MANU/SC/0046/2000

Equivalent/Neutral Citation: AIR2000SC 988, 2000(2)BLJ483, (2000)3C ALLT44(SC ), 2000 (1) C C C 190 , 2000C riLJ1473, 2000 INSC 38,
JT2000(1)SC 426, 2000(1)KLT655(SC ), (2000)IIMLJ26(SC ), 2000(1)SC ALE279, (2000)2SC C 465, [2000]1SC R480

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 639, of 2000 (Arising out of SLP (C) No. 16439 of 1998)
Decided On: 28.01.2000
The Chairman, Railway Board and Ors. Vs. Chandrima Das and Ors.
Hon'ble Judges/Coram:
Saiyed Saghir Ahmad and R.P. Sethi, JJ.
Counsels:
For Appearing Parties: R.N. Trivedi, K.N. Rawal, Addl. Solicitor Generals and Raju
Ramachandran, Sr. Advs. and Ashok Kumar Srivastava, Sushma Suri, R.N. Verma, D.S.
Mehra, Wasim A. Qadri, Avtar Singh Rawat, A. Subhashini, Naina Kapur, Meenakshi
Arora, Priya Rao, Naila Ansan and A.K. Thiruvengadam, Advs,
Case Note:
Constitution - right to life - Article 21 of Constitution of India - whether right
to life extends to foreign citizens - whether Government of India can be made
vicariously liable to compensate for offence of rape committed by it's
employees - foreign citizens are entitled to protection under Article 21 -
offence of rape is violation of fundamental right to life - constitutional
liability to pay compensation arises where rape is committed with foreign
national by employees of Government abusing their authority.
JUDGMENT
Saiyed Saghir Ahmad, J.
1. Leave granted,
2. Mrs. Chandrima Das, a practicing 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.
3. 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
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 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 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 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 Ashoka 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 2] ,00 hours she went to a nearby eating house with Kashi and had her
meal there. Soon after she had taken her meal, she vomited and came back to
the Ladies Waiting room. At about 21.00 hours Ashoke Singh along with Rafl
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 something 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, Raft 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 savior 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 fiat 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
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 Jorabagan Police.
4. 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.
5. 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 practicing advocate who, in no way, was concerned or connected with
the victim.
6 . 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.
7. The distinction between "Public Law" and "Private Law" was considered by a Three-
Judge Bench of this Court in Common Cause. A Regd. Society v. Union of India
MANU/SC/0437/1999 : [1999]3SCR1279 , in which it was, inter alia, observed as
under (Paras 38 and 39 of AIR):
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 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

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 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.
8 . The earlier decision, namely, Life Insurance Corporation of India v. Escorts Limited
MANU/SC/0015/1985 : 1986(8)ECC189 , in which it was observed as under:
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 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.
9 . 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 v. State of Bihar MANU/SC/0380/1983 : 1983CriL J1644 .
[See also Bhim Singh v. State of Jammu and Kashmir MANU/SC/0064/1985 :
1986CriL J192 ; People's Union for Democratic Rights v. State of Bihar
MANU/SC/0104/1986 : 1987CriL J528 ; People's Union for Democratic Rights Thru. Its
Secy. v. Police Commissioner, Delhi Police Headquarters MANU/SC/0409/1989 :
(1989)4SCC730 ; Saheli, A Women's Resources center v. Commissioner of Police, Delhi
MANU/SC/0478/1989 : AIR1990SC513 ; Arvinder Singh Bagga v. State of U.P.
MANU/SC/0025/1995 : AIR1995SC117 ; P. Rathinam v. Union of India ; In Re: Death
of Sawinder Singh Grower (2); Inder Singh v. State of Punjab MANU/SC/0380/1995 :
1995CriL J3235 ; D.K. Basu v. State of West Bengal MANU/SC/0157/1997 :
1997CriLJ743 .
10. In cases relating to custodial deaths and those relating to medical negligence, this
Court awarded compensation under Public Law domain in Nilabati Behera v. State of
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Orissa MANU/SC/0307/1993 : 1993CriL J2899 ; State of M.P. v. Shyam Sunder Trivedi
MANU/SC/0722/1995 : (1995)4SCC262 ; People's Union for Civil Liberties v. Union of
India MANU/SC/0274/1997 : AIR1997SC1203 and Kaushalya v. State of Punjab(1996)
7 SCALE (SP) 13; Supreme Court Legal Aid Committee v. State of Bihar
MANU/SC/0604/1991 : (1991)3SCC482 ; Dr. Jacob George v. State of Kerala
MANU/SC/0684/1994 : 1994CriL J3851 ; PaschimBanga Khet Mazdoor Samity v. State
of West Bengal MANU/SC/0611/1996 : AIR1996SC2426 and Mrs. Manju Bhatia v.
N.D.M.C. MANU/SC/1235/1997 : (1997)6SCC370 :
11. 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.
12. 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 Bodhisattwa v. Ms. Subhra Chakraborty
MANU/SC/0245/1996 : AIR1996SC922 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 (Para 10 of AIR):
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.
13. Rejecting, therefore, the contention of the learned Counsel for the appellants that
the petition under Public Law was not maintainable, we now proceed to his next
contention relating to the locus standi of respondent, Mrs. Chandrima Das, in filing the
petition.
1 4 . The main contention of the learned Counsel for the appellants is that Mrs.
Chandrima Das was only a practicing 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.
1 5 . 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 stand! 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 v. S. Lal and Co. Pvt.

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Ltd. MANU/SC/0039/1973 : [1974]1SCR615 , 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.
16. In S. P. Gupta v. Union of India MANU/SC/0080/1981 : [1982]2SCR365 , the law
relating to locus stand! was explained so as to give a wider meaning to the phrase. This
Court laid down that "practicing 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.
1 7 . 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 v. Union of India MANU/SC/0038/1982 :
(1982)IILL J454SC , it was 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 v.
Union of India MANU/SC/0051/1983 : [1984]2SCR67 and State of Himachal Pradesh v.
Student's Parent Medical College, Shimla MANU/SC/0046/1985 : [1985]3SCR676 on
the right to approach the Court in the realm of Public Interest Litigation). In Bangalore
Medical Trust v. B.S. Muddappa MANU/SC/0426/1991 : [1991]3SCR102 , 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".
18. 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.
1 9 . 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 con tended 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
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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.
20. 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 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 co-operation
with the United Nations, the promotion of universal respect for and observance
of human rights and fundamental freedom.
Whereas a common understanding of these rights and freedom is of the
greatest importance for the full realization of this pledge.
21. 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
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 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.
22. 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 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.
23. In Article 3, it was specified that "women art: entitled 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,
2 4 . 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.
25. 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, Lords
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
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in conflict with it.
26. 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 duly 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 question of domestic application of international
and regional human rights specially in relation to woman, was considered. The
Zimbabwe Declaration 1994, inter alia, stated:
Judges and lawyers have duty to familiarize 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.
27. But this situation may not really arise in our country.
28. 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 center or in the State.
29. 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 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,
hostel and places of public entertainment, or the use of wells, tanks, bathing ghats,
roads and place of public resort on the aforesaid grounds. Fundamental Rights
guaranteed under Article 15 is, therefore, restricted to "citizen". 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 practice any profession, or to carry on
any occupation, trade or business, are available only to "citizens" of the country.
30. 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. v. Commercial Tax Officer
MANU/SC/0038/1963 : [1964]4SCR99 ). 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 v. Superintendent,
Presidency Jail, Calcutta MANU/SC/0074/1955 : 1955CriL J876 , that this Article
applies only to "citizens". In another decision in Anwar v. State of J. & K.
MANU/SC/0084/1970 : [1971]1SCR637 , it was held that non-citizen could not claim
Fundamental Rights under Article 19. In Naziranbai v. State AIR 1957 MB 1 and Lakshim

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Prasad v. Shiv Pal MANU/UP/0080/1974 : AIR1974All313 , it was held that Article 19
does not apply to a "foreigner". The Calcutta High Court in Sk. Mohamed Soleman v.
State of West Bengal MANU/WB/0065/1965 : AIR1965Cal312 , held that Article 19
does not apply to a Commonwealth citizen.
3 1 . In Anwar v. State of J. & K. MANU/SC/0084/1970 : [1971]1SCR637 (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".
3 2 . 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.
33. 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 out by this Court in Kubic Darusz v. Union of
India MANU/SC/0426/1990 : 1990CriL J796 , 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.
34. 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. MANU/SC/0085/1962 : 1963CriL J329 . it
was held that the term "life" indicates something more than mere animal existence.
[See also : State of Maharashtra v. Chandrabhan Tale MANU/SC/0396/1983 :
(1983)IILL J256SC ]. The inhibitions contained in Article 21 against its deprivation
extends even to those faculties by which life is enjoyed. In Bandhua Mukti Morcha v.
U.O.I. MANU/SC/0051/1983 : [1984]2SCR67 , 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.I. MANU/SC/0133/1978 : [1978]2SCR621 and Board of
Trustees of the Port of Bombay v. Dilip Kumar Raghavendranath Nadkarni
MANU/SC/0184/1982 : (1983)ILLJ1SC ].
35. On this principles, 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.
36. The Rights guaranteed under Part III of the Constitution are not absolute in terms.
They are subject to 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

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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.
3 7 . It has already been pointed out above that this Court in Bodhisatwa' s case
( MANU/SC/0245/1996 : AIR1996SC922 ) (supra) has already held that "rape" amounts
to violation of the Fundamental Right guaranteed to a woman under Article 21 of the
Constitution.
38. 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.
39. 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.
40. In State of Rajasthan v. Mst. Vidhyawati MANU/SC/0025/1962 : AIR1962SC933 ,
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 v. Memon Mahomed Haji
Hasan MANU/SC/0016/1967 : [1967]3SCR938and Smt. Basava Kom Dyamagouda
Patil v. State of Mysore MANU/SC/0675/1977 : 1977CriL J1141 . These principles were
reiterated in N. Nagendra Rao & Co. v. State of A.P. MANU/SC/0530/1994 :
AIR1994SC2663 ) and again in State of Maharashtra v. Kanchanmala Vijaysingh Shirke
MANU/SC/0781/1995 : AIR1995SC2499 .
41. Reliance placed by the counsel for the appellants on the decision of this Court in
Kasturi Lal Ralia Ram Jain v. State of U.P. MANU/SC/0086/1964 : (1966)IILL J583SC
cannot help him as this decision has not been followed by this Court in the subsequent
decisions, including the decisions in State of Gujarat v. Memon Mahomed Haji Hasan
MANU/SC/0016/1967 : [1967]3SCR938and Smt. Basava Kom Dayamogouda Patil v.
State of Mysore MANU/SC/0675/1977 : 1977CriL J1141 (supra) . The decision in
Kasturi Lal's case was also severally criticised by Mr. Seervrai in his prestigious book -
Constitutional Law of India. A Three Judge Bench of this Court in Common Cause, a
Regd. Society v. Union of India MANU/SC/0437/1999 : [1999]3SCR1279 also did not
follow the decision in Kasturi Lal's case (supra) and observed that the efficacy of this

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decision as a binding precedent has been eroded.
4 2 . The theory of Sovereign power which was propounded in Kasturi Lal's case
( MANU/SC/0086/1964 : (1966)IILL J583SC ) 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.
43. 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 carriage 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, ( MANU/SC/0086/1964 :
(1966)IILLJ583SC ) , 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.
44. 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.
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