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.
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.)
- 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?
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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”.
- 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