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Freedom of thought absolute as it protects mental autonomy: SC

03 Mar 2021

The reason why freedom of thought is an absolute, non-derogable right is because it aims to secure an individual’s mental autonomy, the loss of which leads to the loss of the individual’s dignity, democracy, and very sense of self, the Supreme Court (SC) observed. The freedom of thought, conscience, and religion/belief is enshrined in Article 10 of the Constitution. Article 10 is an absolute right without any Constitutionally recognised restrictions or fetters. The law must therefore, the SC noted, protect the citizen from threats to the freedom of thought by the State and its agencies, while the Government needs to act positively in facilitating mental autonomy. The SC also noted that the contours of the right to the freedom of thought do not appear to have been significantly crystallised through fundamental rights jurisprudence, except perhaps with regard to the freedom of religion. The SC pointed out thus in the recent cases of U.N.S.P. Kurukulasuriya v. Sri Lanka Rupavahini Corporation (SLRC) and Others (SC/FR/556/2008) and J.K.W. Jayasekara v. SLRC and Others (SC/FR/557/2008), where the judgement was penned by President’s Counsel (PC) and Justice (J), Buwaneka Aluwihare and was joined by Priyantha Jayawardena PC J and L.T.B. Dehideniya J The ability to form and hold an opinion on regulations that would have an impact on oneself is, to say the least, Aluwihare PC J noted, a characteristic of the democratic way of life. In the United States case of Stanley v. Georgia, Thurgood Marshall J (joined by Chief Justice [CJ] Earl Warren, William Orville Douglas J, John Marshall Harlan the II J, Abraham Fortas J with Potter Stewart J, William Joseph Brennan Junior J, Byron Raymond White J and Hugo Lafayette Black J in concurrence) held that: “It is now well established that the Constitution protects the right to receive information and ideas…This freedom [of speech and press]…necessarily protects the right to receive…This right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” The decision by Mark Damien Hugh Fernando PC J (joined by Ranjith N.M. Dheeraratne J and Asoka Somawansa Wijetunga J) in Fernando v. The Sri Lanka Broadcasting Corporation (SLBC) and Others observed: “In the strict sense, when A merely reads (or hears) what B writes (or says) in the exercise of B’s freedom of speech, it does not seem that A receives information in the exercise of A’s freedom of speech, because that would be to equate reading to writing, and listening to speaking. Accordingly, while preventing A from reading or listening would constitute a violation of B’s freedom of speech, it may not infringe A’s freedom of speech. A’s right to read or listen is much more appropriately referable to his freedom of thought, because it is information that enables him to exercise that right fruitfully.” Fernando J. was further of the opinion that, “…information is the staple food of thought and that the right to information simpliciter, is a corollary of the freedom of thought guaranteed by Article 10.”  Further, Fernando J. added that “Article 10 denies the Government the power to control men's minds, while Article 14(1)(a) on the freedom of speech and expression, including publication, excludes the power to curb their tongues”. In Joseph Perera v. The Attorney General and Others, Suppiah Sharvananda CJ advanced a different view from that in Fernando. The right to receive information was seen as a right peripheral to the freedom of expression, rather than a right included in the freedom of thought. It cited Douglas J (joined by Warren CJ, Thomas Campbell Clark J, Brennan Jr. J, and Arthur Joseph Goldberg J, and Harlan the II J and White J in concurrence) in Griswold v. Connecticut to the effect of: “The right of the freedom of speech and press include not only the right to distribute, the right to receive, the right to read and the freedom of inquiry and the right to teach...These are proper peripheral rights.”  Sharvananda CJ further added: “Freedom of speech and expression consists primarily not only in the liberty of the citizen to speak and write what he chooses, but in the liberty of the public to hear and read, what it needs.” It was further observed that in a democratic polity, the Government shall be by the consent of the people and that such consent should not only be free but also grounded on adequate information. In Visuvalingam and Others v. Liyanage and Others (SC Applications Number 85/83 and No. 6/84), Dharmadasa Wimalaratne J joined by Percy Colin-Thome J, K.A. Parinda Ranasinghe J and M.M. Abdul Cader J, was of the opinion that the freedom to receive information is encompassed within the freedom of speech and expression guaranteed by Article 14(1)(a), and that the restrictions that may be placed on the freedom of speech and expression would apply to the freedom to receive information. Heevi Rodrigo J, in his opinion in the said Visuvalingam case, observed: “To impart information, there must be a recipient to receive it. So a reader or hearer is inseparably linked to the concept of publication. One does not exist without the other. Likewise, if one ceases to exist, so does the other.” Rodrigo J stated that, significantly, the right to receive information finds no place specifically in our Constitution. However, the subsequent enactment of Article 14A of the Constitution on the right of access to information and the Right to Information (RTI) Act, No. 12 of 2016, has now changed this position. Article 18(1) of the International Covenant on Civil and Political Rights and Article 9(1) of the European Convention on Human Rights recognise the freedom of thought in conjunction with the freedom of conscience and religion. The former stipulates: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include the freedom to have or to adopt a religion or belief of his choice, and the freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching,” while the latter reads thus: “Everyone has the right to freedom of thought, conscience and religion; this right includes the freedom to change his religion or belief and the freedom, either alone or in community with others, and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.” The European Court of Human Rights (ECHR) has combined the right to information with the freedom of expression. Article 10 of the European Convention on Human Rights guarantees the freedom of expression, including the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”  In Guerra and Others v. Italy, the ECHR stated: “The Court reiterates that the freedom to receive information, referred to in Paragraph 2 of Article 10 of the Convention, basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him (see Leander v. Sweden). That freedom cannot be construed as imposing on a State, positive obligations to collect and disseminate information of its own motion.” The right to information has thereby been recognised as a corollary of the freedom of expression. Arguably, the domain of the right to freedom of thought should extend to include an external action that is constitutive of thought, Aluwihare PC J further explained, citing Trinity College Dublin, Ireland Department of Psychiatry Associate Professor in Clinical Psychology and Neuropsychology Simon McCarthy-Jones’s paper titled The Autonomous Mind: The Right to Freedom of Thought in the 21st Century. One significant way to foster mental autonomy would be to provide information in an “autonomy supportive” context, Aluwihare PC J noted. In the case of Red Lion Broadcasting Company Incorporated and Others v. Federal Communications Commission and Others, White J (joined by Warren CJ, Black J, Harlan the II J, Brennan Jr. J, Stewart J and Marshall J) stated: “It is the right of the public to receive suitable access to social, political, aesthetic, moral and other ideas and experiences which is crucial…”. Two of the rights on which the decision in Red Lion Broadcasting was based on were the listener’s right to equality, and the listener’s right to information needed to make his freedom of speech effective. As the law stood at the time of the alleged infringement under discussion in U.N.S.P. Kurukulasuriya v. SLRC and Others (SC/FR/556/2008) and J.K.W. Jayasekara v. SLRC and Others (SC/FR/557/2008), there was no affirmative obligation on the State to provide information to persons. Again, the subsequent enactment of Article 14A of the Constitution on the right of access to information and the RTI Act, No. 12 of 2016, has now changed this position. As White J said in the Red Lion Broadcasting case: “...the people as a whole retain their interest in free speech and their collective right to have the medium function consistently with the ends and purposes of the First Amendment (freedom of speech and press). It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.” Aluwihare PC J was of the view that information is needed not only to make freedom of speech effective, but that information is equally relevant to make the freedom of thought effective as well, for if one were to form an opinion, information is an essential ingredient, and opinions are formed through the process of thought. Thus, Aluwihare PC J observed, one cannot detach information from the faculty of thought, as they are inextricably interwoven.

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