THE CHAIRMAN, RAILWAY BOARD AND ORS.

MRS. CHANDRIMA DAS AND ORS.

JA,~UARY 28, 2CGO

[S. SAGHIR AH.\IAD AND R.P. SETHI, JJ.J

Constitution of India, 195(}-Articles 32, 226--Public Law Remedies-Availability oj:._claim of compensation in a writ petition under Article 226 from the Railways for the offence of rape committed by its C employees on the victim, a Bangladeshi nationaf--i'vfaintainability of-Held, Public Law Remedie1 have also been extendcd to the realm of tort and would be available notwith.tanding that a suit could be filed for damages under Private Law, where public functionaries are involved and the matter relates to the violation of Fundamental Rights or the enforcement of public D duties--<.irant of compensation of R1. JO lacs to the victim by the High Court,

upheld.

Public Law-Relief under, to a foreign national-Grant of-Held, the victim was enti1led tu all the constitutional rights available to a citizen w far as 'Right to life' was concerned as the Constitution guarantees all the basic E and fundamental human rights set out in the Universal Declaration of Human Rights to its citizens and other persons-Right to life includes right to live with human dignity and rape violates this right of a womarr--State under a Constitutional liability to pay compensation to the rape victim as the right available to her under Article 21 was violated-Constitution of India, F 195(}-Articles 14, 15, 16, 19, 20, 21, 22- -{lniversal Declaration of Human Rights 1948-Articles 3, 7, 9.

Law of Torts- Vicarious liability-Existence of-Held, employees of the Union of India deputed to ntn the Railways and to manage the establishment, including the Railway Stations and Yatri Niwas, are essential components of G the Govt. machinery carrying on commercial activity and for any act of tort

committed by .1uch employees, the Union Govt. would be vicariously liable in damages to the person wronged by those employees-Functions of the Govt. in a We if are State are man if old, all of which cannot be said to be the activities relating to exercise of Sovereign powers-Contentio11 that liability H under the law of torts would arise only when the act complained of was

' -

CHAJRMAN KAIL WAY HUARD v. MRS. CHANDRlJ\.lA DAS 481

perf om1ed in the course of official duty, held to be wholly bad-Govt. held to A be vicariously liable for the offence of rape committed at the building belonging to the Railways and perpetrated by Railway employees.

Public Interest Litigation-Locus Standi-Concept of-Petition filed in public interest by the reJpondent, a practising Advocate of High Court, for various reliefs including the relief for compensation for the victim of rape- Held, could legally be filed by the respondent, though the respondent was not in any way connected or related to the victim.

One H, a Bangladeshi national, was gang raped by many including employees of the Railways in a room at Yatri Siwas at Howrah Station of the Eastern Railway and thereafter at a rented flat. Subsequently she was rescued by the Police following information by the landlord of the building who beard the hue and cry raised by H.

Respondent No. 1, a practising Advocate of the High Court field a petition under Article 226 of the Constitution for compensation to H and several other reliefs including a direction to the appellants to eradicate anti-social and criminal activities at Howrah Railway Station. High Court awarded a sum of Rs. 10 lacs as compensation to H holding that rape was committed at the building belonging to the Railways and was perpetrated by the Raihray employees. Hence this appeal by Railways.

On behalf of the appellants, it was contended that the Railways would not be liable to pay compensation to the victim who was a foreigner

and was not an Indian national; that the commission of the offence by persons including Railway employees would not make the Railway or the Union of India vicariously liable to pay compensation to the victim; that p since it was an individual act of some persons, they alone should be prosecuted and on being found guilty should be punished; that for claiming damages for the offence perpetrated on the victim 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; that the respondent was G only a practising Advocate and was in no W'dy, connected or related to the victim and therefore, she could not have filed a petition under Article 226 for damages or compensation to the victim on account of the rape committed on her; that the victim was a foreign national and therefore, no relief under Public Law could be granted to her as there was no \'iolation H

SUPREME COURT RFPORTS [2CCOj 1 S.C.R.

A of the ~'undamental Rights available under the Constitution; and that the Fundamental Rights in Part III of the Constitution were available only to citizens and the victim being a Br1ngladeshi national could not complain of the violation of Fundamental rights.

B Dismissing the appeal, this Court

HELD : l. Where public functionaries are involved and the matter relates to violation of Fundamental Rights or the enforcement of public duties, the remedy would still be available under the Public Law notwithstanding faat a suit could be filed for damages under Private Law. In C the instant cae, it is not a mere matter of violation of an ordinary right of a person but violation of Fundamental Rights which is involved. Public Law remedies have also been extended to the realm of tort and compensation aw-.irded to victims for having suffered personal injuries at the hands of the officers of the Government. [493-A-B; 492-A-B]

D Bodhisatwa v. Ms. Subdhra Chakroborty, [1996) 1SCC490; Common Cause, A Regd. Society v. Union of lndia & Ors., (1999) 6 SCC 667 = AIR

(1999) SC 2979 = (1999) 5 JT 237, relied upon.

Life Insurance Corporation of India v. Escons Limited & Ors., [1985) E Supp. 3 SCR 909 = [1985) 1 S':C 264 = AIR (1986) SC 1370; Rudul Sah

v. State of Bihar, [1983) 3 SCR 508 = (1983] 4 SCC 141 = AIR (1983) SC

1086, referred to.

Bhim Singh v. State of Jammu & Kashmir, (1985) 4 SCC 577 = AIR

(1986) SC 494; People's Union for Democratic Rights v. State of Bihar, [1987) p I SCR 631 = (1987) I SCC 265 = AIR (1987) SC 355; People's Union for Democratic Rights Thm. Its Secy. v. Police Commissioner, Delhi Police Headquaners, (1989] 4 SCC 730 :: (1989) 1 SCALE 599; SAHEL!, A Woman's Resources Centre v. Commissioner of Police, Delhi, (1990) 1 SCC 422 = (1989) Supp. SCR 488 = AIR (1990) SC 513; A7Vinder Singh Bagga

v. State of U.P., [1994) 6 SCC 565 = AIR (1995) SC 117; P. Rathinam v.

G 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 v.State of Punjab, [1995) 3 SCC 702 = AIR (1995) SC 1949; D.K Basu v. State of West Bengal, [1997) I SCC 416 = AIR (1997) SC 610; Nilabati Behera v. State of Orissa, [1993) 2 SCC 746 = [1993) 2 SCR H 581 = AIR (1993) SC 1960; State of M.P. v. Shyam Sunder Trivedi, [1995)

CHAlRMAN RAlLWAYBUARD v. MRS.CHA"<DRlMADAS 483

4 SCC 262 :.: [19951 3 SCALE 343; People's Union for Civil Liberties v. A

Union of India, [1997) 3 SCC 433 = AIR (1997) SC 1203; Kaushalya v.

State of Punjab, [1996) 7 SCALE (SP) 13; Supreme Court Legal Aid Committee v. State of Bihar, [1991) 3 SCC 482; Dr. Jacob George v. State of Kera/a, [1994] 3 SCC 430 = [1994) 2 SCALE 563; Paschim Bangal Kltet Mazdoor Samity v. State of West Bengal & Ors., [1996) 4 SCC 37 = AIR

(1996) SC 2426 and Mrs. Manju Bhatia v. N.D.M.C., [1997) 6 SCC 370 "" B

AIR (1998) SC 223 = [1997) 4 SCALE 350, cited.

2.1. The argument that the victim was a foreign national and, therefore, no relief under Public Law could be grdnted to her as there was no violation of the Fundamental Rights available under the Constitution must also fail for C two reasons; first, on the ground of Domestic Jurisprudence based on Con stitutional 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. The Intemation al Covenants and Declarations as adopted by the United Nations have to be D respected by all signatory States. The applicability of the Universal Declaration of Human rights and principles thereof may have to be read, if need be, into the domestic jurisprudence. [495-E-G; 498-D-E]

Salomon v. Commissioner of Customs and Excise, (1996) 3 All ER E 871; Brind v. Secretary of State for the Home Department, (1991) l All ER 720, referred to.

2.2. The victim who was not a citizen of this countl-y but cami: here as a citizen of Bangladesh was, nevertheless, entitled to all the constitutional rights available to a citizen so f ar as "Right to Life" was concerned. She F was entitled to be treated with dignity and was also entitled to the protec tion 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 Government employees who in fact outraged her modesty. The Right available to her under Article 21 was thus violated. Consequently, the G State is liable to pay compensation to her. [502-C-D]

2.3. 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 H

484 SUPREME COliRT RFPORTS [2000j 1 S.C.R.

A 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 arid to place them beyond the reach of the political parties who, by virtue of their majority, may come to form the Government at the Centre or in the Stat~. Fundaml'.J)tal Rights are available to all "citizens" of the country but a i'ew of them are also available to "persons". While Article 14, B which guarantl!es equality before law or the equal protection of laws within the territory of India, is applicable to "person" which would also include 'citizen" of the country and "non-citizen" both, Articles 15, 16 and 19 speak only of' citizen'. 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 C dealing with "citizenship". [499-C-E; 5011-B]

State Trading Corporation of India Ltd. v. The Commercial Tax Officer and Others, AIR (1963) SC 1811 = [1964] 4 SCR 99; Hans Muller of Nurenburg v. Superintendent, Presidency Jail Calcutta, AIR (1955) SC 367

(374) = [1955] 1 SCR 1284; Anwar v. State of I & K, AIR (1971) SC 337 D = [1971J SCR 637 = [1971) 3 SCC 104; Naziranbai v. State, AIR (1957) M.B. 1; Lakshmi Prasad & Anr. v. Shiv Pal & Others, AIR (1974) Allahabad 313; Sk. Md. Soleman v. State of West Bengal and Another, AIR (1955)

Calcutta 312, referred to.

E 2.4. The word -LIFE" has also been used prominently in the t:niversal Declaration of Human Rights, 19<'.S. The J<'undamental 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.

F That being so, since 'LIFE" is also recognised as a basic human right in the

Universal Declardtio11 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 decbions relating lo Article 21 of the Constitution. The meaning of the word ''life" cannot be narrowed down. According to the tenor G 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 tl:e country. Article 20 guarantees dght 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

detentfon. These an: wholly in consonance with Articles 3, 7 and 9 of the H Universal Declaration of Human Rights, 1948. [5110-F-H; 501-A-B]

CHAlRMA"I RAILWAY BOARD v. MRS. CHAND RIMA DAS 485

Anwar v. State of J & K, AIR (1971) SC 337 = (1971] 1 SCR 637 = A (1971] 3 SCC 104; Kubic Damsz v. Union of India & Ors., (1990] 1 SCC 568 = AIR (1990) SC 605; Kharak Singh v. State of U.P., AIR (1963) SC 1295 = [1964) 1SCR332; Bandhua A.fukti Morcha v. U.0.1., AlR (1984) SC 802 = [1984] 2 SCR 67 = (1984] 3 SCC 161, referred to.

State of 1Haharashtra v. Chandrabhan Tale, AIR (1983) SC 803 = B [1983] 3 SCR 337 :..: [1983) 3 SCC 387; Maneka Gandhi v. U.O.l., AIR

(1978) SC 597 = [1978] 2 SCR 621 "" [1978] l SCC 248; Board of Tmstees of the Port of Bombay v. Dilip Kumar Raghavendranath Nadkami, AIR (1983) SC 109 = [1983] l SCR 828 = [19831 l sec 124, cited.

2.5. 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 D is under an obligation to protect the life of the persons who are not citizens.

[501-E-1'']

3.1. The contention 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 ufticial act, the Central E Government would not be liable even under the Law of Torts, is, wholly bad and is contrary to the settled legal position. (502-E-J<']

3.2. 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 part of the commercial activity of the Vnion of India and this activity cannot be equated with the ext:rcise of Sovereign power. The employees of the Lnion 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 G 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 tu the person wronged by those employees.

[503-F-G]

Kasturi Lal Ralia Ram lain v. State of U.P., AIR (1965) SC 1039 = H

SUPREME COURT REPORTS

(2000] 1 S.C.R.

A [1965) 1 SCR 375, held inapplicable.

Common Cause, A Regd. Society v. Union of India, [1999] 6 SCC 667, referred to.

State of Rajasthan v. Mst. Vidhyawati, AIR (1962) SC 933; State of B Gujarat v. Memon Mahomed Haji Hasan, AIR (1967) SC 1885; Smt. Basava Kam Dyamogouda Patil v. State of Mysore, AIR (1977) SC 1749; N.

Nagendra Rao & Co. v. State of A.P .. AIR (1994) SC 2663 = [1994] 6 SCC 205; State of Maharashtra v.Kanchan:mala Vijaysing Shirke, (1995) ACJ 1021 SC = [1995) 5 sec 659 = JT (19!15) 6 SC 155, cited. c 4.1. It cannot be doubted that this petition was filed in public interest which could legally be filed by the respondent and it cannot be said that she could not file the petition as there was nothing personal to her involved in that petition. The petition filed before the High Court was not only a petition for damages or compensa.tion for the victim. But many other D reliefs, for example, relief for eradicating anti-social and criminal activities of various ldnds at Howr.th Railway Station were also claimed. The true nature of the petition, therefore, was that of a petition filed in public interest. [495-D; 493-G-H]

4.2. The existence of a legal right, no doubt, is the foundation for a E petition under Article 226 and a ha.re interest, may be a 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 in the context of Public Interest Litigation. [ 494-A-B]

Dr. Satyanarayana Sinha v. S. Lal & Co. Pvt. Ltd., AIR (1973) SC 2720 F = [1973] 2 SCC 696; S.P. Gupta & Ors. v. Union of India & Ors., AIR (1982)

SC 149 = [1981 I Supp. SCC 87; People's Union for Democratic Rights and Ors. v. Union of India & Ors., AIR (1982) SC 1473 = [1982] 3 SCC 235; Bangalore Medical Trust v.B.S. Muddappa and Ors., AIR (1991) SC 1902 = [1991] 3 SCR 102 = [1991] 4 SCC 54, referred to.

Bandhua Mukti Morcha v. Union of India & Ors., AIR (1984) SC 802 = [1984] 2 SCR 67 = [1984] 3 SCC 161; State of Himachal Pradesh v.

Student's Parent Medical College, Shim/a & Ors., AIR (1985) SC 910 = [19851 3 sec 169, cited.

CIVIL APPELLATE JL'RISDICTION : Civil Appeal No. 639 of

CHAIRMAN RAILWAY BOARD v. ~RS. CHANDRJMA DAS [S. SAGHIRAHMAD. J.) 487

2000.

From the Judgment and Order dated 25/26/29 and 30.6.98 of the Calcutta High Court in W.P. No. 494 of 1998.

R.N. Trived~ K.N. Rawal, Additional Solicitor Generals, Raju Ramachandran, Ashok K. Srivastava, Mrs. Shushma Suri, R.N, Verma, D.S. Mehra, W.A. Ouadri, A.S. Rawat, A. Subhashini, Ms. Naina Ka'poor, Ms. Meenakshi Arora, Ms. Priya Rao, Nailbe Ansan and A.K. Thiruen gadam for the appearing parties.

The Judgment of the Court was delivered by

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 D Railway; State of West Bengal through the Chief Secretary, Home Secretary, Government of West Bengal; Superintendent of Police (Railways), Howrah; Superintendent of Polici.:, Howrah; Director General of Police, West Bengal and many other Officers including the Deputy High Commissioner, Republic of Bangaladesh claiming compensation for the victim, Smt. Hanuffa Khatoon, a Bangladeshi National who was gang-raped E

by many including employees of the Railways in a room at Y atri 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 <Utti-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 ma\n acccused you are employees of the railways G 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 H


(2000] 1 S.C.R.

the elected representative of the Union Board. She arrieved at Howrah Railway Station on 26th February, 1998 at about 14.00 hours to avail Jodhpur Expn:s at 23.CO Hours for paying a visit to Ajmer Sharif. With that intent in mind, she arrived at Calcutta on 24tL February, 1998 and stayed at a hotel at IO, 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 .1 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 hc.:r ticket and returned the same aftc.:r 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 ::..adies Waiting Room about their credentials she accompanied them to Y atri Niwas. Sitaram Singh, a Khalasi of electric Department of Howrah Station joined them on way to Yatri Niwas. Shi: 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 something amiss when Ashoke Singh forced her into the room. Awdcsh Singh Bolted the room from outside and stood on guard outside the

. '

CHA, R\1A"< RAIL WAY BOARD v. \1RS. CHANDR.l\1A JJAS ; s. SAGH!RAHMAll. J.) 489

room. The: remaining four persons viz. Ashoke, Lalan, Rafi and A Sitaram took liquor inside the room and also forcibly compelled her tu consume liquor. All the four persons who wen: cprescnt inside the room brutally violated, Hanufa Khatun, it is said, was in a state ot shock and daze. When she could recover she managed to escape from the room of Y atri Niwas and came back to the platform wht:re again she met Siya Ram Singh and found him talking tu Ashoke Singh. St:eing her plight Siya Ram Singh pretended to be her saviour and also abused and slapped Ashoke Singh. Since it was well past midnight and J udhpur Express had already departed, Siya Ram requested Hanufa Khatoon to accum pany him to his residence to rest fur the night with his wife and children. He assured her to help entrain Puorva Express on tht 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. Then:: Siyaram raped Hanufa and when she D protested and resisted violently Siyaram and Ram Samiran Sharma gagged her mouth and nostrils intending tu kill her as 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.;•

lt 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 Khatuon as ihe High Court was of the opinion that the rape was committed at the building (Rail Y atri Niwas) belonging to the Railways and was perpetrated

by the Railway employees.

ln the present appeal, we arc not concerned with many directions issued by the High Court. The only question argued before us was that tht: 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 G contended that commission of the offence by the person concernt:d would not make the Railway or the Union of India liable to pay compensation to th.: victim of the offence. It is contended that since it was the individual act of those persons, they alone would be prosecuted and on bening 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 H


[2000] 1 S.C.R.

A matter, the Union of lndia would. not evc:n 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 B no way, was concerned or connected with the victim.

We may first dispose of die contt:ntion raised on behalf of the appellants that proceedings under Articlt: 226 of the Constitution could not have been legally initialt:d for claiming damages from the Railways for the offence of rape committed on Smt. Hanufa Khatoon and that Smt. Hanuffa C 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 ingredit:nts of the commission of "tort", against the person of Smt.

Hanuffa Khatoon were made out, so as to be entitled to the rt:lief of D damages. We may also consider the question of locw.· 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 con- E sidered by a Three Judge bencli of this Court in Common Cause, A Regd.

Society v. Union of India & Ors., [1999) 6 SCC 667 = AlR (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 jurisdicti:on to issue prerogative Writs for the enforcement of Fundamental Rights 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

....

CHAJRMANRAILWAYBOARD v. MRS.CHANDRIMADAS(S. SAGHIRAHMAD, J.J 491

bodies un the other, which is resolved. This is done to maintain A 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 puw.::rs by the High Court and the Supreme Court under Article 226 or 32 has been categorised as power of "judicial review". Every executive or administrtive action B 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 amendable to the Writ jurisdiction of this Court under Article D 32 or the High Courts under Article 226 and can be validly scrutinised on the touchstone of the Constitutional mandates."

The earlier decision, namely, LI/ e Insurance Corporation of India v.

Escorts Limited & Ors., [1985] Supp. 3 SCR 909 = J1986] 1 SCC 264 AIR (1986) SC 1370, in which it was observed as under : E

"Broadly speaking, the Court, will examine actions of State if they pertain to the public 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 F 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." G

was relied upon.

Various aspects of the Public Law field were considered. It was found that though initially a petition under Aticle 226 of the Constitu, tion relating to contractual matters was held not to lie, the law underwent a H


(200011 S.C.R.

A change by subsequent decisions and it was noticed that even though the petitions may rtlate essentially to a contractual matkr, it would still be amenable to the writ jurisdictiLn of tht: High Court under Articlt: 226. The Public Law remedies have alsl' been extended to th1: realm of tort. This Court, in it.; vanous decisions, has entertained petitions under Article 32 B of the Contitufam on a number of occasions and has awareded compensation to th.: pettioners who had suffered pesonal 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 v. Slale of Bihar, (1983] 3 SCR 508 = (1983] 4 SCC 141 = AIR (1983) SC 1086. (sec also : Bhim Singh v. Slate of Jammu C & Kashmir, [198.~J 4 SCC 577 " AIR (1986) SC 494; People's Union for Democratic Rights v. State of Bihar, (:987] 1 SCR 631 '" (1987] 1 SCC 265

= AIR (1987) S(' 355; People's Union for Democratic Rights Thru. Its Secy.

v. Police Commissioner, Delhi Police Headquarters, (1989] 4 SCC 730 =

(1983) 1 SCALE 599; SAHEL!, A Women's Resources Centre v. Commis- D sioner of Police, Delhi, I 1990] l sec 422 = 1989 (supp.) SCR 488 = AIR

(1990) SC 513; Arvinder Singh Bagga v. State of U.P., (1994] 6 SCC 565 = AIR (1995) SC : 17; P. Ralhinam v. 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; lnder Singh v. State of Punjab,

(1995) 3 SCC 702 = AIR (1995) SC 1949; D.K Basu v. State of West Bengal, E (1997] 1 sec 416 = AIR (1997) SC 610.

In cases rdating to custodial deaths and those relating to medical negligence, this Court award1:d compensation under Public Law domain in Nilabati Bel.era '. State of Orissa, (19931 2 SCC 746 '' [19931 2 SCR 581 F = AIR (1993) SC 1960; State of M.P. v. Shyam Sunder Trivedi, [1995] 4 SCC 262 = (199.:-) 3 SCALE 343; People's Union for Civil Liberties v. Union of India, [1997] 3 SCC 433 = AIR (1997) SC 1203 and Kaushalya v. State of Punjab, (1996) 7 SCALE SP 13; Supreme Court Legal Aid Committee v.

State of Bihar, (1991) 3 SCC 482; Dr. Jacob George v. State of Kera/a, (1994) 3 SCC 430 '' (1994) 2 SCALE 562; Paschim Bangal Khet Mazdoor Samity G v. State of West Bengal & Ors., [1996] 4 SCC 37 = AIR (1996) SC 2426; and Mrs. Manju Bhatia v. N.D.M.C., (19971 6 SCC 370 AIR (1998) SC

223 ~' (1997) 4 SCALE 350.

Having regard to what has been stated above, the contention that H Smt. Hanuffa Khatoon should have approached the civil court for damages

l J:L\lRMAN RAILWAY BOARJJ v. MRS. CHANDRIMA DAS (S. SAGHIR AHMAD, J.] 493

and the matter should not have been considered in a petition under Article A 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 availabk under the Public law notwithstanding that a suit could be filed for damages

undr Private Law.

ln the instant case, it is not a mere matter of violation of an ordinary right of a p..:rsun but the violation of Fundamental Rights which is involved.

Smt. Hanufa Khatoon was a victim of rape. This Court in Bodhisatwa v.

Ms. Subdhra Chakroborty, [199611 SCC 490 has held ''rape" as an offence which is violatiw of the Fundamental Right of a person guaranteed under Artick 21 of the Constitution. The Court observed as under :

''Rape is a crime nut 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 D rights and is violative of the victims most cherished right, namely, right to lift: which includes right to live with human dignity contained in Article 21."

Rj ecting, therefore, the contention of the learned counsel for the appellants that the petition under Public 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 p 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 22.b 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 pt:lition filed before the Calcutta High Court was only a petition G 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 varioll!> kinds at Howrah Railway station were also claimed. The true nature of the petition, therefore, was H


{2000) 1 S.C.R.

A that of a petition filed in public: interest.

The existt.Once of a legal right, no doubt, is the foundation for a petition under artick 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 Scandi' has undergom.: a sea change, as we shall presently notice.

B In Dr. Satyanara}ana Sinha v. S Lal & Co. Pvt. Led., AIR (1973) SC 2720

= [1973) 2 sec 696, it was held that the foundation for exercising jurisdiction under Article 32 or Article 226 is ordinarily the personal or individual ri5ht of the petitioner himsdf. In writs like Habeas Corpus and Quo Wlranto, the rule has been relaxed and modified. c In S.P. Gupta & Ors. v. Union of India & Ors., AIR (1982) 149 = [ 1981 J Supp. SCC 87, the law relating to locus standi was explained so as to give a wider mt::aning to the phrase. This Court laid down that practising lawyers havt undoubtedly a vital intert:st in the independence of the D judiciary; thty would certainly be interested in challt:nging the validity or constitutiona. ity of an action taken by the State or any public authority which has th~ effect of impairing the independence of the judiciary." It was further observed that ''lawyer's profession was an essential and integral part of the judicia; system; they could figuratively be described as priests in the temple of justice. They have, therefore, a special interest in preserving the E 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 represent.ing some Lawyers' Associations have the locus standi to challenge the circular letter addressed by the Union Law Mmister to the Governors and Chief Ministers directing that one third of p the Judges of the High Court should, as far as possible, be from outside the States.''

In the context of Public Interest Litigation, however, the Court in its various J udgmcnts has given widest amplitude and meaning to the concept of locus standi. In People's Union for Demoractic Rights and Ors. v. Union G of India & Ors., AIR (1982) SC 1473 (1982J 3 SCC 235, it was laid down that Public Interest Litigation could be initiated not only by filing formal petitions in the High Court but even by stnding letters and telegrams so as to provide easy access tu Court. (Sec also : Bandhua Mukti Morcha v.

Union of India & Ors., AIR (1984) SC 802 = [198412SCR67 = (1984) H 3 SCC 161 and State of Himachal Pradesh v. Student's Parent Medical

CHA; R:-.!AN RAILWAY BOARD ' MRS. CHAND RIMA DAS (S. SACiHIR AHMAD. J J 495

College, Shimla & Ors., AIR (1985) SC 910 = (1985] 3 SCC 169 on the A right to approach the Court in the realm of Public Interest Litigation). In Bangalore Medical Trost v. B.S. Muddappa and Ors., AIR (1991) SC 1902

"' [ 1991 I :I SCR 102 °• [1991 I 4 sec 54, the Court hdd that the restricted meaning of aggrieved person and narrow outlook of specific injury has yidded in favour of a broad and wide construction in the wake of Public Interest Litigation. The Court further observed that public-spirit..:d citizens having faith in the rule of law arc rendering great social and legal service by espousing causes of public nature. They cannot be ignored or ovt:rlooked on technical or conservative yardstick of tht: rule of locus standi or absence of personal loss or injury. Tht:rc has, thus, been a spectacular expansion of the concept of locus st an di. 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 tht: petition filed by respondent Mrs.

Chandrima Das and the rdid claimed thaein it cannot be doubted that this petition was filed in public intt, rcst which could legally be filed by the respondent and thi;: argument that sht: could not tilt: that petition as there was nothing personal to ht:r involved in that petiton must be rejt:cted.

It was m; xt contended by tht: learned counsel appearing on behalf of

the appellants, that Smt. Hanuffa Khatoon was a fort:ign national and, therefort:, no relief under Public Law could be granted to her as tht:re was E no violation of the Fundamt:ntal Rights availablt: under the Constitution.

It was contended that the Fundamental Rights in Part III of the Constitution arc available only to citizens of this country and since Smt. Hanuffa Khatoon was a Bangaladeshi national, she cannot complain of the violation of Fundamental Rights and on that basis she cannot be granted any relief.

F This argument must also fail for two masons; first, on the ground of Domestic Jurisprudence based on Constitutional provisions and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaratation of Human Rights, 1948, which has the international recognition as tht:: "Moral Code of Conduct" having bt::en adopted by the Gt:nt::ral Asst::mbly of the L:nited Nations.

We will comt:: to the question of Domestic Jurisrudence a little later

as we intend to first consider the principles and objects behind L'niversal Declaration of Human Rights, 1948, as adopted and proclaimed by the United Nations Gconeral Assembly Resolution of 10th December, l948. The H

496 SVPRliMb COURT REPOR'l'S

[2000] L S.C.R.

A preamble, inter alia, sets out as under:

Whereas recognition of the l"IHERENT DlG'IITY and of the equa: and inalienable rights of all members of the human family is the foundation of fn:edom, ; ustice and peace in the world.

Whereas disregard and contempt for human rights have n:sulted in ba<barous acts which have outraged the conscience of mankind, and the advent of a world in which human bdngs shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.

Whereas it is essential tJ promote the dcvdopment of friendly rdatians between nations.

Whereas the people of the Unikd Nations have in the Charter affirmed their faith in fundamental human rights, lN THE DlG D NITY AND WORTH OF THE HLMAN PERSON AND lN THE E()L; AL RIGHTS OF MEN AND WOMEN and have deternined to promote social progress and better standards of life in larger freedom.

E Whereas Member States have pledged themselves to achieve, in cooptration with the United '.'lations, the promotion of universal n:spect for and observance of human rights and fundamental freedoms.

\\ibereas a common undeirstanding of these rights and fn; t:doms is of the greatest importanc1~ for the full realization of this pledge."

Thereafter, tht: Declaration sets out, inter alia, in various Articles, the following :

"Article l - All han beings art 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 kmd, such as H race, colour, sex, language, religion, political or other opinion,

CHAIRMAN PAIL\\ AY BOARD v. MRS. CHA \DRIMA DAS [S. SAGHIR AHMA:J. J.; 497

NATIONAL OR SOCIAL ORHHN, PROPERTY, BIRTH OR A

OTHER STATUS.

Furtht:rmore, NO DISTINCTION SHALL BE MADE ON THE BASIS Of THE POLITICAL, JURISDICTIONAL OR

lNTER~ATIONAL STATUS Of THE COCNTRY OR TER RITORY tu which a pt:rson bdongs, whether it be independent, trust, non-self governing or under any other limitation of soven:ignty

Article 3 - Everyone has the right to life, liberty and security of ptrson.

Article 5 - No one shall be subjectt:d to torture: or to cruel, inhuman or degrading treatment or punishment.

Article 7 - All are equal before the law and are entitled without D any discrimination to equal protection of the law. All ari; entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 9 - o one shall be subjected to arbitrary arrest, detention or exile."

Apart from the above, the general Assembly, also while adopting the Declaration on tht: Elimination of Violence against women, by its Resolution dated 20th Dt:cember, 1993, obst:rved in Arbcle 1 that, "violence

against women" means any act of gendt:r-based vioknce that results in, or F is likely to result in, physical, st:xual or psychological harm or sufforing to women, including thn::ats of such acts, coercion or arbitrary deprivation of liberty, wht:thc:r occurring in public or in private life. ln 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 fomale children in the household, dowry-related violence, marital rape, fomale genital mutilation o.nd other traditional practices harmful to women, non-

spousal violence and violence rdated to exploitation; H

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(b) Physical, sexual and psychological violence occurring within the general community, mcluding rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhen:, trafficking in women and forced prostitution;

(c) Physical, sexual and-psychological vioknce perpetrated or condom:d by the State, wherever it occurs."'

In Article 3, it was specified that '"women are entit!ed 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 convenants and Declarations as adopted by the D 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 E 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 specific treaty obligations. So also, Lord Bridge in Brind v. Secretary of State F for the Home Depanment, [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 lnttrnational Convention, the courts would presume that Parliament intended to legislate in conformity with the G 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 constitu- H tions in the light of those principles. Further Colloquia were convened in

CHAIRMAN RAJLWA Y BOARD v. \IRS. CHAND RIMA DAS [S. SAUHIR AHMAD, J.J 499

1994 at Zimbabwe, in 1996 at Hong Kong and in 1997 at Guyana and in A all those colloquia, the question of dom..:stic application of international and regional human rights specially in relation to women, was consid1;; red.

Thi: Zimbabwe Declaration 1994, inter a/ia, stated :

''Judges and lawyers have duty to familiarise themselves with the growing international jurisprudtnce of human rights and par- B ticularly with the expanding makrial on the protection and promotion of the human rights of women."

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 pt:rsons. 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 D 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" of 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 E 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 F 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. Ftlndamental Right guaranteed iJnder Article 15 is, therefore, restricted to' citizens". So also, Article 16 which guarantees equality of opportunity in matters of public employment is applicable only G 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 H

500 SlJPREMECDCRTREPORTS

[20L'O] S.C.R.

A India and freedom to practise any profes, ion, 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 bei::n used in a srn'e different from that in which it has been used in Part II of the Constitution dealing with "citizenship". (Sec : State Trading Corporation of India Ltd. v. The B Commercial Tax Officer and Others, AIR (1963) SC 1811 = [1964] 4 SCR

99. It has also been hdd in this case that the words "all citizem," have been deliberately used to keep out all "non-citizens'' which would include ''aliens". It was laid down in Hans Muller of Nurenburg v. Superintendent Presidency Jail Calcutta, AIR (1955) SC 367 (374) = [1955) l SCR 1284, C that this Article applies only to ''citizens". In another decision in Anwar v.

State of J & K, AIR (1971) 337 = [1971] l SCR 637 [1971] 3 SCC 104,

it was held that non-citizen could not claim Fundamental Rights under Article 19. In Naziranbai v. State, AIR 1957 M.B. 1 and Laksmi Prasad & Anr. v. Shiv Pal & Others, AIR (1974) Allahabad 313, it was held that

Articlt: 19 docs not apply to a 'foreigner", The Calcutta High Court in Sk.

D Md. Soleman v. State of West Bengal and Another, AIR 1965 Calcutta 312, held that Artitle 19 does not apply to a Commonwealth citizen.

InAnwar v. State of J. & K, AIR (1971) SC 337 = [1971] 1 SCR 637

= (1971) 3 sec 104 (already referred to above), it was held that the rights E under Article, 20, 21 and 22 arc 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 gmrankes right to protection against arbitrary arrest and deten- F tion. These are wholly in consonance with Article 3, Article 7 and Article

9 of the Univrsal 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 arc almost in consonance with G 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 v. Union of India & Ors., [1990] l SCC 568 = AIR (1990) SC 605. That being so, H since "LIFE" is also recognised as a basic human right in the Universal

CHNRMA'l RAIL WAY BOARD ' MRS. CHAl<DRIMA DAS [S. SAUHIR AHMfuJ. J.) 501

Declaration of Human Rights, 1948, it has to have the same meaning and A 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 'lik' cannot bt: narrowed down. According to the tenor of the language used in Article 21, it will be available not only to ewry citizen of this country, but also to a ''person'' who may not be a citiztn of the country. B

Let us now consider the meaning of the word "LIFE" interpreted by this Court from time to time. In Kharak Singh v. State of U.P., AIR (1963) SC 1295 = [ 1964] 1 SCR 332, it was hdd that the term ,.life'' indicates something more than mere animal existence. (See also : State of Maharashtra v. Chandrabhan Tale, AIR (1983) SC 803 = (1983] 3 SCR C 337 = (1983] 2 SCC 387. The inhibitions contained in Article 21 against its deprivation extends even to those faculties by which life is enjoyed. ln Bandhua Mukti 1'rforcha v. U.O.l., 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 v. U.O.l., AIR (1978) SC 597 = [ 1978] 2 SCR 621 = ( 19781 l sec D 248 and Board of Trustees of the Port of Bombay v. Dilip Kumar Raghavendranath Nadkami, AIR (1983) SC 109 = (1983] 1 SCR 828 = [1983) 1 sec 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 E 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 rights 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 F are not citizens.

The Rights guaranteed under Part III of the Constitution are not absolute in terms. They are subject to n:asonable restrictions and, therefore, in case of non-citizen also, those Rights will be availablt: subject to such restrictions as may be imposed in the interest of the security of the G State or other important considerations. Interest of the Nation and security of the State is supreme. Since 1948 when the l.Jniversal 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 H


[2000] 1 S.CR.

A Universal Declaration as also m every Article dealing with Fundamental Rights, including Article 21 of tht: Indian Constitution.

It has already been pointed out abow that this Court in Bodhisatwa's case (supra) has already hdd that ''rap~' amounts to violation of the Fundamental Right guarantt:ed to a woman under Article 21 of the Con- B stitution.

Now, Smt. Hanulfa 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 C concerned. She was entitled to be treated with dignity and was also entitkd

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.

D Consequently, the State was under the Constitutional liability to pay compensation to her. The judgment passed by the Calcutta High Court, then:- fore, allowing compensation to her for having been gang-raped, cannot be said to suffer from any infirmity.

E Learned counsel for the appellants then contended that the Central Govt. cannot be held vicariously liable for the offence of rape committt:d by the employtes of the Railways. lit was contended that the liability under the Law of Torts would arises 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 F 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 v. 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 G heirs of a pers.>n 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 v. Memon Mahomed Haji Hasan AIR (1967) SC 1885 and Smt. Basava Korn Dyamogouda Patil v. State of Mysore, AIR

(1977) SC 1749. These principles were reiterated in N. Nagendra Rao & H Co. v. State of A.P., AIR (1994) SC 2663 = (1994) 6 SCC 205 and again in

CHAIRMA:, KAil WAY BOARD v. MKS. CHANDRI.\fA :.JAS ; s. SAUHIRAHMAD .. 1.; 503

State of Maharashtra v. Kanchanmala Vijaysing Shirke, (1995) ACJ 1021 SC A [1995] 5 sec 659 = JT (1995) 6 sc t55.

Rdiancc placed by the counsel for th..: appellants on the deciion of this Court in Ka.ituri Lal Ralia Ram Jain v. State ufAJ'., AIR (1905) SC

1039 ~~ [1965) 1 SCR 375, cannot hdp him as this decision has not been follow..:d by this Court in the subsequent decisions, including the decisions in State of Gujarat v. Memon Mahomed Haft Hasan and Smt. Ba.iava Kom Dyamoguuda Patil v. State of Mysore (supra). The decision in Kasturi Lat's case was also severdy criticised by Mr. Secrvai in his prestigious book Constitutional Law of India. A three Judge Bench of this Court in Common Cause, A Regd. Society v, Union of India, [ 1.999] 6 SCC 667 also did not follow the decision in Ka.ituri 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 defonct: of the country or the administration of justice, but they extend to many other spheres as, for exampk, 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 Y atri Niwas at various Railway Stations to provide lodging and boarding facilities

to passengers on payment of charges is a part of the commercial activity F of the Union of India and this activity cannot be equated with the exercise of Sovereign power. The employees of the l.Jnion of India who are deputed to run the Railways and to manage the establishment, including the Railway Stations and Y atri 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, G 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, H

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A 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 B 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.

M.P.

Appeal dismissed.

. {;'