In the Supreme Court of India Civil Appeal No. 639, of 2000 (Arising out of SLP(C) No. 16439 of 1998) Petitioner The Chairman, Railway Board & ors. Respondents Chandrima Das and Ors. Date of Judgement 28.01.2000 Bench Justice Saiyed Saghir Ahmad; Justice R.P. Sethi
Ms. Chandrima Das who filed the above petition under Article 226 of the Indian Constitution was a practicing advocate in the Calcutta High Court where this case was first heard in 1998. She filed on behalf of the aggrieved Smt. Hanuffa Khatoon, a Bangladeshi national who was gang-raped by employees of the Railways at Howrah Station of the Eastern Railway. The case was adjudged in the favor of the petitioner with due compensation (INR 10 lacs) but in the year 2000, the defendants filed for an appeal in the Supreme Court and refused to pay the compensation by contesting various issues which are discussed below.
Background of Study
Writ Petitions: A person whose right is infringed by an arbitrary administrative action may approach the Court for appropriate remedy. Under Article 32 and 226 of the Constitution of India the Supreme Court and High Courts respectively, this provision is laid down for the protection of fundamental rights of an Individual. It’s a tool that enforces the fundamental rights and can direct an Individual/ official or an authority to do any act or abstain from doing an act.
Vicarious Liability: Vicarious Liability/Imputed Liability” is a legal concept under Law of Torts that assigns liability to an individual who did not cause the harm, but who has a legal relationship with the person who did cause the harm example- in a relationship of a master and servant the master is liable for all acts done by the servant in his course of employment.
It is the only principle that looks beyond the primary tortfeasor’s liability and applies liability to a second party who is innocent. Salmond was the first person to have had introduced this doctrine.
Constitutional and statutory provisions discussed
- Article 32, 226 of the Indian Constitution
- Article 21 of the Indian Constitution and its nexus with foreign citizens
- Article 3,5,7,9 of the Indian Constitution
- Ms. Hanifa Khatoon was the elected representative of the Union Board. She had arrived at Howrah Railway Station on 26th February 1998 to avail of a certain Jodhpur Express to indulge in her official duties. She had, a waitlisted ticket was waiting in the Ladies Waiting room when Ashok and Siya Ram Singh (railway employees) approached her and confirmed her reservation.
- After a few hours, Siya Ram came again to her now with a boy named Kashi and asked her to accompany the boy to a restaurant if she wanted to have food for the night. Accordingly, she went to a nearby eating house with Kashi, and soon after she vomited and came back to the Waiting room. At about 9 pm Ashok Singh along with Rafl Ahmed (also a Howrah Railway employee) came to her and asked her to accompany him. Initially, in doubt, she was certified by the lady attendants about the men’s credentials as employees after which she accompanied them to a certain Yatri Niwas. Sitaram Singh (both employees of Howrah railways) joined them on way to Yatri Niwas. She was taken to a room of Yatri Niwas which was booked in Ashok Singh’s name against his railway credentials.
- Two other employees later identified as Lalan Singh and Awdesh Singh, were already waiting inside when Hanufa Khatun was locked inside with Awdesh Singh standing as a guard outside the room. The remaining four persons (Ashoke, Lalan, Raft, and Sitaram) took alcohol inside and forced her to consume it.
- All the four persons subsequently brutally violated, Hanufa Khatun which left her in a dazed state. She somehow escaped and came back to the platform where again she met Siya Ram Singh and Ashok Singh when Siya Ram pretended to be her savior by abusing Ashok Singh and falsely convinced Khatun to accompany him to his residence since her train had departed.
- Thereafter he took her with his friend Ram Samiram Sharma to the latter’s flat and raped her. When she protested and resisted violently both gagged her mouth and nostrils intending to kill her due to which she bled profusely.
- Due to her pleas for help, she was later rescued by Jorabagan Police and it was on the basis of the above facts that the High Court awarded compensation (since it was of the opinion that the rape was committed at the building belonging to the Railways and was perpetrated by the Railway employees.)
- Whether 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 under the ambit of private law vis-a-vis the law of torts?
- Whether the respondents have locus standi?
- Whether the victim of a foreign national can claim relief under Public Law as there is no provision of the violation of the Fundamental Rights available under the Constitution to non-citizens?
- Whether the Central Government or the Union of India cannot be held vicariously liable for the offense of rape committed by the employees of the Railways and hence will be liable to pay the damages/compensation awarded?
Arguments by Counsel of Petitioners
Petitioners stated that they will not be liable to pay compensation to the victim since she is not an Indian national. They stated that since it was the individual act of those accused, they alone would be prosecuted and on being found guilty would be punished and be liable to pay fine or compensation and the Railways/ Union of India would not be vicariously liable.
The appellants contended 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 under the ambit of private law vis-a-vis the law of torts.
For claiming damages perpetrated on the victim the remedy lays in the realm of Private Law and not under Public Law and, therefore, no compensation could have been legally awarded by the High Court.
They also contested that Mrs. Chandrima Das could not have legally instituted these proceedings since she has no relation with the victim and is only a practicing Advocate of the High Court of Calcutta.
- The case of A Regd. Society v. Union of India,  and Life Insurance Corporation of India v. Escorts Limited,was taken as a reference to mark a distinction between public and private law wherein under public law, it is the dispute between the citizen/a group of citizens on the one hand and the State/ public bodies on the other. This is done to prevent the publically governed bodies from acting arbitrarily and follow the rule of law. It was also reiterated that the question must be decided in each case on a factual paradigm.
- The Court also said that similar to previous decisions Public Law remedies have also been extended to the realm of contracts and tort law and while the line demarcating the frontier between private and public law is obtuse, public law will be applicable where public functionaries are involved and the matter relates to the violation of Fundamental Rights (here rape constitutes a violation of Fundamental rights as held in Bodhisattwa v. Ms. Subhra Chakraborty,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.
- The Court held that the concept of locus standi underwent a sea change as held in Dr. Satyanarayana Sinha v. S. Lal and Co. Pvt. Ltd. where it was laid that the foundation for exercising jurisdiction under Article 32 or Article 226 is ordinarily a personal right of the petitioner but in case he employs writs like Habeas Corpus and Quo Warranto, the rule can be relaxed and modified. Additionally, the petition was filed under public interest since the reliefs which were claimed in the petition included the relief for compensation along with relief for eradicating anti-social and criminal activities of various kinds at Howrah Railway Station and since it came under the ambit of public interest litigation any member of the society could file it. 
- It also observed that practicing lawyers have undoubtedly a vital interest in the independence of the judiciary and they would certainly be interested in challenging the validity or constitutionality and that public-spirited citizens having faith in the rule of law are rendering great social and legal service by espousing causes of public nature. Thus they cannot be ignored or overlooked on the technical or conservative yardstick of the rule of locus standi or absence of personal loss or injury.
On the ground of domestic jurisprudence, the court held that it was the vital duly of an independent judiciary to interpret and apply national constitutions in the light of those principles and article 20, 21 and 22 of Part Three of the constitution applied to not only “citizens” but also to “persons” which would include “non-citizens”. Based on this the court held that all non-citizens of this country/tourists/people coming in any other capacity will also be entitled the right of protection of their lives in accordance with the provisions as delineated in the constitution and hence, the State is under an obligation to protect it.
- With that, the bench observed that as a national of another country, Smt. Hanuffa Khatoon 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 and the right available to her under Article 21 was thus violated
- Article 226 gives the high court the power to issue writes and for the enforcement of fundamental rights or for any other purpose which delineates that the High Court has jurisdiction to grant relief for the enforcement of Fundamental Rights and also for any other purpose which would include the enforcement of these rights and public duties by public bodies.
- It was also observed that the Court, in its various decisions, had entertained petitions under Article 32 of the Constitution on a number of occasions and had awarded compensation to the petitioners who had suffered injuries at the hands of the officers of the Government or any other public body.
- The court while discussing this issue also talked about Judicial Scrutiny and Judicial Review in brief and clarified which government bodies can be treated as ‘Authority’ within the meaning of Article 12 of the Indian Constitution which formed the obiter in this issue.
- Even on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948- With respect to Articles 1, 2,3,5,7 and 9, the Court opined that no distinction can be made on the basis of the political, jurisdictional or international status of the country and everyone is entitled to equal protection against any discrimination of this. Similarly, it cited the Declaration on the Elimination of Violence against Women wherein it was laid that the crime of rape will come under Article 2 (which categorizes all kinds of violence against women). The bench reiterated that all signatory states are bound by these conventions (India is a signatory) and the applicability of the Universal Declaration of Human Rights and principles may have to be read into the domestic jurisprudence if required.
- The functions of the State not only relate to the defense of the country or the administration of justice but extends to many other spheres as, for example, education, commercial, social, economic, political, and even marital affairs. These activities cannot be said to be related to Sovereign power and running of Railways is a commercial activity Additionally the establishment of Yatri Niwas at various Railway Stations for lodging and boarding facilities on payment of charges is also a part of the commercial activities of the Union of India and it cannot be equated with the exercise of Sovereign power. If any of such employees commits a tort the Union Government can be held vicariously liable in damages to the person wronged by those employees. Especially when the employees in question utilized their official position, (here the accused got a room in the Yatri Niwas and booked in their own name and credentials provided by the railways).
The appeal having no merit was 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 was to be made within three months and there was no order as to costs.
This case answered many important questions and reiterated some already established concepts like those of vicarious liability and the state’s responsibility with respect to it. It also drew a line between humanitarian and domestic jurisprudence and its applicability in the Indian domain. The crisp explanation of the distinction between public and private law was also carefully chalked out.
“The views of the authors are personal“
A Regd. Society v. Union of India, MANU/SC/0437/1999: (1999) 3 SCR 1279.
 Life Insurance Corporation of India v. Escorts Limited, MANU/SC/0015/1985:1986 (8) SCC 189.
 Bodhisattwa v. Ms. Subhra Chakraborty, MANU/SC/0245/1996: AIR 1996 SC 922.
Dr. Satyanarayana Sinha v. S. Lal and Co. Pvt. Ltd, MANU/SC/0039/1973: (1974) 1 SCR 615.
People’s Union for Democratic Rights v. Union of India MANU/SC/0038/1982: (1982) IILLJ 454 SC.
S. P. Gupta v. Union of India MANU/SC/0080/1981: (1982) 2 SCR 365.
 Rudul Shah v. State of Bihar MANU/SC/0380/1983: 1983 CriLJ 1644.
 Brind v. Secretary of State for the Home Department (1991) 1 All ER 720.