The Chairman, Railway Board & Others vs Mrs. Chandrima Das & Others

Title of the case: The Chairman, Railway Board & Others vs Mrs. Chandrima Das & Others

Citation: 28 January, 2000- 2 SCC 465

Court: Supreme Court of India

Bench: R.P. Sethi, S. Saghir Ahmad

Parties:

Petitioner: The Chairman, Railway Board & Others.

Respondent: Mrs. Chandrima Das & Others. 

Brief Facts:

Mrs. Chandrima Das, a practicing advocate of the Calcutta High Court, filed a petition under Article 226 of the Constitution against the Chairman, claiming compensation for victim Smt. Hanuufa khatoon, a Bangladeshi national who was gang-raped by employees of the Railways.

Smt. Hanuufa Khatoon arrived at Calcutta and was said to wait at Ladies waiting room by a Train ticket examiner for confirmation of her berth ticket. Two man came to her claiming influential person of railway and confirmed her ticket. After that, one of those men came again and told her to accompany a boy to restaurant for food. She went for dinner and came back to ladies’ room again. When 2 another male came to her and asked her to follow her to yatri niwas for resting their which she doubted earlier about them but after getting confirmation by lady attendants, she accompanied them. They took her to room which was booked by the name of Ashoke Singh where already 3 male attendants were present. Hanufa Khatun suspected something amiss when Ashoke Singh forced her into the room. All the four men who were present inside the room brutally violated and raped Hanufa Khatun. 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 condition, he pretended to help her and requested to come to his residence to rest for the night with his wife and children and assured her to help catching the following train as she missed her train while rescuing herself. Thereafter, He took Hanufa Khatoon to a rented flat of his Ashok Singh and raped her. Hearing the voices from the flat landlord of the building rescued her by calling jorabagan police.

Issue:  Will the Railway would be liable to pay compensation to Smt. Hanuffa Khatoon who was a foreigner?

Argument of petitioner

• First contention made is commission of the offense by the person concerned would not make the Railway or the Union of India liable to pay compensation to the victim of the offense. 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 offense 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.
• 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.
• 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.
• The Calcutta High Court in Md. Soleman vs. State of West Bengal and Another, AIR 1965 Calcutta 312, held that Article 19 does not apply to a Commonwealth citizen.
• Learned counsel for the appellants then contended that the Central Govt. cannot be held vicariously liable for the offense 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.

Argument of Respondent:

• 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 offense which is violation of the Fundamental Right of a person guaranteed under Article 21 of the Constitution. therefore, the contention of the learned counsel for the appellants that the petition under Public Law was not maintainable.
• In Anwar vs. State of J & K, AIR 1971, it was held that non-citizen could not claim Fundamental Rights under Articles 20, 21 and 22 are available not only to “citizens” but also to “persons” which would include “non-citizens”.
• 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. 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.
• 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), State of M.P. vs. Shyam Sunder Trivedi (1995), People’s Union for Civil Liberties vs. Union of India (1997) and many more.
• 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. Such as Article 1, 2, 3, 5, 7, 9 which stats that 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, similarly article 15, 16, 19, 20, 21 and 22 supports it too.
• 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 citizen 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.
• 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.
• In State of Rajasthan vs. Mst. Vidhyawati, 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 government vehicle.

Judgement:

Hearing all the contention the court says that 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. Moreover, we are dealing with this case under Public Law domain and not in a suit instituted under Private Law domain against persons who, utilizing their official position, got a room in the Yatri Niwas booked in their own name where the act complained of was committed.

Therefore, 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.