2000 Supreme(SC) 211

2000(1) Supreme 265
SUPREME COURT OF INDIA
(From Calcutta High Court)
S. Saghir Ahmad & R.P. Sethi, JJ.
The Chairman, Railway Board & Ors. -Appellants
versus
Mrs. Chandrima Das & Ors. -Respondents
Civil Appeal No. 639 of 2000
(Arising out of SLP (C) No. 1643 of 1998)
Decided on 28-1-2000
Counsel for the Parties :
For the Appearing Parties : R.N. Trivedi, K.N. Rawal, Additional Solicitor Generals, Raju Ramachandran, Sr. Advocate, Ashok K. Srivastava, Ms. Sushma Suri, R.N. Verma,D.S. Mehra, W.A. Quadri, A.S. Rawat, A. Subhashini, Ms. Naina Kapoor, Ms. Meenakshi Arora, Ms. Priya Rao, Naila Ansan, A.K. Thiruengadam, Advocates.

VERY IMPORTANT POINTS
(1) 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.
(2) Fundamental right to life and personal liberty guaranteed under Article 21 of the Constitution is available not only to every citizen of this country but also to a person who may not be a citizen of the country and as such a foreign national can maintain claim for damages for violation of fundamental rights of life and personal liberty.
(3) Where railway employees committed rape on a passenger at railway premises, Railway Board was held vicariously liable for the tortious acts of its employees and ordered to pay Rs. 10 lacs. as compensation to victim.

Headnote:(i) Constitution of India-Article 226-Writ jurisdiction-Whether can be invoked to get relief otherwise available under Private Law?-Railway employees comitting rape on a passenger at Railway premises-Writ petition for damages against Railway Board-Plea that writ not maintainable as victim could get relief under Private Law-Not tenable-Matter relates to violation of fundamental rights-Public functionaries involved-Remedy available under public law though suit could be filed for damages under Private Law.

       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. (Para 10)

       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. Therefore petition under Public Law (under Article 226 of Constitution) was maintainable. Common Cause, A Regd. Society v. Union of India & Ors. (1999) 6 SCC 667 : AIR 1999 SC 2979 : (1999) 5 JT 237 : 1999(6) Supreme 425 : relied on. (Paras 7 and 11)

       (ii) Public Interest Litigation-Rape on passenger by Railway employees in Railway premises-Writ petition for damages against Railway Board and for eradication of anti social and criminal activities at Railway station-Writ filed by practicing Advocate-Plea that writ petition not maintainable as petitioner not related or connected to victim-Plea untenable-True nature of petition was that of a petition filed in public interest-Writ petition rightly entertained by High Court.

       The argument that the petitioner was only a practising advocate of the Calcutta High Court and was, in no way, connected or related to the victim and, therefore, she could not have filed a petition under Article 226 for damages or compensation being awarded to the victim on account of the rape committed on her 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 the victim. 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. (Para 13)

       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. (Para 14)

       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. (Para 17)

       (iii) Constitution of India-Articles 14 and 21-Right to equal protection and right to life-Available to non-citizens also-Foreign national can also complain of violation of fundamental rights of equal protection and right to life-Railway employees committing rape on a foreign national in Railway premises-Petition for damages-High Court awarding Rs. 10 lacs as compensation-Rape amounts to violation of fundamental rights guaranteed to a woman under Article 21-State liable to pay compensation to victim-High Court s order justified.

       "Rape" amounts to violation of the Fundamental Right guaranteed to a woman under Article 21 of the Constitution. (Para 34)

       There contention that the 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 the victim was a Bangladeshi national, she cannot complain of the violation of Fundamental Rights and on that basis she cannot be granted any relief. Must fail for two reasons; first, on the ground of Domestic Jurisprudence based on Constitutional provisions and secondly, on the gound 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. (Para 18)

       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. (Para 25)

       The Fundamental Rights are available to all the "citizens" of the country put 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 assamble 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. (Para 26)

       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. (Para 29)

       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 Convenants of Civil and Political Rights and the Governments of Economic, Social and Cultural Rights, to which India is a party having ratified them. 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. (Para 30)

       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. (Para 32)

       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. (Para 33)

       In the instant case, the victim of rape, 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 availabale 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. (Para 35).

       (iv) Torts-Vicarious liability-Liability of State for acts of its employees-Railway employees committing rape on passenger in Railway premises-Claim for damages against Railway Board-Running Railway is commercial activity of State-Government liable to pay damages for tortious acts of its employees-High Court rightly awarded compensation of Rs. 10 lacs to victim, a Bangladeshi National.

       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. (Para 39)

       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 Government, 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. (Para 40)

       In the instant case, railway employees utilising their official position, got a room in the Yatri Niwas booked in their own name where they gang raped a Bangladeshi woman. On a public interest writ petition, the High Court awarded Rs. 10 lacs to be paid by the Railway Board. The Supreme Court upheld the order.