Chairman, Railway Board v. Mrs. Chandrima Das

A Bangladeshi woman was gang-raped by men including Railway employees at the Yatri Niwas of Howrah Station. An advocate filed a writ petition in the Calcutta High Court, which awarded Rs 10 lakhs. The Supreme Court upheld the award and held that Article 21 protects non-citizens, that a public interest petition was maintainable, and that the Union is vicariously liable.

Quick Revision

Read the full judgment: Indian Kanoon (unofficial copy)

Parties

The Chairman, Railway Board and others — appellants; the Railway authorities of the Union of India, as named in the appeal title.

Mrs. Chandrima Das — respondent; petitioner in the writ petition; a practising advocate of the Calcutta High Court who filed the writ petition in public interest.

Smt. Hanuffa Khatoon — the victim; a Bangladeshi national and an elected representative of a Union Board in Bangladesh, who was going to Ajmer Sharif. The judgment spells her name Hanufa Khatun, Hanuffa Khatoon and Hanufa.

State of West Bengal and its officers; the Deputy High Commissioner, Republic of Bangladesh — respondents in the writ petition, along with railway and police officers.

Procedural History

1. G.R.P.S. Case No. 19/98 was registered on 27 February 1998 about the incident (Saghir Ahmad, J.).
2. Mrs. Chandrima Das filed a petition under Article 226 of the Constitution in the Calcutta High Court. She claimed compensation for the victim and other reliefs, including a direction to eradicate anti-social and criminal activities at Howrah Railway Station (Saghir Ahmad, J.).
3. The High Court awarded Rs 10 lacs as compensation, since the rape was committed in a building belonging to the Railways by Railway employees (Saghir Ahmad, J.).
4. The Railway authorities appealed to this Court. Leave was granted. The Court decided the appeal on 28 January 2000 (Saghir Ahmad, J.).

Facts

1. Hanufa Khatun, an elected representative of the Union Board in Bangladesh, reached Calcutta on 24 February 1998 and stayed at a hotel at 10, Sudder Street. On 26 February 1998 at about 14.00 hours she came to Howrah Station to take the Jodhpur Express at 23.00 hours for a visit to Ajmer Sharif (Saghir Ahmad, J.).
2. She had a wait-listed ticket. A Train Ticket Examiner asked her to wait in the Ladies Waiting Room (Saghir Ahmad, J.).
3. At about 17.00 hours two persons approached her: Ashoke Singh, a tout who posed as influential in the Railway, and Siya Ram Singh, a ticket broker. They took her ticket and returned it with a confirmed berth, Coach S-3 (Berth No. 17) (Saghir Ahmad, J.).
4. At about 20.00 hours Siya Ram Singh returned with a boy, Kashi. She went with him to an eating house at about 21.00 hours and vomited after her meal (Saghir Ahmad, J.).
5. At about 21.00 hours Ashoke Singh came with Rafi Ahmed, a Parcel Supervisor at Howrah Station. The lady attendants certified their credentials, and she went with them to Yatri Niwas. Sitaram Singh, an electric department khalasi, joined them (Saghir Ahmad, J.).
6. She was taken to room No. 102 on the first floor, booked in Ashoke Singh's name on Railway Card pass No. 3638 since 25 February 1998. Two others, Lalan Singh, a Parcel Clerk, and Awdesh Singh, a Parcel Clearing Agent, waited there (Saghir Ahmad, J.).
7. Awdesh Singh bolted the room from outside and stood guard. Ashoke, Lalan, Rafi and Sitaram took liquor in the room and forced her to drink. All four violated her (Saghir Ahmad, J.).
8. She escaped to the platform and met Siya Ram Singh, who pretended to be her saviour and abused and slapped Ashoke Singh. The Jodhpur Express had left (Saghir Ahmad, J.).
9. Siya Ram took her with Ram Samiram Sharma to a rented flat at 66, Pathuriaghata Street, Jorabagan. There Siya Ram raped her, and they gagged her mouth and nostrils, intending to kill her. She bled profusely (Saghir Ahmad, J.).
10. Jorabagan Police rescued her after the landlord reported the hue and cry (Saghir Ahmad, J.).
11. The Railways and the Union of India admitted that the main accused were Railway employees and that, if the prosecution version was proved, they were perpetrators of gang rape (Saghir Ahmad, J.).

Issues Raised

1. Could a claim for compensation for rape be entertained under Article 226 in Public Law, or must the victim sue in Private Law?
2. Did Mrs. Chandrima Das, an advocate unconnected with the victim, have locus standi?
3. Was Hanuffa Khatoon, a foreign national, entitled to relief for violation of Fundamental Rights?
4. Are the Railways or the Union of India vicariously liable for a rape committed by Railway employees?

Arguments Contended

For the appellants (Railway Board and others):

• Smt. Hanuffa Khatoon, a foreigner and not an Indian national, could not claim compensation from the Railways.
• Commission of the offence by persons would not make the Railways or the Union liable. They alone should be prosecuted, punished and may be made to pay fine or compensation.
• The Railways or the Union would not be vicariously liable. The liability under the law of torts arises only for acts in the course of official duty, and rape is not an official act.
• The remedy for damages lay in Private Law, so no compensation could be awarded in a proceeding under Article 226. The victim should have sued, so that the facts and the ingredients of a tort could be examined on evidence.
• Mrs. Chandrima Das, a practising advocate not connected with the victim, had no locus standi.
• Fundamental Rights under Part III are available only to citizens. A Bangladeshi national could not complain of their violation.
• Reliance was placed on Kasturi Lal Ralia Ram Jain v. State of U.P. (AIR 1965 SC 1039).

For the respondent (Mrs. Chandrima Das): the judgment does not set out counsel's submissions for the respondents separately. It records that the High Court found the rape committed at the Railways' building by Railway employees, and awarded compensation.

Court's Reasoning

The judgment is by S. Saghir Ahmad, J. for the Bench of R.P. Sethi and S. Saghir Ahmad, JJ. The judgment has no numbered paragraphs, so each step ends with the judge's name.

Saghir Ahmad, J. (for the Bench)

The case and the contentions

1. Noted: The Court sets out the facts as stated by the High Court. The Railways and the Union admitted that the main accused were Railway employees. (Saghir Ahmad, J.)
2. Noted: The High Court awarded Rs 10 lacs because the rape was committed in a Railway building by Railway employees. (Saghir Ahmad, J.)
3. Noted: In this appeal the Court is not concerned with the High Court's many other directions. The only question argued was whether the Railways are liable to compensate a foreigner. (Saghir Ahmad, J.)
4. Noted: The appellants argued that the Railways would not be vicariously liable, that the remedy lay in Private Law, and that an advocate could not file the petition. (Saghir Ahmad, J.)

Public Law and Private Law

1. Noted: Common Cause v. Union of India ((1999) 6 SCC 667), a Three-Judge Bench, said that under Article 226 the High Court may issue writs for Fundamental Rights and for any other purpose, including enforcement of public duties. It said that public law resolves disputes between citizens and the State or public bodies. It does so to maintain the rule of law. (Saghir Ahmad, J.)
2. Noted: Every executive action of the State or a body under Article 12 that is arbitrary, unreasonable or contrary to law is amenable to writ jurisdiction. (Saghir Ahmad, J.)
3. Noted: Common Cause also said Article 226 lets the High Court issue writs in the nature of Mandamus, Certiorari, Prohibition, Quo-Warranto and Habeas Corpus. Article 32 lets this Court issue prerogative writs for Fundamental Rights. With the expanding horizon of Article 14, every executive action of the Government or its instrumentalities is open to judicial scrutiny. (Saghir Ahmad, J.)
4. Noted: LIC v. Escorts Ltd. ((1986) 1 SCC 264) said the frontier between public law and private law cannot be drawn with precision. It must be decided in each case by the action, the activity, the character of the action and other circumstances. (Saghir Ahmad, J.)
5. Noted: A petition under Article 226 on a contractual matter was first held not to lie. The law changed by later decisions, and even a petition that essentially relates to a contract is now amenable to the writ jurisdiction of the High Court. (Saghir Ahmad, J.)
6. Noted: Public Law remedies have been extended to the realm of tort. This Court has awarded compensation under Article 32 for personal injuries caused by government officers, beginning with Rudul Sah v. State of Bihar ((1983) 4 SCC 141). (Saghir Ahmad, J.)
7. Noted: The Court lists cases where compensation was awarded in Public Law: Bhim Singh, People's Union for Democratic Rights (two cases), Saheli, Arvinder Singh Bagga, P. Rathinam, Sawinder Singh Grover, Inder Singh and D.K. Basu. (Saghir Ahmad, J.)
8. Noted: For custodial deaths and medical negligence, compensation was awarded in Nilabati Behera, Shyam Sunder Trivedi, People's Union for Civil Liberties, Kaushalya, Supreme Court Legal Aid Committee, Dr. Jacob George, Paschim Banga Khet Mazdoor Samity and Manju Bhatia. (Saghir Ahmad, J.)
9. Held: The contention that the victim should have sued in a civil court cannot be accepted. "the remedy would still be available under the Public Law notwithstanding that a suit could be filed for damages under Private Law". (Saghir Ahmad, J.)
10. Noted: Bodhisatwa v. Ms. Subdhra Chakroborty ((1996) 1 SCC 490) held that rape is a crime against the entire society and against basic human rights. It violates the right to life, including the right to live with human dignity, under Article 21. (Saghir Ahmad, J.)
11. Held: Here the case involves violation of Fundamental Rights and not a mere ordinary right, since the victim was raped. (Saghir Ahmad, J.)
12. Held: The contention that a petition in Public Law was not maintainable is rejected. (Saghir Ahmad, J.)

Locus standi

1. Held: The contention that Mrs. Chandrima Das had no locus standi rests on a misconception. Her petition sought many reliefs beyond compensation, including eradicating anti-social and criminal activities at Howrah Station. Its true nature was a public interest petition. (Saghir Ahmad, J.)
2. Noted: A legal right is the foundation of a petition under Article 226, and even a bare interest may give locus standi. Dr. Satyanarayana Sinha v. S. Lal and Co. Pvt. Ltd. (AIR 1973 SC 2720) held the foundation is ordinarily the petitioner's own right. The rule is relaxed in habeas corpus and quo warranto. (Saghir Ahmad, J.)
3. Noted: S.P. Gupta v. Union of India (AIR 1982 SC 149) gave a wider meaning to locus standi. It held that practising lawyers have a vital interest in the independence of the judiciary. They are interested in challenging the validity or constitutionality of an action of the State or a public authority that impairs that independence. (Saghir Ahmad, J.)
4. Noted: It also said the lawyers' profession is an essential and integral part of the judicial system. Lawyers are figuratively priests in the temple of justice and equal partners with the Judges in the administration of justice. They have a special interest in the integrity and independence of the system. (Saghir Ahmad, J.)
5. Noted: It held that lawyers, individually or through Lawyers' Associations, have locus standi to challenge the circular letter of the Union Law Minister to the Governors and Chief Ministers. The letter directed that one third of the Judges of a High Court should, as far as possible, be from outside the State. (Saghir Ahmad, J.)
6. Noted: In Public Interest Litigation the Court has given the widest amplitude to locus standi. People's Union for Democratic Rights v. Union of India ((1982) 3 SCC 235) held that PIL may be started by letters and telegrams. (Saghir Ahmad, J.)
7. Noted: The Court cites Bandhua Mukti Morcha, State of Himachal Pradesh v. Student's Parent Medical College and Bangalore Medical Trust v. B.S. Muddappa ((1991) 4 SCC 54). The last held the narrow view of aggrieved person has yielded to a broad construction, and public-spirited citizens cannot be ignored on technical grounds. (Saghir Ahmad, J.)
8. Held: There has been a spectacular expansion of locus standi. It takes in anyone who is not a mere busy-body. (Saghir Ahmad, J.)
9. Held: Given the nature of the petition, it was filed in public interest, and the argument that nothing personal to Mrs. Chandrima Das was involved is rejected. (Saghir Ahmad, J.)

Fundamental Rights of a foreign national

1. Noted: The appellants argued that Part III rights are available only to citizens, and that a Bangladeshi national could not complain. (Saghir Ahmad, J.)
2. Held: This argument fails for two reasons: domestic jurisprudence based on the Constitution, and human rights jurisprudence based on the Universal Declaration of Human Rights, 1948, adopted by the General Assembly. (Saghir Ahmad, J.)
3. Noted: The Declaration has international recognition as the Moral Code of Conduct, adopted by the UN General Assembly. The Court first considers it and takes domestic jurisprudence later. (Saghir Ahmad, J.)
4. Noted: The Court quotes the preamble of the Declaration, which recognises inherent dignity and equal and inalienable rights. It also quotes Articles 1, 2, 3, 5, 7 and 9. They cover equality and dignity, and no distinction by national or social origin. They also cover life and liberty, no torture, equal protection and no arbitrary arrest. (Saghir Ahmad, J.)
5. Noted: The preamble also says disregard of human rights led to barbarous acts, and that freedom from fear and want is the highest aspiration. It notes friendly relations between nations, the Charter's faith in the dignity and worth of the human person and the equal rights of men and women, and the pledge of Member States. (Saghir Ahmad, J.)
6. Noted: Article 1 of the Declaration on the Elimination of Violence against Women (20 December 1993) defines violence against women. Article 2 includes physical, sexual and psychological violence in the family, in the general community including rape and sexual harassment, and by or with the State's condonation. Article 3 gives women equal enjoyment of human rights, including life, equality and liberty and security. (Saghir Ahmad, J.)
7. Noted: Article 1 of that Declaration covers gender-based violence causing physical, sexual or psychological harm, including threats, coercion or arbitrary deprivation of liberty, in public or private life. Article 2 lists three groups. In the family: battering, sexual abuse of female children, dowry-related violence, marital rape, female genital mutilation and other harmful traditional practices, non-spousal violence and violence related to exploitation. In the general community: rape, sexual abuse, sexual harassment and intimidation at work and in educational institutions, trafficking in women and forced prostitution. Third, violence perpetrated or condoned by the State, wherever it occurs. (Saghir Ahmad, J.)
8. Noted: International covenants adopted by the United Nations must be respected by signatory States. The Declaration may have to be read, if need be, into domestic jurisprudence. Lord Diplock in Salomon v. Commissioners of Customs and Excise ([1996] 3 All ER 871, as printed) and Lord Bridge in Brind v. Secretary of State for the Home Department ([1991] 1 All ER 720) said there is a presumption that Parliament does not intend to breach international law. (Saghir Ahmad, J.)
9. Noted: Lord Diplock said there is a prima facie presumption that Parliament does not intend to breach international law, including specific treaty obligations. Lord Bridge said that where a domestic provision is ambiguous and can conform to or conflict with an international convention, courts presume Parliament meant to conform. (Saghir Ahmad, J.)
10. Noted: The Judicial Colloquia at Bangalore (1988), Zimbabwe (1994), Hong Kong (1996) and Guyana (1997) considered domestic application of human rights norms, especially for women. The Zimbabwe Declaration 1994 says judges have a duty to familiarise themselves with international human rights jurisprudence. (Saghir Ahmad, J.)
11. Noted: The Colloquia later affirmed that it is the vital duty of an independent judiciary to interpret and apply national constitutions in the light of those principles. The Zimbabwe Declaration also mentions the expanding material on protecting and promoting the human rights of women. (Saghir Ahmad, J.)
12. Noted: This situation may not really arise in India. The Constitution guarantees the basic human rights of the Universal Declaration to citizens and other persons. Part III is meant to place rights beyond the reach of political parties. (Saghir Ahmad, J.)
13. Noted: Some Fundamental Rights are for citizens and some for persons. Article 14 applies to persons, including non-citizens. Articles 15 and 16 speak only of citizens, and Article 19's basic freedoms are available only to citizens. (Saghir Ahmad, J.)
14. Noted: Article 14 guarantees equality before law or equal protection of the laws within India, and applies to any person, citizen and non-citizen both. Article 15 bars discrimination against a citizen on grounds only of religion, race, caste, sex or place of birth, including in access to shops, restaurants, hotels, places of entertainment, wells, tanks, ghats, roads and places of public resort. Article 16 gives equality of opportunity in public employment to citizens only. (Saghir Ahmad, J.)
15. Noted: The Court cites State Trading Corporation of India v. Commercial Tax Officer (AIR 1963 SC 1811), Hans Muller of Nurenburg v. Superintendent Presidency Jail (AIR 1955 SC 367) and Anwar v. State of J&K ((1971) 3 SCC 104). It also cites Naziranbai v. State (AIR 1957 M.B. 1), Lakshmi Prasad v. Shiv Pal (AIR 1974 All 313) and Sk. Md. Soleman v. State of West Bengal (AIR 1965 Cal 312). Naziranbai and Lakshmi Prasad say Article 19 does not apply to a foreigner. Soleman says it does not apply to a Commonwealth citizen. (Saghir Ahmad, J.)
16. Noted: The word citizen in Article 19 is not used in a sense different from Part II on citizenship. State Trading Corporation held that all citizens was used deliberately to keep out non-citizens, including aliens. Hans Muller held that Article 19 applies only to citizens, and Anwar that a non-citizen cannot claim Article 19 rights. Article 19 covers speech and expression, peaceful assembly, associations, free movement, residence anywhere in India, and any profession, occupation, trade or business. (Saghir Ahmad, J.)
17. Noted: Anwar held that Articles 20, 21 and 22 are available to persons, not only citizens. Article 20 protects against conviction, Article 21 life and personal liberty, and Article 22 against arbitrary arrest. They match Articles 3, 7 and 9 of the Declaration. (Saghir Ahmad, J.)
18. Noted: Fundamental Rights are almost in consonance with the Declaration and the Covenants, which India has ratified, as Kubic Darusz v. Union of India ((1990) 1 SCC 568) said. (Saghir Ahmad, J.)
19. Held: Since life is also a basic human right in the Declaration, it has the same meaning as under Article 21. Article 21 is available to every citizen and to a person who is not a citizen. (Saghir Ahmad, J.)
20. Noted: Life means more than animal existence, as Kharak Singh v. State of U.P. (AIR 1963 SC 1295) held. The Court also cites State of Maharashtra v. Chandrabhan Tale, Bandhua Mukti Morcha (right to live with dignity, free from exploitation), Maneka Gandhi and the Port of Bombay Trustees case (Dilip Kumar Raghavendranath Nadkarni). (Saghir Ahmad, J.)
21. Noted: The meaning of life cannot be narrowed down. Article 21's bar on deprivation extends even to the faculties by which life is enjoyed. By the tenor of Article 21 it is available to every citizen and to a person who is not a citizen. (Saghir Ahmad, J.)
22. Held: Even those who come to India merely as tourists are "entitled to the protection of their lives in accordance with the Constitutional provisions". They have the right to live with human dignity, and the State must protect their lives as it protects citizens. (Saghir Ahmad, J.)
23. Held: Part III rights are not absolute. They are subject to reasonable restrictions, also for non-citizens, in the interest of the security of the State. The interest of the nation and security of the State is supreme. (Saghir Ahmad, J.)
24. Held: Many changes, political, social and economic, have come since 1948, and terrorism has disturbed the global scenario. The primacy of the interest of the nation and security of the State must be read into the Declaration and into every Article on Fundamental Rights, including Article 21. (Saghir Ahmad, J.)
25. Held: Smt. Hanuffa Khatoon, though a Bangladeshi, was entitled to the constitutional right to life. She could not be subjected to treatment below dignity or to physical violence by government employees. Article 21 was violated. (Saghir Ahmad, J.)
26. Noted: She was entitled to all the constitutional rights of a citizen as far as the right to life was concerned. She could not be subjected to physical violence by government employees who outraged her modesty. (Saghir Ahmad, J.)
27. Held: The State was under a constitutional liability to pay her compensation. The High Court's judgment allowing compensation suffers from no infirmity. (Saghir Ahmad, J.)

Vicarious liability and sovereign immunity

1. Noted: The appellants argued that the Central Government cannot be held vicariously liable, since rape is not an official act. (Saghir Ahmad, J.)
2. Held: "The argument is wholly bad and is contrary to the law settled by this Court". (Saghir Ahmad, J.)
3. Noted: State of Rajasthan v. Mst. Vidhyawati (AIR 1962 SC 933) held the Government vicariously liable for a tortious act of its employee. The claim was by the heirs of a person who died in an accident caused by the negligence of a Government vehicle driver. State of Gujarat v. Memon Mahomed Haji Hasan (AIR 1967 SC 1885) and Smt. Basava Kom Dyamogouda Patil v. State of Mysore (AIR 1977 SC 1749) are referred to. (Saghir Ahmad, J.)
4. Noted: These principles were reiterated in N. Nagendra Rao and Co. v. State of A.P. ((1994) 6 SCC 205) and State of Maharashtra v. Kanchanmala Vijaysing Shirke ((1995) 5 SCC 659). (Saghir Ahmad, J.)
5. Held: Kasturi Lal Ralia Ram Jain v. State of U.P. (AIR 1965 SC 1039) cannot help the appellants. Later decisions did not follow it. Mr. Seervai severely criticised it in his Constitutional Law of India. Common Cause did not follow it and observed that the efficacy of that decision as a binding precedent has been eroded. (Saghir Ahmad, J.)
6. Held: The theory of sovereign power propounded in Kasturi Lal has yielded to new theories and is "no longer available in a welfare State". The functions of the Government extend to education, commercial, social and economic spheres, which are not sovereign. (Saghir Ahmad, J.)
7. Held: "Running of Railways is a commercial activity". Establishing a Yatri Niwas for lodging on payment of charges is also commercial, and is not an exercise of sovereign power. (Saghir Ahmad, J.)
8. Held: The employees deputed to run the Railways and Yatri Niwas are essential components of the Government machinery carrying on the commercial activity. If one of them commits a tort, the Union can, subject to other legal requirements, be held vicariously liable in damages. (Saghir Ahmad, J.)
9. Held: Kasturi Lal cannot be pressed in aid. Also, the case is under the Public Law domain and not a Private Law suit against persons who used their official position to book a room in their own name where the act was committed. (Saghir Ahmad, J.)
10. Noted: No other point was raised. (Saghir Ahmad, J.)
11. Held: The appeal has no merit and is dismissed. The compensation is to be paid to the High Commissioner for Bangladesh in India for payment to the victim, within three months, with no order as to costs. (Saghir Ahmad, J.)

Authorities

• Common Cause v. Union of India ((1999) 6 SCC 667): public law scope of Articles 226 and 32; did not follow Kasturi Lal. Followed.
• Life Insurance Corporation of India v. Escorts Ltd. ((1986) 1 SCC 264): no precise line between public and private law. Noted.
• Rudul Sah v. State of Bihar ((1983) 4 SCC 141): compensation under Article 32. Noted as the start of the line.
• Compensation cases under Public Law: Bhim Singh v. State of J&K ((1985) 4 SCC 577); People's Union for Democratic Rights v. State of Bihar ((1987) 1 SCC 265); People's Union for Democratic Rights v. Police Commissioner, Delhi ((1989) 4 SCC 730); Saheli v. Commissioner of Police, Delhi ((1990) 1 SCC 422); Arvinder Singh Bagga v. State of U.P. ((1994) 6 SCC 565); P. Rathinam v. Union of India ((1989) Supp. 2 SCC 716); In Re: Death of Sawinder Singh Grover ((1995) Supp. (4) SCC 450); Inder Singh v. State of Punjab ((1995) 3 SCC 702); D.K. Basu v. State of West Bengal ((1997) 1 SCC 416).
• Custodial death and medical negligence cases: Nilabati Behera v. State of Orissa ((1993) 2 SCC 746); State of M.P. v. Shyam Sunder Trivedi ((1995) 4 SCC 262); People's Union for Civil Liberties v. Union of India ((1997) 3 SCC 433); 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 Kerala ((1994) 3 SCC 430); Paschim Banga Khet Mazdoor Samity v. State of West Bengal ((1996) 4 SCC 37); Mrs. Manju Bhatia v. N.D.M.C. ((1997) 6 SCC 370).
• Bodhisatwa v. Ms. Subdhra Chakroborty ((1996) 1 SCC 490): rape violates Article 21. Followed.
• Locus standi cases: Dr. Satyanarayana Sinha v. S. Lal and Co. ((1973) 2 SCC 696); S.P. Gupta v. Union of India ((1981) Supp. SCC 87); People's Union for Democratic Rights v. Union of India ((1982) 3 SCC 235); Bandhua Mukti Morcha v. Union of India ((1984) 3 SCC 161); State of Himachal Pradesh v. Student's Parent Medical College ((1985) 3 SCC 169); Bangalore Medical Trust v. B.S. Muddappa ((1991) 4 SCC 54).
• International law cases: Salomon v. Commissioners of Customs and Excise ([1996] 3 All ER 871, as printed); Brind v. Secretary of State for the Home Department ([1991] 1 All ER 720).
• Citizens and persons under Part III: State Trading Corporation of India v. Commercial Tax Officer (AIR 1963 SC 1811); Hans Muller of Nurenburg v. Superintendent Presidency Jail (AIR 1955 SC 367); Anwar v. State of J&K ((1971) 3 SCC 104); Naziranbai v. State (AIR 1957 M.B. 1); Lakshmi Prasad v. Shiv Pal (AIR 1974 All 313); Sk. Md. Soleman v. State of West Bengal (AIR 1965 Cal 312); Kubic Darusz v. Union of India ((1990) 1 SCC 568).
• Meaning of life: Kharak Singh v. State of U.P. (AIR 1963 SC 1295); State of Maharashtra v. Chandrabhan Tale ((1983) 3 SCC 387); Maneka Gandhi v. Union of India ((1978) 1 SCC 248); Board of Trustees of the Port of Bombay v. Dilip Kumar Raghavendranath Nadkarni ((1983) 1 SCC 124).
• Vicarious liability of the State: State of Rajasthan v. Mst. Vidhyawati (AIR 1962 SC 933); State of Gujarat v. Memon Mahomed Haji Hasan (AIR 1967 SC 1885); Smt. Basava Kom Dyamogouda Patil v. State of Mysore (AIR 1977 SC 1749); N. Nagendra Rao and Co. v. State of A.P. ((1994) 6 SCC 205); State of Maharashtra v. Kanchanmala Vijaysing Shirke ((1995) 5 SCC 659).
• Kasturi Lal Ralia Ram Jain v. State of U.P. (AIR 1965 SC 1039): the sovereign power theory. Not followed in later decisions, and its efficacy as precedent is eroded. Cited by the appellants.
• Other sources: the Universal Declaration of Human Rights, 1948; the Declaration on the Elimination of Violence against Women, 1993; the Zimbabwe Declaration, 1994; the Bangalore Judicial Colloquia; Mr. Seervai, Constitutional Law of India.
• Full names in the source, in v. form: Railway Board & Ors v. Mrs. Chandrima Das & Ors; Bhim Singh v. State of Jammu & Kashmir; People's Union for Democratic Rights Thru. Its Secy. v. Police Commissioner, Delhi Police Headquarters; SAHELI, A Woman's Resources Centre v. Commissioner of Police, Delhi; State Trading Corporation of India Ltd. v. The Commercial Tax Officer and Others; Lakshmi Prasad & Anr. v. Shiv Pal & Others.
• Names as spelt in the source text: The Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors (case title); Common Cause, A Regd. Society vs. Union of India & Ors.; Life Insurance Corporation of India vs. Escorts Limited & Ors.; Rudul Sah vs. State of Bihar; Bhim Singh vs. State of Jammu & Kashmir; People's Union for Democratic Rights vs. State of Bihar; Arvinder Singh Bagga vs. State of U.P.; In Re: Death of Sawinder Singh Grower; Inder Singh vs. State of Punjab; D.K. Basu vs. State of West Bengal; Nilabati Behera vs. State of Orissa; Paschim Bangal Khet Mazdoor Samity vs. State of West Bengal & Ors.; Mrs. Manju Bhatia vs. N.D.M.C.; Bodhisatwa vs. Ms. Subdhra Chakroborty; Dr. Satyanarayana Sinha vs. S. Lal & Co. Pvt. Ltd.; S.P. Gupta & Ors. vs. Union of India & Ors.; Bandhua Mukti Morcha vs. Union of India & Ors.; State of Himachal Pradesh vs. Student's Parent Medical College, Shimla & Ors.; Bangalore Medical Trust vs. B.S. Muddappa and Ors.; Salomon v. Commissioners of Customs and Excise; Brind v. Secretary of State for the Home Department; State Trading Corporation of India Ltd. vs. The Commercial Tax Officer and Others; Hans Muller of Nurenburg vs. Superintendent Presidency Jail Calcutta; Anwar vs. State of J & K; Kubic Darusz vs. Union of India & Ors.; Kharak Singh vs. State of U.P.; State of Maharashtra vs. Chandrabhan Tale; Maneka Gandhi vs. U.O.I.; State of Rajasthan vs. Mst. Vidhyawati; State of Gujarat vs. Memon Mahomed Haji Hasan; State of Maharashtra vs. Kanchanmala Vijaysing Shirke; Kasturi Lal Ralia Ram Jain vs. State of U.P.

Provisions mentioned

• Article 226, Constitution: the High Court's writ power, used for the petition.
• Article 32, Constitution: the Supreme Court's writ power, under which compensation has been awarded.
• Article 12, Constitution: the definition of State (authority), for judicial review.
• Article 14, Article 15 and Article 16, Constitution: equality before law (persons); non-discrimination and equal opportunity (citizens only).
• Article 19, Constitution: the basic freedoms, available only to citizens.
• Article 20, Article 21 and Article 22, Constitution: protection against conviction; life and personal liberty; protection against arbitrary arrest. Available to persons.
• Part II and Part III, Constitution: citizenship, and Fundamental Rights.
• Articles 1, 2, 3, 5, 7 and 9, Universal Declaration of Human Rights, 1948: dignity and equality; no distinction by origin; life, liberty and security; no torture; equal protection; no arbitrary arrest.
• Articles 1, 2 and 3, Declaration on the Elimination of Violence against Women, 1993: definition of violence against women; its forms; equal enjoyment of human rights.

Judgement

1. The appeal has no merit and is dismissed.
2. The amount of compensation awarded by the High Court (Rs 10 lacs) is to be made over to the High Commissioner for Bangladesh in India, for payment to the victim, Smt. Hanuffa Khatoon.
3. The payment to the High Commissioner must be made within three months.
4. There is no order as to costs.

Legal Principle / Ratio

A public law remedy for compensation is available under Article 226 where public functionaries violate Fundamental Rights, even if a private law suit is possible. Article 21 protects the life and dignity of non-citizens too, and the Union is vicariously liable for torts of Railway employees in a commercial activity. In the Court's words, "the State was under the Constitutional liability to pay compensation to her".

Critical Analysis

Analysis based on the judgment text.

The Court did not formally overrule Kasturi Lal. It said the decision was not followed in later cases, and that Common Cause observed its efficacy as precedent has eroded. It said the sovereign power theory is no longer available in a welfare State. The judgment stops at saying Kasturi Lal cannot be pressed in aid.

The award rests on admitted facts. The Railways and the Union admitted the main accused were Railway employees. The Court did not decide guilt. It said this case is under the Public Law domain and not a Private Law suit against the individuals.

The judgment mixes two grounds for liability. It speaks of the State's constitutional liability under Article 21 and also of vicarious liability in tort. It does not separate the two in fixing the award.

Significance

• The Court held that a foreign national is entitled to the right to life and human dignity under Article 21.
• It held that a public interest petition by an advocate for a stranger is maintainable, and that public law compensation is available.
• It held that running the Railways and Yatri Niwas is commercial, and the Union is vicariously liable for its employees' torts.
• It said the Universal Declaration of Human Rights may have to be read into domestic jurisprudence if need be, and held that life in Article 21 has the meaning it has in the Declaration.

Exam-Important Points

• Facts in one line: a Bangladeshi woman was gang-raped by Railway employees at Howrah Yatri Niwas. The Court upheld Rs 10 lakhs compensation.
• Rule: Article 21 protects non-citizens. Articles 20, 21 and 22 are for persons. Articles 15, 16 and 19 are for citizens only.
• Rule: public law compensation is available under Article 226 even if a private law suit is possible.
• Rule: the Union is vicariously liable for torts of employees in a commercial activity, and sovereign immunity does not apply.
• Trap: Kasturi Lal was not followed and its efficacy eroded. It was not formally overruled.
• Trap: the compensation is paid through the High Commissioner for Bangladesh, within three months.

Prepared from the full text of the judgment. Paragraph numbers follow the official Supreme Court judgment text; law reports may number the same paragraph differently.