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PETITIONER:

THE CHAIRMAN, RAILWAY BOARD & ORS.

Vs.

RESPONDENT:

MRS. CHANDRIMA DAS & ORS.

DATE OF JUDGMENT: 28/01/2000

BENCH:

R.P.Sethi, S.Saghir Ahmad

JUDGMENT:

S.SAGHIR AHMAD, J.

Leave granted.

Mrs. Chandrima Das, a practising advocate of the

Calcutta High Court, filed a petition under Article 226 of

the Constitution against the Chairman, Railway Board;

General Manager, Eastern Railway; Divisional Railway

Manager, Howrah Division; Chief Commercial Manager, Eastern

Railway; State of West Bengal through the Chief Secretary;

Home Secretary, Government of West Bengal; Superintendent

of Police (Railways), Howrah; Superintendent of Police,

Howrah; Director General of Police, West Bengal and many

other Officers including the Deputy High Commissioner,

Republic of Bangladesh; claiming compensation for the

victim, Smt. Hanuffa Khatoon, a Bangladeshi national who

was gang-raped by many including employees of the Railways

in a room at Yatri Niwas at Howrah Station of the Eastern

Railway regarding which G.R.P.S. Case No. 19/98 was

registered on 27th February, 1998. Mrs. Chandrima Das also

claimed several other reliefs including a direction to the

respondents to eradicate anti-social and criminal activities

at Howrah Railway Station.

The facts as noticed by the High Court in the impugned

judgment are as follows:-

"Respondents Railways and the Union of India have

admitted that amongst the main accused you are employees of

the railways and if the prosecution version is proved in

accordance with law, they are perpetrators of the heinous

crime of gang rape repeatedly committed upon the hapless

victim Hanufa Khatun. It is not in dispute that Hanufa came

from Bangladesh. She at the relevant time was the elected

representative. She at the relevant time was the elected

representative of the Union Board. She arrived at Howrah

Railway Station on 26th February, 1998 at about 14.00 hours

to avail Jodhpur Express at 23.00 Hours for paying a visit

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to Ajmer Sharif. With that intent in mind, she arrived at

Calcutta on 24th February, 1998 and stayed at a hotel at 10,

Sudder Street, Police Station Taltola and came to Howrah

Station on the date and time aforementioned. She had,

however, a wait listed ticket and so she approached a Train

Ticket Examiner at the Station for confirmation of berth

against her ticket. The Train Ticket Examiner asked her to

wait in the Ladies Waiting room. She accordingly came to

the ladies waiting room and rested there.

At about 17.00 hours on 26th February, 1998 two

unknown persons (later identified as one Ashoke Singh, a

tout who posed himself as a very influential person of the

Railway and Siya Ram Singh a railway ticket broker having

good acquaintance with some of the Railway Staff of Howrah

Station) approached her, took her ticket and returned the

same after confirming reservation in Coach No.S-3 (Berth

No.17) of Jodhpur Express. At about 20.00 hours Siya Ram

Singh came again to her with a boy named Kashi and told her

to accompany the boy to a restaurant if she wanted to have

food for the night. Accordingly at about 21.00 hours she

went to a nearby eating house with Kashi and had her meal

there. Soon after she had taken her meal, she vomitted and

came back to the Ladies Waiting room. At about 21.00 hours

Ashoke Singh along with Rafi Ahmed a Parcel Supervisor at

Howrah Station came to the Ladies Niwas before boarding the

train. She appeared to have some doubt initially but on

being certified by the lady attendants engaged on duty at

the Ladies Waiting Room about their credentials she

accompanied them to Yatri Niwas. Sitaram Singh, a khalasi

of electric Department of Howrah Station joined them on way

to Yatri Niwas. She was taken to room No.102 on the first

floor of Yatri Niwas. The room was booked in the name of

Ashoke Singh against Railway Card pass No. 3638 since 25th

February, 1998. In room No.102 two other persons viz. one

Lalan Singh, Parcel Clerk of Howrah Railway Station and

Awdesh Singh, Parcel Clearing Agent were waiting. Hanufa

Khatun suspected someting amiss when Ashoke Singh forced her

into the room. Awdesh Singh bolted the room from outside

and stood on guard outside the room. The remaining four

persons viz. Ashoke, Lalan, Rafi and Sitaram took liquor

inside the room and also forcibly compelled her to consume

liquor. All the four persons who were present inside the

room brutally violated, Hanufa Khatun, it is said, was in a

state of shock and daze. When she could recover she managed

to escape from the room of Yatri Niwas and came back to the

platform where again she met Siya Ram Singh and found him

talking to Ashoke Singh. Seeing her plight Siya Ram Singh

pretended to be her saviour and also abused and slapped

Ashoke Singh. Since it was well past midnight and Jodhpur

Express had already departed, Siya Ram requested Hanufa

Khatoon to accompany him to his residence to rest for the

night with his wife and children. He assured her to help

entrain Poorva Express on the following morning. Thereafter

Siyaram accompanied by Ram Samiram Sharma, a friend of

Siyaram took her to the rented flat of Ram Samiram Sharma at

66, Pathuriaghata Street, Police Station Jorabagan,

Calcutta. There Siyaram raped Hanufa and when she protested

and resisted violently Siyaram and Ram Samiran Sharma gagged

her mouth and nostrils intending to kill her as a result

Hanufa bled profusely. On being informed by the landlord of

the building following the hue and cry raised by Hanufa

Khatun, she was rescued by Jorabagan Police."

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It was on the basis of the above facts that the High

Court had awarded a sum of Rs.10 lacs as compensation for

Smt. Hanuffa Khatoon as the High Court was of the opinion

that the rape was committed at the building (Rail Yatri

Niwas) belonging to the Railways and was perpetrated by the

Railway employees.

In the present appeal, we are not concerned with many

directions issued by the High Court. The only question

argued before us was that the Railways would not be liable

to pay compensation to Smt. Hanuffa Khatoon who was a

foreigner and was not an Indian national. It is also

contended that commission of the offence by the person

concerned would not make the Railway or the Union of India

liable to pay compensation to the victim of the offence. It

is contended that since it was the individual act of those

persons, they alone would be prosecuted and on being found

guilty would be punished and may also be liable to pay fine

or compensation, but having regard to the facts of this

case, the Railways, or, for that matter, the Union of India

would not even be vicariously liable. It is also contended

that for claiming damages for the offence perpetrated on

Smt. Hanuffa Khatoon, the remedy lay in the domain of

Private Law and not under Public Law and, therefore, no

compensation could have been legally awarded by the High

Court in a proceeding under Article 226 of the Constitution

and, that too, at the instance of a practising advocate who,

in no way, was concerned or connected with the victim.

We may first dispose of the contention raised on

behalf of the appellants that proceedings under Article 226

of the Constitution could not have been legally initiated

for claiming damages from the Railways for the offence of

rape committed on Smt. Hanuffa Khatoon and that Smt.

Hanuffa Khatoon herself should have approached the Court in

the realm of Private Law so that all the questions of fact

could have been considered on the basis of the evidence

adduced by the parties to record a finding whether all the

ingredients of the commission of "tort" against the person

of Smt. Hanuffa Khatoon were made out, so as to be entitled

to the relief of damages. We may also consider the question

of locus standi as it is contended on behalf of the

appellants that Mrs. Chandrima Das, who is a practicing

Advocate of the High Court of Calcutta, could not have

legally instituted these proceedings.

The distinction between "Public Law" and "Private Law"

was considered by a Three-Judge Bench of this Court in

Common Cause, A Regd. Society vs. Union of India & Ors.

(1999) 6 SCC 667 = AIR 1999 SC 2979 = (1999) 5 JT 237, in

which it was, inter alia, observed as under :

"Under Article 226 of the Constitution, the High Court

has been given the power and jurisdiction to issue

appropriate Writs in the nature of Mandamus, Certiorari,

Prohibition, Quo-Warranto and Habeas Corpus for the

enforcement of Fundamental Rights or for any other purpose.

Thus, the High Court has jurisdiction not only to grant

relief for the enforcement of Fundamental Rights but also

for "any other purpose" which would include the enforcement

of public duties by public bodies. So also, the Supreme

Court under Article 32 has the jurisdiction to issue

prerogative Writs for the enforcement of Fundamental Rights

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guaranteed to a citizen under the Constitution.

Essentially, under public law, it is the dispute

between the citizen or a group of citizens on the one hand

and the State or other public bodies on the other, which is

resolved. This is done to maintain the rule of law and to

prevent the State or the public bodies from acting in an

arbitrary manner or in violation of that rule. The exercise

of constitutional powers by the High Court and the Supreme

Court under Article 226 or 32 has been categorised as power

of "judicial review". Every executive or administrative

action of the State or other statutory or public bodies is

open to judicial scrutiny and the High Court or the Supreme

Court can, in exercise of the power of judicial review under

the Constitution, quash the executive action or decision

which is contrary to law or is violative of Fundamental

Rights guaranteed by the Constitution. With the expanding

horizon of Article 14 read with other Articles dealing with

Fundamental Rights, every executive action of the Govt. or

other public bodies, including Instrumentalities of the

Govt., or those which can be legally treated as "Authority"

within the meaning of Article 12, if arbitrary, unreasonable

or contrary to law, is now amenable to the writ jurisdiction

of this Court under Article 32 or the High Courts under

Article 226 and can be validly scrutinised on the touchstone

of the Constitutional mandates."

The earlier decision, namely, Life Insurance

Corporation of India vs. Escorts Limited & Ors. 1985 Supp.

(3) SCR 909 = (1986) 1 SCC 264 = AIR 1986 SC 1370, in which

it was observed as under:

"Broadly speaking, the Court will examine actions of

State if they pertain to the pubic law domain and refrain

from examining them if they pertain to the private law

field. The difficulty will lie in demarcating the frontier

between the public law domain and the private law field. It

is impossible to draw the line with precision and we do not

want to attempt it. The question must be decided in each

case with reference to the particular action, the activity

in which the State or the instrumentality of the State is

engaged when performing the action, the public law or

private law character of the action and a host of other

relevant circumstances."

was relied upon.

Various aspects of the Public Law field were

considered. It was found that though initially a petition

under Article 226 of the Constitution relating to

contractual matters was held not to lie, the law underwent a

change by subsequent decisions and it was noticed that even

though the petition may relate essentially to a contractual

matter, it would still be amenable to the writ jurisdiction

of the High Court under Article 226. The Public Law

remedies have also been extended to the realm of tort. This

Court, in its various decisions, has entertained petitions

under Article 32 of the Constitution on a number of

occasions and has awarded compensation to the petitioners

who had suffered personal injuries at the hands of the

officers of the Govt. The causing of injuries, which

amounted to tortious act, was compensated by this Court in

many of its decisions beginning from Rudul Sah vs. State of

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Bihar 1983(3) SCR 508 = (1983) 4 SCC 141 = AIR 1983 SC 1086.

[See also : Bhim Singh vs. State of Jammu & Kashmir (1985)

4 SCC 577 = AIR 1986 SC 494; People's Union for Democratic

Rights vs. State of Bihar, 1987 (1) SCR 631 = (1987) 1 SCC

265 = AIR 1987 SC 355; People's Union for Democratic Rights

Thru. Its Secy. vs. Police Commissioner, Delhi Police

Headquarters, (1989) 4 SCC 730 = 1989 (1) SCALE 599;

SAHELI, A Woman's Resources Centre vs. Commissioner of

Police, Delhi (1990) 1 SCC 422 = 1989 (Supp.) SCR 488 = AIR

1990 SC 513; Arvinder Singh Bagga vs. State of U.P.

(1994) 6 SCC 565 = AIR 1995 SC 117; P. Rathinam vs. Union

of India (1989) Supp. 2 SCC 716; In Re: Death of Sawinder

Singh Grower (1995) Supp. (4) SCC 450 = JT (1992) 6 SC 271

= 1992 (3) SCALE 34; Inder Singh vs. State of Punjab

(1995) 3 SCC 702 = AIR 1995 SC 1949; D.K. Basu vs. State

of West Bengal (1997) 1 SCC 416 = AIR 1997 SC 610].

In cases relating to custodial deaths and those

relating to medical negligence, this Court awarded

compensation under Public Law domain in Nilabati Behera vs.

State of Orissa (1993) 2 SCC 746 = 1993 (2) SCR 581 = AIR

1993 SC 1960; State of M.P. vs. Shyam Sunder Trivedi

(1995) 4 SCC 262 = 1995 (3) SCALE 343; People's Union for

Civil Liberties vs. Union of India (1997) 3 SCC 433 = AIR

1997 SC 1203 and Kaushalya vs. State of Punjab (1996) 7

SCALE (SP) 13; Supreme Court Legal Aid Committee vs. State

of Bihar (1991) 3 SCC 482; Dr. Jacob George vs. State of

Kerala (1994) 3 SCC 430 = 1994 (2) SCALE 563; Paschim

Bangal Khet Mazdoor Samity vs. State of West Bengal & Ors.

(1996) 4 SCC 37 = AIR 1996 SC 2426; and Mrs. Manju Bhatia

vs. N.D.M.C. (1997) 6 SCC 370 = AIR 1998 SC 223 = (1997) 4

SCALE 350.

Having regard to what has been stated above, the

contention that Smt. Hanuffa Khatoon should have approached

the civil court for damages and the matter should not have

been considered in a petition under Article 226 of the

Constitution, cannot be accepted. Where public

functionaries are involved and the matter relates to the

violation of Fundamental Rights or the enforcement of public

duties, the remedy would still be available under the Public

Law notwithstanding that a suit could be filed for damages

under Private Law.

In the instant case, it is not a mere matter of

violation of an ordinary right of a person but the violation

of Fundamental Rights which is involved. Smt. Hanuffa

Khatoon was a victim of rape. This Court in Bodhisatwa vs.

Ms. Subdhra Chakroborty (1996) 1 SCC 490 has held "rape" as

an offence which is violative of the Fundamental Right of a

person guaranteed under Article 21 of the Constitution. The

Court observed as under :

"Rape is a crime not only against the person of a

woman, it is a crime against the entire society. It

destroys the entire psychology of a woman and pushes her

into deep emotional crisis. Rape is therefore the most

hated crime. It is a crime against basic human rights and

is violative of the victims most cherished right, namely,

right to life which includes right to live with human

dignity contained in Article 21."

Rejecting, therefore, the contention of the learned

counsel for the appellants that the petition under Public

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Law was not maintainable, we now proceed to his next

contention relating to the locus standi of respondent, Mrs.

Chandrima Das, in filing the petition.

The main contention of the learned counsel for the

appellants is that Mrs. Chandrima Das was only a practising

advocate of the Calcutta High Court and was, in no way,

connected or related to the victim, Smt. Hanuffa Khatoon

and, therefore, she could not have filed a petition under

Article 226 for damages or compensation being awarded to

Smt. Hanuffa Khatoon on account of the rape committed on

her. This contention is based on a misconception. Learned

counsel for the appellants is under the impression that the

petition filed before the Calcutta High Court was only a

petition for damages or compensation for Smt. Hanuffa

Khatoon. As a matter of fact, the reliefs which were

claimed in the petition included the relief for

compensation. But many other reliefs as, for example,

relief for eradicating anti-social and criminal activities

of various kinds at Howrah Railway Station were also

claimed. The true nature of the petition, therefore, was

that of a petition filed in public interest.

The existence of a legal right, no doubt, is the

foundation for a petition under Article 226 and a bare

interest, may be of a minimum nature, may give locus standi

to a person to file a Writ Petition, but the concept of

"Locus Standi" has undergone a sea change, as we shall

presently notice. In Dr. Satyanarayana Sinha vs. S. Lal

& Co. Pvt. Ltd., AIR 1973 SC 2720 = (1973) 2 SCC 696, it

was held that the foundation for exercising jurisdiction

under Article 32 or Article 226 is ordinarily the personal

or individual right of the petitioner himself. In writs

like Habeas Corpus and Quo Warranto, the rule has been

relaxed and modified.

In S.P. Gupta & Ors. vs. Union of India & Ors., AIR

1982 SC 149 = (1981) Supp. SCC 87, the law relating to

locus standi was explained so as to give a wider meaning to

the phrase. This Court laid down that "practising lawyers

have undoubtedly a vital interest in the independence of the

judiciary; they would certainly be interested in

challenging the validity or constitutionality of an action

taken by the State or any public authority which has the

effect of impairing the independence of the judiciary." It

was further observed that "lawyer's profession was an

essential and integral part of the judicial system; they

could figuratively be described as priests in the temple of

justice. They have, therefore, a special interest in

preserving the integrity and independence of the judicial

system; they are equal partners with the Judges in the

administration of justice. The lawyers, either in their

individual capacity or as representing some Lawyers'

Associations have the locus standi to challenge the circular

letter addressed by the Union Law Minister to the Governors

and Chief Ministers directing that one third of the Judges

of the High Court should, as far as possible, be from

outside the State."

In the context of Public Interest Litigation, however,

the Court in its various Judgments has given widest

amplitude and meaning to the concept of locus standi. In

People's Union for Democratic Rights and Ors. vs. Union of

India & Ors., AIR 1982 SC 1473 = (1982) 3 SCC 235, it was

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laid down that Public Interest Litigation could be initiated

not only by filing formal petitions in the High Court but

even by sending letters and telegrams so as to provide easy

access to Court. (See also: Bandhua Mukti Morcha vs.

Union of India & Ors., AIR 1984 SC 802 = 1984 (2) SCR 67 =

(1984) 3 SCC 161 and State of Himachal Pradesh vs.

Student's Parent Medical College, Shimla & Ors., AIR 1985 SC

910 = (1985) 3 SCC 169 on the right to approach the Court in

the realm of Public Interest Litigation). In Bangalore

Medical Trust vs. B.S. Muddappa and Ors., AIR 1991 SC 1902

= 1991 (3) SCR 102 = (1991) 4 SCC 54, the Court held that

the restricted meaning of aggrieved person and narrow

outlook of specific injury has yielded in favour of a broad

and wide construction in the wake of Public Interest

Litigation. The Court further observed that public-spirited

citizens having faith in the rule of law are rendering great

social and legal service by espousing causes of public

nature. They cannot be ignored or overlooked on technical

or conservative yardstick of the rule of locus standi or

absence of personal loss or injury. There has, thus, been a

spectacular expansion of the concept of locus standi. The

concept is much wider and it takes in its stride anyone who

is not a mere "busy-body".

Having regard to the nature of the petition filed by

respondent Mrs. Chandrima Das and the relief claimed

therein it cannot be doubted that this petition was filed in

public interest which could legally be filed by the

respondent and the argument that she could not file that

petition as there was nothing personal to her involved in

that petition must be rejected.

It was next contended by the learned counsel appearing

on behalf of the appellants, that Smt. Hanuffa Khatoon was

a foreign national and, therefore, no relief under Public

Law could be granted to her as there was no violation of the

Fundamental Rights available under the Constitution. It was

contended that the Fundamental Rights in Part III of the

Constitution are available only to citizens of this country

and since Smt. Hanuffa Khatoon was a Bangladeshi national,

she cannot complain of the violation of Fundamental Rights

and on that basis she cannot be granted any relief. This

argument must also fail for two reasons; first, on the

ground of Domestic Jurisprudence based on Constitutional

provisions and secondly, on the ground of Human Rights

Jurisprudence based on the Universal Declaration of Human

Rights, 1948, which has the international recognition as the

"Moral Code of Conduct" having been adopted by the General

Assembly of the United Nations. We will come to the

question of Domestic Jurisprudence a little later as we

intend to first consider the principles and objects behind

Universal Declaration of Human Rights, 1948, as adopted and

proclaimed by the United Nations General Assembly Resolution

of 10th December, 1948. The preamble, inter alia, sets out

as under:

"Whereas recognition of the INHERENT DIGNITY and of

the equal and inalienable rights of all members of the human

family is the foundation of freedom, justice and peace in

the world.

Whereas disregard and contempt for human rights have

resulted in barbarous acts which have outraged the

conscience of mankind, and the advent of a world in which

human beings shall enjoy freedom of speech and belief and

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freedom from fear and want has been proclaimed as the

highest aspiration of the common people.

Whereas it is essential to promote the development of

friendly relations between nations.

Whereas the people of the United Nations have in the

Charter affirmed their faith in fundamental human rights, IN

THE DIGNITY AND WORTH OF THE HUMAN PERSON AND IN THE EQUAL

RIGHTS OF MEN AND WOMEN and have determined to promote

social progress and better standards of life in larger

freedom. Whereas Member States have pledged themselves to

achieve, in cooperation with the United Nations, the

promotion of universal respect for and observance of human

rights and fundamental freedoms.

Whereas a common understanding of these rights and

freedoms is of the greatest importance for the full

realization of this pledge."

Thereafter, the Declaration sets out, inter alia, in

various Articles, the following:

"Article 1 -- All human beings are born free and equal

in dignity and rights. They are endowed with reason and

conscience and should act towards one another in a spirit of

brotherhood.

Article 2 -- Every one is entitled to all the rights

and freedoms set forth in this Declaration, without

distinction of any kind, such as race, colour, sex,

language, religion, political or other opinion, NATIONAL OR

SOCIAL ORIGIN, PROPERTY, BIRTH OR OTHER STATUS.

Furthermore, NO DISTINCTION SHALL BE MADE ON THE BASIS

OF THE POLITICAL, JURISDICTIONAL OR INTERNATIONAL STATUS OF

THE COUNTRY OR TERRITORY to which a person belongs, whether

it be independent, trust, non-self governing or under any

other limitation of sovereignty.

Article 3 -- Everyone has the right to life, liberty

and security of person.

Article 5 -- No one shall be subjected to torture or

to cruel, inhuman or degrading treatment or punishment.

Article 7 -- All are equal before the law and are

entitled without any discrimination to equal protection of

the law. All are entitled to equal protection against any

discrimination in violation of this Declaration and against

any incitement to such discrimination.

Article 9 -- No one shall be subjected to arbitrary

arrest, detention or exile."

Apart from the above, the General Assembly, also while

adopting the Declaration on the Elimination of Violence

against Women, by its Resolution dated 20th December, 1993,

observed in Article 1 that, "violence against women" means

any act of gender-based violence that results in, or is

likely to result in, physical, sexual or psychological harm

or suffering to women, including threats of such acts,

coercion or arbitrary deprivation of liberty, whether

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occurring in public or in private life." In Article 2, it

was specified that, "violence against women shall be

understood to encompass, but not be limited to:

(a) Physical, sexual and psychological violence

occurring in the family including battering, sexual abuse of

female children in the household, dowry-related violence,

marital rape, female genital mutilation and other

traditional practices harmful to women, non-spousal violence

and violence related to exploitation;

(b) Physical, sexual and psychological violence

occurring within the general community, including rape,

sexual abuse, sexual harassment and intimidation at work, in

educational institutions and elsewhere, trafficking in women

and forced prostitution;

(c) Physical, sexual and psychological violence

perpetrated or condoned by the State, wherever it occurs."

In Article 3, it was specified that "women are

entitlted to the equal enjoyment and protection of all human

rights, which would include, inter alia,:

(a) the right to life, (b) the right to equality, and

(c) the right to liberty and security of person.

The International Covenants and Declarations as

adopted by the United Nations have to be respected by all

signatory States and the meaning given to the above words in

those Declarations and Covenants have to be such as would

help in effective implementation of those Rights. The

applicability of the Universal Declaration of Human Rights

and principles thereof may have to be read, if need be, into

the domestic jurisprudence. Lord Diplock in Salomon v.

Commissioners of Customs and Excise [1996] 3 All ER 871 said

that there is a, prima facie, presumption that Parliament

does not intend to act in breach of international law,

including specfic treaty obligations. So also, Lord Bridge

in Brind v. Secretary of State for the Home Department

[1991] 1 All ER 720, observed that it was well settled that,

in construing any provision in domestic legislation which

was ambiguous in the sense that it was capable of a meaning

which either conforms to or conflicts with the International

Convention, the courts would presume that Parliament

intended to legislate in conformity with the Convention and

not in conflict with it.

The domestic application of international human rights

and norms was considered by the Judicial Colloquia (Judges

and Lawyers) at Bangalore in 1988. It was later affirmed by

the Colloquia that it was the vital duty of an independent

judiciary to interpret and apply national constitutions in

the light of those principles. Further Colloquia were

convened in 1994 at Zimbabwe, in 1996 at Hong Kong and in

1997 at Guyana and in all those Colloquia, the quetion of

domestic application of international and regional human

rights specially in relation to women, was considered. The

Zimbabwe Declaration 1994, inter alia, stated :

"Judges and lawyers have duty to familiarise

themselves with the growing international jurisprudence of

human rights and particularly with the expanding material on

the protection and promotion of the human rights of women."

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But this situation may not really arise in our

country.

Our Constitution guarantees all the basic and

fundamental human rights set out in the Universal

Declaration of Human Rights, 1948, to its citizens and other

persons. The chapter dealing with the Fundamental Rights is

contained in Part III of the Constitution. The purpose of

this Part is to safeguard the basic human rights from the

vicissitudes of political controversy and to place them

beyond the reach of the political parties who, by virtue of

their majority, may come to form the Govt. at the Centre or

in the State.

The Fundamental Rights are available to all the

"citizens" af the country but a few of them are also

available to "persons". While Article 14, which guarantees

equality before law or the equal protection of laws within

the territory of India, is applicable to "person" which

would also include the "citizen" of the country and "non-

citizen" both, Article 15 speaks only of "citizen" and it is

specifically provided therein that there shall be no

discrimination against any "citizen" on the ground only of

religion, race, caste, sex, place of birth or any of them

nor shall any citizen be subjected to any disability,

liability, restriction or condition with regard to access to

shops, public restaurants, hotels and places of public

entertainment, or the use of wells, tanks, bathing ghats,

roads and places of public resort on the aforesaid grounds.

Fundamental Right guaranteed under Article 15 is, therefore,

restricted to "citizens". So also, Article 16 which

guarantees equality of opportunity in matters of public

employment is applicable only to "citizens". The

Fundamental Rights contained in Article 19, which contains

the right to "Basic Freedoms", namely, freedom of speech and

expression; freedom to assemble peaceably and without arms;

freedom to form associations or unions; freedom to move

freely throughout the territory of India; freedom to reside

and settle in any part of the territory of India and freedom

to practise any profession, or to carry on any occupation,

trade or business, are available only to "citizens" of the

country. The word "citizen" in Article 19 has not been used

in a sense different from that in which it has been used in

Part II of the Constitution dealing with "citizenship".

[See: State Trading Corporation of India Ltd. vs. The

Commercial Tax Officer and Others, AIR 1963 SC 1811 = 1964

(4) SCR 99]. It has also been held in this case that the

words "all citizens" have been deliberately used to keep out

all "non-citizens" which would include "aliens". It was

laid down in Hans Muller of Nurenburg vs. Superintendent

Presidency Jail Calcutta, AIR 1955 SC 367 (374) = 1955 (1)

SCR 1284, that this Article applies only to "citizens". In

another decision in Anwar vs. State of J & K, AIR 1971 SC

337 = 1971 (1) SCR 637 = (1971) 3 SCC 104, it was held that

non-citizen could not claim Fundamental Rights under Article

19. In Naziranbai vs. State, AIR 1957 M.B. 1 and Lakshmi

Prasad & Anr. vs. Shiv Pal & Others, AIR 1974 Allahabad

313, it was held that Article 19 does not apply to a

"foreigner". The Calcutta High Court in Sk. Md. Soleman

vs. State of West Bengal and Another, AIR 1965 Calcutta

312, held that Article 19 does not apply to a Commonwealth

citizen.

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In Anwar vs. State of J & K, AIR 1971 SC 337 = 1971

(1) SCR 637 = (1971) 3 SCC 104 (already referred to above),

it was held that the rights under Articles 20, 21 and 22 are

available not only to "citizens" but also to "persons" which

would include "non-citizens".

Article 20 guarantees right to protection in respect

of conviction for offences. Article 21 guarantees right to

life and personal liberty while Article 22 guarantees right

to protection against arbitrary arrest and detention. These

are wholly in consonance with Article 3, Article 7 and

Article 9 of the Universal Declaration of Human Rights,

1948.

The word "LIFE" has also been used prominently in the

Universal Declaration of Human Rights, 1948. [See: Article

3 quoted above]. The Fundamental Rights under the

Constitution are almost in consonance with the Rights

contained in the Universal Declaration of Human Rights as

also the Declaration and the Covenants of Civil and

Political Rights and the Covenants of Economic, Social and

Cultural Rights, to which India is a party having ratified

them, as set out by this Court in Kubic Darusz vs. Union of

India & Ors. (1990) 1 SCC 568 = AIR 1990 SC 605. That

being so, since "LIFE" is also recognised as a basic human

right in the Universal Declaration of Human Rights, 1948, it

has to have the same meaning and interpretation as has been

placed on that word by this Court in its various decisions

relating to Article 21 of the Constitution. The meaning of

the word "life" cannot be narrowed down. According to the

tenor of the language used in Article 21, it will be

available not only to every citizen of this country, but

also to a "person" who may not be a citizen of the country.

Let us now consider the meaning of the word "LIFE"

interpreted by this Court from time to time. In Kharak

Singh vs. State of U.P., AIR 1963 SC 1295 = 1964 (1) SCR

332, it was held that the term "life" indicates something

more than mere animal existence. [See also : State of

Maharashtra vs. Chandrabhan Tale, AIR 1983 SC 803 = 1983

(3) SCR 337 = (1983) 3 SCC 387]. The inhibitions contained

in Article 21 against its deprivation extends even to those

faculties by which life is enjoyed. In Bandhua Mukti Morcha

vs. U.O.I., AIR 1984 SC 802 = 1984 (2) SCR 67 = (1984) 3

SCC 161, it was held that the right to life under Article 21

means the right to live with dignity, free from

exploitation. [See also: Maneka Gandhi vs. U.O.I., AIR

1978 SC 597 = 1978 (2) SCR 621 = (1978) 1 SCC 248 and Board

of Trustees of the Port of Bombay vs. Dilip Kumar

Raghavendranath Nadkarni, AIR 1983 SC 109 = 1983 (1) SCR 828

= (1983) 1 SCC 124].

On this principle, even those who are not citizens of

this country and come here merely as tourists or in any

other capacity will be entitled to the protection of their

lives in accordance with the Constitutional provisions.

They also have a right to "Life" in this country. Thus,

they also have the right to live, so long as they are here,

with human dignity. Just as the State is under an

obligation to protect the life of every citizen in this

country, so also the State is under an obligation to protect

the life of the persons who are not citizens.

The Rights guaranteed under Part III of the

Constitution are not absolute in terms. They are subject to

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reasonable restrictions and, therefore, in case of non-

citizen also, those Rights will be available subject to such

restrictions as may be imposed in the interest of the

security of the State or other important considerations.

Interest of the Nation and security of the State is supreme.

Since 1948 when the Universal Declaration was adopted till

this day, there have been many changes - political, social

and economic while terrorism has disturbed the global

scenario. Primacy of the interest of Nation and the

security of State will have to be read into the Universal

Declaration as also in every Article dealing with

Fundamental Rights, including Article 21 of the Indian

Constitution.

It has already been pointed out above that this Court

in Bodhisatwa's case (supra) has already held that "rape"

amounts to violation of the Fundamental Right guaranteed to

a woman under Article 21 of the Constitution.

Now, Smt. Hanuffa Khatoon, who was not the citizen of

this country but came here as a citizen of Bangladesh was,

nevertheless, entitled to all the constitutional rights

available to a citizen so far as "Right to Life" was

concerned. She was entitled to be treated with dignity and

was also entitled to the protection of her person as

guaranteed under Article 21 of the Constitution. As a

national of another country, she could not be subjected to a

treatment which was below dignity nor could she be subjected

to physical violence at the hands of Govt. employees who

outraged her modesty. The Right available to her under

Article 21 was thus violated. Consequently, the State was

under the Constitutional liability to pay compensation to

her. The judgment passed by the Calcutta High Court,

therefore, allowing compensation to her for having been

gang-raped, cannot be said to suffer from any infirmity.

Learned counsel for the appellants then contended that

the Central Govt. cannot be held vicariously liable for the

offence of rape committed by the employees of the Railways.

It was contended that the liability under the Law of Torts

would arise only when the act complained of was performed in

the course of official duty and since rape cannot be said to

be an official act, the Central Govt. would not be liable

even under the Law of Torts. The argument is wholly bad and

is contrary to the law settled by this Court on the question

of vicarious liability in its various decisions.

In State of Rajasthan vs. Mst. Vidhyawati AIR 1962

SC 933, it was held that the Govt. will be vicariously

liable for the tortious act of its employees. This was a

case where a claim for damages was made by the heirs of a

person who died in an accident caused by the negligence of

the driver of a Govt. vehicle. Reference may also be made

to the decisions of this Court in State of Gujarat vs.

Memon Mahomed Haji Hasan AIR 1967 SC 1885 and Smt. Basava

Kom Dyamogouda Patil vs. State of Mysore AIR 1977 SC 1749.

These principles were reiterated in N. Nagendra Rao & Co.

vs. State of A.P. AIR 1994 SC 2663 = (1994) 6 SCC 205 and

again in State of Maharashtra vs. Kanchanmala Vijaysing

Shirke, 1995 ACJ 1021 (SC) = (1995) 5 SCC 659 = JT 1995 (6)

SC 155. Reliance placed by the counsel for the appellants

on the decision of this Court in Kasturi Lal Ralia Ram Jain

vs. State of U.P. AIR 1965 SC 1039 = 1965 (1) SCR 375

cannot help him as this decision has not been followed by

this Court in the subsequent decisions, including the

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decisions in State of Gujarat vs. Memon Mahomed Haji Hasan

and Smt. Basava Kom Dyamogouda Patil vs. State of Mysore

(supra). The decision in Kasturi Lal's case was also

severely criticised by Mr. Seervai in his prestigious book

- Constitutional Law of India. A Three- Judge Bench of this

Court in Common Cause, A Regd. Society vs. Union of India

(1999) 6 SCC 667 also did not follow the decision in Kasturi

Lal's case (supra) and observed that the efficacy of this

decision as a binding precedent has been eroded.

The theory of Sovereign power which was propounded in

Kasturi Lal's case has yielded to new theories and is no

longer available in a welfare State. It may be pointed out

that functions of the Govt. in a welfare State are

manifold, all of which cannot be said to be the activities

relating to exercise of Sovereign powers. The functions of

the State not only relate to the defence of the country or

the administration of justice, but they extend to many other

spheres as, for example, education, commercial, social,

economic, political and even marital. These activities

cannot be said to be related to Sovereign power.

Running of Railways is a commercial activity.

Establishing Yatri Niwas at various Railway Stations to

provide lodging and boarding facilities to passengers on

payment of charges is a part of the commercial activity of

the Union of India and this activity cannot be equated with

the exercise of Sovereign power. The employees of the Union

of India who are deputed to run the Railways and to manage

the establishment, including the Railway Stations and Yatri

Niwas, are essential components of the Govt. machinery

which carries on the commercial activity. If any of such

employees commits an act of tort, the Union Govt., of which

they are the employees, can, subject to other legal

requirements being satisfied, be held vicariously liable in

damages to the person wronged by those employees. Kasturi

Lal's decision, therefore, cannot be pressed in aid.

Moreover, we are dealing with this case under Public Law

domain and not in a suit instituted under Private Law domain

against persons who, utilising their official position, got

a room in the Yatri Niwas booked in their own name where the

act complained of was committed.

No other point was raised before us. The appeal

having no merit is dismissed with the observation that the

amount of compensation shall be made over to the High

Commissioner for Bangladesh in India for payment to the

victim, Smt. Hanuffa Khatoon. The payment to the High

Commissioner shall be made within three months. There will

be no order as to costs.