The Chairman, Railway Board v. Mrs.

Chandrima Das
AIR 2000 SC 988

S. SAGHIR AHMAD, J. :- 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 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 21.00 hours she went to a nearby eating house with Kashi and had
her meal there. Soon after she had taken her meal, she vomitted and came back to the Ladies Waiting
room. At about 21.00 hours Ashoke Singh along with 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 [(1999) 6 SCC 667] in
which it was, inter alia, observed as under :
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.
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 [(1996) 1 SCC 490] has held "rape" as an offence
which is violative of the Fundamental Right of a person guaranteed under Article 21 of the
Constitution. The Court observed as under (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.
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,
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 [AIR 1963 SC 1811]). 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. [(1971) 3 SCC 104] 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.
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.
37. It has already been pointed out above that this Court in Bodhisatwa case 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.
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 carry 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, is held vicariously liable in damages to the person wronged by those employees.
Kasturi Lal 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.

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