CHANDRAPALA V THE COMMISSIONER OF ELECTIONS AND 3 OTHERS

CHANDRAPALA
V
THE COMMISSIONER OF ELECTIONS AND 3 OTHERS

SUPREME COURT
SHIRANIA.BANDARANAYAKE. J.,
N.K. UDALAGAMA, J, AND
S. MARSOOF.J.
S.C. (FR) APPLICATION No. 406/2004
NOVEMBER 14th, 2005
JANUARY 17th, 2006

CONSTITUTION - Article 12(1) Right to equality - All Persons are equal before the law and are entitled to the equal protection of the law-provincial Council election Act, No. 2 of 1988 43-Issuance of tendered ballot papers.

The Petitioner was a voter, registered in the Register of Elections for the year 2002 for the Electoral District No 6 , Nuwara Eliya. The Register used for the purpose of the election in question had been the register for the year 2002.

The petitioner complained that on the day of the election he was not given a ballot paper for the purpose of voting by the Presiding Officer of the polling station on the ground that the Petitioner's name had been struck off on the basis that his vote has been already cast as a postal vote The Petitioner had informed the 3rd Respondent that he had not applied for postal voting Even Thereafter the 3rd Respondent had refused to allow the Petitioner to cast his vote However due to the Petitioner's repeated requests, the 3rd Respondent had given him a letter giving the reason for not allowing him to vote Thereafter the Petitioner had lodged a complaint at the Police Station.

In this petition the Petitioner complained that aforesaid decision of 2nd and 3rd Respondents preventing the Petitioner from casting his vole by the non issuance of the tendered ballot paper is in violation of his fundamental right guaranteed In terms of Article 12 (1) of the Constitution.

The Supreme Court granted leave to proceed.

Held:

(1) When Court considers an infringement regarding the right to equality, it would regard arbitrary or unreasonable actions, as per se discriminatory. Whether an alleged act is arbitrary or discriminatory will have to be decided by the Court on the facts and the circumstances of the given case.

(2) In terms of Section 43 of the Provincial Councils Elections Act, the criterion that should be used in determining the question as to whether an elector is entitled to a tendered ballot paper would be whether he had used his vote at that election. If it appears to the Presiding Officer that the person in question had been deprived of casting his vote duo to someone else having cast his vote, then the Presiding Officer is bound to issue a tendered ballot paper in terms of Section 43 of the Act.

(3) Considering the totality of the circumstances of the case, it is evident that the 3rd Respondent had sufficient reasons to consider that the Petitioner had not voted by post. Accordingly by the refusal of the 3rd Respondent to issue a tendered ballot paper, the Petitioner had been denied of equal protection under the law.

(4) In a fundamental rights application, there is no necessity for persons who may be able to give relevant evidence to be made respondents and what is needed would be to include as respondents those who have infringed a petitioner's fundamental rights.

(5) The fundamental right of the Petitioner guaranteed by Article 12(1) of the Constitution had been infringed by the 1st to 3rd Respondents.

Cases referred to:

(1) Jyoli Banti v Debi Ghosal - A. I. R. (1982) S.C. 983
(2) Karunathilake v Dayananda Dissanayake - (1999) 1 Sri L.R. 157
(3) State of Uttara Pradesh v Deoman - A.I.R (1960) S.C. 1125
(4) Royappa v State of Tamil Nadu - A.I.R (1974) S.C. 555
(5) Chhaganlal v Greater Bombay Municipality - A.I.R.(1974)S.C.2009
(6) Ajay Hasia v Khalid Mujib - A.I.R(1981) S.C 487
(7) Shrilekha Vidyarthi - A.I.R. (1991)S.C. 537

APPLICATION against the infringement of fundamental right guaranteed under Article 12(1) of the Constitution

U. Mapa with W. Premathilake for Petitioner

S. Barrie, State Counsel, for Respondents

Cur.adv.vult

August 3,

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