Full Judgment Text
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PETITIONER:
THE CHAIRMAN, RAILWAY BOARD & ORS.
Vs.
RESPONDENT:
MRS. CHANDRIMA DAS & ORS.
DATE OF JUDGMENT: 28/01/2000
BENCH:
R.P.Sethi, S.Saghir Ahmad
JUDGMENT:
S.SAGHIR AHMAD, J.
Leave granted.
Mrs. Chandrima Das, a practising advocate of the
Calcutta High Court, filed a petition under Article 226 of
the Constitution against the Chairman, Railway Board;
General Manager, Eastern Railway; Divisional Railway
Manager, Howrah Division; Chief Commercial Manager, Eastern
Railway; State of West Bengal through the Chief Secretary;
Home Secretary, Government of West Bengal; Superintendent
of Police (Railways), Howrah; Superintendent of Police,
Howrah; Director General of Police, West Bengal and many
other Officers including the Deputy High Commissioner,
Republic of Bangladesh; claiming compensation for the
victim, Smt. Hanuffa Khatoon, a Bangladeshi national who
was gang-raped by many including employees of the Railways
in a room at Yatri Niwas at Howrah Station of the Eastern
Railway regarding which G.R.P.S. Case No. 19/98 was
registered on 27th February, 1998. Mrs. Chandrima Das also
claimed several other reliefs including a direction to the
respondents to eradicate anti-social and criminal activities
at Howrah Railway Station.
The facts as noticed by the High Court in the impugned
judgment are as follows:-
"Respondents Railways and the Union of India have
admitted that amongst the main accused you are employees of
the railways and if the prosecution version is proved in
accordance with law, they are perpetrators of the heinous
crime of gang rape repeatedly committed upon the hapless
victim Hanufa Khatun. It is not in dispute that Hanufa came
from Bangladesh. She at the relevant time was the elected
representative. She at the relevant time was the elected
representative of the Union Board. She arrived at Howrah
Railway Station on 26th February, 1998 at about 14.00 hours
to avail Jodhpur Express at 23.00 Hours for paying a visit
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to Ajmer Sharif. With that intent in mind, she arrived at
Calcutta on 24th February, 1998 and stayed at a hotel at 10,
Sudder Street, Police Station Taltola and came to Howrah
Station on the date and time aforementioned. She had,
however, a wait listed ticket and so she approached a Train
Ticket Examiner at the Station for confirmation of berth
against her ticket. The Train Ticket Examiner asked her to
wait in the Ladies Waiting room. She accordingly came to
the ladies waiting room and rested there.
At about 17.00 hours on 26th February, 1998 two
unknown persons (later identified as one Ashoke Singh, a
tout who posed himself as a very influential person of the
Railway and Siya Ram Singh a railway ticket broker having
good acquaintance with some of the Railway Staff of Howrah
Station) approached her, took her ticket and returned the
same after confirming reservation in Coach No.S-3 (Berth
No.17) of Jodhpur Express. At about 20.00 hours Siya Ram
Singh came again to her with a boy named Kashi and told her
to accompany the boy to a restaurant if she wanted to have
food for the night. Accordingly at about 21.00 hours she
went to a nearby eating house with Kashi and had her meal
there. Soon after she had taken her meal, she vomitted and
came back to the Ladies Waiting room. At about 21.00 hours
Ashoke Singh along with Rafi Ahmed a Parcel Supervisor at
Howrah Station came to the Ladies Niwas before boarding the
train. She appeared to have some doubt initially but on
being certified by the lady attendants engaged on duty at
the Ladies Waiting Room about their credentials she
accompanied them to Yatri Niwas. Sitaram Singh, a khalasi
of electric Department of Howrah Station joined them on way
to Yatri Niwas. She was taken to room No.102 on the first
floor of Yatri Niwas. The room was booked in the name of
Ashoke Singh against Railway Card pass No. 3638 since 25th
February, 1998. In room No.102 two other persons viz. one
Lalan Singh, Parcel Clerk of Howrah Railway Station and
Awdesh Singh, Parcel Clearing Agent were waiting. Hanufa
Khatun suspected someting amiss when Ashoke Singh forced her
into the room. Awdesh Singh bolted the room from outside
and stood on guard outside the room. The remaining four
persons viz. Ashoke, Lalan, Rafi and Sitaram took liquor
inside the room and also forcibly compelled her to consume
liquor. All the four persons who were present inside the
room brutally violated, Hanufa Khatun, it is said, was in a
state of shock and daze. When she could recover she managed
to escape from the room of Yatri Niwas and came back to the
platform where again she met Siya Ram Singh and found him
talking to Ashoke Singh. Seeing her plight Siya Ram Singh
pretended to be her saviour and also abused and slapped
Ashoke Singh. Since it was well past midnight and Jodhpur
Express had already departed, Siya Ram requested Hanufa
Khatoon to accompany him to his residence to rest for the
night with his wife and children. He assured her to help
entrain Poorva Express on the following morning. Thereafter
Siyaram accompanied by Ram Samiram Sharma, a friend of
Siyaram took her to the rented flat of Ram Samiram Sharma at
66, Pathuriaghata Street, Police Station Jorabagan,
Calcutta. There Siyaram raped Hanufa and when she protested
and resisted violently Siyaram and Ram Samiran Sharma gagged
her mouth and nostrils intending to kill her as a result
Hanufa bled profusely. On being informed by the landlord of
the building following the hue and cry raised by Hanufa
Khatun, she was rescued by Jorabagan Police."
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It was on the basis of the above facts that the High
Court had awarded a sum of Rs.10 lacs as compensation for
Smt. Hanuffa Khatoon as the High Court was of the opinion
that the rape was committed at the building (Rail Yatri
Niwas) belonging to the Railways and was perpetrated by the
Railway employees.
In the present appeal, we are not concerned with many
directions issued by the High Court. The only question
argued before us was that the Railways would not be liable
to pay compensation to Smt. Hanuffa Khatoon who was a
foreigner and was not an Indian national. It is also
contended that commission of the offence by the person
concerned would not make the Railway or the Union of India
liable to pay compensation to the victim of the offence. It
is contended that since it was the individual act of those
persons, they alone would be prosecuted and on being found
guilty would be punished and may also be liable to pay fine
or compensation, but having regard to the facts of this
case, the Railways, or, for that matter, the Union of India
would not even be vicariously liable. It is also contended
that for claiming damages for the offence perpetrated on
Smt. Hanuffa Khatoon, the remedy lay in the domain of
Private Law and not under Public Law and, therefore, no
compensation could have been legally awarded by the High
Court in a proceeding under Article 226 of the Constitution
and, that too, at the instance of a practising advocate who,
in no way, was concerned or connected with the victim.
We may first dispose of the contention raised on
behalf of the appellants that proceedings under Article 226
of the Constitution could not have been legally initiated
for claiming damages from the Railways for the offence of
rape committed on Smt. Hanuffa Khatoon and that Smt.
Hanuffa Khatoon herself should have approached the Court in
the realm of Private Law so that all the questions of fact
could have been considered on the basis of the evidence
adduced by the parties to record a finding whether all the
ingredients of the commission of "tort" against the person
of Smt. Hanuffa Khatoon were made out, so as to be entitled
to the relief of damages. We may also consider the question
of locus standi as it is contended on behalf of the
appellants that Mrs. Chandrima Das, who is a practicing
Advocate of the High Court of Calcutta, could not have
legally instituted these proceedings.
The distinction between "Public Law" and "Private Law"
was considered by a Three-Judge Bench of this Court in
Common Cause, A Regd. Society vs. Union of India & Ors.
(1999) 6 SCC 667 = AIR 1999 SC 2979 = (1999) 5 JT 237, in
which it was, inter alia, observed as under :
"Under Article 226 of the Constitution, the High Court
has been given the power and jurisdiction to issue
appropriate Writs in the nature of Mandamus, Certiorari,
Prohibition, Quo-Warranto and Habeas Corpus for the
enforcement of Fundamental Rights or for any other purpose.
Thus, the High Court has jurisdiction not only to grant
relief for the enforcement of Fundamental Rights but also
for "any other purpose" which would include the enforcement
of public duties by public bodies. So also, the Supreme
Court under Article 32 has the jurisdiction to issue
prerogative Writs for the enforcement of Fundamental Rights
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guaranteed to a citizen under the Constitution.
Essentially, under public law, it is the dispute
between the citizen or a group of citizens on the one hand
and the State or other public bodies on the other, which is
resolved. This is done to maintain the rule of law and to
prevent the State or the public bodies from acting in an
arbitrary manner or in violation of that rule. The exercise
of constitutional powers by the High Court and the Supreme
Court under Article 226 or 32 has been categorised as power
of "judicial review". Every executive or administrative
action of the State or other statutory or public bodies is
open to judicial scrutiny and the High Court or the Supreme
Court can, in exercise of the power of judicial review under
the Constitution, quash the executive action or decision
which is contrary to law or is violative of Fundamental
Rights guaranteed by the Constitution. With the expanding
horizon of Article 14 read with other Articles dealing with
Fundamental Rights, every executive action of the Govt. or
other public bodies, including Instrumentalities of the
Govt., or those which can be legally treated as "Authority"
within the meaning of Article 12, if arbitrary, unreasonable
or contrary to law, is now amenable to the writ jurisdiction
of this Court under Article 32 or the High Courts under
Article 226 and can be validly scrutinised on the touchstone
of the Constitutional mandates."
The earlier decision, namely, Life Insurance
Corporation of India vs. Escorts Limited & Ors. 1985 Supp.
(3) SCR 909 = (1986) 1 SCC 264 = AIR 1986 SC 1370, in which
it was observed as under:
"Broadly speaking, the Court will examine actions of
State if they pertain to the pubic law domain and refrain
from examining them if they pertain to the private law
field. The difficulty will lie in demarcating the frontier
between the public law domain and the private law field. It
is impossible to draw the line with precision and we do not
want to attempt it. The question must be decided in each
case with reference to the particular action, the activity
in which the State or the instrumentality of the State is
engaged when performing the action, the public law or
private law character of the action and a host of other
relevant circumstances."
was relied upon.
Various aspects of the Public Law field were
considered. It was found that though initially a petition
under Article 226 of the Constitution relating to
contractual matters was held not to lie, the law underwent a
change by subsequent decisions and it was noticed that even
though the petition may relate essentially to a contractual
matter, it would still be amenable to the writ jurisdiction
of the High Court under Article 226. The Public Law
remedies have also been extended to the realm of tort. This
Court, in its various decisions, has entertained petitions
under Article 32 of the Constitution on a number of
occasions and has awarded compensation to the petitioners
who had suffered personal injuries at the hands of the
officers of the Govt. The causing of injuries, which
amounted to tortious act, was compensated by this Court in
many of its decisions beginning from Rudul Sah vs. State of
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Bihar 1983(3) SCR 508 = (1983) 4 SCC 141 = AIR 1983 SC 1086.
[See also : Bhim Singh vs. State of Jammu & Kashmir (1985)
4 SCC 577 = AIR 1986 SC 494; People’s Union for Democratic
Rights vs. State of Bihar, 1987 (1) SCR 631 = (1987) 1 SCC
265 = AIR 1987 SC 355; People’s Union for Democratic Rights
Thru. Its Secy. vs. Police Commissioner, Delhi Police
Headquarters, (1989) 4 SCC 730 = 1989 (1) SCALE 599;
SAHELI, A Woman’s Resources Centre vs. Commissioner of
Police, Delhi (1990) 1 SCC 422 = 1989 (Supp.) SCR 488 = AIR
1990 SC 513; Arvinder Singh Bagga vs. State of U.P.
(1994) 6 SCC 565 = AIR 1995 SC 117; P. Rathinam vs. Union
of India (1989) Supp. 2 SCC 716; In Re: Death of Sawinder
Singh Grower (1995) Supp. (4) SCC 450 = JT (1992) 6 SC 271
= 1992 (3) SCALE 34; Inder Singh vs. State of Punjab
(1995) 3 SCC 702 = AIR 1995 SC 1949; D.K. Basu vs. State
of West Bengal (1997) 1 SCC 416 = AIR 1997 SC 610].
In cases relating to custodial deaths and those
relating to medical negligence, this Court awarded
compensation under Public Law domain in Nilabati Behera vs.
State of Orissa (1993) 2 SCC 746 = 1993 (2) SCR 581 = AIR
1993 SC 1960; State of M.P. vs. Shyam Sunder Trivedi
(1995) 4 SCC 262 = 1995 (3) SCALE 343; People’s Union for
Civil Liberties vs. Union of India (1997) 3 SCC 433 = AIR
1997 SC 1203 and Kaushalya vs. State of Punjab (1996) 7
SCALE (SP) 13; Supreme Court Legal Aid Committee vs. State
of Bihar (1991) 3 SCC 482; Dr. Jacob George vs. State of
Kerala (1994) 3 SCC 430 = 1994 (2) SCALE 563; Paschim
Bangal Khet Mazdoor Samity vs. State of West Bengal & Ors.
(1996) 4 SCC 37 = AIR 1996 SC 2426; and Mrs. Manju Bhatia
vs. N.D.M.C. (1997) 6 SCC 370 = AIR 1998 SC 223 = (1997) 4
SCALE 350.
Having regard to what has been stated above, the
contention that Smt. Hanuffa Khatoon should have approached
the civil court for damages and the matter should not have
been considered in a petition under Article 226 of the
Constitution, cannot be accepted. Where public
functionaries are involved and the matter relates to the
violation of Fundamental Rights or the enforcement of public
duties, the remedy would still be available under the Public
Law notwithstanding that a suit could be filed for damages
under Private Law.
In the instant case, it is not a mere matter of
violation of an ordinary right of a person but the violation
of Fundamental Rights which is involved. Smt. Hanuffa
Khatoon was a victim of rape. This Court in Bodhisatwa vs.
Ms. Subdhra Chakroborty (1996) 1 SCC 490 has held "rape" as
an offence which is violative of the Fundamental Right of a
person guaranteed under Article 21 of the Constitution. The
Court observed as under :
"Rape is a crime not only against the person of a
woman, it is a crime against the entire society. It
destroys the entire psychology of a woman and pushes her
into deep emotional crisis. Rape is therefore the most
hated crime. It is a crime against basic human rights and
is violative of the victims most cherished right, namely,
right to life which includes right to live with human
dignity contained in Article 21."
Rejecting, therefore, the contention of the learned
counsel for the appellants that the petition under Public
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Law was not maintainable, we now proceed to his next
contention relating to the locus standi of respondent, Mrs.
Chandrima Das, in filing the petition.
The main contention of the learned counsel for the
appellants is that Mrs. Chandrima Das was only a practising
advocate of the Calcutta High Court and was, in no way,
connected or related to the victim, Smt. Hanuffa Khatoon
and, therefore, she could not have filed a petition under
Article 226 for damages or compensation being awarded to
Smt. Hanuffa Khatoon on account of the rape committed on
her. This contention is based on a misconception. Learned
counsel for the appellants is under the impression that the
petition filed before the Calcutta High Court was only a
petition for damages or compensation for Smt. Hanuffa
Khatoon. As a matter of fact, the reliefs which were
claimed in the petition included the relief for
compensation. But many other reliefs as, for example,
relief for eradicating anti-social and criminal activities
of various kinds at Howrah Railway Station were also
claimed. The true nature of the petition, therefore, was
that of a petition filed in public interest.
The existence of a legal right, no doubt, is the
foundation for a petition under Article 226 and a bare
interest, may be of a minimum nature, may give locus standi
to a person to file a Writ Petition, but the concept of
"Locus Standi" has undergone a sea change, as we shall
presently notice. In Dr. Satyanarayana Sinha vs. S. Lal
& Co. Pvt. Ltd., AIR 1973 SC 2720 = (1973) 2 SCC 696, it
was held that the foundation for exercising jurisdiction
under Article 32 or Article 226 is ordinarily the personal
or individual right of the petitioner himself. In writs
like Habeas Corpus and Quo Warranto, the rule has been
relaxed and modified.
In S.P. Gupta & Ors. vs. Union of India & Ors., AIR
1982 SC 149 = (1981) Supp. SCC 87, the law relating to
locus standi was explained so as to give a wider meaning to
the phrase. This Court laid down that "practising lawyers
have undoubtedly a vital interest in the independence of the
judiciary; they would certainly be interested in
challenging the validity or constitutionality of an action
taken by the State or any public authority which has the
effect of impairing the independence of the judiciary." It
was further observed that "lawyer’s profession was an
essential and integral part of the judicial system; they
could figuratively be described as priests in the temple of
justice. They have, therefore, a special interest in
preserving the integrity and independence of the judicial
system; they are equal partners with the Judges in the
administration of justice. The lawyers, either in their
individual capacity or as representing some Lawyers’
Associations have the locus standi to challenge the circular
letter addressed by the Union Law Minister to the Governors
and Chief Ministers directing that one third of the Judges
of the High Court should, as far as possible, be from
outside the State."
In the context of Public Interest Litigation, however,
the Court in its various Judgments has given widest
amplitude and meaning to the concept of locus standi. In
People’s Union for Democratic Rights and Ors. vs. Union of
India & Ors., AIR 1982 SC 1473 = (1982) 3 SCC 235, it was
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laid down that Public Interest Litigation could be initiated
not only by filing formal petitions in the High Court but
even by sending letters and telegrams so as to provide easy
access to Court. (See also: Bandhua Mukti Morcha vs.
Union of India & Ors., AIR 1984 SC 802 = 1984 (2) SCR 67 =
(1984) 3 SCC 161 and State of Himachal Pradesh vs.
Student’s Parent Medical College, Shimla & Ors., AIR 1985 SC
910 = (1985) 3 SCC 169 on the right to approach the Court in
the realm of Public Interest Litigation). In Bangalore
Medical Trust vs. B.S. Muddappa and Ors., AIR 1991 SC 1902
= 1991 (3) SCR 102 = (1991) 4 SCC 54, the Court held that
the restricted meaning of aggrieved person and narrow
outlook of specific injury has yielded in favour of a broad
and wide construction in the wake of Public Interest
Litigation. The Court further observed that public-spirited
citizens having faith in the rule of law are rendering great
social and legal service by espousing causes of public
nature. They cannot be ignored or overlooked on technical
or conservative yardstick of the rule of locus standi or
absence of personal loss or injury. There has, thus, been a
spectacular expansion of the concept of locus standi. The
concept is much wider and it takes in its stride anyone who
is not a mere "busy-body".
Having regard to the nature of the petition filed by
respondent Mrs. Chandrima Das and the relief claimed
therein it cannot be doubted that this petition was filed in
public interest which could legally be filed by the
respondent and the argument that she could not file that
petition as there was nothing personal to her involved in
that petition must be rejected.
It was next contended by the learned counsel appearing
on behalf of the appellants, that Smt. Hanuffa Khatoon was
a foreign national and, therefore, no relief under Public
Law could be granted to her as there was no violation of the
Fundamental Rights available under the Constitution. It was
contended that the Fundamental Rights in Part III of the
Constitution are available only to citizens of this country
and since Smt. Hanuffa Khatoon was a Bangladeshi national,
she cannot complain of the violation of Fundamental Rights
and on that basis she cannot be granted any relief. This
argument must also fail for two reasons; first, on the
ground of Domestic Jurisprudence based on Constitutional
provisions and secondly, on the ground of Human Rights
Jurisprudence based on the Universal Declaration of Human
Rights, 1948, which has the international recognition as the
"Moral Code of Conduct" having been adopted by the General
Assembly of the United Nations. We will come to the
question of Domestic Jurisprudence a little later as we
intend to first consider the principles and objects behind
Universal Declaration of Human Rights, 1948, as adopted and
proclaimed by the United Nations General Assembly Resolution
of 10th December, 1948. The preamble, inter alia, sets out
as under:
"Whereas recognition of the INHERENT DIGNITY and of
the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in
the world.
Whereas disregard and contempt for human rights have
resulted in barbarous acts which have outraged the
conscience of mankind, and the advent of a world in which
human beings shall enjoy freedom of speech and belief and
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freedom from fear and want has been proclaimed as the
highest aspiration of the common people.
Whereas it is essential to promote the development of
friendly relations between nations.
Whereas the people of the United Nations have in the
Charter affirmed their faith in fundamental human rights, IN
THE DIGNITY AND WORTH OF THE HUMAN PERSON AND IN THE EQUAL
RIGHTS OF MEN AND WOMEN and have determined to promote
social progress and better standards of life in larger
freedom. Whereas Member States have pledged themselves to
achieve, in cooperation with the United Nations, the
promotion of universal respect for and observance of human
rights and fundamental freedoms.
Whereas a common understanding of these rights and
freedoms is of the greatest importance for the full
realization of this pledge."
Thereafter, the Declaration sets out, inter alia, in
various Articles, the following:
"Article 1 -- All human beings are born free and equal
in dignity and rights. They are endowed with reason and
conscience and should act towards one another in a spirit of
brotherhood.
Article 2 -- Every one is entitled to all the rights
and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, NATIONAL OR
SOCIAL ORIGIN, PROPERTY, BIRTH OR OTHER STATUS.
Furthermore, NO DISTINCTION SHALL BE MADE ON THE BASIS
OF THE POLITICAL, JURISDICTIONAL OR INTERNATIONAL STATUS OF
THE COUNTRY OR TERRITORY to which a person belongs, whether
it be independent, trust, non-self governing or under any
other limitation of sovereignty.
Article 3 -- Everyone has the right to life, liberty
and security of person.
Article 5 -- No one shall be subjected to torture or
to cruel, inhuman or degrading treatment or punishment.
Article 7 -- All are equal before the law and are
entitled without any discrimination to equal protection of
the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against
any incitement to such discrimination.
Article 9 -- No one shall be subjected to arbitrary
arrest, detention or exile."
Apart from the above, the General Assembly, also while
adopting the Declaration on the Elimination of Violence
against Women, by its Resolution dated 20th December, 1993,
observed in Article 1 that, "violence against women" means
any act of gender-based violence that results in, or is
likely to result in, physical, sexual or psychological harm
or suffering to women, including threats of such acts,
coercion or arbitrary deprivation of liberty, whether
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occurring in public or in private life." In Article 2, it
was specified that, "violence against women shall be
understood to encompass, but not be limited to:
(a) Physical, sexual and psychological violence
occurring in the family including battering, sexual abuse of
female children in the household, dowry-related violence,
marital rape, female genital mutilation and other
traditional practices harmful to women, non-spousal violence
and violence related to exploitation;
(b) Physical, sexual and psychological violence
occurring within the general community, including rape,
sexual abuse, sexual harassment and intimidation at work, in
educational institutions and elsewhere, trafficking in women
and forced prostitution;
(c) Physical, sexual and psychological violence
perpetrated or condoned by the State, wherever it occurs."
In Article 3, it was specified that "women are
entitlted to the equal enjoyment and protection of all human
rights, which would include, inter alia,:
(a) the right to life, (b) the right to equality, and
(c) the right to liberty and security of person.
The International Covenants and Declarations as
adopted by the United Nations have to be respected by all
signatory States and the meaning given to the above words in
those Declarations and Covenants have to be such as would
help in effective implementation of those Rights. The
applicability of the Universal Declaration of Human Rights
and principles thereof may have to be read, if need be, into
the domestic jurisprudence. Lord Diplock in Salomon v.
Commissioners of Customs and Excise [1996] 3 All ER 871 said
that there is a, prima facie, presumption that Parliament
does not intend to act in breach of international law,
including specfic treaty obligations. So also, Lord Bridge
in Brind v. Secretary of State for the Home Department
[1991] 1 All ER 720, observed that it was well settled that,
in construing any provision in domestic legislation which
was ambiguous in the sense that it was capable of a meaning
which either conforms to or conflicts with the International
Convention, the courts would presume that Parliament
intended to legislate in conformity with the Convention and
not in conflict with it.
The domestic application of international human rights
and norms was considered by the Judicial Colloquia (Judges
and Lawyers) at Bangalore in 1988. It was later affirmed by
the Colloquia that it was the vital duty of an independent
judiciary to interpret and apply national constitutions in
the light of those principles. Further Colloquia were
convened in 1994 at Zimbabwe, in 1996 at Hong Kong and in
1997 at Guyana and in all those Colloquia, the quetion of
domestic application of international and regional human
rights specially in relation to women, was considered. The
Zimbabwe Declaration 1994, inter alia, stated :
"Judges and lawyers have duty to familiarise
themselves with the growing international jurisprudence of
human rights and particularly with the expanding material on
the protection and promotion of the human rights of women."
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But this situation may not really arise in our
country.
Our Constitution guarantees all the basic and
fundamental human rights set out in the Universal
Declaration of Human Rights, 1948, to its citizens and other
persons. The chapter dealing with the Fundamental Rights is
contained in Part III of the Constitution. The purpose of
this Part is to safeguard the basic human rights from the
vicissitudes of political controversy and to place them
beyond the reach of the political parties who, by virtue of
their majority, may come to form the Govt. at the Centre or
in the State.
The Fundamental Rights are available to all the
"citizens" af the country but a few of them are also
available to "persons". While Article 14, which guarantees
equality before law or the equal protection of laws within
the territory of India, is applicable to "person" which
would also include the "citizen" of the country and "non-
citizen" both, Article 15 speaks only of "citizen" and it is
specifically provided therein that there shall be no
discrimination against any "citizen" on the ground only of
religion, race, caste, sex, place of birth or any of them
nor shall any citizen be subjected to any disability,
liability, restriction or condition with regard to access to
shops, public restaurants, hotels and places of public
entertainment, or the use of wells, tanks, bathing ghats,
roads and places of public resort on the aforesaid grounds.
Fundamental Right guaranteed under Article 15 is, therefore,
restricted to "citizens". So also, Article 16 which
guarantees equality of opportunity in matters of public
employment is applicable only to "citizens". The
Fundamental Rights contained in Article 19, which contains
the right to "Basic Freedoms", namely, freedom of speech and
expression; freedom to assemble peaceably and without arms;
freedom to form associations or unions; freedom to move
freely throughout the territory of India; freedom to reside
and settle in any part of the territory of India and freedom
to practise any profession, or to carry on any occupation,
trade or business, are available only to "citizens" of the
country. The word "citizen" in Article 19 has not been used
in a sense different from that in which it has been used in
Part II of the Constitution dealing with "citizenship".
[See: State Trading Corporation of India Ltd. vs. The
Commercial Tax Officer and Others, AIR 1963 SC 1811 = 1964
(4) SCR 99]. It has also been held in this case that the
words "all citizens" have been deliberately used to keep out
all "non-citizens" which would include "aliens". It was
laid down in Hans Muller of Nurenburg vs. Superintendent
Presidency Jail Calcutta, AIR 1955 SC 367 (374) = 1955 (1)
SCR 1284, that this Article applies only to "citizens". In
another decision in Anwar vs. State of J & K, AIR 1971 SC
337 = 1971 (1) SCR 637 = (1971) 3 SCC 104, it was held that
non-citizen could not claim Fundamental Rights under Article
19. In Naziranbai vs. State, AIR 1957 M.B. 1 and Lakshmi
Prasad & Anr. vs. Shiv Pal & Others, AIR 1974 Allahabad
313, it was held that Article 19 does not apply to a
"foreigner". The Calcutta High Court in Sk. Md. Soleman
vs. State of West Bengal and Another, AIR 1965 Calcutta
312, held that Article 19 does not apply to a Commonwealth
citizen.
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In Anwar vs. State of J & K, AIR 1971 SC 337 = 1971
(1) SCR 637 = (1971) 3 SCC 104 (already referred to above),
it was held that the rights under Articles 20, 21 and 22 are
available not only to "citizens" but also to "persons" which
would include "non-citizens".
Article 20 guarantees right to protection in respect
of conviction for offences. Article 21 guarantees right to
life and personal liberty while Article 22 guarantees right
to protection against arbitrary arrest and detention. These
are wholly in consonance with Article 3, Article 7 and
Article 9 of the Universal Declaration of Human Rights,
1948.
The word "LIFE" has also been used prominently in the
Universal Declaration of Human Rights, 1948. [See: Article
3 quoted above]. The Fundamental Rights under the
Constitution are almost in consonance with the Rights
contained in the Universal Declaration of Human Rights as
also the Declaration and the Covenants of Civil and
Political Rights and the Covenants of Economic, Social and
Cultural Rights, to which India is a party having ratified
them, as set out by this Court in Kubic Darusz vs. Union of
India & Ors. (1990) 1 SCC 568 = AIR 1990 SC 605. That
being so, since "LIFE" is also recognised as a basic human
right in the Universal Declaration of Human Rights, 1948, it
has to have the same meaning and interpretation as has been
placed on that word by this Court in its various decisions
relating to Article 21 of the Constitution. The meaning of
the word "life" cannot be narrowed down. According to the
tenor of the language used in Article 21, it will be
available not only to every citizen of this country, but
also to a "person" who may not be a citizen of the country.
Let us now consider the meaning of the word "LIFE"
interpreted by this Court from time to time. In Kharak
Singh vs. State of U.P., AIR 1963 SC 1295 = 1964 (1) SCR
332, it was held that the term "life" indicates something
more than mere animal existence. [See also : State of
Maharashtra vs. Chandrabhan Tale, AIR 1983 SC 803 = 1983
(3) SCR 337 = (1983) 3 SCC 387]. The inhibitions contained
in Article 21 against its deprivation extends even to those
faculties by which life is enjoyed. In Bandhua Mukti Morcha
vs. U.O.I., AIR 1984 SC 802 = 1984 (2) SCR 67 = (1984) 3
SCC 161, it was held that the right to life under Article 21
means the right to live with dignity, free from
exploitation. [See also: Maneka Gandhi vs. U.O.I., AIR
1978 SC 597 = 1978 (2) SCR 621 = (1978) 1 SCC 248 and Board
of Trustees of the Port of Bombay vs. Dilip Kumar
Raghavendranath Nadkarni, AIR 1983 SC 109 = 1983 (1) SCR 828
= (1983) 1 SCC 124].
On this principle, even those who are not citizens of
this country and come here merely as tourists or in any
other capacity will be entitled to the protection of their
lives in accordance with the Constitutional provisions.
They also have a right to "Life" in this country. Thus,
they also have the right to live, so long as they are here,
with human dignity. Just as the State is under an
obligation to protect the life of every citizen in this
country, so also the State is under an obligation to protect
the life of the persons who are not citizens.
The Rights guaranteed under Part III of the
Constitution are not absolute in terms. They are subject to
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reasonable restrictions and, therefore, in case of non-
citizen also, those Rights will be available subject to such
restrictions as may be imposed in the interest of the
security of the State or other important considerations.
Interest of the Nation and security of the State is supreme.
Since 1948 when the Universal Declaration was adopted till
this day, there have been many changes - political, social
and economic while terrorism has disturbed the global
scenario. Primacy of the interest of Nation and the
security of State will have to be read into the Universal
Declaration as also in every Article dealing with
Fundamental Rights, including Article 21 of the Indian
Constitution.
It has already been pointed out above that this Court
in Bodhisatwa’s case (supra) has already held that "rape"
amounts to violation of the Fundamental Right guaranteed to
a woman under Article 21 of the Constitution.
Now, Smt. Hanuffa Khatoon, who was not the citizen of
this country but came here as a citizen of Bangladesh was,
nevertheless, entitled to all the constitutional rights
available to a citizen so far as "Right to Life" was
concerned. She was entitled to be treated with dignity and
was also entitled to the protection of her person as
guaranteed under Article 21 of the Constitution. As a
national of another country, she could not be subjected to a
treatment which was below dignity nor could she be subjected
to physical violence at the hands of Govt. employees who
outraged her modesty. The Right available to her under
Article 21 was thus violated. Consequently, the State was
under the Constitutional liability to pay compensation to
her. The judgment passed by the Calcutta High Court,
therefore, allowing compensation to her for having been
gang-raped, cannot be said to suffer from any infirmity.
Learned counsel for the appellants then contended that
the Central Govt. cannot be held vicariously liable for the
offence of rape committed by the employees of the Railways.
It was contended that the liability under the Law of Torts
would arise only when the act complained of was performed in
the course of official duty and since rape cannot be said to
be an official act, the Central Govt. would not be liable
even under the Law of Torts. The argument is wholly bad and
is contrary to the law settled by this Court on the question
of vicarious liability in its various decisions.
In State of Rajasthan vs. Mst. Vidhyawati AIR 1962
SC 933, it was held that the Govt. will be vicariously
liable for the tortious act of its employees. This was a
case where a claim for damages was made by the heirs of a
person who died in an accident caused by the negligence of
the driver of a Govt. vehicle. Reference may also be made
to the decisions of this Court in State of Gujarat vs.
Memon Mahomed Haji Hasan AIR 1967 SC 1885 and Smt. Basava
Kom Dyamogouda Patil vs. State of Mysore AIR 1977 SC 1749.
These principles were reiterated in N. Nagendra Rao & Co.
vs. State of A.P. AIR 1994 SC 2663 = (1994) 6 SCC 205 and
again in State of Maharashtra vs. Kanchanmala Vijaysing
Shirke, 1995 ACJ 1021 (SC) = (1995) 5 SCC 659 = JT 1995 (6)
SC 155. Reliance placed by the counsel for the appellants
on the decision of this Court in Kasturi Lal Ralia Ram Jain
vs. State of U.P. AIR 1965 SC 1039 = 1965 (1) SCR 375
cannot help him as this decision has not been followed by
this Court in the subsequent decisions, including the
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decisions in State of Gujarat vs. Memon Mahomed Haji Hasan
and Smt. Basava Kom Dyamogouda Patil vs. State of Mysore
(supra). The decision in Kasturi Lal’s case was also
severely criticised by Mr. Seervai in his prestigious book
- Constitutional Law of India. A Three- Judge Bench of this
Court in Common Cause, A Regd. Society vs. Union of India
(1999) 6 SCC 667 also did not follow the decision in Kasturi
Lal’s case (supra) and observed that the efficacy of this
decision as a binding precedent has been eroded.
The theory of Sovereign power which was propounded in
Kasturi Lal’s case has yielded to new theories and is no
longer available in a welfare State. It may be pointed out
that functions of the Govt. in a welfare State are
manifold, all of which cannot be said to be the activities
relating to exercise of Sovereign powers. The functions of
the State not only relate to the defence of the country or
the administration of justice, but they extend to many other
spheres as, for example, education, commercial, social,
economic, political and even marital. These activities
cannot be said to be related to Sovereign power.
Running of Railways is a commercial activity.
Establishing Yatri Niwas at various Railway Stations to
provide lodging and boarding facilities to passengers on
payment of charges is a part of the commercial activity of
the Union of India and this activity cannot be equated with
the exercise of Sovereign power. The employees of the Union
of India who are deputed to run the Railways and to manage
the establishment, including the Railway Stations and Yatri
Niwas, are essential components of the Govt. machinery
which carries on the commercial activity. If any of such
employees commits an act of tort, the Union Govt., of which
they are the employees, can, subject to other legal
requirements being satisfied, be held vicariously liable in
damages to the person wronged by those employees. Kasturi
Lal’s decision, therefore, cannot be pressed in aid.
Moreover, we are dealing with this case under Public Law
domain and not in a suit instituted under Private Law domain
against persons who, utilising their official position, got
a room in the Yatri Niwas booked in their own name where the
act complained of was committed.
No other point was raised before us. The appeal
having no merit is dismissed with the observation that the
amount of compensation shall be made over to the High
Commissioner for Bangladesh in India for payment to the
victim, Smt. Hanuffa Khatoon. The payment to the High
Commissioner shall be made within three months. There will
be no order as to costs.