Citation: AIR2000SC988, (2000)3CALLT44(SC), 2000CriLJ1473, JT2000(1)SC426,

2000(1)KLT655(SC), (2000)IIMLJ26(SC), 2000(1)SCALE279, (2000)2SCC465, [2000]1SCR480

IN THE SUPREME COURT OF INDIA
C.A. No. 639, of 2000 (Arising out of SLP(C) No. 16439 of 1998)
Decided On: 28.01.2000
Appellants: The Chairman, Railway Board & Ors.
Vs.
Respondent: Mrs. Chandrima Das & Ors.
Hon'ble Judges:
S.Saghir Ahmed and R.P. Sethi, JJ.
Counsels:
For Appearing Parties: R.N. Trivedi K.N. Rawal Addl. Solicitor Generals and Raju Ramachandran
Sr. Advs. Ashok K. Srivastava Sushma Suri R.N. Verma D.S. Mehra W.A. Quadri A.S. Rawat A.
Subhashini Naina Kapoor Meenakshi Arora Priya Rao Naila Ansan and A.K. Thiruvengadam,
Advs.
Subject: Constitution
Prior History:
From the Judgment and Order Dated June 25, 26, 29, 30 1999 of the High Court of Calcutta in
W.P. No. 494 of 1998
Citing Reference:
*
***
*****

Mentioned
Discussed
Referred

Common Cause. A Regd. Society v. Union of India

***

Life Insurance Corporation of India v. Escorts Limited

*****

Rudul Sah v. State of Bihar

Bhim Singh v. State of Jammu and Kashmir

Life Insurance Corporation of India v. Escorts Limited

*****

Nilabati Behera v. State of Orissa

State of M.P. v. Shyam Sunder Trivedi

People's Union for Civil Liberties v. Union of India

Arvinder Singh Bagga v. State of U.P.

P. Rathinam v. Union of India

In Re: Death of Sawinder Singh Grower

Inder Singh v. State of Punjab

D.K. Basu v. State of West Bengal

Bodhisattwa v. Ms. Subhra Chakraborty

*****

Dr. Satyanarayana Sinha v. S. Lal and Co. Pvt. Ltd.

S. P. Gupta v. Union of India

***

People's Union for Democratic Rights v. Union of India

*****

Bandhua Mukti Morcha v. Union of India

State of Himachal Pradesh v. Student's Parent Medical College

Bangalore Medical Trust v. B.S. Muddappa

Salomon v. Commissioners of Customs and Excise

*****

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
S. Saghir Ahmad, J.
1. Leave granted,
2. 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.
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 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 vomitted 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 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 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 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 Raiways 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 practising 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 AIR 1999 SC 2979, 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 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 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 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 AIR 1983 SC 1086. [See also Bhim Singh v. State of Jammu and
Kashmir AIR 1986 SC 494; People's Union for Democratic Rights v. State of Bihar AIR 1987 SC
355; People's Union for Democratic Rights Thru. Its Secy. v. Police Commissioner, Delhi Police
Headquarters ( 1989 ) 4 SCC 730; Saheli, A Women's Resources Centre v. Commissioner of
Police, Delhi AIR 1990 SC 513; Arvinder Singh Bagga v. State of U.P. AIR 1995 SC 117; P.
Rathinam v. Union of India 1989 Supp (2) SCC 716; In Re: Death of Sawinder Singh Grower
(1995) Supp (4) SCC 450 : (1992) 6 JT (SC) 271 : 1992 (3) SCALE 34 (2); Inder Singh v. State of
Punjab ( 1995 ) 3 SCC 702; D.K. Basu v. State of West Bengal AIR 1997 SC 610.
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 Orissa AIR 1993
SC 1960; State of M.P. v. Shyam Sunder Trivedi ( 1995 ) 4 SCC 262; People's Union for Civil
Liberties v. Union of India AIR 1997 SC 1203 and Kaushalya v. State of Punjab (1996) 7 SCALE
(SP) 13; Supreme Court Legal Aid Committee v. State of Bihar ( 1991 ) 3 SCC 482; Dr. Jacob
George v. State of Kerala ( 1994 ) 3 SCC 430; PaschimBanga Khet Mazdoor Samity v. State of
West Bengal AIR 1996 SC 2426 and Mrs. Manju Bhatia v. N.D.M.C. AIR 1998 SC 223 : (1997) 4
SCALE 350 : 1997 AIR SCW 4190.
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 AIR 1996 SC 922 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.
14. 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.
15. 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. Ltd. AIR 1973 SC 2720, 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 AIR 1982 SC 149, the law relating to locus stand! 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 dertainly
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.
17. 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 AIR 1982 SC 1473, 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 AIR 1984 SC 802 and State of Himachal Pradesh v. Student's Parent Medical
College, Shimla AIR 1985 SC 910 on the right to approach the Court in the realm of Public Interest

Litigation). In Bangalore Medical Trust v. B.S. Muddappa AIR 1991 SC 1902, 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.
19. 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 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 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 Lo 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,

24. 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 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 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.
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 Centre 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 [ 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 v. Superintendent, Presidency Jail, Calcutta
AIR 1955 SC 367, that this Article applies only to "citizens". In another decision in Anwar v. State
of J. & K. AIR 1971 SC 337, it was held that non-citizen could not claim Fundamental Rights
under Article 19. In Naziranbai v. State AIR 1957 Madh Bha 1 and Lakshim Prasad v. Shiv Pal AIR
1974 All 313, 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 AIR 1965 Cal 312, held that Article 19 does not
apply to a Commonwealth citizen.
31. In Anwar v. State of J. & K. (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".
32. 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 ( 1990 ) 1 SCC 568, 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. AIR 1963 SC 1295. it was held that the term "life" indicates
something more than mere animal existence. [See also : State of Maharashtra v. Chandrabhan
Tale AIR 1983 SC 803]. 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. AIR 1984 SC
802, 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. AIR 1978 SC 597 and Board of Tustees of the
Port of Bombay v. Dilip Kumar Raghavendranath Nadkarni AIR 1983 SC 109].
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 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.
37. 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.
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 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 v.
Memon Mahomed Haji Hasan AIR 1967 SC 1885 and Smt. Basava Kom Dyamagouda Patil v.
State of Mysore AIR 1977 SC 1749. These principles were reiterated in N. Nagendra Rao & Co. v.

State of A.P. AIR 1994 SC 2663) and again in State of Maharashtra v. Kanchanmala Vijaysingh
Shirke AIR 1995 SC 2499.
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. AIR 1965 SC 1039 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 AIR 1967 SC 1885 and Smt. Basava Kom Dayamogouda Patil v.
State of Mysore AIR 1977 SC 1749 (supra) . The decision in Kasturi Lal's case was also severaly
criticised by Mr. Seervrai in his prestigious book - Constitutional Law of India. A Three Judge
Bench of this Cort in Common Cause, a Regd. Society v. Union of India AIR 1999 SC 2979 also
did not follow the decision in Kasturi Lal's case (supra) arid observed that the efficacy of this
decision as a binding precedent has been eroded.
42. 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.
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, 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.