR 128 at 148
3. Rienzie Perera and another v. University Grants Commission [1978-80] 1 Sri LR 128
4. Rajasthan State Electricity Board v. Mohan Lal AIR 1967 SC 1857
5. Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi AIR 1975 SC 1331
6. Ramana Dayaram Shetty v. International Airport Authority of India 1979 AIR SC 1628
7. Ajay Hasia v. Khalid Mujib Sehravardi and others 1981 AIR SC 487
8. Wijenaike v. Air Lanka [1990] 1 Sri LR 293
9. Captain Channa D.L. Abeygunewardena v. Sri Lanka Ports Authority (2017) 1 ABH 214
10. Vivienne Gunawardena v. Perera and others [1983] 1 Sri LR 305 at322

APPLICATION under Article 126 of the Constitution for infringement of fundamental rights.

Himalee Kularathna for the Petitioner.

Senaka de Saram for the 1st, 2nd, 5th and 6th Respondents.

Viveka Siriwardena, D.S.G., for the 3rd and 7th, Respondents.

cur. adv. vult.

May 20, 2020

ALUWIHARE, J.

The Petitioner, Galkandage Sahasra Sandeepa Perera was a student of Christ King College, Ja-Ela at the time of filing this Petition, and has first joined Sri Lanka Scout Association as a Cub Scout in 2007 and continued his membership in the Association as a Scout from 2011 onwards. He alleges that the 1st Respondent, the Wattala-Ja-Ela District Scout Commissioner of the Sri Lanka Scout Association has violated the Petitioner's fundamental right to equality before the law and the equal protection of the law, enshrined in Article 12(1) of the Constitution, by maliciously refusing to authorize the Petitioner's application for the

President's Scout Award. The Petitioner claims that the 2nd Respondent, the Chief Commissioner of the Sri Lanka Scout Association is complicit in the violation, owing to his refusal to confer the same on the Petitioner.

It must be observed at the outset, that for the conscience of the Court to be satisfied of the merit of any alleged violation of the fundamental rights of a Petitioner, it is an essential pre-requisite as per Articles 17 and 126 of the Constitution, that such infringement or imminent infringement of a fundamental right recognized by Chapter Ill of the Constitution be resulting from "executive or