STATE OF RAJASTHAN & ORS.versusSANYAM LODHA

                        [2011) 10 S.C.R. 662


A                 STATE OF RAJASTHAN & ORS.
                                  v.
                           SANYAM LODHA
                   (Civil Appeal No. 7333 of 2011)
                         AUGUST 25, 2011
B
          [R.V. RAVEENDRAN AND A.K. PATNAIK, JJ.]

       RAJASTHAN CHIEF MINISTER'S RELIEF FUND
    RULES, 1999:
c
       Rule 5 rlw r. 4 - Chief Minister's Relief Fund -Writ petition
  alleging arbitrary and discriminatory disbursement of relief:to ·
  minor victims of rape , and seeking direction that monetary
  relief of Rs. 5 lakhs be granted to each of such victim -
0 Allowed by High Court - High Court further substituting r. 5 -
  Held - The Relief Fund Rules are not delegated legislation,
  but are norms/guidelines issued in exercise of executive_
  power of State under Article 162 of the Constitution and were
  not under challenge in the writ petition - Therefore, High Court
  ought not to have modified or read down r. 5 - Relief Fund
E Rules do not create any right in any victim to claim monetary
  relief nor do they provide any scheme for grant of
  compensation to rape victims - Grant of relief amount
  thereunder is purely ex gratia at the discretion of the Chief
  Minister and may depend upon several circumstances -
F There are detailed guidelines and checks and balances in
  regard to disbursement of the Relief Fund with a residuary
  discretionary power with the Chief Minister - The payment
  made to a victim from Relief Fund cannot form the basis for
  issuing a direction to pay similar amounts to other victims of
G rape - Nor can it be held that failure to give uniform ex gratia
  relief is arbitrary or unconstitutional - However, it may be
  appropriate to include a sub-category relating to rape victims
  under category (i) or (iii) of r. 4 - Administrative Law - Norms/
  guidelines-Modification suggested - Constitution of India,
H                                   662
. STATE OF RAJASTHAN & ORS. v. SANYAM LODHA 663


 1950 - Articles 14 and 162 - Delegated legislation.            A
     ADMINISTRATIVE. ~AW:

     Prime Minister's/Chief Minister's Relief Fund -   Nature
 and purpose of - Explained.
                                                                B
       High Office theory/Doctrine of Office of Trust - Residuary
 discretionary power vested in Prime Minister/Chief Minister
 to sanction financial assistance from the Relief Fund - The
 Relief Funds placed at the disposal of the holders of high
 office like Prime Minister or Chief Ministers of States are to c
 provide timely assistance to victims of natural calamities,
 disasters, and traumatic experiences, or to provide medical
 or financial aid to persons in distress and needy, among other
 purposes - The purposes for which such Relief Funds could
 be utilized are clearly laid down, subject to the residuary 0
 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 E
 extraordinary circumstances not contemplated in the
 guidelines, the Relief Fund may not serve its purpose - 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 F
 vested.

        Prime Minister's/Chief Minister's Relief Fund - Exercise
  of discretion in disbursement of monetary relief under - .
  Judicial review of- Held: Whenever the discretion is exercised
  for making a payment from out of the Relief Fund, the court G
. will assume thatit 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, ma/a fide or by way of nepotism to favour H
     664     SUPREME COURT REPORTS                   [2011] 10 S.C.R.


'A   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
B    discretion will not be open to question - Judicial review.

       The respondent, a legislator and social activist, filed
  a writ petition before the High Court stating that
  disbursement of relief under the Chief Minister's Relief
  Fund (Relief Fund) in terms of the Rajasthan Chief
C Minister's Relief Fund Rules, 1999 (the Relief Fund Rules)
  was arbitrary and discriminatory inasmuch as during the
  period January 2004 to August, 2004, out of 392 cases
  relating to rape of minor girls, 377 did not get any relief
  from the Relief Fund, 13 were granted relief ranging from
D Rs. 10,000 to Rs. 50,000/-, one was given Rs. 3;95,000/-
  and another Rs. 5,00,000/-. It was, therefore, prayed that
  a direction be given to the State Government to give
  monetary relief of Rs. 5 lakhs to each of the rape victims
  in the State; that it be declared that failure to give
E monetary re.lief or to give a uniform help to all victims of
  rape from the Relief Fund was illegal, arbitrary and
  unconstitutional; and that a direction be given to the
  Chief Minister to adopt a fair and non-discriminatory
  policy in regard to disbursement of the Relief Fund to
F similarly situated persons, in particular, minor victims of
  rape. The High Court allowed the writ petition holding that
  all minor victims of rape were required to be treated
  equally, and directed that Rule 5 of the Relief Fund Rules
  should be read as substituted by it. Aggrieved, the State
G Government filed the appeal.
         The questions for consideration before the Court
     were: (i) whether the High Court could have substituted
     Rule 5 of the Relief Fund Rules; (ii) whether the High
     Court was justified in holding that all victims should be
H
STATE OF RAJASTHAN & ORS. v. SANYAM LODHA 665


"treated equally'' while granting relief under the Chief          A
Minister's Relief Fund; and (iii) whether a rule could be
interfered merely on the ground that it vests 1,mguided
discretion?
    Allowing the appeal, the Court                                B
    HELD:
Re: Question (i)
    1.1 Rule (5) which has been modified by the High              C
Court in its final order, is a part of Rajasthan Chief Minister
Relief Fund Rules, 1999 which 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            D
under challenge in the writ petition. All that the PIL
petitioner (respondent) 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             E
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 about the validity, of the Relief Fund Rules.
Similar Rules are in force in almost all the States in India.     F
[para 9) [675-B-D]

      1.2. It is true that any provision of an enactment, a
rule forming part of executive instructions can be read
down so as to erase the obnoxious or unconstitutional             G
element in it or to bring it in conformity with the object of
such enactment. But, such an occasion did not arise in
the instant case as there was no challenge to the valid_ity
of r. 5 and the parties were not at issue on the validity of
the said rule. Therefore, the High Court ought not to have        H
    666     SUPREME COURT REPORTS             [2011] 10 S.C.R.


A modified or read down the said Rule. [para 10) [675-E-H;
  676•A]
   Re : Question No. (ii)
         2.1 The illustrative comparison with reference to s.
B 376(2)(f) IPC, 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. Firstly, the provisions relating· to
C 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 IPC is not correct. The
D .sentence may vary for any period between life and. ten
    years, depending upon the circumstances. of the case.
    The amount of fine may also vary depending upon the
    circumstances and in addition, the financial position of
    the victim and the offender. Section 376 gives discretion
E 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.Further;~ss. 357 and
    357-A Cr.P .C. alsp do not provide that the compensation
    should be an identical amount. Besides, in civil
F proceedings, the victim may also sue the offender for
    compensation and there also tlie quantum may depend
    upon the facts of each case. Therefore, the assumption
    that no distinction is made in regard to either punishment
    under IPC where the victim is under twelve years of age,
    and the inference that the monetary relief awarded under
G the Relief Fund should be identical for all victims of rape
    under the age of twelve years, are illogical and cannot be
    accepted. [para 12-14) [676-F-H; 677-A-H; 678-A-B]
      2.2 The Relief Fund Rules do not create any right in
H any victim to demand or claim monetary relief under the
STATE OF RAJASTHAN & ORS. v. SANYAM LODHA 667

fund. Nor do the Rules provide any scheme for.grant of          A
compensation to victims of rape or other unfOrtunate
circumstances. 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               B
obligation. However, that is also subject to the principles
relating to reasonable classification. But where the
payment is ex-grati.a, by way of discretionary relief, grant
of relief may depend upon several circumstances. Having
regard to the scheme of the Relief Fund Rules, grant and        c
disbursal of relief amount thereunder is purely ex gratia,
at the discretion of the Chief Minister. 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. [para 15-16] [678-C-D; 679-G-
                                                                0
H; 680-A-C]
Re : Question No.(iii) ·
     3.1 The Relief Funds. placed at the disposal of the
holders of high office like Prime Minister or Chief             E
Ministers of States are to provide timely assistance to
victims of natural calamities, disasters, and traumatic
experiences, or to provide medical or financial aid to
persons in distress and needy, among other purposes.
Spe~ial circumstances may warrant emergent financial
assistance. It is also possible that the existing laws may      F
not provide for grant of relief in some circumstances to
needy victims. It is in such circumstances, the Relief
Funds are necessary and useful. These Relief Funds are
different from secret funds. The inflow into the Relief
Fund and the disbursals therefrom are fully accounted.          G
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      H
    668      SUPREME COURT REPORTS               [2011] 10 S.C.R.


A 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 not
B serve its purpose. 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. [para 17-
  18] [679-D-H; 680-F-H; 681-A]
c         B.P. Singhal v. Union of India (2010) 6 SCC 331 - relied
    on.

     · 3.2 Whenever the discretion is exercised for making
  a payment from out of the Relief Fund, the court will
D 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
E to favour undeserving candidates with ulterior motives.
  Where such a prima facie cas.e 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
F the case. But in general, the discretion will not be open
  to question. [para 20] [681-F-H; 682-A]
      3.3 However, the Relief Fund Rules do not confer
  absolute unguided discretion on the Chief Minister. Rule
  4 enumerates the six major heads of purposes for which
G the relief amount from the fund could be sanctioned.
  Each of the six purposes is further divided into detailed
  sub-heads. There are, thus, detailed g!Jfdelines as to the
  purposes for which the Relief Fund Is to be used. There
  are ~hecks and balances in regard to the expenditure/
H withdrawals from the said fund, which is subject to audit
 STATE OF RAJASTHAN & ORS. v. SANYAM LOIJHA 669


by the local fund audit department. Besides, Rule 5 vests A
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. 8
The discretion under Rule 5 is intended to be exercised
in rare and extraordinary circumstances. However, the
six specified purposes and their sub-heads enumerated
in the Relief Fu11d Rules for grant of relief do not·
specifically include victims of ghastly/heinous crimes. It C
may be appropriate to include a sub-category relating to
such victims under category (i) or (iii) of Rule (4) of the
Relief Fund Rules. [para 21 and 24] [682-B-E; 683-H; 684-
A]
      3.4 As the Relief Fund is expected to be utilized for      o
 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           E
"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 as to ensure that it does not give room for           F
 nepotism, favoritism or discrimination. The disbursement
 or payment to undeserving cases can be questioned. But
 the mere fact that, in the instant matter, in two cases of
 rape involving extreme viciousness and_depravity, high
 compensation has been granted having regard to the              G
 gravity of the offence and the surrounding
 circumstances, that by itself is not sufficient to interfere
 with the discretion of the Chief Minister. Nor is it possible
 to hold that failure to give uniform ex-gratia relief is
 arbitrary or unconstitutional. [para 22-23] [682-F-H; 683-
 A-C-G]                                                          H
    670          SUPREME COURT REPORTS              [2011] 10 S.C.R.


A       4. The impugned order of the High Court is set aside
    and the PIL filed by the respondent in the High Court is
    dismisse4,..[para 25) _[684-C]
                          Case Law Reference:
B         (201 O) s sec 331           relied on             para 19
             ,     '
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    7333 of 2011.

    · From the Judgment & Order dated 18.12.2007 of the High
C Court of Rajasthan, Bench at Jaipur in D.B. Civil Writ Petition
  No. 9944 of 2005.

         Dr. Manish Singhvi, AAG, D.K. Devesh, Milind Kumar for
    the Appellants.
D       Colin Gonsalves, Divya Jyoti, Jyoti Mendiratta for the
    Respondent.

          The Judgment of the Court was delivered by

E       R.V. RAVEENDRAN J. 1. 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
F disbursement of relief under the Chief Minister's Relief Fund
  (for short 'Relief fund') under the Rajasthan Chief 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
G 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.
H
STATE OF RAJASTHAN & ORS. v. SANYAM LODHA 671
          . [R.V. RAVEENDRAN, J.]
     3. The appellant submitted that minor girls, that too victims A
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 B
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 c
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.

      4. The appellant does not have any grievance about
·payment of Rs.5,00,000 or Rs.3,95,000 to two ofthe victims. It D
 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 E
 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 F
 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 G
 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 H
    672       SUPREME COURT REPORTS                  [2011] 10 S.C.R.


A   the State of Rajasthan, Home Ministry of the State and
    Secretary to the Chief Minister, as the respondents), seeking
    the following reliefs :

          (i) a direction to the appellants to give to all rape victims,
B         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
c         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
D         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
E 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
F submitted that the discretion has been vested with the Chief
  Minister who is th~ 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
G guidelines, and that the discretion and power to grant relief from
  the said fund is exercised by the Chief Minister in appropriate
  and deserving 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
H principles of equality and non discrimination.
 STATE OF RAJASTHAN & ORS. v. SANYAM LODHA 673
            [R.V. RAVEENDRAN, J.]

      6. The High Court allowed the writ petition by order dated     A
 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 :                      B·

     "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        C
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?                            D

      (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       E
              ground it vests unguided discretion?

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               F
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        G
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.
    674     SUPREME COURT REPORTS                 (2011] 10 S.C.R.


A       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
B 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
C would be able to 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
D 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
E 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
F 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.

G 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
H Rule; and that therefore the High Court was not justified in
STATE OF RAJASTHAN & ORS. v. SANYAM LODHA 675
           [R.V. RAVEENDRAN, J.]
substituting Rule (5) with a new rule, by virtually exercising      A ·
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 8
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 C
reference to the Relief Fund Rules in the writ petitioa. 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 D
was no challenge to the Relief Fund Rules, the State was not
called upon to satisfy the High Court.about the validity of the
Relief Fund Rules. Similar Rules are in force in almost all the
States in India.
                                                                     E
       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 F
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 G
rule to be defective or violaUve 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 H
      676     SUPREME COURT REPORTS                  [2011] 10 S.C.R.


 A.   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 the validity of Rule 5, the High Court
 8
      ought not to have modified or read down the said Rule.

      Re : Question No. (ii)

            12. We may next consider whether there was. any
c justificati9n 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
  0   ·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
  E 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
. F such victims. Consequently, it directed the monetary relief from
       the Chief Minister's Relief Fund to be utilized equally to benefit
       the victims of 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
  G· 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
H     under criminal law have no bearing upon grant of ex-gratia
 STATE OF RAJASTHAN & ORS. v. SANYAM LODHA 677
            [R.V. RAVEENDRAN, J.]
monetary benefit to some of the victims. Secondly, the                 A
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               B
quantum of punishment. The said section provides that a
person who commits rape on a woman when she i§ under
twelve years of age shall be punished with rigorous
impris~oment 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       c
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 ofthe crime; the
need to keep the perpetrator out of circulation, the social
impact, chances of correcting the offender, among other facts          0
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
                                                                       E
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 ~rroneous.           F

      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              G
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        H
    678      SUPREME COURT REPORTS                  [2011) 10 S.C.R.


A loss or injury as a result of the crime). This section also does
  not provide that the compensation should be an identical
  amount. The 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
B 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
C   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
D   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
E   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 remedies available in law. It is
F   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
G 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 relatihg to reasonable classification. But where the
H payment is ex-gratia, by way of discretionary relief, grant of
STATE OF RAJASTHAN & ORS. v. SANYAM LODHA 679
           [R.V. RAVEENDRAN, J.]

relief may depend upon several circumstances. The authority          A
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 r:iature of the injury or resultant trauma, the need for
immediate relief, the precarious financial condition of the          -s .
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,     c
depending upon the facts and circumstance of the case.

Re : Question No.(iii)
     17. The Chief Minist~r is the head of the State
Government, though the executive power of the State is vested        D
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          E   1



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     F
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         G
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.

    18. All functionaries of the State are expected to act in
accordance with law, eschewing unreasonableness,                     H
    680     SUPREME COURT REPORTS                  [2011) 10 S.C.R.

A   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
B   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
C   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/
0
    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
E   natural calamities, disasters, and traumatic experiences, or to
    provide medical or 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
F   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
G   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
H   functionary, it is assumed that the power will be exercised by
STATE OF RAJASTHAN & ORS. v. SANYAM LODHA 681
           [R.V. RAVEENDRAN, J.]
applying reasonable standards to achieve the purpose for               A ·
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       B
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,
as otherwise the authority entrusted with the discretion may act
arbitrarily, whimsically or mala fide. Elucidating the said            C
 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      D
     will depend on the subject-matter of review. For example,
     juqicial 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       E
     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
                                                                       F
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.       G
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
                                                                       H
    682      SUPREME COURT REPORTS                  [2011) 10 S.C.R.


A in general, the discretion will not be open to question.

          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,
8
    (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
C   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
D   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
E   should be or could be given. The discretion under Rule 5 is
    intended to be exercised in rare and extraordinary
    circumstances.

    Conclusion
F      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
G 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
H
STATE OF RAJASTHAN & ORS. v. SANYAM LODHA 683
           [R.V. RAVEENDRAN, ·J.]
for nepotism, favoritism or discrimination. Obviously the relief     A
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,      B
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         c
the surrounding circumstances, is by itself not sufficient to
interfere with the discretion of the Chief Minister.

      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     D
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.       E
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         F
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    G
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
                                                                     H
    684       SUPREME COURT REPORTS                 [2011) 10 S.C.R.


A   grant of relief do not specifically include victims of ghastly/
    heinous crimes. It may be appropriate 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
8
    order of the High Court and dismiss the PIL filed by the
    respondent in the High Court, subject to the above
    observations.

    R.P.                                            Appeal allowed.