July 12, 2022

Analysis of FoRB Cases in the E-Portal

Four key findings emerge from an analysis of the E-Portal on freedom of religion or belief (FoRB). Three of these findings relate to appellate court jurisprudence, and one relates to lower court jurisprudence. The pronouncements of the Supreme Court will often be the focus of our analysis, as these pronouncements have precedential value and are often more directly relevant to FoRB. It should also be borne in mind that our findings are based on a qualitative interpretation of available case law and is not reflective of quantitative trends. 

  1. Recognising FoRB violations

An analysis of fundamental rights cases that concern FoRB reveals that the Supreme Court has rarely found a violation of the rights contained in article 10 of the Sri Lankan Constitution, (i.e. the freedom of religion), article 14(1)(e) (i.e. the freedom to manifest religion or belief), or article 12(2) (i.e. discrimination on the grounds of religion). Even in cases where the Court has granted relief to petitioners who have come before the Court as victims of religious violence or discrimination, or alleged that their FoRB was violated, the Court has steered clear of making any pronouncement on religious freedom per se. The Court has consistently confined itself to finding violations of article 12(1) (i.e. equality and the equal protection of law more generally, than a violation of FoRB) or some other ‘religion-neutral’ clause, such as article 13(1) (i.e. the freedom from arbitrary arrest and detention where relevant).

Several cases included in the E-Portal reflect this trend. In some cases, the Court has granted relief to the petitioner, but has still refrained from recognising a FoRB violation. Among these cases, there are some cases in which the Court engaged FoRB in its reasoning but still decided against recognising a violation. For example, in Karuwalagaswewa Vidanelage Swarna Manjula et al v. Pushpakumara, Officer-in-Charge, Police Station, Kekirawa et al (the Jehovah’s Witnesses Case)1, the petitioners (both Jehovah’s Witnesses), were taken to the area police station for engaging in their missionary work and disseminating religious material. They were berated by two Buddhist monks and the Officer in Charge (OIC) at the police station. Thereafter, they were arrested on suspicion of criminal intimidation and criminal trespass and were kept in custody overnight. The petitioner’s claimed that the above acts violated several rights under articles 10, 11, 12(1), 13(1), 13(2), 13(5), 14(1)(a) and 14(1)(e) of the Constitution. The Supreme Court granted leave to proceed with respect to articles 12(1), 13(1), and 14(1)(e) of the Constitution.

The Supreme Court held that the arrest of the petitioners on 1 March 2014 by the 1st respondent, was unlawful and that the 1st respondent had violated the petitioners’ fundamental rights guaranteed by article 13(1) of the Constitution. The Court also held that the 1st respondent and officers acting under his directions and with his authority acted in a manner which is manifestly unreasonable, arbitrary and unlawful. It further held that the acts and omissions of the 1st respondent denied the petitioners their fundamental right, guaranteed by article 12(1), to the equal protection of the law. Accordingly, the Court held that the 1st respondent violated the petitioners’ fundamental rights guaranteed by article 12(1). However, in terms of its analysis of article 14 (1)(e), the Court noted that it has ‘a concomitant duty to ensure it does not unwittingly extend the reach of the fundamental rights protected by article 14 outside the extent of their fullest proper meaning’. In its examination of ascertaining whether there was a violation of the said article, the Court held that the discussion the petitioners were having with the villagers ‘cannot be properly regarded as being an instance of petitioners’ manifesting their religion ‘in worship, observance, practice and teaching’, within the meaning of and as contemplated by article 14(1)(e) of the Constitution’. Consequently, the court held that the ‘prevention of the continuation of that discussion by the 1st respondent and police officers acting on his directions and with his authority, did not constitute a violation of the petitioners’ fundamental rights guaranteed by article 14(1)(e) of the Constitution’. Therefore, the Supreme Court confined itself to holding that the 1st respondent had violated the petitioners’ rights guaranteed under articles 12(1) and 13(1). 

In other cases, the Court avoided engaging FoRB altogether in the course of granting relief to the petitioner. For example, in the case of Naomi Michelle Cokeman v AG and Others2, the petitioner was arrested for displaying a tattoo of Lord Buddha on her arm upon her arrival to Sri Lankan in April 2014. The petitioner claimed that she was ‘arbitrarily arrested, detained’ and complained of ‘degrading treatment, culminating in her arbitrary, irrational, capricious and ultra vires deportation’. The respondent police officer stated that the arrest was made as ‘many civilians present in the vicinity too became aware (of the petitioner’s tattoo) and were ‘disturbed or otherwise agitated’, and therefore, the respondent ‘perceived an imminent disturbance of peace by the public’. The Court held that in the ‘B’ Report itself it is stated that the petitioner had ‘no intention to outrage such feelings’ and that a charge relating to section 291B of the Penal Code cannot be maintained i.e. ‘outraging the religious feelings of any class by insulting its religion or religious beliefs’. The Court further held that there was ‘no acceptable evidence placed before this court that there was a possibility of public outcry, though the police attempt to say so in their statements recorded’. On the above basis, the Court held that the petitioner’s fundamental rights guaranteed under article 13(1) was violated. The Court did acknowledge that the petitioner had claimed in the petition that she was a ‘devout practicing Buddhist’ and had displayed the tattoo of the Lord Buddha as a mark of respect. Yet it did not grant leave to proceed on a potential FoRB violation, nor did it engage FoRB in its final judgment.

Judgments that have recognised a FoRB violation seem to be exceptions to the general rule. In the case of Ven. Ellawala Medananda Thero v District Secretary, Ampara et al3, the petitioner contended that the decision taken by the respondents to alienate about 60 acres of land located 13 km to the South of the Deegavapi Raja Maha Viharaya (one of the 16 most venerated sites of Buddhists in Sri Lanka) to 500 Muslim families, infringes the rights guaranteed under articles 10 and 12. The court held that ‘state land is held by the executive in trust for the People and may be alienated only as permitted by law…impugned alienation is bereft of any legal authority and has been effected in a process which is not bona fide’ on this basis the court went on to hold that the petitioners have established an infringement of the fundamental rights guaranteed by articles 12(1), 12(2) and 10 of the Constitution. Therefore, the case represents a rare example in which violations of the rights guaranteed in articles 10 and 12(2) were recognised by the Supreme Court. Notably, however, the recognition of a FoRB violation in this case was with respect to the majority Buddhist community. In any event, the court did not specifically discuss FoRB in its judgment, and focused its attention on the violation of equality provisions. 

There are several cases where the Court has dismissed the petitions, and has consequently refrained from holding that an aspect of FoRB has been violated. For example, in the case of M.J.M. Faril et al v. Bandaragama Pradeshiya Sabha et al4, the petitioners’ construction of a building was in question, and the Bandaragama Pradeshiya Sabha requested that the petitioners submit a letter stating that the purpose of construction was to provide only for a school. The petitioners claimed that the direction to stop construction work was a violation of articles 10, 12(1), 12(2), and 14(1)(e) of the Constitution. In the context that the local Buddhist monk and villagers had protested the construction, the focus of the Supreme Court, however, was to ensure that the alleged communal tensions were addressed. It noted that ‘what is necessary should be done to avoid a crisis situation which could spread to other areas of our country. No further reasons need to be adduced in the circumstances of the case in hand by the Respondents’5. The Court held that it cannot conclude that the petitioners were denied equal protection of the law. Accordingly, the Supreme Court did not engage in the petitioners’ argument with respect to articles 10, 12(2) or 14 (1)(e), and refused to recognise any violation of FoRB.

In Premalal Perera v. Weerasuriya et al6, the petitioner, an employee of the Government Railway Department complained that a circular authorising the deduction of a contribution from him to the National Security Fund infringed articles 10 and 14(1) (e), as the money was to be used to buy arms and weapons. The petitioner claimed that the purpose for which the money will be used is one of ‘destruction of human life and violence which is repugnant to the tenets of the Buddhist faith and belief which he professes’. He further claimed his right to equality under article 12(1) was violated because employees of the Health Department had not been called upon to contribute to the said fund. In a rare example of some engagement on questions of FoRB, the Supreme Court observed that ‘beliefs rooted in religion are protected’ and that:

A religious belief need not be logical, acceptable, consistent or comprehensible in order to be protected. Unless the claim is bizarre and clearly non-religious in motivation, it is not within the judicial function and judicial competence to inquire whether the person seeking protection has correctly perceived the commands of his particular faith. The courts are not the arbiters of scriptural interpretation and should not undertake to dissect religious beliefs7.

However, the court dismissed the petitioner’s arguments based on articles 10 and 14 (1)(e) on the basis that it could not hold that the contribution to the said fund interferes ‘in any way with the full and free exercise by the petitioner of his religion’. The Court also held that the material before it was insufficient to decide whether the right to equality had been violated by the fact that Health Department employees were not called upon to make the contribution to the National Security Fund.

The Court also engaged questions of FoRB in the case of Jeevakaran v. Ratnasiri Wickremanayake et al8, the petitioner contended that his ‘religious consciousness and belief is going to be imminently infringed/is infringed’ by the executive or administrative actions of the respondents by the removal of Maha Sivarathri as a public holiday under the Holidays Act, No. 19 of 1971. The petitioner argued that he would not be able to observe the religious rituals on the day and stated that this decision violated his rights guaranteed under articles 10 and 14(1)(e). The petitioner also alleged that the sudden denial of the holiday was ‘against the legitimate expectations of the petitioner and is totally unilateral, unreasonable, arbitrary, unjustified, without proper procedure, ultra vires, capricious, wrong classification, not for any good reason but for some collateral purpose and thus denies the equal opportunity and violates the rights guaranteed under article 12(1) of the Constitution’9. He further claimed that the ‘Hindu religion is professed by [a] small minority compared to the total population and not declaring Maha Sivarathri as a holiday and reducing the holidays only from minority religions’ amounts to a violation of the rights guaranteed by article 12(2).  The Supreme Court held that ‘religion is essentially a private matter’, and article 14(1)(e), ‘does not entitle a citizen to State patronage for the practice of his religion. Of course, if the State does grant patronage to one religion (except as permitted by article 9), the question of equal treatment may arise under article 12…’. The Court went on to hold that the essence of right to freedom of worship under article 14(1)(e),

…is that the State (or even a private employer) must not prohibit or interfere with the citizen’s practice of his religion, but is not bound to extend patronage or provide facilities for such practice. The position is no different in regard to other freedoms; while the freedom of speech may entitle a citizen to publish a newspaper or to operate a radio station, it does not entitle him to a grant of State land or funds for his enterprise; and the freedom of association may entitle citizens to establish a company, society or union, but not to demand from the State a building for its activities10.

Once again, the Court dismissed the petitioner’s claims based on article 14(1)(e). It noted that the state was ‘entitled to take a variety of matters into consideration in determining public holidays’, and the material adduced by the petitioner failed to show that the elimination of these holidays was unreasonable, arbitrary, capricious or for an improper purpose. It accordingly held that the fundamental rights of the petitioner had not been infringed.

The foregoing analysis reveals that the Supreme Court has steered clear of recognising violations of FoRB in general, and has only on some occasions recognised a violation when the majority Buddhist community was concerned. Even where the Court has granted relief to a petitioner from a minority religious community, it has done so on the basis of a ‘religion-neutral’ right such as the right to equal protection of the law or the freedom from arbitrary arrest, and has not recognised a FoRB violation. In other cases, it has simply dismissed the petitions altogether. In essence, the E-Portal does not contain any cases in which a FoRB violation concerning a member of a minority religious community was recognised. Such cases may exist, but do not appear to be reported or easily accessed. Therefore the observation we make in this regard remains tentative. 

  1. Propagation of religion or belief

The Supreme Court has not recognised the freedom to propagate religion or belief as part of the scope of FoRB. This position is clearly articulated in Provincial of the Teaching Sisters of the Holy Cross of the Third Order of Saint Francis in Menzingen of Sri Lanka (Incorporation) Bill (2003)11, and the Jehovah’s Witnesses Case12, both of which are landmark cases that deal with the subject of propagation in Sri Lanka. 

In the latter case, the Court concluded that propagation cannot be considered a manifestation of FoRB in terms of an act of ‘worship’ or ‘observance’ of the petitioners’ religion. In terms of the notion of ‘practice’, the Court was cognisant of the claim by the petitioners that the tenets of Jehovah’s Witnesses require them to engage in house to-house visits for the purposes of evangelising. The petitioners contended that house-to-house visits fell within the ambit of article 14(1)(e). However, the Court rejected this argument, and observed that ‘practice’ in article 14(1)(e) only refers to ‘a customary or traditional ritual, ceremony or act which is performed in the course of or allied to or consequent to acts of “worship” and “observance” of a religion or a set of beliefs’13. It was accordingly held that the petitioners’ missionary activities did not constitute religious ‘practice’. The Court also assessed whether the petitioners’ activities could fall within the ambit of ‘teaching’, which is another element of FoRB. The Court adopted a definition of ‘teaching’ to mean ‘a process of the education of a student[s] by a teacher who, by means of instructions, lessons and training, imparts knowledge and skills to the student’14. The Court suggested that this process would typically be consensual and pre-arranged. By contrast, unsolicited house visits lacked these characteristics. Therefore, the Court concluded that the petitioners’ activities did not constitute ‘teaching’ either. It was held that the propagation did not fall within the protected scope of article 14(1)(e) of the Constitution. 

It may be noted that article 25(1) of the Indian Constitution explicitly recognises the right to ‘propagate’ a religion. In the case of Ratilal Panachand Gandhi v. State of Bombay, the Indian Supreme Court held:

Article 25 of the (Indian) Constitution guarantees to every person and not merely to the citizens of India the freedom of conscience and the right freely to profess practise and propagate religion. This is subject, in every case, to public order, health and morality. Further exceptions are engrafted upon this right by clause (2) of the article… subject to the restrictions which this article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others15

Later, through cases such as Rev. Stanislaus v. Madhya Pradesh16, and Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt17,  Indian courts have interpreted the term, ‘propagate’ to include the right to ‘disseminate religious ideas for the edification of others’. In several cases, the Indian Supreme Court has held that the right to propagate does not include the right to convert another person. For instance, in the Rev. Stanislaus case (1977), the Court upheld the constitutional validity of two anti-conversion laws (the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967) on the basis that ‘…article (25) does not grant the right to convert other persons to one’s own religion but to transmit or spread one’s religion by an exposition of its tenets’. The Court further held that there can be no ‘such thing as a fundamental right to convert any person to one’s own religion’. Later, the Indian Supreme Court Satya Ranjan Majhi v State of Orissa (2003), where the Indian Supreme Court dealt with the Orissa Freedom of Religion Act, 1967 and Rules, 4 & 5 of the Orissa Freedom of Religion Rules, 1989, the Court reiterated that the Supreme Court has clearly held that ‘the right to convert another person to one’s own religion was not covered by article 25(1) of the Constitution of India and there was no fundamental right in any one to convert another person to one’s own religion.’18

However, in Evangelical Fellowship of India & Act Now for Harmony and Democracy v. State of Himachal Pradesh (2012), the Himachal Pradesh High Court held that several provisions (including provisions where the convertee has to give notice before the conversion) of the Himachal Pradesh Freedom of Religion Act, 2006 were unconstitutional19. The Court arrived at the above conclusion following a comparative analysis of similar regional anti-conversion laws. In this case, the High Court held that, ‘if a person changes his religion or belief of his own volition then the State has no role to play. On the other hand, if persons are made to change their religion due to ‘force’, ‘fraud’ or ‘inducement’, this would wreak the very basic framework of our society and lead India to total annihilation.’20

Considering the explicit inclusion in the Indian context, and the exclusion of the term ‘propagation’ in the Sri Lankan Constitution, the Court in the Jehovah’s Witnesses case speculated that the drafters of the Sri Lankan Constitution may have had good reason to exclude propagation from the scope of article 14(1)(e). It was suggested that the drafters may have wished to preserve ‘social harmony and amity’ in the country. The Court asserted that propagation might deepen conflicts between communities. It was also suggested that the drafters considered article 9 of the Sri Lankan Constitution, which imposes on the state a duty to give Buddhism the ‘foremost place’. 

The Supreme Court in fact observed in the Menzingen case that there was no constitutionally protected right to propagate religion or belief. In this case, the Supreme Court assessed the constitutionality of a private member’s Bill to incorporate an institution with the stated purpose of spreading ‘knowledge of the Catholic religion’. The Court found that the Bill was inconsistent with article 9 of the constitution, which guarantees to Buddhism the ‘foremost place’. It held that article 9 restricted individuals of other religions from ‘propagating’ their faith by offering material benefits to those outside their religion. The Court concluded that ‘propagation and spreading Christianity [through the provision of material benefits] would not be permissible, as it would impair the very existence of Buddhism or the Buddha Sasana21.

Notably, the Menzingen case also held that propagation, when accompanied by ‘improper inducement’, contravenes the provisions of article 10 of the Constitution. It held:

The provisions in the Bill, viz., the Preamble, clause 3 and also clause 5, which deal with the powers of the organization that includes inter alia to be able to receive and hold property both movables and immovables and or to dispose such property, create a situation which combines the observance and practice of a religion or belief with activities which would provide material and other benefits to the inexperience [sic], defenceless and vulnerable people to propagate a religion. The kind of activities projected in the Bill would necessarily result in imposing unnecessary and improper pressures on people, who are distressed and in need, with their free exercise of thought, conscience and religion with the freedom to have or to adopt a religion or belief of his choice as provided in Article 10 of the Constitution. What Article 10 postulates is to adopt a religion or belief of his or her choice and the execution of improper inducement would not be compatible with such a provision. 

This position results in propagation not only being denied protection as part of the fundamental right to FoRB, but also being framed as a violation of the fundamental rights of others. Such a framing appears to arise when the entity concerned—such as a Christian group—engages in social or charitable work that is considered a form of propagation.

The Supreme Court’s position with respect to propagation may be critiqued from a number of perspectives. First, the Court’s position does not appear to be in line with international legal doctrine on the scope of FoRB. The ability to distribute publications about one’s religion is often a fundamental aspect of manifesting religion or belief, and may be treated as falling within the scope of ‘teaching’. According to the UN Human Rights Committee in its General Comment No. 22 – Article 18 (Freedom of Thought, Conscience or Religion), practice and teaching ‘include acts integral to the conduct by religious groups of their basic affairs, such as the freedom to choose their religious leaders, priests and teachers, the freedom to establish seminaries or religious schools and the freedom to prepare and distribute religious texts or publications’ (emphasis added)22. Such distribution cannot impede the rights and freedoms of others, and cannot be coercive. As the judicial trend in India has demonstrated, the right to propagate by no means includes a right to forcibly convert. However, it is clear that propagation should ordinarily be included within the scope of FoRB. 

This aspect of the freedom to manifest religion or belief may be subject to limitations in compliance with article 18(3) of the International Covenant on Civil and Political Rights (ICCPR). A Court’s assessment on a question of propagation would then be with respect to the permissibility of a limitation, rather than on whether it fell within the scope of the freedom in the first place. In this context, the Supreme Court’s attention ought to have been firmly focused on the question of permissible limitations on the freedom to manifest religion or belief under article 15(7) of the Constitution, and not on whether acts of propagation fell within the scope of the right guaranteed by article 14(1)(e).

Second, the Supreme Court’s position on propagation does not lend itself towards a harmonious interpretation of the Sri Lankan Constitution. Article 9 not only mentions Buddhism’s foremost place, but also clarifies that the ‘duty of the State to protect and foster the Buddha Sasana must be fulfilled ‘while assuring to all religions the rights granted by Articles 10 and 14(1)(e)’. In this context, article 9 cannot restrict the scope of article 14(1)(e). It is article 14(1)(e) that restricts the scope of article 9. A closer reading of article 9 would suggest that the duty of the state under article 9 is subject to the freedom of all persons to manifest religion or belief. 

In this context, the Supreme Court appears to subscribe to the view that article 9 of the Constitution imposes a disability on persons belonging to faiths other than Buddhism in terms of their freedom to propagate their faith. This position necessarily leads to further inequality between religions in Sri Lanka. Article 9 clearly places a duty on the state to protect and foster the Buddha Sasana. State support for the production and distribution of Buddhist publications would undoubtedly fall within the scope of such a duty. The denial of a similar right to other religions—even to engage in such activity on their own and without state support—would lead to inequality and discrimination on the grounds of religion.

A more harmonious reading of the various norms that are found in the Sri Lankan Constitution is possible. Article 9 imposes a duty on the state to grant Buddhism the foremost place, and to protect and foster the Buddha Sasana. The right of Buddhists to propagate their faith is consequently protected as a direct result of this article. The state’s duty, however, is subject to the condition found in article 9 itself: it must be fulfilled in a manner that assures to all other religions the rights granted by article 14(1)(e) of the Constitution. Therefore, article 9 does not limit or displace the rights guaranteed under article 14(1)(e). Instead, it places a limit on the duty of the state to protect and foster the Buddha Sasana. Next, article 12 of the Constitution recognises the rights to equality, and to non-discrimination on the grounds of religion. The state must not differentiate between persons on the basis of their religion. One obvious consequence of this principle is that the state cannot interpret the scope of fundamental rights in a manner that grants to certain communities a wider range of freedom, and to others a narrower range, solely on the basis of their religion. It should be noted, however, that the principle of non-discrimination is not absolute under our Constitution. The state appears to have a duty to protect and foster Buddha Sasana, but no such duty in terms of other religions. Such preferential treatment of one faith is problematic, but remains an undeniable feature of the Sri Lankan Constitution. Article 14(1)(e) of the Constitution meanwhile recognises the freedom to manifest religion or belief in worship, observance, practice and teaching. Excluding the freedom of propagation, such as the ability to distribute publications, from the scope of this article exacerbates the inequality that is already entrenched in article 9, where only Buddhism benefits from a state duty to protect and foster it. One way to diminish this inequality is to at least grant members of other faiths their freedom to foster their faith on their own initiative, and without state support. Although such recognition would not grant all religious communities total equality in light of article 9, it would narrow the extent of the inequality. 

Recognising that all communities have the freedom under article 14(1)(e) to engage in the same types of activities that the state is duty-bound to engage in under article 9 would lead to a more harmonious reading of articles 9, 12, and 14 of the Constitution. However, it appears that the Supreme Court’s current reading of the scope of article 14(1)(e) excludes propagation, thereby perpetuating the unequal status of other religions compared to Buddhism.

  1. Limitations on FoRB

The freedom of thought, conscience, and religion, guaranteed by article 10 of the Constitution is absolute and cannot be restricted on any ground. By contrast, the grounds on which the state is authorised to limit the freedom to manifest religion or belief (guaranteed by article 14(1)(e) of the Constitution) is set out in article 15(7) of the Sri Lankan Constitution. Article 15(7) provides that fundamental freedoms found in article 14 may be limited on the grounds of ‘national security, public order and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or of meeting the just requirements of the general welfare of a democratic society.’ All restrictions in this respect must be ‘prescribed by law’.

Two doctrinal challenges exist with respect to the current scheme of limitations. First, ‘law’ for the purpose of article 15(7) of the Sri Lankan Constitution includes emergency regulations promulgated under the Public Security Ordinance (PSO) of 1947. This inclusion means that fundamental freedoms could be restricted by legal instruments that are not enacted by parliament. Certain fundamental freedoms, including FoRB, can be limited by executive order on the grounds of ‘national security’ or ‘public order’. It was clarified in Thavaneethan v. Dayananda Dissanayake (2003)23 that regulations other than those issued under the PSO cannot restrict any fundamental right in terms of article 15(7) of the Constitution. In this case, the Court held that regulations issued under the Prevention of Terrorism Act (PTA) of 1979 cannot authorise restrictions on fundamental rights, as the scope of article 15(7) only extends to emergency regulations issued under the PSO. 

Second, article 16 of the Constitution provides: ‘All existing written law and unwritten law shall be valid and operative notwithstanding any inconsistency [with fundamental rights]’. The provision, therefore, validates laws that were in existence prior to the promulgation of the 1978 Constitution, despite any inconsistency with fundamental rights. Many of the laws relied upon to limit FoRB were enacted during the British colonial period, and the continued validity of these laws is partially dependent on article 16. For instance, section 77 of the Police Ordinance of 1865 clearly authorises limitations on religious processions on the grounds of ‘public order’. Similarly, the Quarantine and Prevention of Diseases Ordinance of 1897 authorises the minister in charge of health to regulate movement and travel in the interests of preventing the spread of infectious diseases.

These doctrinal features—which enable broad limitations on FoRB—have contributed towards the imposition of bad faith limitations on FoRB in Sri Lanka. For example, on 29 April 2019, immediately following the Easter Sunday Attacks, the government issued Regulation 32A under the PSO. The regulation provided: ‘No person shall wear in any public place any garment, clothing or such other material concealing the full face which will in any manner cause any hindrance to the identification of a person.’ The provision also clarified that ‘full face’ meant ‘the whole face of a person including the ears’. The seemingly neutral prohibition on all full face covering had a discriminatory impact on Muslim women, as the niqāb—a full face covering worn by some Muslim women was consequently prohibited in public places. The restriction was upheld when the Supreme Court dismissed a petition filed by the Centre for Policy Alternatives challenging the emergency regulations24. The discriminatory and prejudicial nature of the restriction was observed by Ahmed Shaheed, the United Nations Special Rapporteur on the Freedom of Religion or Belief. He reported that even Muslim women and girls wearing hijāb, which involves head covering but no facial covering, were prevented from entering hospitals and exam halls, and were subjected to verbal abuse at work places25.

The restriction of burial rites in the context of COVID-19 is another example of doctrinal weaknesses underscoring unjust restrictions on FoRB. On 11 April 2020, the Minister of Health and Indigenous Medical Services issued Regulation 61A under the Quarantine Ordinance of 1897. The regulation provided ‘the corpse of a person who has died or is suspected to have died, of Coronavirus Disease 2019 (COVID-19) shall be cremated’26. The new regulation had a direct bearing on the burial rites of Muslims, as the cremation of deceased persons is understood by Muslims as contrary to Islamic teaching27. The restriction lacked a scientific basis, as the World Health Organisation Guidelines on the issue at the time clearly stated that cremation should not be made mandatory, and that the deceased could be either cremated or buried28. Several petitioners challenged Regulation 61A on the basis that it violated the fundamental rights to non-discrimination and the freedom to manifest religion or belief. The Supreme Court, in a split decision, dismissed the petitions without disclosing reasons for its decision. The Court effectively upheld the restriction despite the fact that it lacked any reasonable basis. 

These examples reflect how the limitation regime in the Sri Lankan Constitution can become a vehicle for advancing majoritarian interests, rather than genuine public interests. For instance, although Regulation 32A of 2019 falls within the scope of ‘national security’ under article 15(7) of the Constitution, it was driven by an underlying majoritarian antagonism towards external symbols of Islam including ‘Islamic’ attire. Certain forms of Islamic attire have come to symbolise a threat to Sinhala-Buddhist cultural dominance in Sri Lanka. The ban on the niqāb aligned with pre-existing prejudices towards Muslim religious attire. Sinhala-Buddhist militant groups such as the Bodu Bala Sena (BBS) have often capitalised on these antagonisms, and have run campaigns calling for the ban of the niqāb and hijāb. Such campaigns resonate with some segments of the Sinhala-Buddhist community, and have helped secure notable electoral legitimacy for these groups. For example, the BBS contested the parliamentary election of 2020 as part of a coalition that promised to ban madrasas (Islamic schools) and the burqa29. The coalition secured a parliamentary seat. In this context, the prohibition on face coverings was in reality a limitation that aligned with pre-existing majoritarian antagonism towards ‘Islamic’ attire. Although the limitation in question seemingly fell within the scope of ‘national security’, it was ultimately a reflection of how majoritarianism infiltrates and shapes the state’s conception of ‘public interests’.

A similar majoritarian motivation undergirded the restriction of burial rites of Muslims. The ban came at a time when Muslims were portrayed in the media as vectors of COVID-19. Hate speech targeting Muslims often portrayed Muslims as ‘insular’, living in large communes, and engaging in poor hygiene practices. Mainstream politicians capitalised on this anti-Muslim narrative. For example, Mahindananda Aluthgamage, a government minister, falsely claimed on national television that a majority of those who violated lockdown regulations in a particular area were Muslim30. The restriction on Muslim burial rites—particularly where there was no scientific basis for such restriction—must therefore be interpreted within the broader political climate in which it was imposed. It became clear that it was a measure to stoke and appease anti-Muslim sentiment within the majority community, rather than protect public health interests.

Apart from the abuse or bad faith application of the limitation regime under article 15(7) of the Constitution, there have also been blatantly illegal restrictions on FoRB, ostensibly to promote majoritarian interests. For example, circulars issued by the Ministry of ‘Religious Affairs and Moral Upliftment’ in 2008, and later (by the equivalent ministry) in 2013, have been used to restrict the construction of religious institutions. These circulars do not meet the basic test of ‘legality’, as they are not ‘law’ enacted by parliament, and are not emergency regulations issued under the PSO. Therefore, they cannot form a constitutionally valid basis for limiting FoRB. Yet, these circulars are routinely enforced against Christian places of worship, and have yet to be struck down by any court as illegal31

The 2013 circular was assessed by the Supreme Court of Sri Lanka in Faril et al v Bandaragama Pradeshiya Sabha et al (2017)32. As discussed above, this case featured a Muslim group that wished to construct a religious educational institution. They were prevented from doing so by local authority officials and the local police in the area. The group filed a fundamental rights application before the Supreme Court complaining that their rights to equality and non-discrimination had been violated. The Court dismissed the application and held that the restriction was lawful, despite the fact that the Circular in question was not a legislative enactment nor an emergency regulation under the PSO. 

This case too reflected the tendency for majoritarian interests to infiltrate the regime under which limitations on FoRB are imposed. A local Buddhist monk and villagers had protested the construction of the religious institution in question. They claimed that a mosque was being constructed as opposed to an educational institution. It was due to these protests that local authority officials and the police ordered the suspension of the construction. The Court upheld the decision of state officials on the basis that ‘due consideration’ had to be given to the protests to ‘avoid a crisis situation which could spread to other areas of our country’33. The Court calculated that a threat to ‘public order’ might ensue if the construction was not halted. However, in doing so, it legitimised the majoritarian interests at play. The construction of a Muslim place of worship was perceived as a threat to the Buddhist community in the area, and the limitation was essentially meant to appease the majority community and dissuade them from causing unrest.

In this regard, the approach by the Indian Supreme Court in the Bijoe Emmanuel & Others v. State of Kerala & Others must be considered. In this case, the appellant’s three children belonging to the Jehovah’s Witnesses faith were expelled from school since they refused to sing the Indian national anthem, ‘Jana Gana Mana’ during school assembly. They claimed that the singing of the national anthem was against the tenets of their religious faith34. Their refusal was not due to the words or the thoughts of the National Anthem, but the singing of it. In this case, the Supreme Court of India held that the expulsion of the children from the school was a violation of their fundamental right to freedom of conscience and freely to profess, practice and propagate religion. While noting that there was no provision of law that obliges anyone to sing the national anthem, the Court went on to hold:

Article 25(1) itself expressly subjects the right guaranteed by it to public order, morality and health and to the other provisions of Part III, on the other hand, the State is also given the liberty to make a law to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice and to provide for social welfare and reform, even if such regulation, restriction or provision affects the right guaranteed by Art. 25(1). Therefore, whenever the Fundamental Right to freedom of conscience and to profess, practise and propagate religion is invoked, the act complained of as offending the Fundamental Right must be examined to discover whether such act is to protect public order, morality and health, whether it is to give effect to the other provisions of Part III of the Constitution or whether it is authorised by a law made to regulate or restrict any economic, financial political or secular activity which may be associated with religious practise or to provide for social welfare and reform.

The Indian Supreme Court further held that the ‘question is not whether a particular religious belief or practice appeals to our reason or sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25 but subject, of course, to the inhibitions contained therein’.

Some domestic jurisdictions including England have taken a restrictive view of the scope of freedom to religious manifestation. In the English case of R. (Shabina Begum) v. Headteacher and Governors of Denbigh High School, a Muslim student claimed that her exclusion from school was due to the decision of the head teacher and governors not to admit her to the school while wearing the jilbab35. According to the appellant school authorities, the jilbab was against the school uniform code. The respondent student claimed that the school’s decision unjustifiably limited, inter alia, her right under article 9 of the European Convention on Human Rights to manifest her religion and beliefs. The House of Lords considered whether the respondent’s rights under article 9 was subject to the limitations within article 9(2), and held that the ‘school’s refusal to allow Shabina Begum to wear a jilbab at school did not interfere with her article 9 right to manifest her religion and, even if it did, the school’s decision was objectively justified’. The House of Lords noted that the existing school uniform policy ‘largely conformed with and was acceptable to mainstream Muslim opinion’; and that ‘wearing a jilbab was extraordinary for teenage girls’. The Court considered whether there was an alternative means to manifest religion or belief and held that no evidence to show that there was any ‘real difficulty in her attending another school which allowed for the wearing of the jilbab’. This restrictive view does not appear to be in line with regional and international jurisprudence on the same subject discussed below—although the jurisprudence can at times be inconsistent.

The need for a strict criteria to govern the legal permissibility of limitations—particularly when they are based on potentially vague interests such as ‘public order’ or ‘public health or morals’—is especially clear in cases involving highly political considerations, such as those discussed above. The proportionality test is often used by courts and treaty bodies tasked with assessing the permissibility of a limitation. 

Typically, the proportionality test includes four criteria: the limitation must: (1) be prescribed by law; (2) protect a legitimate aim; (3) be necessary in a democratic society; and (4) be proportionate in the strict sense, i.e. the benefit of the limitation must outweigh the harm that the limitation causes the individual or group concerned.

In the case of Eweida and Others v United Kingdom, one of the complaints related to a restriction imposed by the applicant’s employers (British Airways) on her wearing a cross visibly around her neck36. The European Court of Human Rights held that where an individual complains of a restriction on freedom of religion in the workplace, ‘rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate’. On this basis, the Court held a fair balance between the complainant’s ‘desire to manifest her religious belief’ and the employer’s wish to ‘project a certain corporate image’ was not struck by domestic authorities. The Court went on to hold that there was a breach of the positive obligations under article 9 of the European Convention on Human Rights, as there was ‘no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image’.

In addition to the four primary criteria of the proportionality test, the UN Human Rights Committee has applied additional normative constraints such as the principle of non-discrimination (i.e. the limitation must additionally comply with the principle of non-discrimination) in order to constrain the state’s ability to impose limitations on FoRB for majoritarian or discriminatory reasons. This approach is evident in the recent cases of Sonia Yaker v France37 and Miriana Hebbadj v France38, which involved the French ban on the niqāb (a full-face veil). The majority of the Committee in both cases observed that the ban violated the authors’ FoRB, and amounted to ‘intersectional discrimination based on gender and religion, in violation of article 26 of the [ICCPR]’39. The Committee found that, in addition to complying with the general criteria set out in article 18(3) of the ICCPR, the limitation had to comply with the principle of non-discrimination. It is noted that applying such criteria and constraints such as those considered in the above cases will better ensure that limitations placed on FoRB will only be upheld when they are legally justifiable, and not merely to advance majoritarian interests.  

The forgoing analysis suggests that Sri Lanka’s limitation regime with respect to FoRB is vulnerable to majoritarian abuse. It is in practice frequently deployed to appease majoritarian interests, as opposed to genuine public interests.

  1. Breach of peace and public nuisance

In Sri Lanka, the calculation of the Supreme Court in the Faril case was that a threat to public order could arise if the religious practice in question is not restricted. The Court noted:

The villagers, residents and Buddhist Monks vehemently protested for any further construction for a different purpose. Our country had suffered over the years as a result of communal violence. History repeats and if one were to analyse as to what happened in the 1915 riots, though it was meaningless for the two communities to clash, lessons have not been learnt by a certain section of the community. Riots at that point of time resulted in loss of valuable life and property. Time and again incidents of such nature took place in our country. As such the official respondents had to take steps to avoid and avert any breach of peace40

Cases such as Faril reveal a further tendency to assume that a potential breach of peace might ensue if the majority community’s demands are not acceded to. This tendency is evident in the Supreme Court’s fundamental rights jurisprudence, as well as in lower court cases. This trend devalues the religious freedom of the parties concerned, as their freedom is being restricted because of threats to public order emanating not from their religious acts but from others who are reacting to their religious acts. This tendency of the courts to legitimise the majority group’s threats to cause public disorder by restricting the otherwise peaceful conduct of the minority group damages FoRB. It means that FoRB, when it comes to minority religious actors, is enjoyed only contingently, i.e. it is contingent on the good will and ‘tolerance’ of the majority community. Where the majority community is intolerant of a religious act, and threatens to cause public disorder, Courts have been willing to uphold restrictions on that religious act.

The position taken in Faril is also reflected in the lower courts in the context of breach of peace cases. In M. Shelton Jayaweera v Manchanayake Kalum Nishantha Manchanyake and others41, the High Court in exercising its revisionary jurisdiction upheld the decision of the Magistrate’s Court to temporarily suspend the respondent-petitioner’s congregation from gathering as it was allegedly causing a nuisance to the residents of the area. The High Court further held that the respondent-petitioner’s right to exercise his fundamental rights cannot be done in such a way that causes harassment/abuse/nuisance to others (අනෙක් පුද්ගලයින්ට කරදර හිරිහැරයක්). The Court held that the objective of the interim order by the Magistrate is not to obstruct the freedom of religion of the respondent-petitioner, but to avoid a ‘crisis situation’ until the case is taken up for hearing. It further noted that if any party is claiming that their fundamental rights are being violated by the said order of the Magistrate, then the best course of action is to expedite the matter pending before the Magistrate’s Court and obtain the final order. In response to a claim made by the respondent-petitioner that the property in question is a private residence and not a public place, the Court noted that this matter should also be dealt with by the Magistrate’s Court in its examination. Interestingly, the ‘crisis situation’ that the Court refers to is not a situation directly created by the respondent-petitioner’s religious conduct, but instead the reaction of others to the religious gathering. The potential breach of peace would emanate from the reaction to the religious act as opposed to the act itself.

A similar calculation appears to be evident in Badalgama Vipulasiri Thero and others v Kuppuswamy Wijayan and Nadkunam Manogaran42. In this case, the area residents complained of a ‘public nuisance’ caused by a newly constructed ‘Christian Family Church’. They sought an order to prohibit the activity under section 98 of the Code of Criminal Procedure Act. The Court held that, as per the facts presented, the activities of the said Church generates loud noises so as to constitute noise pollution in the area. Accordingly, an injunction pending inquiry was issued under section 104 (1) of the Code of Criminal Procedure Act against the Christian Family Church to prohibit further church activities. The Court appears to provisionally recognise the impugned religious activity as a ‘public nuisance’ in a context where a local Buddhist monk (the first petitioner in the case) and others opposed the religious activity, and potentially threatened a breach of peace if their demands were not acceded to. In many of these cases, courts have been willing to restrict the otherwise peaceful conduct of the religious group concerned on the basis that such conduct has attracted violent opposition from the majority community in the area. The religious activity is then characterised as a ‘public nuisance’ to justify judicial orders prohibiting such activity. 

Consideration of the activities of religious groups must, as in any other case involving public nuisance, be based on an objective assessment of the activity itself, and whether it can be reasonably considered to be an infringement on the rights and freedoms of others. Courts have consistently found that religious activities need to be conducted with due consideration for the interests of others, and have upheld the regulation of noise pollution.

For example, the Indian Supreme Court in the case Church of God (Full Gospel) in India v K.K.R.M.C Welfare Association held that directions may be issued to control noise pollution, even if such noise was generated by religious activities43. In this case, a complaint was lodged with the Tamil Nadu Pollution Control Board that the Chennai based church was causing heavy noise pollution due to the use of musical instruments and loudspeakers during prayers, and was a nuisance to the area residents. The Court held:

The questions involved in this appeal are that in a country having multiple religions and numerous communities or sects, whether a particular community or sect of that community can claim right to add to noise pollution on the ground of religion? Whether beating of drums or reciting of prayers by use of microphones and loudspeakers so as to disturb the peace or tranquillity of neighbourhood should be permitted? Undisputedly no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice-amplifiers or beating of drums. In our view, in a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during day-time or other persons carrying on other activities cannot be permitted. It should not be forgotten that young babies in the neighbourhood are also entitled to enjoy their natural right of sleeping in a peaceful atmosphere. A student preparing for his examination is entitled to concentrate on his studies without their [sic] being any unnecessary disturbance by the neighbours. Similarly, old and infirm are entitled to enjoy reasonable quietness during their leisure hours without there being any nuisance of noise pollution. Aged, sick, people afflicted with psychic disturbances as well as children up to 6 years of age are considered to be very sensible [sic] to noise. Their rights are also required to be honoured…

…on true and proper construction of the provision of Article 25(1), read with Article 19(1)(a) of the (Indian) Constitution, it cannot be said that a citizen should be coerced to hear anything which he does not like or which he does not require…Enjoyment of one’s rights must be consistent with the enjoyment of rights also by others. Where in a free play of social forces it is not possible to bring about a voluntary harmony, the State has to step in to set right the imbalance between competing interests’. 


We have presented four findings that emerge from an analysis of FoRB cases in the E-Portal. It is reiterated that the limitations of this study require us to make these observations cautiously, as the number of reported cases remains small. However, a general tendency within the jurisprudence appears to emerge. That tendency relates to the differentiated treatment of majority and minority religious actors within the judicial process. All four findings reveal a common trend in this regard. 

First, in the case of recognising FoRB violations, courts have been reticent about engaging FoRB, and even when they do so, they rarely hold that a violation of FoRB has taken place. It is observed that in the rare event that a FoRB violation is recognised, the petitioners concerned have been from the majority Buddhist community. Therefore, the courts are yet to show a willingness to recognise violations of FoRB when it comes to minority religious actors. 

Second, the exclusion of propagation from the scope of FoRB appears to reflect a further differentiation between Buddhism and other religions. The right to protect and foster Buddhism is protected by article 9 of the Constitution, and in fact, a state duty to engage in propagation is included in article 9. By excluding propagation from the scope of article 14(1)(e), the courts have effectively created a difference between Buddhism and other religions, as that exclusion invariably affects other religions (since Buddhism already benefits from article 9). Again, the case law demonstrates that the reasoning behind this exclusion targets religious minorities; the state duty to protect and foster the Buddha Sasana is often presented as a justification for the court’s exclusionary position on propagation of other religions.

Third, limitations on the FoRB of religious minorities have often been imposed to advance the real and imagined interests of the majority community. Time and again, the majority community’s subjective interests, as opposed to genuine public interests, have been at the heart of these limitations. The limitation regime on FoRB, which already contains certain doctrinal weaknesses in terms of its specificity and scope, has in practice been used to impose unjust restrictions on minority religious groups.

Finally, the jurisprudence in both the higher and lower courts reflects a tendency to prioritise ‘breach of peace’ risks over and above FoRB. Once again, the rights of religious minorities have been subordinated to the interests of the majority. Just as state officials in law enforcement and local government have readily acceded to the demands of the majority community—ostensibly to avoid breaches of the peace—the courts too have been highly sensitive to the threat of violence by the majority community. In the course of prioritising risks to public order (i.e. breach of peace), the courts appear to have been willing to characterise (or at least uncritically accept the characterisations of) peaceful minority religious conduct as ‘public nuisances’. Orders prohibiting the impugned religious conduct have accordingly been justified (by lower courts in particular) on the basis of ‘public nuisance’ or ‘noise pollution’.

The cases included in the E-Portal presents an opportunity for critical reflection on the state of FoRB in Sri Lanka. An analysis of these cases reveals that religious minorities are placed at a distinct disadvantage in terms of rights relating to FoRB—even those guaranteed under the Sri Lankan Constitution. 


1 SC (F.R) No. 241/14. See Gehan Gunatilleke, ‘The Jehovah’s Witnesses Case’, (2020) 25 The Bar Association Law Journal 440.

2 SC (F.R.) No. 136/2014.

3 [2009] 1 SLR 54.

4 SC (F.R.) No. 92/2016.

5 Ibid, p.11.

6 [1985] 2 SLR 177.

7 Ibid, p. 189.

8 SC (F.R.) No. 623/96.

9 Ibid, p. 354.

10 Ibid, p. 355.

11 SC Special Determination No. 19/2003 (Supreme Court of Sri Lanka).

12 Karuwalagaswewa Vidanelage Swarna Manjula et al v. Pushpakumara, Officer-in-Charge, Police Station, Kekirawa et al SC (F.R) No. 241/14.

13 SC (F.R) No. 241/14, p. 31.

14 Ibid, p. 34.

15 [1954] AIR 388.

16 (1977) AIR SC 908.

17 (1954) AIR SC 282.

18 2003 I OLR 404.

19 CWP No. 438 of 2011.

20 Ibid, at 13.

21 SC Special Determination No. 19/2003, p. 7.

22 Human Rights Committee, ‘General Comment No 22 – Article 18 (Freedom of Thought, Conscience or Religion)’ (30 July 1993), CCPR/C/21/Rev.1/Add.4, para 4.

23 [2003] 1 Sri.L.R. 74 (Supreme Court of Sri Lanka).

24 See ‘Centre for Policy Alternatives v Attorney General (SC FR 199/2019)’, available at https://www.cpalanka.org/centre-for-policy-alternatives-v-attorney-general-sc-fr-199-2019/

25 Ahmed Shaheed, ‘Visit to Sri Lanka: Report of the Special Rapporteur on freedom of religion or belief’, Human Rights Council, 43rd Session, 28 February 2020, A/HRC/43/48/Add.2.

26 Gazette Extraordinary No. 2170/8, 11 April 2020.

27 See Hejaaz Hizbullah et al, Memorandum on the Disposal of Bodies of Covid-19 Victim (2020).

28 World Health Organisation, Infection Prevention and Control for the safe management of a dead body in the context of COVID-19: Interim Guidance, 24 March 2020.

29 ‘Rathana Thera calls for banning burka, madrasas’, The Island, 8 July 2020.

30 S M M Bazeer (2020) ‘Another nail in the coffin for religious tolerance in Sri Lanka’ DailyFT, 18 April 2020, http://www.ft.lk/columns/Another-nail-in-the-coffin-for-religious-tolerance-in-Sri-Lanka/4-698925.

31 Verité Research and NCEASL, \, 1994-2014 (2016).

32 SC (FR) Application No 92/2016 (Judgment of the Supreme Court of Sri Lanka, 28 June 2017).

33 Ibid. p. 11.

34 1987 AIR 748.

35 [2006] UKHL 15.

36 Applications nos. 48420/1059842/1051671/10 and 36516/10.

37 Sonia Yaker v. France, 17 July 2018, Human Rights Committee, Communication No. 2747/2016.

38  Miriana Hebbadj v. France, 17 July 2018, Human Rights Committee, Communication, No. 2807/2016.

39 Sonia Yaker v. France, para. 8.17; Miriana Hebbadj v. France, para. 7.17.

40 Op.cit. M.J.M. Faril et al v. Bandaragama Pradeshiya Sabha et al,SC (F.R.) No. 92/2016.

41 Case No. 62/2019 (Revision) Gampaha High Court; Attanagalla Magistrate’s Court Case No.64605.

42 Case No. 38759 Puttlam Magistrate’s Court. 

43 [2000] AIR S.C. 2773.

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