Vicarious Liability:

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 are:

1. Liability of the principal for the tort of his agent.
2. Liability of partners of each other's tort.
3. 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[1]

Fact:
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 Waiting room.

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.

There she 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.

Issue:
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.

Arguments:
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 provisions
• 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 Nations.

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.

Principle:
Cases:
In favour of the Respondent

1. Bodhisatwa V. Ms. Subdhra Chakroborty[2]

   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.
   
   

2. Anwar V. State Of Jammu & Kashmir[3]

   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.
   
   

3. State Of Rajashtan V. Mst. Vidhyawati[4]

   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
   
   

4. Kasturilal V. State Of Up[5]

   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.

Observation:
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.

Held:
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 person , 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

1. 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.
2. Public law governs the individual, citizen or corporation, and the state, while Private law applies to individuals.
3. Public law deals with a greater scope, while private law deals with a more specific scope.
4. 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.

Analysis
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.[6]

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 servants.

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 nations.

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.

References:

1. Law of Torts (Including Compensation Under The Motor Vehicles Act And Consumer Protection Laws) by Dr. R.K. Bangia
2. Law of Torts (Including Compensation Under The Motor Vehicles Act And Consumer Protection Laws) by Ratanlal Dhirajlal

End-Notes:

1. AIR 2000 SC 988.
2. (1996) 1 SCC 490
3. AIR 1971 SC 337
4. AIR 1962 SC 933
5. AIR 1965 SC 1039
6. Article 1: All human beings are born free and equal in dignity and rights
   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