Holding

Public‑law remedies under Articles 32 and 226 extend to tortious claims involving violation of fundamental rights, a foreign national is entitled to protection of Article 21, and the Union of India is vicariously liable for the acts of its Railway employees; the petition filed by the advocate was maintainable.

Summary

A Bangladeshi woman, Hanuffa Khatoon, was gang‑raped by several Railway employees at the Yatri Niwas, Howrah Station. Advocate Chandrima Das filed a writ petition under Article 226 seeking compensation of Rs 10 lakh and other reliefs. The Calcutta High Court awarded the compensation, holding that the offence violated the victim’s fundamental right to life under Article 21 and that the Railway, as a government instrumentality, was vicariously liable. The Railway Board appealed, arguing that a foreign national could not claim public‑law relief, that the tortious act was not performed in the course of official duty, and that the advocate lacked locus standi. The Supreme Court dismissed the appeal, holding that public‑law remedies extend to tort claims involving fundamental rights, that a non‑citizen is entitled to protection of Article 21, that the Union of India is vicariously liable for the acts of its Railway employees, and that a practising lawyer may file a PIL even without a personal stake.

Issues considered

The applicability of Article 226 for claiming compensation for a tortious act (rape) committed by public officials.
Whether a foreign national can invoke fundamental rights under the Constitution and obtain public‑law relief.
The vicarious liability of the Union of India/Railway Board for torts committed by its employees.
The locus standi of a practising advocate to file a public‑interest writ petition.

Legislation cited

Constitution of Indias. Article 14, s. Article 15, s. Article 16, s. Article 19, s. Article 20, s. Article 21, s. Article 22, s. Article 226, s. Article 32

Subjects

rapevicarious liabilitypublic lawfundamental rightsArticle 21foreign nationalcompensationpublic interest litigationlocus standiRailway Boardtort law

Judgment

A THE CHAIRMAN, RAILWAY BOARD AND ORS.
v.
MRS. CHANDRIMA DAS AND ORS.

JA,~UARY 28, 2CGO
-
B
[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 ifare State are man ifold, 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
480
CHAJRMAN KAIL WAY HUARD v. MRS. CHANDRlJ\.lA DAS 481

perfom1ed 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 belong-
ing 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 B
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
c
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 D
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.
E
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 claim-
ing 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 com-
mitted 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
482 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.

Dismissing the appeal, this Court
B
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 not-
withstanding faat a suit could be filed for damages under Private Law. In
C the instant ca~e, 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 compensa-
tion 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 Com-
mittee 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 Declara-
tion 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 convic-
tion 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
c
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 F
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
486 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.
G
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.

H CIVIL APPELLATE JL'RISDICTION : Civil Appeal No. 639 of
CHAIRMAN RAILWAY BOARD v. ~RS. CHANDRJMA DAS [S. SAGHIRAHMAD. J.) 487

2000. A
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, B
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
c
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 (Rail-
ways), 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 E
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 <Utti-social and criminal activities at Howrah Railway Station. F

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
488 SUPREME COURT REPORTS (2000] 1 S.C.R.

A 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
B 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 Ex-
aminer asked her to wait in the Ladies Waiting room. She accord-
ingly came to the ladies waiting room and rested there.
c
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
D 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
E 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
F some doubt initially but on being certified by the lady attendants
engaged on duty at the ::..adies Waiting Room about their creden-
tials she accompanied them to Yatri 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
G 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
H 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 Yatri Niwas and came back to the
platform wht:re again she met Siya Ram Singh and found him
B
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 c
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.;•
E
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 Yatri Niwas) belonging to the Railways and was perpetrated
by the Railway employees. F

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 compensa-
tion, but having regard to the facts of this case, the Railways, or, for that H
490 SUPREME COURT REPORTS [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
F 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
G
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
H 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
of the State or other statutory or public bodies is open to judicial
B
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 c
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 mean-
ing 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
492 SUPREME COURT REPORTS (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 Con~titufam on a number of occasions and has awareded compen-
sation 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
und~r Private Law.
B
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 c
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 con-
tained in Article 21."

R~j ecting, therefore, the contention of the learned counsel for the
appellants that the petition under Public Law was not maintainable, we E
now proceed to his next contention relating to the Locus standi of respon-
dent, 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
494 SUPREME COURT REPORTS {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 juris-
diction under Article 32 or Article 226 is ordinarily the personal or
individual ri·5ht 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
B
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:r-
looked 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 stan di. The concept is much wider and c
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
D
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 Constitu-
tion 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 recogni-
tion as tht:: "Moral Code of Conduct" having bt::en adopted by the Gt:nt::ral
Asst::mbly of the L:nited Nations. G

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] LS.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.

B 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.
c Whereas it is essential t·J 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
F 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 h~an beings art born free and equal in dignity
G 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, B
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. c
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." E
Apart from the above, the general Assembly, also while adopting the
Declaration on tht: Elimination of Violence against women, by its Resolu-
tion 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:
G
(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
498 SUPREME COUR1 REPORTS [2000] J S.C.R.

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

(c) Physical, sexual and-psychological vioknce perpetrated or con-
B dom: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.
c (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 prin-
ciples 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 Ban-
galore 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. CHANDRIMA 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 promo-
tion 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 c
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 ter-
ritory 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 occupa-
tion, 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 Univ~rsal 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, there-
fore, 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
502 SUPREME COURT REPORTS [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 com-
pensation 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 deci~ion 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 B
in State of Gujarat v. Memon Mahomed Haft Hasan and Smt. Ba.i·ava 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 Com-
mon Cause, A Regd. Society v, Union of India, [ 1.999] 6 SCC 667 also did c
not follow the decision in Ka.i·turi 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
D
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 E
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 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 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, 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
504 SUPREME COGRT REPORTS (2C00) 1 S.C.R.
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 Commis-
sioner shall be made within !three months. There will be no order as to
costs.

M.P. Appeal dismissed.

. {;'