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the Chief Minister’s Relief Fund (for short `Relief fund’) under the Rajasthan Chief

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 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 

 2

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. 

 3

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 

 4

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 

 5

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? 

 6

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 

 7

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. 

 8

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 

 11

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 

 12

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 

 13

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 

 14

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. 

 16

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 

 17

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.

 19

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. 

 20

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

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