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PETITIONER: THE CHAIRMAN, RAILWAY BOARD & ORS.

       Vs.

RESPONDENT: MRS.  CHANDRIMA DAS & ORS.

DATE OF JUDGMENT:       28/01/2000

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

JUDGMENT:

     S.SAGHIR AHMAD, J.

     Leave granted.

     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.

     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.   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

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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 Ashoke  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 Rafi 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 someting 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, Rafi 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 flat 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."

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     It  was on the basis of the above facts that the  High Court  had  awarded a sum of Rs.10 lacs as compensation  for Smt.   Hanuffa Khatoon as the High Court was of the  opinion that  the  rape  was committed at the building  (Rail  Yatri Niwas)  belonging to the Railways and was perpetrated by the Railway employees.

     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.

     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.

     The distinction between "Public Law" and "Private Law" was  considered  by  a Three-Judge Bench of  this  Court  in Common  Cause,  A Regd.  Society vs.  Union of India &  Ors. (1999)  6  SCC 667 = AIR 1999 SC 2979 = (1999) 5 JT 237,  in which it was, inter alia, observed as under :

     "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

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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."

     The   earlier   decision,   namely,   Life   Insurance Corporation of India vs.  Escorts Limited & Ors.  1985 Supp. (3)  SCR 909 = (1986) 1 SCC 264 = 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 pubic 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.

     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 vs.  State of

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Bihar 1983(3) SCR 508 = (1983) 4 SCC 141 = AIR 1983 SC 1086. [See also :  Bhim Singh vs.  State of Jammu & Kashmir (1985) 4  SCC 577 = AIR 1986 SC 494;  People’s Union for Democratic Rights  vs.  State of Bihar, 1987 (1) SCR 631 = (1987) 1 SCC 265 = AIR 1987 SC 355;  People’s Union for Democratic Rights Thru.   Its  Secy.  vs.  Police Commissioner,  Delhi  Police Headquarters,  (1989)  4  SCC  730 =  1989  (1)  SCALE  599; SAHELI,  A  Woman’s  Resources Centre vs.   Commissioner  of Police,  Delhi (1990) 1 SCC 422 = 1989 (Supp.) SCR 488 = AIR 1990  SC  513;   Arvinder  Singh Bagga vs.   State  of  U.P. (1994) 6 SCC 565 = AIR 1995 SC 117;  P.  Rathinam vs.  Union of India (1989) Supp.  2 SCC 716;  In Re:  Death of Sawinder Singh  Grower (1995) Supp.  (4) SCC 450 = JT (1992) 6 SC 271 =  1992  (3)  SCALE 34;  Inder Singh vs.   State  of  Punjab (1995)  3 SCC 702 = AIR 1995 SC 1949;  D.K.  Basu vs.  State of West Bengal (1997) 1 SCC 416 = AIR 1997 SC 610].

     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) 2 SCC 746 = 1993 (2) SCR 581 =  AIR 1993  SC  1960;   State of M.P.  vs.  Shyam  Sunder  Trivedi (1995)  4 SCC 262 = 1995 (3) SCALE 343;  People’s Union  for Civil  Liberties vs.  Union of India (1997) 3 SCC 433 =  AIR 1997  SC  1203 and Kaushalya vs.  State of Punjab  (1996)  7 SCALE (SP) 13;  Supreme Court Legal Aid Committee vs.  State of  Bihar (1991) 3 SCC 482;  Dr.  Jacob George vs.  State of Kerala  (1994)  3  SCC 430 = 1994 (2)  SCALE  563;   Paschim Bangal  Khet Mazdoor Samity vs.  State of West Bengal & Ors. (1996)  4 SCC 37 = AIR 1996 SC 2426;  and Mrs.  Manju Bhatia vs.  N.D.M.C.  (1997) 6 SCC 370 = AIR 1998 SC 223 = (1997) 4 SCALE 350.

     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  offence which is violative of the Fundamental Right of a person guaranteed under Article 21 of the Constitution.  The Court observed as under :

     "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."

     Rejecting,  therefore,  the contention of the  learned counsel  for  the appellants that the petition under  Public

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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.

     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.

     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 standi 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 vs.  S.  Lal &  Co.  Pvt.  Ltd., AIR 1973 SC 2720 = (1973) 2 SCC 696,  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.

     In S.P.  Gupta & Ors.  vs.  Union of India & Ors., AIR 1982  SC  149  = (1981) Supp.  SCC 87, the law  relating  to locus  standi 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  certainly   be   interested   in challenging  the validity or constitutionality of an  action taken  by  the State or any public authority which  has  the effect  of impairing the independence of the judiciary."  It was  further  observed  that  "lawyer’s  profession  was  an essential  and  integral part of the judicial system;   they could  figuratively be described as priests in the temple of justice.   They  have,  therefore,  a  special  interest  in preserving  the  integrity and independence of the  judicial system;   they  are  equal partners with the Judges  in  the administration  of  justice.  The lawyers, either  in  their individual  capacity  or  as   representing  some   Lawyers’ Associations have the locus standi to challenge the circular letter  addressed by the Union Law Minister to the Governors and  Chief Ministers directing that one third of the  Judges of  the  High  Court  should, as far as  possible,  be  from outside the State."

     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 and Ors.  vs.  Union of India  &  Ors., AIR 1982 SC 1473 = (1982) 3 SCC 235, it  was

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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  vs. Union  of India & Ors., AIR 1984 SC 802 = 1984 (2) SCR 67  = (1984)  3  SCC  161  and   State  of  Himachal  Pradesh  vs. Student’s Parent Medical College, Shimla & Ors., AIR 1985 SC 910 = (1985) 3 SCC 169 on the right to approach the Court in the  realm  of  Public Interest Litigation).   In  Bangalore Medical Trust vs.  B.S.  Muddappa and Ors., AIR 1991 SC 1902 =  1991  (3) SCR 102 = (1991) 4 SCC 54, 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".

     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.

     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.   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.  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

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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  cooperation  with   the  United  Nations,  the promotion  of universal respect for and observance of  human rights and fundamental freedoms.

     Whereas  a  common understanding of these  rights  and freedoms  is  of  the  greatest   importance  for  the  full realization of this pledge."

     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."

     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

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occurring  in  public or in private life." In Article 2,  it was  specified  that,  "violence   against  women  shall  be understood to encompass, but not be limited to:

     (a)   Physical,  sexual   and  psychological  violence occurring in the family including battering, sexual abuse of female  children  in the household, dowry-related  violence, marital   rape,   female  genital   mutilation   and   other traditional practices harmful to women, non-spousal violence and violence related to exploitation;

     (b)   Physical,  sexual   and  psychological  violence occurring  within  the  general community,  including  rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution;

     (c)   Physical,  sexual   and  psychological  violence perpetrated or condoned by the State, wherever it occurs."

     In  Article  3,  it  was  specified  that  "women  are entitlted 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.

     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.   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  specfic treaty obligations.  So also, Lord 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.

     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 duty 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 quetion  of domestic  application  of international and  regional  human rights  specially in relation to women, 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."

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     But  this  situation  may  not  really  arise  in  our country.

     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.

     The  Fundamental  Rights  are  available  to  all  the "citizens"  af  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,  hotels and  places  of  public entertainment,  or  the use of wells, tanks, bathing  ghats, roads  and places of public resort on the aforesaid grounds. Fundamental Right guaranteed under Article 15 is, therefore, restricted  to  "citizens".   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  practise any profession, or to carry on any  occupation, trade  or business, are available only to "citizens" of  the country.  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.   vs.   The Commercial  Tax Officer and Others, AIR 1963 SC 1811 =  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 vs.   Superintendent Presidency  Jail Calcutta, AIR 1955 SC 367 (374) = 1955  (1) SCR  1284, that this Article applies only to "citizens".  In another  decision in Anwar vs.  State of J & K, AIR 1971  SC 337  = 1971 (1) SCR 637 = (1971) 3 SCC 104, it was held that non-citizen could not claim Fundamental Rights under Article 19.   In Naziranbai vs.  State, AIR 1957 M.B.  1 and Lakshmi Prasad  &  Anr.  vs.  Shiv Pal & Others, AIR 1974  Allahabad 313,  it  was  held  that Article 19 does  not  apply  to  a "foreigner".   The Calcutta High Court in Sk.  Md.   Soleman vs.   State  of West Bengal and Another, AIR  1965  Calcutta 312,  held that Article 19 does not apply to a  Commonwealth citizen.

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     In  Anwar vs.  State of J & K, AIR 1971 SC 337 =  1971 (1)  SCR 637 = (1971) 3 SCC 104 (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".

     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.

     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 set out by this Court in Kubic Darusz vs.  Union of India  &  Ors.   (1990) 1 SCC 568 = AIR 1990 SC  605.   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.

     Let  us  now consider the meaning of the  word  "LIFE" interpreted  by  this  Court from time to time.   In  Kharak Singh  vs.   State of U.P., AIR 1963 SC 1295 = 1964 (1)  SCR 332,  it  was held that the term "life" indicates  something more  than  mere  animal existence.  [See also :   State  of Maharashtra  vs.   Chandrabhan Tale, AIR 1983 SC 803 =  1983 (3)  SCR 337 = (1983) 3 SCC 387].  The inhibitions contained in  Article 21 against its deprivation extends even to those faculties by which life is enjoyed.  In Bandhua Mukti Morcha vs.   U.O.I.,  AIR 1984 SC 802 = 1984 (2) SCR 67 = (1984)  3 SCC 161, 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 vs.  U.O.I.,  AIR 1978  SC 597 = 1978 (2) SCR 621 = (1978) 1 SCC 248 and Board of  Trustees  of  the  Port  of  Bombay  vs.   Dilip   Kumar Raghavendranath Nadkarni, AIR 1983 SC 109 = 1983 (1) SCR 828 = (1983) 1 SCC 124].

     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 citizens.

     The   Rights   guaranteed  under   Part  III  of   the Constitution are not absolute in terms.  They are subject to

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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.

     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.

     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.

     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.

     In  State of Rajasthan vs.  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  vs. Memon  Mahomed Haji Hasan AIR 1967 SC 1885 and Smt.   Basava Kom  Dyamogouda Patil vs.  State of Mysore AIR 1977 SC 1749. These  principles were reiterated in N.  Nagendra Rao &  Co. vs.   State of A.P.  AIR 1994 SC 2663 = (1994) 6 SCC 205 and again  in  State of Maharashtra vs.   Kanchanmala  Vijaysing Shirke,  1995 ACJ 1021 (SC) = (1995) 5 SCC 659 = JT 1995 (6) SC  155.  Reliance placed by the counsel for the  appellants on  the decision of this Court in Kasturi Lal Ralia Ram Jain vs.   State  of  U.P.  AIR 1965 SC 1039 = 1965 (1)  SCR  375 cannot  help  him as this decision has not been followed  by this  Court  in  the  subsequent  decisions,  including  the

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decisions  in State of Gujarat vs.  Memon Mahomed Haji Hasan and  Smt.  Basava Kom Dyamogouda Patil vs.  State of  Mysore (supra).   The  decision  in  Kasturi Lal’s  case  was  also severely  criticised by Mr.  Seervai in his prestigious book - Constitutional Law of India.  A Three- Judge Bench of this Court  in Common Cause, A Regd.  Society vs.  Union of India (1999) 6 SCC 667 also did not follow the decision in Kasturi Lal’s  case  (supra) and observed that the efficacy of  this decision as a binding precedent has been eroded.

     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.

     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.   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.

     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.