Interview: SC’s Central Vista Verdict Equates Development With Development Projects

The Supreme Court, in a 2:1 verdict on January 5, has held that there is no infirmity in the grant of “no objection” by the Central Vista Committee (CVC) and “approval” by the Delhi Urban Art Commission (DUAC) and “prior approval” by the Heritage Conservation Committee (HCC) to the Central Vista Project, for which Prime Minister Narendra Modi laid the foundation stone on December 10 last year.

The project envisages construction of a new parliament building and a common Central Secretariat with all ministries of the Central government in a single location to ensure efficiency and synergy in functioning. In Rajeev Suri v Delhi Development Authority & Ors, the petitioners alleged that the Centre violated Article 21 of the Constitution and the Doctrine of Public Trust by denying basic access to public/recreational spaces which are essential to life and liberty.

The two majority judges, Justices A.M. Khanwilkar and Dinesh Maheshwari held that the public trust doctrine does not prohibit the government from utilising the resources held in public trust for the advancement of public interest itself, suggesting that the CVP is in public interest. They also held that the mere absence of sufficient participation by the public in the process of clearing the project could not be termed as unreasonable so as to quash the whole process. They reasoned:

“The same logic may be invoked to compel the Government of the day to undertake public participation before going for a war on the fronts due to aggression by the neighbouring country, which is more important than a decision to construct a new Parliament building.”

They also added that the mere absence of information about the project would not render the decision vitiated. While declining to interfere in the grant of environmental clearance for the project, the majority judges directed that mitigating measures must be observed letter and spirit during by the project proponent in the construction and operational phase. Monitoring of waste management methods, installation of high-capacity smog towers and use of adequate number of smog guns to minimise pollution levels during the construction are some measures mentioned by the majority judges.

Justice Sanjiv Khanna, in his dissent, took note of the fact that the project envisages extensive change to the landscape, and complete redevelopment of the Central Vista. He found that the reading of the minutes of the CVC meeting on March 9, 2020 did not show fair and independent application of mind.   That the CVC meeting on April 30, 2020 was a premeditated effort to ensure approval without the presence and participation of representatives of professional bodies is apparent and hardly needs argument, he observed. Respondents should have moved and asked for clarification from the HCC whether heritage building includes such portion of land adjoining such building and part thereof as may be required for fencing or covering or in any manner preserving the historical and/or architectural and/or cultural value of such building, he felt. He was categorical that the Centre could not have notified the modified land-use changes without following the procedure and without prior approval/permission from the HCC.

In this interview to The Wire, Kanchi Kohli and Manju Menon answer specific queries on the implications of the judgment. Kohli, a senior researcher with the Centre for Policy Research, New Delhi, specialises on environment, forest and biodiversity governance in India. Menon, a senior fellow at CPR, is engaged in research projects which examine the role of governments, courts and citizens in environmental law making and enforcement.

The majority judgment in the Central Vista case shows that the judges were unconvinced that the project would result in denial of basic access to public/recreational spaces which are essential to life and liberty. Is it difficult to demonstrate a real and direct impact or restriction on the core fundamental rights due to the executive action in this case? In other words, is the court correct in suggesting that there was no actual deprivation of the public’s right over common resources in this case so as to warrant application of the public trust doctrine?

The majority judgment is based on the logic that since the project has been initiated by the government to improve its own efficiency, it would be in public interest. But none of the documents submitted to the court demonstrate this. The petitions brought up precisely this point, that neither the statutory bodies nor anyone else with the power to question, asked the project proponent to prove this. It is only if someone had bothered to investigate this project and its claims that we would all know how and to what extent the project could impact constitutional and statutory rights.

The petitions reached the court because there were grievances against the government’s actions. The petitioners argued that the change of over 90 acres of land use, most of which was recreational, public or semi-public, has been converted into government use without necessary assessments and disclosures. This has also been done without an opportunity of being heard, which is why the petitioners maintain that these government decisions violate public trust.

This concern is far from settled, even after the court verdict – and the split verdict certainly points to this.

Also Read: Central Vista Project Will Cement Bureaucratic System That Badly Needs Revamping

The majority judges have held that the right to development is a basic human right and no organ of the state is expected to become an impediment in the process of development as long as the government proceeds in accordance with the law. In their judgment, the two majority judges also emphasised the need not to be bogged down by technicalities, in national interest. Does it suggest that they have made up their minds about the outcome of the case, even before they heard the parties?

In India, almost all formal institutions equate development with development projects. This view is not unique to the judiciary. And this was not even posed as a question to the court in any manner.

The specific question was about whether procedures had been adhered to “in accordance with law” in the government’s pursuit of the project, including the new parliament. On this question, the two judgments differ widely.

Justice Khanna’s judgment agrees with several of the petitioners’ concerns and concludes that there has been a failure to comply with certain statutory requirements.

But several fundamental development and national interest questions still loom over this project. There are the obvious ones, such as the timing and the necessity for this project. It has been criticised as being a ‘vanity project’ that engages in political symbolism at great public cost. The majority judgment records one of the government’s justifications for the project that “even after 73 years of independence, the nation does not have a common secretariat building”. If a functional and informed parliament was allowed to prioritise government’s expenditure, there would have been many other priorities like public health, education and economic support to informal workers who lost jobs during the pandemic. But that never happened.

The majority judges have repeatedly referred to the Supreme Court’s previous judgment in Narmada Bachao Andolan v Union of India in defence of their conclusion that when larger national interest is involved and concerns of exchequer are directly involved in the lis, the court must act at the earliest opportunity. “For each day’s delay has a direct impact on the exchequer,” they say. What do you make of this?

The urgency was created by the government when they baked the deadlines into this project back in September 2019. The consultant who had to prepare the “master plan” had just been appointed and no impact assessments related to land-use change, heritage, environment, diversion of water resources were ready. The deadlines the government set for itself became the reason to keep out any democratic processes that necessarily requires time. So the question of delay has to be examined in the light of this.  The deadline can only be met if statutory processes are rushed through and the statutory right to participate is read down, i.e. you have a right to file objections but not be heard. So each day’s delay was a consequence of the process adopted by the government and not because of the challenge before the court.

Can you throw some light on the role of the Heritage Conservation Committee in the clearance process? Considering that the HCC also includes bureaucrats who are in the ministries, will independent experts have any real say, even if the HCC’s decisions are binding? What, according to you, made the government ignore the HCC? Is the dissenting judge Justice Khanna too optimistic about the HCC’s role, even if it is given due importance by the government?

Both the majority and minority judgments of the Supreme Court have given the highest regard to the scrutiny by the HCC. This is a body set up under Clause 23 in Delhi Building Bylaws, 1983 for the protection of Heritage buildings, Heritage precincts and Natural feature areas in Delhi. The difference between the two judgments is that Justice Khanna concluded that this scrutiny should have come prior to the design of the project, which was the contention of the petitioners. However, Justices Khanwilkar and Maheshwari left the important decisions on questions of heritage and heritage precincts to be decided prior to the construction of the parliament and other buildings.

Whenever the HCC was to take a decision, it was to be done as per the requirements of Unified Building Bye Laws, 2016 which clearly states that “objections and suggestions from the public shall be invited and shall be considered” by the HCC (Annexure II, Clause 1.3 (ii)). Justice Khanna not only expected the HCC to conduct its proceedings according to the law, but even laid out a set of clear steps that should be followed to ensure more disclosures and meaningful public participation.

However, within a week of the judgment being pronounced, the Ministry of Housing and Urban Affairs (MoHUA) announced to the press that the HCC has granted permission for the new parliament building. The minutes of the HCC are not available to the public. And there was certainly no public notice inviting objections from the public.

Many people have remarked that this outcome was expected as the government regarded the HCC process as an internal matter. The urban affairs minister was quoted on the HCC process, three days after the judgment to say, “That would have been done by now. The heritage committee is headed by our additional secretary; the process would have been finished by now.”

What, according to you, is the ratio of the judgment? Are the directions of Justice Khanna binding on the government, considering the go-ahead given by the majority judges? Which of his directions would be specifically be hit by the judgment of the majority judges?

As several lawyers and legal researchers have commented, it is the majority judgment which will have a binding effect on the legal questions that were before the three-judge bench. However, given the substantial differences in conclusions, especially when it comes to the legal infirmities in the environment clearance of the parliament and the change of land use for eight plots under Delhi’s Master Plan, Justice Khanna’s judgment should be followed by the government in public interest.

The CVC’s lack of detailed assessment in the CV project, as compared to in the National War Museum and Delhi high court underground car parking cases, has come in for specific criticism by Justice Khanna. What, according to you, could be the reasons for this lapse? Even if there had been a detailed assessment, could it have made a difference to the outcome?

Every detailed assessment and scrutiny is bound to make a difference in the outcomes of a decision. It is for this reason that the environment ministry’s expert committee returned the proposal for the common central secretariat asking the CPWD not to adopt a “piecemeal” approach.

Some members of the CVC were very interested in seeking responses from the CPWD on the queries they had. But the CVC meeting was called when the whole country was in lockdown. And these members were not enabled to ask their questions and so there are no assessments.

Also Read: Behind Modi’s Plans to Redevelop the Central Vista is a Covert Political Agenda

Justice Khanna is of the view that lack of reasonable time prevented persons who had filed objections and given suggestions to present and appear orally to state their point of view. The majority judges, on the other hand, brush aside this concern agreeing with the government’s defence that the objections were similar and no purpose would be served by giving them more time. Could public hearing of objections with sufficient notice period have led to a different result? Is the PP expected to just hear the objections, or redress the grievances? 

We need to move away from a hyper-legal or a hyper-technical approach to public participation. People across the country have been interested in the Central Vista redevelopment which is the seat of India’s democracy. Several objections had been filed by people in different cities and it was physically impossible for them attend the hearing of the Board of Enquiry with just a two-day notice. In matters of governance, the intent of the government is of relevance. If the central vista redevelopment was truly envisaged as a public project nothing prevented the government to open the space for people to be part of the process. Instead, the project is being pursued as a highly secretive exercise where dozens of Right to Information applications, be it to the Lok Sabha Secretariat, Delhi Forest Department or the MoHUA are transferred to one official sitting in the Central Vista division of the CPWD and no information is forthcoming.

The majority judges have no compunction in depriving the petitioners an opportunity to seek redressal at the NGT. And in Para 381, they say that they decline to interfere in the grant of EC, because due deference must be accorded to expert agencies when their decisions do not attract the taint of legal unjustness. None of the issues demonstrate a requirement of in-depth technical analysis in this case, they say. Do you agree? Are you hopeful that the mitigating measures promised by the PP will be observed in letter and spirit?

In June 2020, an “Application Seeking Recall” was filed before the Supreme Court asking the court to recall its directions asking for all cases related to “project” be brought before the apex court. The petitioners led by Meena Gupta, ex-secretary of the Ministry of Environment and Forests had sought the court’s intervention stating they had the right of appeal before the NGT. The NGT was the statutory body for a technical and merit review on the manner in which the environment clearance of the new parliament was granted. However, the Supreme Court proceeded to hear the environment clearance challenge, pending a decision on the recall application. The order dated July 29, 2020 records that the EC challenge is being filed “while maintaining the preliminary objection already raised so that all aspects can be considered by the court at appropriate stage”.

However, the majority judgment concluded that the case does not warrant a merits review by the NGT even though the apex court has only addressed the legal questions on whether the parliament is integrated with the larger Central Vista project and thereby requiring an EIA and cumulative impact assessment. Due to this, the petitioners have lost out on the opportunity of a technical and merits review that could have evaluated the adequacy of the CPWD’s assessment of the impacts on air quality, water use, generation of waste and other aspects.

The majority judges say that the approval of the HCC as regards the change in land use was implicit and understood in the approvals granted. There is substantial compliance of “prior approval” they say. They also make light of the argument that the absence of reasons on the final decision could vitiate it. What will be the effect of these rulings on future litigations? Their contempt for seeking public participation in a project like this runs through the judgment. The majority judges endorse the government’s view that it did not treat the project as sui generis, while answering why there is no legal basis to heighten the judicial review by applying yardstick beyond the statutory scheme. But the court is not lifting the veil to show that the government is contradicting itself on this as the ordinary route of such development projects has not been followed, with compromises at every stage over legal requirements. Your comments.

Both the petitioners and the respondents have stated that this project is sui generis. All the government actions and concerns of petitioners are hinged on the unparalleled importance of the project. But accepting this would have meant that the court necessarily adopt a higher level of judicial review of the government’s actions. Justice Khanna again rightly observes that this is not a routine policy decision because unlike a policy that can be reversed, the project will dismantle the heart of India’s capital forever.