It is that liability of one person for the act done by
another person. In order that the liability of one person for the act done by
another person can arise, it is necessary that there should be a certain kind o
relationship between one another person and the wrongful act should be, in a
certain way, connected with that relationship. The common examples of such a
- Liability of the principal for the tort of his agent.
- Liability of partners of each otherís tort.
- Liability of the master for the tort of his servant.
When an agent commits a tort in the course of performance of his duty as an
agent, the liability of the principal arises for such a wrongful act. The agent
is liable because he has done the wrongful act. The principal is liable
vicariously because of the principal-agent relationship between the two. In
England the position is different, the individual wrong doer was personally
liable and he could not take the defence of the orders of crown or state. The
immunity of the crown from liability did not exempt the servant from liability.
But in India the case is different, that is government will be vicarious liable
for the negligence done by the servant.
Chairman Railway Board V Chandrima Das
Hanufa Khatun, a Bangladeshi woman who came to Howrah Station to catch a train
of Jodhpur Express for visiting to Ajmer Sharif. She came to howrah station as
her ticket was not confirmed, so she approached a Train Ticket Examiner for
confirmation of berth, but the Ticket Examiner asked her to wait in the Ladies
After some time, two unknown persons (Ashoke Singh who presented
himself as a person of Railway and Siya Ram Singh a railway ticket broker) came
to her and took her ticket and returned the ticket after confirming her
reservation in Coach No. S-3 of Jodhpur Express. Ashoke Singh and Rafi Ahmed
(Parcel Supervisor) came to the ladies waiting room and accompanied her to Yatri
Niwas and Sitaram Singh also joined them.
She was taken to room of Yatri Niwas
which was booked in the name of Ashoke Singh against railway card. Hanufa Khatun
suspected something wrong when Ashoke Singh forced her into the room. There were
other four person inside the room who consumed liquor and forcibly compelled her
to consumed the liquor. They all brutally violated her. When she recovered she
managed to escape from Yatri Niwas and came back to the platform.
found Siyaram who pretended to be her saviour and slapped Ashoke Singh. As it
was past midnight and train had already departed Siyaram requested her to come
to his residence to rest with his wife and children. There after Siyaram with
one of his friend took her to the rented flat where they raped her and when she
protested both of them gagged her mouth and nostrils intending to kill her,
which resulted in bleeding. On being informed by the landlord of the house she
was rescued by police officers.
On the basis of above facts, high court has awarded as sum of Rupees ten lakhs
as compensation to Hanufa Khatun because she was raped which was committed at
the building (Rail Yatri Niwas) belonging to the railways and was perpetrated by
the railway employees.
The issue was that the Railways would not be liable to pay compensation Hanufa
Khatun who was a foreigner and was not an Indian national.
The offence committed by the person would not make the Railway or Union of India
liable to pay compensation since it was the individual act of persons, so they
alone should be punished and may be liable to pay compensation.
The damages for the offences should be the remedy in the domain of private law
and not public law.
No petition should be filed and no compensation should be awarded to the victim
on account of rape by the High Court in a proceeding under Article 226 of the
Constitution especially when the practicing advocate (Mrs.Chandrima Das) who is
not connected with the victim. The appellants were under the impression that the
petition was for damages but the true nature was of public interest. The
appellant contended that the victim was a foreigner so no relief under public
law could be granted to her as there was no violation of fundamental right under
the Constitution which are available only to the citizen.
The argument failed for two reasons
- On the ground of Domestic Jurisprudence based on the Constitutional
- On the ground of Human Rights Jurisprudence based on the Universal
Declaration of Human Rights, 1948 which has the international recognition
Moral Code of Conduct having adopted by the General Assembly of the United
The appellants also contended that the Central Government cannot be held
vicariously liable for the offence committed by the employees of the Railways.
It was contended that the liability under 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 Government would not be liable under
the Torts. The argument is wholly bad and is contrary to the law settled by the
Court on the question of vicarious liability in its various decision.
Challenging the said judgement, the chairman of the Railway Board approached the
Supreme Court. Upholding the High Court judgement, the Supreme Court laid down
that in view of the Article 14 read with other Articles, every executive action
of the government is now amenable to the scrutiny of the writ jurisdiction of
the High court and the Supreme court in appropriate cases. The Supreme Court
held that the writ jurisdiction of the High court is wide enough to be extended
in matters of tort for granting compensation to a victim who suffered personal
injuries at the hands of the officers of the government.
In favour of the Respondent
Bodhisatwa V. Ms. Subdhra Chakroborty In this case it was held that rape as an offence which is violative of the
Fundamental Right of a person guaranteed under Article 21 of the
Constitution. The Court observed that 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 the most hated crime. It is a crime against basic human rights a,
and is violative of the victims most cherished right, which is right to life
and includes right to live with human dignity contained in Article 21.
Anwar V. State Of Jammu & Kashmir 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. The word LIFE has also been used prominently in the Universal
Declaration of Human Rights, 1948.
State Of Rajashtan V. Mst. Vidhyawati It was held that the Government 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.
In favour of the appellant
Kasturilal V. State Of Up
It was found that the police officers failed to observe the provisions od
the UP Police Regulations in taking care of the gold seized. The Supreme
Court held that since the negligence of the police-officers was in the
exercise of statutory powers which can be characterised as sovereign powers,
the state was not liable for the same.
Running of Railway is a commercial activity and the facilities are provided to
the passengers in the name of Yatri Niwas and this activity cannot be equated
with the exercise of Sovereign power.
The employees who are deputed to run the employees and if any such employees
commits an action of tort, will be subject to other legal requirement being
satisfied, be held vicariously liable in damages to the wrong done by these
employees. In this case we are dealing with Public law and not in a suit
instituted with Private Law against person who are utilizing their official
position and git the room booked in their own name in the Yatri Niwas where the
act was committed.
It was dismissed with the observations that the amount of compensation shall be
made over to the High Commissioner for Bangladesh in India for payment to the
victim. The payment to the High Commissioner shall be made within three months.
It was held by the Supreme Court that the right to life
contained in Article
21 is available not only to every citizen of the country but also to every
, who may not be a citizen of the country. The Central Government was,
therefore, held liable to pay damages to the person wronged by the Railway
employees. The Supreme Court held that 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 e.g. education, commercial, social, economic,
political etc. These activities cannot be said to be related to sovereign power.
Difference Between Public Law And Private Law
- Public law is a theory of law that governs the relationship between the
state and the individual. Eg: Constitutional, Administrative and Criminal
law while Private law is also known as civil law which involves the
relationship between individuals or private relationships between citizens
and companies. Eg: Tort law, Contract law.
- Public law governs the individual, citizen or corporation, and the
state, while Private law applies to individuals.
- Public law deals with a greater scope, while private law deals with a
more specific scope.
- Public law deals more with issues that affect the general public or the
state itself, where private law focuses more on issues affecting private
individuals, or corporations.
It has been analysed from the above cases that the violation of fundamental
right is available to persons which may be a citizens and non-citizens which is
available in our constitution. Article 14 which guarantees equality before law
or the equal protection of laws within the territory of India is applicable to
persons which would also include citizens and non-citizens. Article 15 says that
there is no discrimination on the basis of caste,creed,religion sex, place of
birth or any of them ta any citizens. All over the world women are entitled to
the equal enjoyment and protection of all human right whether they are the
citizens or non-citizens of the country. The declarations set out, inter alia,
in various articles.
Rape is that type of crime or offence which is a curse to the society and the
one who is doing this type of crime shall be sentenced to death whether it be
the individual or employees of the central or state government. The act of the
statutory expert in such a case is a act improved the situation and for the
State. Consequently the state is held liable. The government is liable for the
servant during exercise sovereign function.
The Government of India may sue or be sued by the name of the Union of India and
the Government of a State may sue or be sued by the name of the State and may,
subject to any arrangements which might be made by Act of Parliament or of the
Legislature of such State authorized by uprightness of forces gave by this
Constitution .The Government should be liable for the wrongdoing of its
The Supreme court has not only itself granted compensation as an ancillary
relief while exercising its writ jurisdiction under Article 32 of the
Constitution. A servant while in the course of the performance of his duties
commits any wrongful act or offence. It was held that where the public
functionaries are involved in matters of invasion of fundamental rights or of
enforcement of public duties, the remedy of compensation by writ is available.
Even a tourist coming to this country is entitled to the protection of his life.
Fundamental Rights in India are in consonance with the Rights contained in the
Universal Declaration of human Rights adopted by the United Nations General
Assembly. It was also said that the jurisdiction has not only to grant relief
for the enforcement of fundamental right but also for any other purpose which
also include the enforcement of public duties by public bodies under Article 32.
It is said that everyone has the right to life no matter she is the citizen of
India or not. Those who are not citizen of this country and came here as a
tourist or for any other purpose, they would be entitled to the protection of
their lives in accordance with the constitutional provisions. They have a
Right to Life
in this country and also have a right to live as long as they
are here with human dignity. Like the state is under an obligation to protect
the life of every citizen in this country and also to protect the life of the
person who are not citizens of this country. The rights guaranteed under
Part-III of the constitution are not absolute in terms.
They are subject to reasonable restriction and therefore in case of non citizen
also, those rights will be available subject to such restriction as may be
imposed in the interest of the security of the state or other important
consideration, as stated in the Universal Declaration of Human Rights 1948. It
is also important everyone as a citizen of the country to protect this type of
act to be committed and promote the development of friendly relations between
As per 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. A
person means anyone may be the citizens or non-citizens who have the right to
live with dignity and free from exploitation.
As a citizens of this country it is our right to protect any type of act or
wrong done to the person who may be the tourist or non-citizens of this country.
It is also provided in the our Constitution. Everyone have been guaranteed the
Fundamental rights. It is the duty of the state to protect fundamental right,
maintain the law and order situation, prevent the crime, the prosecution of the
accused in case the crime is committed.
- Law of Torts (Including Compensation Under The Motor Vehicles Act And
Consumer Protection Laws) by Dr. R.K. Bangia
- Law of Torts (Including Compensation Under The Motor Vehicles Act And
Consumer Protection Laws) by Ratanlal Dhirajlal
- AIR 2000 SC 988.
- (1996) 1 SCC 490
- AIR 1971 SC 337
- AIR 1962 SC 933
- AIR 1965 SC 1039
- Article 1: All human beings are born free and equal in dignity and
Article 2: Everyone is entitled to all the rights and freedom set forth in the
declaration. i.e. without distinction of any kind such as colour, sex,
language, religion etc.
Article 3: Everyone has the right to life, liberty and security of person.
Article 5: No one shall be tortured or treated with cruelty.
Article 7: All are equal before the law and are entitled to equal protection
of the law.
Article 9: No one shall be subjected to arbitrary arrest, detention or exile