State Of Rajasthan & Ors vs Sanyam Lodha

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.

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

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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.

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

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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

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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.

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

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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,

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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

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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