PROF. DHARMARATNE AND OTHERS VS. INSTITUTE OF
FUNDAMENTAL STUDIES AND OTHERS

SUPREME COURT
SALEEM MARSOOF, PC. J
RATNAYAKE, P.C., J AND
IMAM,J.
SCFR APPLICATION NO. 73/2007
SC FR APPLICATION NO. 371/2009
SC FR APPLICATION NO. 413/2009
FEBRUARY 15TH, 2011

Article 126 (1) of the Constitution - Fundamental rights jurisdiction and its exercise - Supreme Court shall have sole and exclusive jurisdiction to hear and determine any question relating to the infringement or imminent infringement, by executive or administrative action of any fundamental right or language right declared and recognized by Chapter III or Chapter IV - Application of the 'tests'

The main question for determination in all three applications is whether the Institute of Fundamental Studies (IFS) is a body which exercises executive or administrative functions within the meaning of Article 126 of the Constitution, and hence whether the impugned actions of the IFS may be subjected to judicial review in terms of Article 126 of the Constitution.

Held:

1. Our Courts have applied various tests to determine whether a particular person, Institution or other body whose action is alleged to be challenged under Article 126 of the Constitution is an emanation or agency of the State exercising executive or administrative functions.

Where the body whose action is sought to be impugned is a corporate entity, these tests have focused, inter alia, on the nature of the functions performed by the relevant body, the question whether the State is the beneficiary of its activities, the manner

of its constitution, whether by statutory incorporation or otherwise, the dependence of the body whose action is sought to be challenged on State funds, the degree of control exercised by the State, the existence in it of sovereign characteristics or features, and whether it is otherwise an instrumentality or agency of the State. However, these tests flow in to each other.

2. Since the Board of Governors has very wide powers in terms of the provisions of the IFS Act, and it consists of the President and the Prime Minister of the Republic of Sri Lanka and other representatives of the Government, the actions of the IFS concerning the conditions of service and tenure of the senior academic staff of the IFS, constitute 'executive or administrative' action within the meaning of Article 126 of the Constitution.

3. Application of the test of deep and pervasive control, clearly demonstrate that an entity could be deemed to be an instrumentality or agency of the State even in the absence of statutory incorporations, and that even without clear provision in an incorporating statute conferring pervasive controlling power to the State.

Cases referred to:

1. Rienzie Perera and Another Vs. University Grants Commission - (1978 -80) 1 Sri L.R. 128

2. Sukhdev Singh and Others Vs. Bhagatram Sarder Singh Raghuvanshi -AIR (1975) SC 1331; 1975 SCR(3) 619

3. Rajaratne Vs. Air Lanka Ltd., and Others- (1987) 2 Sri L.R. 145

4. Leo Samson Vs. Sri Lankan Airlines and Others - (2001) 1 Srl L. R. R 94

5. Wijeratne and Another Vs. People's Bank and Another- (1995) 2 Sri L.R. 352

6. Wijetunga Vs. Insurance Corporation and Another- (1982) 1 Sri L.R. 1

7. Trade Exchange (Ceylon) Ltd. Vs. Asian Hotels Corporation Ltd - (1981) 1 Sri L.R. 67

8. Jayakody Vs. Sri Lanka Insurance and Robinson Hotel Co. Ltd and Others- (2001) 1 Sri L. R. 365

9. Jayakody vs. Sri Lanka Insurance and Robinson Hotel Co. Ltd and others- (2001) 1 Sri L. R. 365

10. Wickrematunga Vs. Anuruddha Ratwatte and Others - (1998) 1 Sri L.R. 201

11. Ramana Dayaram Shetty Vs. International Airport Authority of India -AIR 1979 SC 1682

12. Organization of Protection of Human Rights and Rights of Insurance Employees and Others Vs. Public Enterprises Reform Commission and Others- (2007) 2 Sri L.R. 316

APPLICATION made under Article 126 of the Constitution.

Manohara de Silva, P.C. with