'Don't Citizens Have A Right To Know About Central Vista?': Divan Argues In SC For Public Consultation

A bench of Justices AM Khanwilkar, Dinesh Maheshwari & Sanjeev Khanna had earlier decided to hear the challenge on 3 issues, vis-à-vis change of land use, violations of municipal law, violations of environmental law. Subsequently, the Court disposed off the petitions challenging change in land use of plot number 1 of the Central Vista Project, adding that it will be taken up at a later stage as the decision on its usage had not yet been taken by the Government.

On Wednesday, Justice Maheshwari had inquired from Senior Advocate Shyam Diwan for the petitioners, "There is no express provision for public involvement in our Constitution. Are you drawing support only from Article 19(1)(a)? Right to know is a part of participation, but which provision, overall scheme are you relying on?"

On Thursday, Mr. Diwan replied, "As in the case of the South African Constitution, there is no express provision corresponding to public involvement in our Constitution. So it is a derivative right, outside the express Constitutional scheme. I am going to name some statutes which provide for public consultation"

He gave the example of the SC/ST Forest Dwellers Act, 2006: "The experts may say that an enclave is very important since certain species is endangered, even though there are forest dwellers there. For resettlement under the Act, three levels of Authority are prescribed, including the free and informed consent of the Gram Sabha". Next, he gave the example of Land Acquisition Act, 2013 which provides for Social Impact Assessment (SIA), requiring consultation with the Panchayat, the Gram Sabha, the Municipality or the Municipal Corporation in carrying out the SIA. It also envisages the assessment report to be made available to the general public, followed by a public hearing. Further, he cited the Airport Economic Regulatory Authority Act of 2008 which requires the Authority to ensure transparency in exercising power. Finally, the IBC and the General Clauses Act were cited for their provisions of pre- publications, suggestions and objections.

"If the Parliament had made the Statute (for the re development of the Central Vista), all this would have come in as these are contemporaneous requirements of law. Instead everything has been done through an executive action." explained Mr. Diwan.

Continuing, he discussed the decision of the Kenyan Court of Appeal in Kiambu County Government v. Robert N. Gakuru. In this context, Justice Khanwilkar asked "Does this entail a situation where the public participation process was complied at the first stage and some legislation came to be drafted, incorporating the inputs, and when the legislation is introduced after substantial change, it has to be put up for discussion again? The process would be unending then. The Parliament has taken a holistic view and made the law. Does it need to go through the round of participation again? The Parliament is the final law making body after all"

"Your Lordships adopt a cautious approach while applying foreign authorities in our jurisdiction as those provisions are different. There is an evolving global norm of participatory democracy which manifests in different ways. There is devolution of power at a constitutional level- town planning statutes entrusting the responsibility to Municipalities. In a recent judgment, Justice Rohinton Nariman has said that in the course of subordinate or delegated legislation, objections are taken frequently...As regards your concern, that the process would be unending, in my opinion, if the second draft is radically, substantially and dramatically different from the first one, then a second round of participation is needed even in our system. If it is broadly the same, then there is no need." replied Mr. Diwan.

"The Kenyan decision captures public participation in two words- quantitative and qualitative." noted Justice Khanwilkar.

In context of Judicial Review and Limited Government, Mr. Diwan advanced that this is a huge national project and thus, the Public Trust Doctrine applies with great force- "the Public Trust Doctrine mandates a high degree of judicial scrutiny. Both sides recognise that the whole of the political heart of the country is being reordered. This requires the highest standard of judicial review"

Public Consultation, Transparency, Open Governance

Referring to the 2019 Supreme Court case of Hanuman Laxman Aroskar, Mr. Diwan advanced that if in the context of environmental clearance for an international airport in Goa, such high standards are stipulated, so surely public views regarding the new design of the Central Vista are indispensable.

"The judgment speaks of public hearing, written responses, State Pollution Board to hold hearings, placing a summary of the EIA report on the website, making of appropriate changes in the draft EIA and EMP, submission of the final EIA report to the regulatory authority for appraisal. So definitely there was a duty to disclose and share what you plan to do on the part of the government even in this case. Everything was totally opaque, no studies are there and even if there are, none have been placed before this Court...Hanuman's case is highly relevant and persuasive here. There were a huge number of general objections even here, which the government was conscious of but rejected anyway. Primarily, on the heritage aspect, there was complete non- consideration", he argued.

Relying on the 2016 Cellular Operators Association case, he quoted, "It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage..."

"Your Lordships should hold CPWD to these standards in this case. They have said they shall consult the Heritage Committee at the 'appropriate stage', even after the plan has been finalised" argued Mr. Diwan.

Referring to the procedure in the UK, Justice Khanna asked "This is very detailed. Can we duplicate it here?"

"You can't go through a pretense of consultation. Keeping aside the general constitution norm, there is an express provision in respect of conservation of heritage, so it has to be done at the appropriate time, not after the whole project has been cooked up. The fundamental notion of conservation as to heritage is at the conceptional stage. It cannot be like 'pandemic or no pandemic, hurry and rush it through, because we have time-lines'. This is not democracy but autocracy, which we are fortunately not" replied Mr. Diwan.

He referred to Union of India v. Cynamide, where the Court issued directions to hold hearings with the stakeholders even though it held that drug price fixing is legislative in nature. At this point, Justice Khanwilkar pointed to the 1998 authority of MRF v. State of Kerala, where in context of the challenge to the national and festival holidays having been increased, it was held that industries can't claim a hearing, raising it as a grievance and alleging violation of their right under Article 19(1)(g). "This is another authority on this point", he said.

Mr. Diwan moved on to the Reliance Debentures case, relying on Justice Sabyasachi Mukharji's judgment, holding that the right to information is a right under Article 21 and not just under 19(1)(a) anymore. Indicating, Indira Gandhi v. Raj Narain, he advanced, "What started in 1975 has culminated in Justice Khanna's judgment in CPIO v. Subhash Chandra Agarwal (on the applicability of the RTI to the SC).....we have come a long way. Unfortunately, the respondents don't think so. The Respondents don't think that they are duty bound to disclose these studies in response to RTI queries. Even after I have asked for a mandamus, there is complete opacity and no disclosure has been made to even this Court"

"Don't citizens have a right to know about the Central Vista? Whether experts were consulted, who were they, what they said? If the Parliament said it could be redone? There was no application of mind! If there was, it needs to be put in the public domain, followed by invitation of objections. This is not a marriage hall where additional construction is sought to be made....In this sui generis project, the citizen is entitled to ask the government to look at other laws and ask if your standard comports with openness....this is how democracy deepens and values find root", contended Mr. Diwan.

Mr. Diwan pointed out the absence of any empirical data, violation of the obligation to protect heritage, absence of any estimated costs or a design competition, arbitrariness in terms of tender and in changing the design terms. "The joint parliamentary committee was to look into the whole thing. As far as the UK is concerned, the Parliament itself is deeply involved in the procedure. There is engagement with the Constitution and the country at all stages. There is a statute. It is no PWD and some consultant...consultation is built in the statute. Bodies are periodically accountable to the department. So it is not just a one-time body but a continuous engagement. In a highly respected democracy, this is how issues regarding the Parliament home are considered. This requires deep meditation on part of the Court" advanced Mr. Diwan.

"Your perception is that the Parliament is being supplanted. The Government's could be of supplementing or complementing the exiting building. So would the standards of enquiry be same or different" asked Justice Khanwilkar.

"But the CPWD itself does not know if it is supplanting, substituting or improving the Parliament! It leaves it to the consultant after issuing the NIT. That is why I had said that it drives a stake into the heart of the project" replied Mr. Diwan.

"So your argument is based on the NIT? That is a very different process. When we will hear the other side, we may get a different picture. If they are supplanting, then the high standards that you are invoking must apply. But if it is supplementing or complementing, then we have to see."reflected Justice Khanwilkar. "It is not decided if they are rebuilding or demolishing. The parties to the bid have been asked to submit vision documents as to the whole project" responded Mr. Diwan. "The Government may have a different view point. We have to draw the line somewhere" said Justice Khanwilkar.

"You have to look at it as the entire Central Vista- clearly the Parliament is a very important part of it. It is the political heart of the country, it has tremendous global value, in terms of aestheticity, political culture. It needs to be dealt at a statute level.... The DDA envisages a Master Plan, several Zonal Plans and further Special Development Plans underneath them. You can create a Special Development Plan for the Central Vista. Statutes can take different forms", urged Mr. Diwan.

"There are obligations on part of the trustee, the global standards of openness and competition have to be complied with. Democracy has to be followed at every stage." he added.

"We know that one Committee said the height (of the proposed structure) is too much, but what is the plan, what was sent? Don't people of India have the right to know, irrespective of whether you are supplementing, supplanting or even repairing....If this were 1951, and if they had found a problem on Day 1 itself, they could have probably gone through with this. Even though it was a beautiful building even back then, it was not an embedded at that stage. But today, it is seven decades of living history", pressed Mr. Diwan.

"Even the UK up came with the legislation in 2019 (Parliamentary Buildings (Restoration and Renewal) Act 2019). We are not even as old as their Parliament building. So everyone is learning and evolving with the changing time. Maybe your argument will give insight to the government and the Parliament will come up with a law" noted Justice Khanwilkar.

"In the Aadhaar Case, Your Lordships, in dealing with disproportionality, held that empirical data is needed to back the State action lest it be struck down" advanced Mr. Diwan. "That was a case of individual right and privacy. Public right is the cumulative right of the community. Should there be a different approach here?" asked Justice Khanwilkar.

"I would suggest a case by case approach, considering the magnitude of the intrusion. Your Lordships should import the test of proportionality. This is about the cultural symbol of the politics of our democracy, our Constitution. Our Parliament and Supreme Court buildings are projected as images, you see them on TV, they are embedded across the world. They are monumental, but not like the Taj Mahal. When the Supreme Court speaks, it gathers deference across the world. In our Constitution, we attach high value to this. I maybe overstepping my brief in saying this, but here it is not like Singapore, where you can demolish everything and a new, shiny glass building comes up in its place." Justice Khanwilkar asked Mr. Diwan not to enter that territory.

"So the first step towards changing the Central Vista is objective studies and expert opinion. This project has both a personal and a public dimension. There is personal stake in keeping the Supreme Court and Parliament buildings as it is", urged Mr. Diwan.

Indicating the March 4 decision of the Supreme Court in the crypto- currency case, Mr. Diwan advanced that even though the proposal was upheld under the RBI Act, the Court had noted that there are no studies to back it and only apprehensions of the RBI. Applying the proportionality test, the Court had struck down certain circulars of the RBI.

Mr. Diwan cited the Supreme Court decision in the Viceregal Lodge case, describing it is as symbolic of the rule of law and constitutional governance- "In this case, a small figment of history was amplified and correctly so. It shows how far the Court proactively went to protect a small part of the history of India. Central Vista and the Parliament are much more significant"

Next he discussed the 2005 Shanti Niketan case- "this shows how far the Court went to protect the Vishwabharati University, making observations on its unique culture and topography, and saying you cannot have Town Planning". Finally, he indicated the A. Guruprasad Rao case, pertaining to the Jain Temple in Karnataka, to depict how heritage was elevated by the Court.

"Unlike the Maharashtra statute for town planning provides for a new master plan every 20 years, Delhi has no such sunset- sunrise provision. Instead, they envisage a modification of the plan, the latest being the 2021 Master Plan...here also, objections are invited, public hearings are held. Then there are Zonal Plans and Special Development Plans...so we know the route to be followed. If you need to redo the Central Vista, you have a statutory path to follow. You can't ignore it and just float a tender. It is impermissible because the law speaks of conservation and protection", suggested Mr. Diwan.

Indicating the 1957 DDA Act, he pointed out its section 7 on Civic Survey and Master Plan for Delhi, he advanced that there is an abiding obligation on the DDA to prepare a master plan. It is also not a one time obligation, for as the city is changing it is to be modified. "So far as the Zonal Developmental Plans are concerned, zones may be ward wise or concept wise. There may be a heritage district, a political district or a Central Vista, which though located in the LBZ, may cut across", he explained.

He indicated the provision for the authority to publish the draft plan, making its copies available to all and inviting objections and suggestions. "And this has to be done before the plan is submitted to the Central Government for approval... there has been an astonishing affront to law in the present case", he commented.

Next he indicated, Section 11A on modifications to the plan- "the Central Government is required to publish a notice inviting objections and suggestions and consider them all...for re- ordering the Central Vista, you need a new Zonal Plan and a Special Conservation Plan..it is not just about moving one plot from here to there for recreational or parking purposes"

Continuing, Mr. Diwan discussed the Master Plan for 2021, averring that it was prepared by the DDA through the modification route and approved by the Central Government and notified in 2007. He indicated the provision on 'Conservation of Built Heritage'. "You cannot first demolish and then decide. All that thinking has to be happen in advance. That is the meaning of conservation", he said.

He submitted that without the prior approval of the DDA, heritage precincts and national feature areas cannot be touched- "when you have power, it is coupled with a duty. You have to have a Special Development Plan, and you can't just issue a tender through the CPWD. When you have been stipulated a way, all other ways are excluded. It is settled that when a statute requires a thing to be done in a particular way or not at all", argued Mr. Diwan.

"You cannot look at these as 7-8 plots and deal with them through the prism of land use. It is much more than that. You cannot dis-aggregate and diminish a Special Development Plan to land use change and say that you have followed the procedure for these 8 plots. And more so, when your stated objective is to have a whole new conservation and development policy for the area.... so you're basically coming up with a new Zonal Plan without actually preparing a Special Conservation Plan? You cannot cherry pick and say that it is a land use change", submitted Mr. Diwan.

Heritage Conservation Committee overlooked

"Your Lordships may have noted that we have not challenged any decision of the HCC, and that is because there are none. It is a statutory committee, the most important heritage authority to examine things at a granular level, and it was ignored...they say we'll go to the Committee at the appropriate stage! To rubber stamp its approval? They first had to go there, state their plan and then move forward. Now the construction tender has also been issued and awarded...It is the primary source of law of the country at the highest level that we are dealing with. Shouldn't we ensure maximum judicial scrutiny? If there is to be a new Parliament, why should it be perpetually poked that its physical structure is deeply flawed? What will the people say of the rule of law?", argued Mr. Diwan.

He continued that conservation of heritage sites includes buildings, streets, areas and precincts, and artifacts of historical, aesthetic, architectural and cultural significance- "The Delhi Building Bye-Laws state that the regulation 'shall' apply to listed heritage sites. Fortunately for us, this exercise has been done and the building has been accorded a Grade 1 status....conservation is maintenance, preservation, restoration, reconstruction, adoption or a combination of all. The global international standard is to preserve and improve, upgrade facilities, while perpetuating the living heritage"

Emphasizing the negative language, stipulating that no re-development, including painting and plastering of listed buildings, can be proceeded with without the prior permission of the competent authority, Mr. Diwan pointed out that even in the grant of such permission, the HCC has to be mandatorily approached. He commented that the Government, on the other hand, has said that "they shall go to the HCC in good time". "The decision of the HCC is final and binding. The HCC holds all the trumps", he added.

"The penalties for the violation of these regulations is the same as for unauthorised development! Demolition, imprisonment, fines! This is the level it has been brought to! In Mannalal Khaitan, it was held that you cannot enforce a contract, which though is not prohibited per se, but for which penalties have been prescribed in the law. That penalty is prescribed means that it is banned and unlawful ultimately...when you haven't gone to the HCC, how can you have a tender? This is a quicksand of illegalities! There is no stable ground for such a great project", he urged.

"The HCC has an enormous burden- what do we approve? How do to it? Are we doing it right? It is the committee of experts you go to if you want to do something in the Central Vista. You need to consult the HCC, to get advice and guidelines, long before you finalise the plan. After you have the plan, you go again to HCC to look into the objections. Why should the Parliament block be built in sin?", continued Mr. Diwan.

Mr. Diwan asserted that the Government, in adopting such an approach, is not discarding the procedure but the values and principles of the Constitution- "We have derived these rights, they are not to be diminished but enhanced. Consultation cannot be lost just because the CPWD chooses to leave the decision-making to some expert!"

"Is democratic due process similar to rule of law?", inquired Justice Khanwilkar.

"The rule of law is wider and democratic due process is an aspect of it. The rule of law is embedded in values and principles, an aspect of which is participative democracy, consultations, objections. Democracy is not just between two elections, but it is a continuous right...the Supreme Court alone cannot take credit for it- the Parliament has played its part, through its various statutes, as have the subordinate delegates by inviting inputs", replied Mr. Diwan.

He enumerated the components of democratic due process- One, extensive legislative debates and prior discussions; two, robust statutory framework as regards obligations of government bodies specific to the project; three, budgetary framework; four, public portal for continuous exchange of information; and five, minimal interference with heritage.

"The CPWD affidavit avers that a detailed survey and assessment was conducted. But by whom? It speaks of bettering the facilities. But how? It states that discussions were held with Rajya Sabha and Lok Sabha Secretariats and other stakeholders, but there is nothing as to where, how and when! I could have made this affidavit!", argued Mr. Diwan.

He indicated the counter affidavit of the Respondents in which it was submitted that the HCC clearance will be sought as and when detailed plans are available and when actual retrofitting of the buildings take place. At this, Justice Khanna interjected, "The first conditions are of the Master Plan and the Zonal Plan. The HCC will come later on...that seems to be the submission". "That is wrong, you cannot even tinker with the precinct without going to the HCC first. So where is the question of getting permission building by building", replied Mr. Diwan.

"Let's reconcile the situation. You are speaking of prior permission at the formative stage itself. They are saying that by the time the work is commenced at the site, those permissions will be in place. We will have to decide at what stage is it exactly required to be done", observed Justice Khanwilkar.

"But what if the HCC says no later? What about the public money, of the public efforts?" put forth Mr. Diwan. "So the construction cannot start without the HCC? The Government will have to answer this", noted Justice Khanna. "Even before you decide whether or not to design, even when you are at the imagination stage, you need consultation!", asserted Mr. Diwan. Justice Khanwilkar assured that the bench is noting this submission.

"Who can redevelop the Parliament? It is a sovereign function! Respondent 9(APC Design, H1 bidder) is an agent of the State here. It must go through the rigours of the procedure," stressed Mr. Diwan.

He pointed out how the original NIT was originally for only the Central Vista and it was amended subsequently to include the PM's residence and how numerous bidders could not submit their plans on account of that. He argued that only 6 bids were received and that the Respondents claim that after the technical bids, only 4 were found eligible- "these are trustees acting. This is not some private contractor for a bridge. Even Amaravathi was developed through an international design tender. The promoters have to be given the widest possible choice...it is shameful!"

To this, SG Tushhar Mehta requested that use such terms not be employed and personal views not be voiced. Commenting that "the SG keep his advice to himself", Mr. Diwan continued to point out that no estimate cost was determined and it was to depend on the design of the bidder. "If the bidder cannot judge the budgetary limit, it will result in a huge variation in the designs. Rule 182 of the General Financial Rules, 2017 provides for assessment of costs based on the current market and other organisations functioning in it. This has been violated...They said that the project cost can be assessed only after the consultant has been selected, but they have not denied the applicability of 182. Even CPWD Works Manual 2019 provides for the estimated cost to be determined at the pre- construction stage", he pointed out.

"When in their own terms, they are creating a legacy for 150-200 years, it is not exactly urgent (for the government to give a go-by to the procedural modalities)", Mr. Diwan rested his case.

Reports of previous days hearing:

You Can't Impose A Central Vista On People! No Norms Followed : Shyam Divan In Supreme Court

[Central Vista Case] Decision Making Process Totally Opaque; Values Of Transparency Overlooked : Shyam Divan In Supreme Court