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Case Reviews, The Law

M/S. Dove Investments Private Ltd vs M/S. Gujarat Industrial (2004)

CASE NOTE:  Section 108 of Companies Act 1956—the contention of the petitioner that the provisions of sec 108 and the time bar on the registration of transfer of shares is mandatory.

By: Syed Suhaiba Geelani, 4th year, BALLB, University of Kashmir.

Appellant: M/s. Dove Investments Private Ltd.

Respondent:  Gujarat Industrial Investment Corporation Ltd. 

Hon’ble Judges: Mr. Justice P. SATHASIVAM   and Mr. Justice AR. RAMALINGA


Appellant: Mr. S. Alagiriswamy, Senior Counsel for Mr. S.; Murugan, for Appellants in CMA No.3188/2004.; Mr. P.H. Aravindh Pandian, for Appellant in C.M.A.No. 3223/2004.

Respondent: Mr. Arvind P. Dattar, Senior counsel for Mr. Shivakumar: for 1st Respondent in CMA Nos. 3188/2004 and 3223/2004.


Section 108 of Companies Act 1956 deals with the “Transfer not to be Registered except on production of an instrument of transfer”. In this case, the Company Law Board by the order under challenge held that compliance of Section (1C) of 108 is a directory in nature and not mandatory and directed the Company at default to register the transfer of 22,93,000 shares in the name of the petitioner within 30 days of the receipt of the said order. Questioning the same, the Company as well as the investors moved to the High Court of Madras.


  • The Gujarat Industrial Investments Corporation Ltd., a wholly owned Government of Gujarat financial institution advanced a loan of Rs.5 Crores in 1996 to the company for the conduct of its business, for which the company pledged the shares (A-2 to A-9).
  •   Since the Company committed default in repayment of the loan amount, the petitioner lodged with the Company, the original certificates of the pledged shares together with duly stamped and executed instruments of transfer for effecting registration of the transfer thereof in their name. 
  • The Company registered the transfer of 2,99,800 shares pledged by respondents 2 and 3 but failed to effect the registration of the transfer in respect of the remaining 22,93,000 shares, despite repeated demands and lawyer’s notice dated 29-7-2003, calling upon the company to transfer the balance 22,93,000 shares in the name of the petitioner. 
  •  To circumvent the claim of the petitioner, the respondents 2 to 4 filed Civil Suits. A common counter affidavit filed by respondents, claimed that the requirements of sub-section (1C) (B)(iv)(1)(c)(2), being mandatory have not been duly satisfied by the petitioner and therefore the Company is not under an obligation to effect the transfer of shares in the name of the petitioner.
  • The rejoinder filed by the petitioner stated that the plea of non-compliance with the requirements of Section 108(1C) has neither been raised before the Civil Court nor in the present proceedings. The Company has already given effect to the transfer of 2,99,800 shares. They pleaded the court to direct the company to effect the registration of the transfer of the remaining pledged shares in the name of the petitioner.


  • Whether the provisions of Section 108, except sub-section (1) of the Companies Act, 1956 are the only directory and not mandatory?
  • Whether the share transfer has to be registered by the company despite the fact that certain provisions of the law have not been duly complied with? 
  •  Can a company register a transfer form if its validity period has expired?


  • Section 108 of The Companies Act, 1956.
  • Section 108 ,1A,1B,1C and 1D of The Companies Act, 1956.
  •  The Companies Act, 1956.
  • Section 56 of The Companies Act, 2013. 



Counsel on behalf of the appellant contended that the respondent failed to comply with the provisions of Sub-section (1C), according to which the instruments of transfer ought to have been stamped or endorsed by the petitioner and thereafter delivered them to the Company together with the share certificates for registration of the transfer within two months from the date so stamped or endorsed.

The requirements of sub-section (1C) (B)(iv)(1)(c)(2), being mandatory have not been duly satisfied and therefore the Company is not under an obligation to effect the transfer of shares in the name of the respondent.


The Council on behalf of respondent contended that the requirements of section 108 (1C) are the only directory and not mandatory. The petitioner has every right to effect the transfer of the impugned shares in its favor, in view of the default committed by the Company. Moreover,

the requirement provided under the aforesaid section is waived by the Company by way of effecting the transfer of 2,99,800 shares out of 25,92,800 pledged shares in the name of the petitioner.


The Hon’ble High Court of Madras on 30.12.2004, agreeing with the decision of Company Board held that the compliance of Section (1C) is a directory in nature and not mandatory. It after taking note of the conduct of the company has waived all the requirements of sub-section (1C), directed the Company to register the transfer of 22,93,000 shares in the name of the petitioner. The Court further held that the stipulation of time for the performance of an act is not read as a mandatory stipulation under certain circumstances.

The reasonable mode of understanding the scheme of section 108 will be, not to render the delivery of an instrument of transfer after the period specified in sub-section (1A) as invalid, but as vesting a discretion in the company either to recognise the transfer or not to recognise it depending upon the staleness of the instrument, and even in the latter case, the affected person may move the Central Government under sub-section (1D) by explaining the circumstances under which the delay occurred and the hardship that results by the non-recognition of the transfer.

While understanding the scheme of section 108, the court has to bear in mind that trivialities would not render an act futile and technical formalities required to be complied with for a valid transaction cannot outweigh the importance to be given to the substance of the transaction.”


Mukundlal Manchanda vs Prakash Roadlines Ltd..

The learned Judge held that “the Supreme Court has concluded that sub-section (1A) is the only directory in nature. The requirement of sub-section (1A) (b) (ii) must be read reasonably, to enable its smooth functioning, delivery of an instrument of transfer within a reasonable time should be held as a proper delivery. Where the Company opines that the instrument of transfer has become stale and that it is improper to act upon it, the instrument of transfer must be held as liable to be ignored. Further, even the belated delivery can be acted upon under certain circumstances while moving Central Government under sub-section (1) of Section 108.”

Case Reviews, The Law

Kesavananda Bharati vs State Of Kerala And Anr (1973)

Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970), also known as the Kesavananda Bharati judgement, is a landmark decision of the Supreme Court of India that outlined the basic structure doctrine of the Constitution.

By: Shail Maheshwari, 3rd year BA LLB, KIIT- School of Law, Bhubaneswar.

CASE NO.: Writ Petition (civil)  135 of 1970

PETITIONER: Kesavananda Bharati Sripadagalvaru and Ors

RESPONDENT: State of Kerala and Anr

DATE OF JUDGMENT: 24/04/1973


S.M. Sikri & A.N. Grover & A.N. Ray & D.G. Palekar & H.R. Khanna & J.M. Shelat & K.K. Mathew & K.S. Hegde & M.H. Beg & P. Jaganmohan Reddy & S.N. Dwivedi & Y.V.Chandrachud


Justice Hans Raj Khanna attested through the Basic Structure teaching that the constitution has an essential structure of established standards and qualities. The Court mostly established the earlier point of reference Golaknath v. Territory of Punjab, which held that sacred changes through Article 368 were dependent upon key rights survey, however just on the off chance that they could influence the ‘essential structure of the Constitution.’ simultaneously, the Court additionally maintained the legality of the primary arrangement of Article 31-C, which inferred that corrections looking to execute the Directive Principles, which don’t influence the ‘Fundamental Structure,’ will not be exposed to legal audit. 

The teaching structures the premise of intensity of the Indian legal executive to audit and abrogate corrections to the Constitution of India instituted by the Indian parliament. The 13-judge Constitution seat of the Supreme Court pondered on the impediments, assuming any, of the forces of the chosen delegates of individuals and the idea of key privileges of a person. In a decision isolated 7-6, the court held that while the Parliament has ‘wide’ powers, it didn’t have the ability to obliterate or undermine the essential components or basic highlights of the constitution. 

At the point when this case was chosen, the fundamental fear of the greater part seat that chosen agents couldn’t be trusted to act capably was remarkable. The Kesavananda judgment additionally characterized the degree to which Parliament could confine property rights, in quest for land change and the reallocation of enormous landholdings to cultivators, overruling past choices that recommended that the privilege to property couldn’t be limited. The case was a climax of a progression of cases identifying with restrictions to the ability to correct the Constitution.


On February 1970 Swami Kesavananda Bharati, senior offended party and top of the Hindu monastry Edneer Matha in Edneer, Kasaragod District, Kerala, tested the Kerala government’s endeavors, under two land change acts, to force limitations on the administration of its property. A prominent Indian legal scholar, Nanabhoy Palkhivala, persuaded Swami into recording his request under Article 26, concerning the option to oversee strictly claimed property without government obstruction. Despite the fact that the hearings devoured five months, the result would significantly influence India’s majority rule measures. The case had been heard for 68 days, the contentions starting on October 31, 1972, and finishing on March 23,1973, and it comprises of 200 pages.


The Supreme Court assessed the choice in Golaknath v. Province of Punjab, and thought about the legitimacy of the 24th, 25th, 26th and 29th changes. The case was heard by the biggest ever Constitution Bench of 13 Judges. The seat gave eleven separate decisions, which conceded to certain focuses and contrasted on others.[14] Nanabhoy Palkhivala, helped by Fali Nariman and Soli Sorabjee, introduced the body of evidence against the public authority in the two cases.


This judgment decided that Article 368 doesn’t empower Parliament in its constituent ability to designate its capacity of revising the Constitution to another assembly or to itself in its customary administrative limit. This decision made all the considered established corrections specified under the authoritative forces of the parliament as void and conflicting after the 24th protected alteration. These are articles 4 (2), 169 (3)- 1962, 239A2-1962, 244A4-1969, 356 (1)c, para 7(2) of Schedule V and para 21(2) of Schedule VI. Likewise articles 239AA(7)b-1991, 243M(4)b-1992, 243ZC3-1992 and 312(4)- 1977 which are embedded by later established alterations and conceiving esteemed sacred corrections under authoritative forces of the parliament, should be invalid. The Supreme Court pronounced for the situation ‘A. K. Roy, Etc versus Union Of India And Anr on 28 December 1981’ that the article 368(1) obviously characterizes constituent force as ‘the ability to revise any arrangement of the constitution by method of an expansion, variety or nullification.’ it emphasized that constituent force must be practiced by the parliament itself as per the strategy set down in article 368. 

The public authority of Indira Gandhi didn’t warmly embrace this limitation on its forces by the court. On 26 April 1973, Justice Ajit Nath Ray, who was among the protesters, was elevated to Chief Justice of India overriding three senior Judges, Shelat, Grover and Hegde, which was phenomenal in Indian lawful history. 

The 42nd Amendment, instituted in 1976, is viewed as the quick and most direct drop out of the judgment. Aside from it, the adjudicator got ready for complete authoritative power to change any piece of the Constitution with the exception of when the revisions are not in consonance with the essential highlights of the Constitution. 

In the 1980 case Indira Nehru Gandhi v. Raj Narain, a Constitution Bench of the Supreme Court utilized the fundamental structure principle to strike down the 39th amendment. The 39th Amendment was passed in 1975, during The Emergency and put the appointment of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha past the examination of the Indian courts. Receiving this revision was a transition to stifle Gandhi’s arraignment. 

The fundamental structure convention was additionally embraced by the Supreme Court of Bangladesh in 1989, by explicitly depending on the thinking in the Kesavananda case, in its decision on Anwar Hossain Chowdhary v. Bangladesh (41 DLR 1989 App. Div. 165, 1989 BLD (Spl.) 1)


∙  T R Andhyarujina, who was an advice for this situation, composed a book named “The Kesavananda Bharati Case: The untold story of battle for incomparability by Supreme Court and Parliament” to talk about the case and the governmental issues required during and after the judgment was articulated. It has been distributed by Universal Law Publishing Company in 2011.

·  “Basic Structure Constitutionalism: Revisiting Kesavananda Bharati” was published by Eastern Book Company in 2011 which was edited by Sanjay S. jain and Sathya Narayan.

Case Reviews, The Law

Joseph Shine v. Union of India

The instant case deals with the issue whether the provision for adultery encourages the stereotype of women being the property of men and discriminates on gender basis under Article15?

By: Shefali Jha, Semester III, Year II B.A.L.L.B (Hons.), New Law College, Pune.


The present writ petition was filed under Article 32 of the Constitution of India challenging the validity of Section 497 of the Indian Penal Code. A three-Judge Bench, before which the matter was listed, took note in the following cases already decided by the Apex Court

  1. Yusuf Abdul Aziz v. State of Bombay2
  2. Sowmithri Vishnu v. Union of India3 
  3. Revathi v. Union of India and others4 
  4. W Kalyani 
  5. State through Inspector of Police and Another5 

The matter was referred to the Constitution Bench while observing that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved and that this provision creates a dent on the individual independent identity of a woman.


  • Joseph Shine, a non-resident Keralite, filed public interest litigation under Article 32 of the Constitution. The petition challenged the constitutionality of the offense of adultery under Section 497 of the IPC read with Section 198(2) of the CrPC.
  • He argued that it discriminated against men by only holding them liable for extra-marital relationships while treating women like objects.
  • “Married women are not a special case for the purpose of prosecution for adultery. They are not in any way situated differently than men,” his petition said.
  • The law, Mr Shine said, also “indirectly discriminates against women by holding an erroneous presumption that women are the property of men”.


  1. Whether section 497 of the IPC (which makes adultery a criminal offense) is constitutionally valid?
  2. Whether section 198(2) of the code of criminal procedure,1973 is violative of fundamental rights (14,15 and 21)?
  3. Whether Section 497 is an excessive penal provision which needs to be decriminalized?


(i) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.

(ii) Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it applies to the offense of Adultery under Section 497.


Appellants: –

Section 497 of the IPC is prima facie unconstitutional on the ground that it discriminates against men and violates Article 14, 15 and 21 of the Constitution of India.

  • When sexual intercourse takes place with the consent of both the parties, there is no good reason for excluding one party from the liability. The said discrimination is against the true scope and nature of Article 14 as highlighted in Maneka Gandhi v. Union of India, (1978) 2 SCR 621, R.D. Shetty v. Airport Authority, (1979) 3 SCR 1014 and E.P Royappa V State of Tamil Nadu, 1974(4) SCC 3.
  • Section 497 of the IPC cannot be interpreted as a beneficial provision under Article 15(3). It also indirectly discriminates against women by holding an erroneous presumption that women are the property of the men. This is further evidenced by the fact that if the adultery is engaged with the consent of the husband of the woman then, such act seizes to be an offense punishable under the code. The same amounts to institutionalized discrimination which was repelled by this Hon’ble Court in Charu Khurana and Ors v. Union of India and Ors., 2015(1) SCC 192. (Also see Frontiero v Richardson, (1973) 411 US 677).
  • Since sexual privacy is an integral part of the ‘right to privacy.’ Section 198 (2) of CrPC is also violative of Article 14, 15, and 21 of the Constitution of India since it excludes women from prosecuting anyone engaging in adultery.

Respondent: –

  • The writ petition under Article 32 of the constitution of India is liable to be dismissed at the very outset as section 497 of the Indian penal code,1860 supports, safeguards and protects the institution of marriage. In Sowmithri Vishnu vs Union of India, the court has supported this view.

Striking down Section 497 of the Indian penal code, 1860 and section 198(2) of the code of criminal procedure, 1973 would tantamount to decriminalizing the offense of adultery, thereby eroding the sanctity of marriage and the fabric of the society at large.

  • The government is already seized of the issue relating to gender bias. The honorable supreme court held in W. Kalyani vs State Tr. Insp.Of Police & Anr The Petitioner (2012)1SCC358.


A law which deprives women of the right to prosecute is not gender neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is, therefore, ex facie discriminatory against women, and violative of Article 14.

Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything unreasonable, discriminatory, and arbitrary.

Article 15(3) of the Constitution is an enabling provision which permits the State to frame beneficial legislation in favor of women and children, to protect and uplift this class of citizens. Section 497 is a penal provision for the offense of adultery, an act which is committed consensually between two adults who have strayed out of the marital bond. Such a provision cannot be considered to be beneficial legislation covered by Article 15(3) of the Constitution. The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. Legislation which takes away the rights of women to prosecute cannot be termed as “beneficial legislation”. The right to privacy and personal liberty is, however, not an absolute one; it is subject to reasonable restrictions when legitimate public interest is involved. The boundaries of personal liberty are indeed difficult to be identified in black and white; however, such liberty must accommodate public interest. The freedom to have a consensual sexual relationship outside marriage by a married person does not warrant protection under Article 21.

In the context of Article 21, an invasion of privacy by the State must be justified based on a law that is reasonable and valid. Such an invasion must meet a three-fold requirement as set held in Justice K. S. Puttaswamy (Retd.) & Anr. v. UOI & Anr. (supra):

  1. legality, which postulates the existence of law;
  2. need, defined in terms of legitimate State interest, and
  3. proportionality, which ensures a rational nexus between the object and the means adopted.

Section 497 as it stands today, fails to meet the three-fold requirement, and must therefore be struck down.

  • To criminalize certain conduct is to declare that it is a public wrong which would justify public censure and warrant the use of criminal sanction against such harm and wrongdoing.
  • The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life should be protected from public censure through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the State to take action purportedly in the best interest of the individual.


  1. Yusuf Abdul Aziz vs The State of Bombay (1954)
  • Referring to the judgement of this case, the appellant was prosecuted under section 497 of the IPC. He contended that the adultery law violated the fundamental right of equality guaranteed under Articles 14 and 15 of the Constitution.
  • Three years later in 1954, the Supreme Court ruled that Section 497 was valid. It held that Section 497 did not give a license to women to commit adultery. The judgment said that making a special provision for women to escape culpability was constitutionally valid under Article 15(3) that allows such a law.
  1. Sowmithri Vishnu vs Union of India & Anr (1985)

 In reference to this judgement, petition under Art. 32 of the Constitution, the petitioner challenges the validity of S. 497 of the Penal Code which defines the offense of ‘adultery’ and prescribes punishment for it.

  • The petitioner contends that S. 497 of the Penal Code is violative of Art. 14 of the Constitution because, by making an irrational classification between men and women, it unjustifiably denies to women the right which is given to men.
  • The Supreme Court held that men were not allowed to prosecute their wives for the offense of adultery in order to protect the sanctity of marriage. For the same reason, women could not be allowed to prosecute their husbands. The judgment retained the offense of adultery as a crime committed by a man against another man.
  • The Supreme Court also rejected the argument that unmarried women should be brought under the purview of the adultery law.
  • The argument was that if an unmarried man establishes an adulterous relationship with a married woman, he is liable for punishment, but if an unmarried woman engages in sexual intercourse with a married man, she would not be held culpable for the offense of adultery, even though both disturb the sanctity of marriage.
  • The Supreme Court held that bringing such an unmarried woman in the ambit of adultery law under Section 497 would mean a crusade by a woman against another woman. The ambiguity related to adultery law remained unresolved.
  1. Revathi vs Union of India & Ors (1988)
  • In this judgement, the Supreme Court decided that the offense of adultery as defined in Section 497 is considered by the legislature as an offense against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is.
  • The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social good will be promoted by permitting them to ‘make up’ or ‘break up’ the matrimonial tie rather than to drag each other to the criminal court.
  • Section 497 of the Indian Penal Code and Section 198(1) read with Section 198(2) of the Criminal Procedure Code go hand in hand and constitute a legislative packet to deal with the offense committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit.

Bench: Justice Deepak Mishra, Justice R.F Nariman, Justice D.Y Chandrachud, Justice A.M Khanwilkar and Justice Indu Malhotra

Petitioner: Joseph Shine

Respondent: Union of India

Case Reviews, The Law

PUDR v. Union of India

The instant case deals with the issue that Whether the writ petition can be maintainable against the private individual under Article-32 of the Indian Constitution?

By: Shefali Jha, Semester III, year II B.A.LL. B (Hons.) New Law College, Pune.

Case Note:

Petitioner No. 1, is an organisation formed for the People’s Union for Democratic … vs Union Of India & Others on 18 September 1982 purpose of protecting democratic rights. It commissioned three social scientists to investigate and inquire into the conditions under which the workmen engaged in the various Asiad Projects were working. Based on the report made by these three social scientists after personal investigation and study the 1st petitioner addressed a letter to Hon’ble Mr Justice Bhagwati complaining of the violation of various labour laws by the respondents’ and/or their agents and seeking interference by the Supreme Court to render social justice through appropriate directions to the affected workmen. The Supreme Court treated the letter as a writ petition on the judicial side and issued notice to the Union of India, Delhi Administration and the Delhi Development Authority.


  1. In this case, there was a complaint of a violation of Article 24 of the constitution (which prohibits employing children below the age of 14 years in hazardous employment) on behalf of child labourers employed in construction work in Delhi. Also, the labourers who worked on the ASIAD-82 sites both on stadia and the infrastructure like flyovers and hotels were recruited by agents of construction contractors from backward villages of Orissa, Bihar, West Bengal, Madhya Pradesh, Andhra Pradesh and Rajasthan.
  2. Working at a feverish pace, often far beyond the working hours fixed by laws without the minimum daily wages due to them living in hovels, their children dying of malnutrition and they frequently becoming victims of accidents, these workers were forced to complete the ASIAD projects in time by November 19. 
  3. The terrible working and living conditions to which these workers were subjected to were first brought to public notice by a fact-finding team of the People’s Union for Democratic Rights (PUDR) which visited some of the major sites in July and August 1981 and interviewed the workers as well as their employers.
  4. The People’s Union of Democratic Republic followed this up by filing a writ petition before the Supreme Court on November 16, 1981, by way of PIL in order to issue observance of the provisions of various labour laws in relation to the workers employed in the construction work of the ASIAD-82 projects
  5. Admitting the writ petition on May 1982, Justice P.N. Bhagwati and Justice Baharul Islam directed the Union Government, the Delhi Development Authority and the Delhi Administration – the three concerns which had appointed the contractors for the ASIAD construction work to ensure the payment of minimum wages and provision of other facilities to the workers under the various laws. 
  6. The judges also appointed three ombudsmen (experienced persons authorized to inquire into and pronounce upon grievances of citizens against public authorities) – the first time in the judicial history of India – for protecting the interests of the workers and ensuring the observance of the laws. They were requested to visit the major sites of the construction work and submit weekly reports to the Supreme Court relating to cases of violation of the laws.


  1. Whether the writ petition can be maintainable against the private individual under Article-32 of the Indian Constitution?
    2) Whether Article-21 of the Indian Constitution also includes the right to live with human dignity and the right to livelihood?

Petitioner’s Argument

i) The argument from the side of the petitioner was that; different authorities entrusted with the execution of the various projects and they employed contractors to carry out the construction work of the projects and who were registered as to principal employers in compliance with section 7 of the Contract Labour Act 1970. These contractors recruited labourers through “Jamadars,” who brought them from various parts of India. Also, the minimum wages were paid to these jamadars and not to the workers directly which violated the Minimum Wages Act;

(ii) It was contended that the payment made to women workers was also contrary to the provisions of Equal Remuneration Act, 1976, as they were paid only Rs.71-per day and the balance was being misappropriated by the Jamadars.

(iii) There was also a violation of Article 24 of the Indian Constitution as well as a violation of Employment of Children Acts, 1938 and 1970 as the contractors were engaged in employing children below the age of 14 years in the construction work of the various projects,

(iv) There was a violation of the provisions of the Contract Labour (Regulations and Abolition) Act, 1970 as the workers were denied their rights to medical and other facilities under the Act.

(v) The provisions of the Inter-state Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, which came into force on 2nd October 1980 in the Union Territory of Delhi, were also violated by the Contractors.

Respondent’s Argument

Objections rose on behalf of the respondents against the maintainability of the writ petition:

(i) The respondent claimed that the petitioners had no locus standi to maintain the writ petition because there was no violation of rights of the petitioners; the question involved is the rights of the workers employed in various construction projects. Thus petitioners, therefore, could not have any cause of action.

(ii) Also, it was claimed that the workmen whose rights were said to have been violated were employees of the contractors and not of the respondents. Also,

the cause of action of the workmen, if any, was therefore against the contractors and not against the respondents therefore no writ petition could lay against them.

(iii) The respondent also claimed that; as part of this preliminary objection that no writ petition under Article 32 of the Constitution could lay against the respondents for the alleged violations of the rights of the workmen under the various labour laws, and the remedy, if any, was only under the provisions of those laws.


The court by its decision upheld the right of a poor worker to directly approach the Supreme Court under Article 32of the Constitution of India for the enforcement of rights created under various labour laws and particularly under the provisions of Contract Labour (Regulation and Abolition) Act, 1970, Interstate Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1977, Equal Remuneration Act, 1976, Employment of Children Act, 1970 and Minimum Wages Act, 1948.

The Supreme Court extended the scope of the meaning of article 21 of the Constitution (right to life) to include the right to livelihood along with the ‘right to live with basic human dignity’.

A wider meaning has also been given to the provisions of Article 21, 17, 23 of the Constitution to cover the cases of Non-payment or less payment of wages to the workers which they are entitled under the provisions of law. The Supreme Court considered the scope and ambit of Article 23 in detail. The Court held that the scope of Article 23 is wide and unlimited and strikes at “traffic in human beings” and “beggar and other forms of forced labour” wherever they are found. It is not merely “beggar” which is prohibited by Article 23 but also all other forms of forced labour. This Article strikes at forced labour in whatever form it may manifest itself because it is violative of human dignity and contrary to basic human values. And therefore, strikes to violate Article 21 also. The court had declared solemn constitutional responsibility of the government and its agencies to see that the various laws are properly implemented, not only by it but also by private persons or non-governmental establishments.

The Supreme Court used expressions “bonded labour” and “forced labour” in Article 21 to “right to live with human dignity”. The rights and benefits guaranteed to the labourers under various labour laws were made parts of basic Human Dignity and raised to the status of Fundamental Rights.

Precedents: –

  1.  In reference to this judgement, this Court in Maneka Gandhi v. Union of India and it has received its most expansive interpretation in Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors, where it has been held by this Court that the right to life guaranteed under this Article is not confined merely to physical existence or to the use of any faculty or limb through which life is enjoyed or the soul communicates with the outside world but it also includes within its scope and ambit the right to live with basic human dignity and the State cannot deprive any one of this precious and invaluable right because no procedure by which such deprivation may be effected can ever be regarded as reasonable, fair and just.
  2. Referring to the judgement of this case, the meaning of the word ‘begar’ accepted by a Division Bench of the Bombay High Court in S. Vasudevan v. S.D. Mital. ‘Begar’ is thus clearly a film of forced labour. Now it is not merely ‘begar’ which is unconstitutionally prohibited by Article 23 but also all other similar forms of forced labour.

Bench(quorum): Bhagwati, P.N., Islam, Baharul (J)


Appellant: People’s Union for Democratic Rights and Others

Respondent: Union of India & Others

Case Reviews, The Law

The Chairman, Railway Board and Ors Vs. Chandrima Das and Ors.

The instant case deals with the issue that 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?

By: Shefali Jha, Semester III, Year II B.A.LL. B (Hons.), New Law College, Pune.

Case Note: 

Mrs Chandrima Das, a practicing 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.


Prior to this case there was a state of uncertainty about the jurisdiction of Article 226 and the extent of fundamental rights of non-citizens in India. Before appealing in the Supreme Court, the matter was first dealt with in the High Court of Calcutta where Mrs Chandrima Das claimed compensation for the victim who was a Bangladeshi national. ‘She also claimed several other reliefs including a direction to the respondents to eradicate anti-social and anti-criminal activities at Howrah Railway Station. The High Court then awarded a compensation of Rs. 10 lakhs to the victim as it was of the opinion that the rape was committed at the building belonging to Railways and was perpetrated by the railway employees. The respondents then appealed to the Supreme Court against the decision of the High Court. Ultimately, the Supreme Court upheld the view of the High Court and said that the Right to Life was also extended to people who are not citizens of India. The court also found the government to be vicariously liable for the offence.


  • 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 saviour 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 based on 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.)


  1. 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?
  2. Whether the respondents have locus standi?
  3. 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?


  1. Article 32, 226 of the Indian Constitution.

2. Article 21 of the Indian Constitution and its nexus with foreign citizens.

3. Article 3,5,7,9 of the Indian Constitution.



  1. The first contention raised is that the proceeding for claiming damages under Article 226 of the constitution of India could not be awarded as the petitioner should have claimed the remedy under the Private Law domain, not in the realm of public law.
  2. The second contention raised is based on the concept of locus standi.

3. Mrs Chandrika Das was a practising advocate and was in no way associated with the victim. She, therefore, loses her right to file a petition under Article 226 of the constitution.

3. The third contention is Smt. Hanuffa Khatoon is a foreign nationalist and so she cannot claim for violation of her fundamental rights guaranteed in the Indian Constitution.

4. The last contention raised is that the central Government could not be held vicariously liable for the tortious act of its employees. Since rape cannot be said to be an official act, the act was committed in the personal capacity of the railway employees and thus no action could lie against the central government even under the law of torts.


  1. As regarding the first contention it was argued that where public functionaries are involved and the matter relates to the violation of fundamental rights, or the enforcements, of public duties, the remedy would still be available under the Public Law notwithstanding that a suit could be filled for damages under Private law.
  2. 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.

3. Consequently, the State was under 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.

4. In State of Rajasthan vs. Mst. Vidhyawati, 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 government vehicle.


Hearing all the contention the court says that the 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.

Moreover, we are dealing with this case under Public Law domain and not in a suit instituted under Private Law domain against persons who, utilizing their official position, got a room in the Yatri Niwas booked in their name where the act complained of was committed.

Therefore, 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.


  1. Bodhisattwa v. Ms Subhra Chakraborty,

Referring to the judgement of this case, it has held “rape” as an offense which is a violation of the Fundamental Right of a person guaranteed under Article 21 of the Constitution. therefore, the contention of the learned counsel for the appellants that the petition under Public Law was not maintainable.

  1. A Regd. Society v. Union of India, 

In reference to this judgement, the court has taken 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 publicly 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.

  1. Anwar vs. State of J & K, AIR 1971

In this judgement, it was held that non-citizen could not claim Fundamental Rights under Articles 20, 21 and 22 are available not only to “citizens” but also to “persons” which would include “non-citizens”.

  1. In State of Rajasthan vs. Mst. Vidhyawati

In reference to this judgement, the court 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 government vehicle.

Bench: R.P. Sethi, S. Saghir Ahmad


Petitioner: The Chairman, Railway Board & Others.Respondent: Mrs Chandrima Das & Others

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