Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7333 OF 2011
[Arising out of SLP [C] No.12721/2009]
State of Rajasthan & Ors. ... Appellants
Vs.
Sanyam Lodha ... Respondent
J U D G M E N T
R.V. RAVEENDRAN J.
Delay condoned. Leave granted.
2. This appeal arises from a decision of the Rajasthan High Court in a
public interest litigation filed by a Legislator and social activist complaining
of arbitrary and discriminatory disbursement of relief under the Chief
Minister's Relief Fund (for short `Relief fund') under the Rajasthan Chief
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Minister's Relief Fund Rules, 1999 (for short, `the Relief Fund Rules'). The
respondent alleged that during the period January 2004 to August, 2005,
challans/chargesheets were filed in 392 cases relating to rape of minor girls;
that out of them, 377 minor girls, did not get any relief or assistance from
the Relief Fund, 13 were granted relief ranging from Rs.10,000 to 50,000,
one victim (minor `K') was given Rs.3,95,000 on 11.8.2004 and another
victim (minor `S') was given Rs.5,00,000 on 25.6.2005.
3. The appellant submitted that minor girls, that too victims of rape,
belong to a weak and vulnerable group who are seldom in a position to seek
relief personally; and that if the Chief Minister was of the view that
monetary relief should be granted to such victims of heinous and depraved
crimes, all similar victims of rape should be given monetary relief.
According to him if there were 392 victims of rape, they should all be
similarly treated and if some are given relief, others also should be given
similar relief. It is contended that when discretion vested in the Chief
Minister in respect of the Relief Fund is exercised in a manner that 377
victims are ignored and 13 are paid amounts varying from Rs.10,000 to
50,000 and two victims alone are paid Rs.3,95,000 and Rs.5,00,000, it leads
to inferences of arbitrariness and discrimination.
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4. The appellant does not have any grievance about payment of
Rs.5,00,000 or Rs.3,95,000 to two of the victims. It is also not his complaint
that the said two victims were undeserving. His grievance is the other way
around. According to him if two of the victims were paid relief amounts in
the range of Rs.3,95,000 and Rs.5,00,000, there was no justification for not
paying any amount to 377 victims, or for paying amounts which were
comparatively very small (that is Rs.10,000 to 50,000) in the case of thirteen
victims. He contended that like other governmental resources or funds, the
distribution or monetary relief under the Relief Fund should be equitable,
non-discriminatory and non-arbitrary. He submitted that paying very high
amounts in only one or two cases merely because of media focus on those
cases or because the case had become caste-sensitive or because it was
politically expedient, while ignoring other similar cases, was neither
warranted nor justified. He also contended that disbursement of monetary
relief to the victims cannot be in the absolute discretion or according to the
whims and fancies of the Chief Minister and grant of monetary relief under
the Relief Fund should not become distribution of government largesse to a
favoured few. The respondent therefore filed a writ petition (impleading the
appellants, namely the State of Rajasthan, Home Ministry of the State and
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Secretary to the Chief Minister, as the respondents), seeking the following
reliefs :
(i) a direction to the appellants to give to all rape victims, who had not
been granted any monetary relief or who had been granted a negligibly small
relief, monetary relief of Rs.5 lakhs as in the case of `minor K';
(ii) for a declaration that failure to give monetary relief, or failure to give
a uniform monetary help, to all victims of rape from the Relief Fund is
illegal, arbitrary and unconstitutional; and
(iii) for deprecation of the misuse or discriminatory utilization of the
Chief Minister's Relief Fund with a direction to the Chief Minister to adopt
a fair and non discriminatory policy in regard to disbursement of amounts
from the Relief Fund to similarly situated persons, in particular minor
victims of rape.
5. The appellants resisted the writ petition contending that disbursement
of funds from the Chief Minister's Relief Fund is in implementation of the
policy of the state government to place at the disposal of the Chief Minister
of the State, some funds for granting relief to the needy and deserving,
including victims of calamities, disasters and traumatic incidents. It was
submitted that the discretion has been vested with the Chief Minister who is
the highest executive functionary in the State, to ensure proper utilization of
the fund, that vesting of such discretion to grant some relief to victims of
disasters, accidents and gruesome incidents, could not be subjected to any
rigid guidelines, and that the discretion and power to grant relief from the
said fund is exercised by the Chief Minister in appropriate and deserving
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cases in public interest. It is contended that exercise of discretion in granting
monetary benefit under such a Relief Fund by a high functionary cannot be
subjected to principles of equality and non discrimination.
6. The High Court allowed the writ petition by order dated 18.12.2007. It
was of the view that all minor victims of rape required to be treated equally
for the purpose of grant of relief by the Chief Minister under the Relief
Fund. Consequently, the Division Bench directed that Rule 5 of the Relief
Fund Rules 1999 should be read (prospectively) as under :
"This fund shall be under Hon'ble the Chief Minister so that he/she may
utilize the fund equally and without discrimination for grant of financial
help."
The said order is challenged by the appellants in this appeal by special leave.
On the contentions urged in this appeal, the following questions arise for
consideration :
(i) Whether the High Court could have substituted Rule 5 of the Relief
Fund Rules?
(ii) Whether the court was justified in holding that all victims should be
"treated equally" while granting relief under the Chief Minister's
Relief Fund.
(iii) Whether a rule could be interfered merely on the ground it vests
unguided discretion?
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The Rules relating to Chief Minister's Relief Fund
7. The Chief Minister's Relief Fund was originally constituted in
October 1968. Subsequently the fund was governed by the Rajasthan Chief
Minister's Famine and Relief Fund Rules 1979 (for short `Relief Fund
Rules'). Subsequently by merging six different funds, namely Chief
Minister's Famine & Flood Relief Fund, Hospital Development Fund,
General Assistance Fund, Security Service Welfare Fund, Child Welfare
Fund and Development Fund, the Governor constituted a single fund known
as `Rajasthan Chief Minister's Relief Fund' governed by the Rajasthan
Chief Minister's Relief Fund Rules, 1999.
7.1) Rule 4 provides that the annual income (by way of interest) from the
said fund should be spent for the following purposes: (i) Famine, flood and
accident relief (ii) hospital development and medical assistance; (iii) general
assistance; (iv) security services welfare assistance, (v) child welfare relief
and (vi) development of the state, in the proportion of 50%, 25%, 10%, 5%,
5% and 5% respectively.
7.2) Rule 5 of the Relief Fund Rules reads thus: "This fund would be
under the control of Hon'ble Chief Minister and he would be able to
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sanction financial assistance upto any limit in any manner from this fund."
This rules has been substituted by a differently worded rule, by the High
Court (extracted above).
7.3) Rule 4 and the note under Rule 5 provide that the provisions of Rules
4 and 5 were only norms and shall not be considered as barriers for exercise
of discretion by the Chief Minister and reiterate that only the interest earned
on the fund should be spent every year.
7.4) Rule 7 provides that the Secretary to the Chief Minister would be
authorized, under the overall control and superintendence of the Chief
Secretary, for the functioning, capital investment and for drawing money
from accounts of the fund. Rule 8 provides that the accounts of the fund will
be maintained in the Chief Minister's office and audited by the Auditor,
Local Fund Audit Department. Rule 10 provides that the Chief Minister
would have the right to relax the current provisions of the fund and sanction
assistance. Rule 11 provides that the rules could be amended by the consent
of the Chief Minister if so required.
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Re: Question (i)
8. The appellants contend that Rule 5 of the Relief Fund Rules were not
under challenge in the writ petition and the High Court was not called upon
to consider the validity of the said Rule; and that therefore the High Court
was not justified in substituting Rule (5) with a new rule, by virtually
exercising legislative functions.
9. Rule (5) which has been modified by the High Court in its final order,
as noticed above is a part of Rajasthan Chief Minister Relief Fund Rules,
1999. The Relief Fund Rules is not a delegated legislation. Though
described as `Rules', the Relief Fund Rules are norms/guidelines issued in
exercise of the executive power of the State under Article 162 of the
Constitution of India. The Relief Fund rules were not under challenge in the
writ petition. In fact there was not even a reference to the Relief Fund Rules
in the writ petition. All that the PIL petitioner (respondent herein) wanted
was that all victims of a particular category should be treated equally and
that if some monetary relief was granted from Chief Minister's Relief Fund,
to some victims belonging to a particular category, similar relief should be
granted to all victims in that category. As there was no challenge to the
Relief Fund Rules, the State was not called upon to satisfy the High Court
9
about the validity of the Relief Fund Rules. Similar Rules are in force in
almost all the States in India.
10. The learned counsel for the respondent submitted that the High Court
has not declared Rule (5) to be invalid, but has merely read it down, to save
it from being declared as unconstitutional and such reading down is
permissible in law. It is true that any provision of an enactment can be read
down so as to erase the obnoxious or unconstitutional element in it or to
bring it in conformity with the object of such enactment. Similarly a rule
forming part of executive instructions can also be read down to save it from
invalidity or to bring it in conformity with the avowed policy of the
government. When courts find a rule to be defective or violative of the
constitutional or statutory provision, they tend to save the rule, wherever
possible and practical, by reading it down by a benevolent interpretation,
rather than declare it as unconstitutional or invalid. But such an occasion did
not arise in this case as there was no challenge to the validity of Rule 5 and
the parties were not at issue on the validity of the said rule.
11. We are therefore of the view that in the absence of any challenge to
the Relief Fund Rules and an opportunity to the state government to defend
10
the validity of Rule 5, the High Court ought not to have modified or read
down the said Rule.
Re : Question No. (ii)
12. We may next consider whether there was any justification for the
decision of the High Court amending Rule 5. The High Court held that out
of 392 cases of rape where challans were filed between January 2004 to 25th
July, 2005 relief had been given to only 15 victims and other 377 were not
given any relief. Even among the 15 who were given relief, 13 were given
relief in the range of Rs.10,000 to Rs.50,000 and in two cases
disproportionately high amounts, that is Rs.5 lakhs in one case and Rs.3.95
lakhs in the other, were awarded. According to the High Court, all victims
under twelve years of age are to be treated equally. The High Court held that
section 376(2)(f) of the Indian Penal Code (`Code' for short) provided for
the same punishment in regard to all rapes where the victim is under twelve
years of age, irrespective of the age of the victim. It therefore held that when
the Penal Code did not make any distinction in regard to victims of rape
under twelve years, there can be no discrimination in granting monetary
relief to such victims. Consequently, it directed the monetary relief from the
Chief Minister's Relief Fund to be utilized equally to benefit the victims of
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rape, without any discrimination. The illustrative comparison with reference
to section 376(2)(5) of the Code, by the High Court, to hold that all victims
of rape should be treated equally and identically in granting monetary relief,
is inappropriate and made on an assumption which has no basis, by adopting
a logic which is defective.
13. The provisions relating to punishment for offences under criminal law
have no bearing upon grant of ex-gratia monetary benefit to some of the
victims. Secondly, the assumption that all cases of rape involving victims
under twelve years are liable to be punished identically under the Code, is
not correct. Section 376(2)(f) no doubt refers to rape of girl/child under the
age of twelve years as one category, for award of a more severe punishment,
but does not provide for a fixed quantum of punishment. The said section
provides that a person who commits rape on a woman when she is under
twelve years of age shall be punished with rigorous imprisonment for a term
which shall not be less than ten years but which may be for life and shall
also be liable for fine. The term of ten years imprisonment mentioned in
section 376(2) is the minimum punishment in regard to cases falling under
section 376(2)(f). The gravity and perversity of the crime, the need to keep
the perpetrator out of circulation, the social impact, chances of correcting the
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offender, among other facts and circumstances, will have a bearing upon the
sentence. The sentence may vary for any period between life and ten years.
The amount of fine may also vary depending upon the aforesaid
circumstances and in addition, the financial position of the victim and the
offender. Section 376 gives discretion to the Court in regard to imposition of
sentence, depending upon the facts of each case, so long as the limits
prescribed are not breached. Therefore the assumption that no distinction is
made in regard to either punishment under the Code where the victim is
under twelve years of age, and therefore, all such victims should get an equal
amount as monetary relief, is erroneous.
14. Section 357 of the Code of Criminal Procedure (`Cr.P.C.' for short)
provides for a direction to pay compensation to the victim, from out of the
fine. It does not provide that the compensation awarded should be a uniform
fixed amount. Section 357A of Cr.P.C. (introduced with effect from
31.12.2009) requires every state government in co-ordination with the
central government, to prepare a scheme for providing funds for the purpose
of payment of compensation to the victims who require rehabilitation (or
who have suffered loss or injury as a result of the crime). This section also
does not provide that the compensation should be an identical amount. The
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victim may also sue the offender for compensation in a civil proceedings.
There also the quantum may depend upon the facts of each case. Therefore
the inference that the monetary relief awarded under the Relief Fund should
be identical for all victims of rape under the age of twelve years, is illogical
and cannot be accepted.
15. Having regard to the scheme of the Relief Fund Rules, grant and
disbursal of relief amount under the said Relief Fund Rules is purely ex
gratia, at the discretion of the Chief Minister. The Relief Fund Rules do not
create any right in any victim to demand or claim monetary relief under the
fund. Nor do the Rules provide any scheme for grant of compensation to
victims of rape or other unfortunate circumstances. Having regard to the
nature and scheme of the Relief Fund and the purposes for which the Relief
Fund is intended, it may not be possible to provide relief from the Relief
Fund, for all the affected persons of a particular category. Monetary relief
under the Relief Fund Rules may be granted or restricted in exceptional
cases where the victims of offences, have been subjected to shocking trauma
and cruelty. Naturally any public outcry or media focus may lead to
identifying or choosing the victim, for the purpose of grant of relief. Other
victims who are not chosen will have to take recourse to the ordinary
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remedies available in law. It is not possible to hold that if one victim of a
particular category is given a particular monetary relief under the Relief
Fund Rules, every victim in that category should be granted relief or that all
victims should be granted identical relief.
16. The need to treat equally and the need to avoid discrimination arise
where the claimants/beneficiaries have a legal right to claim relief and the
government or authority has a corresponding legal obligation. But that is
also subject to the principles relating to reasonable classification. But where
the payment is ex-gratia, by way of discretionary relief, grant of relief may
depend upon several circumstances. The authority vested with the discretion
may take note of any of the several relevant factors, including the age of the
victim, the shocking or gruesome nature of the incident or accident or
calamity, the serious nature of the injury or resultant trauma, the need for
immediate relief, the precarious financial condition of the family, the
expenditure for any treatment and rehabilitation, for the purpose of extension
of monetary relief. The availability of sufficient funds, the need to allocate
the fund for other purposes may also play a relevant role. The authority at
his discretion, may or may not grant any relief at all under Relief Fund
Rules, depending upon the facts and circumstance of the case.
15
Re : Question No.(iii)
17. The Chief Minister is the head of the State Government, though the
executive power of the State is vested in the Governor. He is in-charge of the
day to day functioning of the State Government. He virtually controls the
State executive and legislature. When calamities, disasters, heinous and
dastardly crimes occur, and there is need to immediately respond by
providing relief, regular governmental machinery may be found to slow and
wanting, as they are bound down by rules, regulations and procedures.
Special circumstances may warrant emergent financial assistance. It is also
possible that the existing laws may not provide for grant of relief in some
circumstances to needy victims. It is in such circumstances, the Chief
Minister's Relief Fund is necessary and useful. Where power is vested in
holders of high office like the Chief Minister to give monetary relief from
such a Relief Fund, it is no doubt a power coupled with duty. Nevertheless,
the authority will have the discretion to decide, where the Relief Fund Rules
do not contain any specific guidelines, to whom relief should be extended, in
what circumstances it should be extended and what amount should be
granted by way of relief.
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18. All functionaries of the State are expected to act in accordance with
law, eschewing unreasonableness, arbitrariness or discrimination. They
cannot act on whims and fancies. In a democracy governed by the rule of
law, no government or authority has the right to do what it pleases. Where
the rule of law prevails there is nothing like unfettered discretion or
unaccountable action. But this does not mean that no discretion can be
vested in an authority or functionary of high standing. Nor does it mean that
certain funds cannot be placed at the disposal of a high functionary for
disbursal at his discretion in unforeseen circumstances. For example, we
may refer to the extreme case of secret funds placed at the disposal of
intelligence organizations and security organizations (to be operated by very
senior officers) intended to be used in national interest and national security
or crime detection relating to serious offences, either to buy information or
to mount clandestine operations. Such funds should not be confused with
slush funds kept for dishonest purposes. The expenditure/disbursals from
such secret funds are not subjected to normal audits nor required to be
accounted for in the traditional manner. Another example is the Relief Funds
placed at the disposal of the holders of high office like Prime Minister or
Chief Ministers of States to provide timely assistance to victims of natural
calamities, disasters, and traumatic experiences, or to provide medical or
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financial aid to persons in distress and needy, among other purposes. These
Relief Funds are different from secret funds. The inflow into the Relief Fund
and the disbursals therefrom are fully accounted. The Relief Funds are
regularly audited. The purposes for which such Relief Funds could be
utilized are clearly laid down, subject to the residuary discretion vested in
the Prime Minister/Chief Minister to grant relief in unforeseen
circumstances. The Prime Minister/ Chief Minister is given the discretion to
choose the recipient of the relief, the quantum of the relief, and the timing of
grant of such relief. Unless such discretion is given, in extraordinary
circumstances not contemplated in the guidelines, the Relief Fund in the
hands of the Chief Minister may be useless and meaningless. When
discretion is vested in a high public functionary, it is assumed that the power
will be exercised by applying reasonable standards to achieve the purpose
for which the discretion is vested.
19. A Constitution Bench of this Court in B.P. Singhal v. Union of India
(2010) 6 SCC 331 while explaining the nature of judicial review of
discretionary functions of persons holding high offices held that such
authority entrusted with the discretion need not disclose or inform the cause
for exercise of the discretion, but it is imperative that some cause must exist,
18
as otherwise the authority entrusted with the discretion may act arbitrarily,
whimsically or mala fide. Elucidating the said principle this Court observed:
"The extent and depth of judicial review will depend upon and vary with
reference to the matter under review. As observed by Lord Steyn in Ex
parte Daly [2001 (3) All ER 433], in law, context is everything, and
intensity of review will depend on the subject-matter of review. For
example, judicial review is permissible in regard to administrative action,
legislations and constitutional amendments. But the extent or scope of
judicial review for one will be different from the scope of judicial review
for other. Mala fides may be a ground for judicial review of administrative
action but is not a ground for judicial review of legislations or
constitutional amendments."
20. Whenever the discretion is exercised for making a payment from out
of the Relief Fund, the Court will assume that it was done in public interest
and for public good, for just and proper reasons. Consequently where anyone
challenges the exercise of the discretion, he should establish prima facie that
the exercise of discretion was arbitrary, mala fide or by way of nepotism to
favour undeserving candidates with ulterior motives. Where such a prima
facie case is made out, the Court may require the authority to produce
material to satisfy itself that the discretion has been used for good and valid
reasons, depending upon the facts and circumstances of the case. But in
general, the discretion will not be open to question.
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21. The Relief Fund Rules does not confer absolute unguided discretion
on the Chief Minister. Rule 4 as noticed above, enumerates the six major
heads of purpose for which the relief amount from the fund could be
sanctioned, namely, (i) persons affected by natural calamities and disasters
like famine, flood and accidents, (ii) hospital development and medical
assistance, (iii) general assistance (social unity, education, sports, youth
creativity, etc.), (iv) benefits to ex-servicemen, (v) child welfare, and (vi)
development of Rajasthan. Each of the six purposes is further divided into
detailed sub-heads. There are thus detailed guidelines as to the purposes for
which the Relief Fund is to be used. There are checks and balances in regard
to the expenditure/withdrawals from the said fund as the fund is subject to
audit by the auditor of the local fund audit department. In addition to the
above, Rule 5 vests a residuary discretionary power upon the Chief Minister
to sanction financial assistance from the Relief Fund, upto any limit in any
matter to anyone. This is because it is not possible to foresee every possible
situation or contingency where relief should be or could be given. The
discretion under Rule 5 is intended to be exercised in rare and extraordinary
circumstances.
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Conclusion
22. As the Relief Fund is expected to be utilized for various purposes, it
may not be proper or advisable to grant huge amounts in one or two cases,
thereby denying the benefit of the Fund to other needy persons who are also
the victims of catastrophes. The amount granted should therefore be
reasonable, to meet the immediate need of coming out of the
trauma/catastrophe. When there are no guidelines or when it is difficult to
limit the discretion in a high functionary by guidelines, the authority should
be careful in exercising discretionary power, so to ensure that it does not
give room for nepotism, favoritism or discrimination. Obviously the relief
amount from the Fund cannot be given to persons who are not the victims of
any disaster or catastrophe or adverse circumstances or who do not fall
under any of the categories specified in the Relief Fund Rules. Relief
amount cannot be granted, merely because the recipient happens to be the
friend, supporter of the Chief Minister or belongs to his political party. The
disbursement or payment to undeserving cases can be questioned. But the
mere fact that in two cases of rape involving extreme viciousness and
depravity, high compensation has been granted having regard to the gravity
of the offence and the surrounding circumstances, is by itself not sufficient
to interfere with the discretion of the Chief Minister.
21
23. In this case the grievance of the respondent is that in the case of one
rape victim a sum of Rs.5 lakhs was awarded from the Chief Minister's
Fund, for another victim Rs.3.95 lakhs was awarded whereas in several other
cases hardly Rs.10,000 to Rs.15,000 were awarded and in several other cases
nothing was awarded. The Chief Minister's Relief Fund is not a scheme for
the benefit of victims of rape. There are other schemes and other provisions
for granting of compensation to such victims. As noticed above, the Chief
Minister's Relief Fund is intended to provide relief to victims of various
calamities/disasters/accidents/incidents and serve other specified purposes.
The appellants have pointed out that Rs.5 lakhs was awarded in a shocking
case where victim was only a few months old. In the other case where
Rs.3.95 lakhs was awarded as the victim required rehabilitation and the
family of the victim was in dire circumstances. These two payments from
the Relief Fund, cannot form the basis for issuing a direction to pay similar
amounts to other victims of rape. Nor is it possible to hold that failure to
give uniform ex-gratia relief is arbitrary or unconstitutional.
24. We may however note that the six specified purposes and their sub-
heads enumerated in the Relief Fund Rules for grant of relief do not
specifically include victims of ghastly/heinous crimes. It may be appropriate
22
to include a sub-category relating to such victims under category (i) or (iii)
of Rule (4) of the Relief Fund Rules. Be that as it may.
25. We therefore allow this appeal, set aside the impugned order of the
High Court and dismiss the PIL filed by the respondent in the High Court,
subject to the above observations.
............................J.
(R. V. Raveendran)
............................J.
(A.K. Patnaik)
New Delhi;
August 25, 2011
