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

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 Tuesday, Senior Advocate Shyam Diwan opened his submissions, arguing, "This petition interrogates the State at the fundamental as regards the manner in which the Executive action was commenced and implemented. At the highest plain, this is about the Rule of Law versus the Rule by Law. It concerns the deepening of democracy- how the Central Vista, which is the political heart of the nation, with the Parliament building being located in it, can be changed in a democratic polity; what are the checks and balances in the Constitution!"

"This court visits the statutes from time-to-time to deepen the values, rights and procedures which speak of democracy...In a country where elected representatives come and go, the Parliament, the Central Vista and the Supreme Court building are held in trust! It is not sufficient to say that the Rule By law is enough and that 'x' and 'y' requirements have been complied with! None of the norms followed globally in the redevelopment of a city center were followed, none of the Constitutional norms of the highest order were followed...", he continued.

"There have no reports, no consultation, no experts visiting! There is an absolutely shameful abdication to a consultant as to whether the Parliament should continue in this building or should there be another building! Participation, in a democracy, is regarded as a valued right, whether it is express in a statute or inarticulate...but here, when they are deciding on the change of the Parliament building, and the Central Vista is to be re-wrought, the Constitutional mandate for consultation, hearing all parties, experts, inviting objections have been given a go-by! As if this is nothing more than extension of an administrative block to a university where time is of the essence for the classes have to start! ", he pressed.

"Of course, the courts prefer calling it a convention, but I describe it as the democratic Constitution, democratic habits! You don't impose a Central Vista on people, you open it as widely as possible! If you decide to supplant the Parliament, go ahead in a transparent and consultative manner!", he continued.

"Heritage has two components- the physical/built heritage, and the living heritage, which is far more subtle. Like the SC building, which is a very important part of the living heritage of the democracy. The Parliament, which is a symbol of the working of the democracy...with which the people of the democracy have had an emotional connect since decades, which is deserving of preservation and enhancement. Some transient trustee cannot just wield it away!", contended Mr. Diwan.

"Is this how a democracy functions after 70 years? One person says let's change the Parliamentary building, a tender is floated, bids are invited in 3 weeks and it left to an expert to decide whether there should be one Parliament building or more? This is so brazenly unconstitutional and undemocratic", he pressed, voicing the prayer that copies of all communications and correspondence from the conception of the impugned project till the floating of the NIT and the issuance of the bids be supplied to the petitioners.

"This is not some defense establishment but the Parliament building! Every document needs to be public domain!", he stressed, raising concerns regarding the principles of limited governance, public participation and consultation, and the right to know.

Next, Mr. Diwan indicated the 1962 Master Plan for Delhi, where Central Vista was recognised as an "important site to meet the aspirations of a richer culture" and the "new heart of the metropolis". He explained how the entire area, from the Rashtrapati Bhavan to the hexagon around the India Gate, was placed under strict architectural control and no construction was permitted without prior approval of the competent authorities. "So there is an aesthetic recognition, a public and citizen recognition, and then statutory and official recognition that the area is precious and valuable and requires additional control...we are submitting that it even calls for a heightened degree of judicial review as there is a higher bar for the government to cross", he advanced.

Noting that the relevant clauses in the Master Plan speak of "existing regulations", Justice A. M. Khanwilkar asked if there are separate regulations for the Central Vista, stating that if there are, the court would have to examine the same. Mr. Diwan replied that he would get back to the court on this.

It was his contention that even the July 1 order of the Delhi Urban Arts Commission granting clearance to the project was bad in law and should be struck down- "DUAC consultation should have happened before it was decided to totally alter the face of the Central Vista! You should have gone to this statutory commission! The function of the DUAC is to advice you on aesthetics etc, not after you have floated the tender, but at all stages including the preliminary stage!"

Further, he discussed the Delhi Master Plan of 2021 in as much as it speaks of the "conservation of built heritage", including "living monuments", which have been called "an irreplaceable, cultural resource". He advanced that the alteration or demolition of the listed buildings is prohibited without the prior approval of the competent authority. Referring to the list of notified Heritage Sites in Delhi, he indicated that the Central Vista in the Lutyen's Bungalow Zone (LBZ) along Rajpath is one of them. "The Master Plan recognises the Central Vista as one of the finest examples of urban design and monumentality in the world. Considering that the proposal to change it is bonafide, it must be done with all circumspection! And that too before embarking on the project and not after! You can't just give the people the fait accompli that we have floated the tender and will do what we want! You can't just leave it to a consultant to say whether there should be one Parliament, or the new Parliament, or the old Parliament!", he urged.

"This is not just an executive decision, but one that is about the seat of the Parliament, which is the apex so far as our Constitution is concerned! There should be a statute to govern this, or at the very least, the inputs of a parliamentary committee, which was not done!", contended Mr. Diwan.

Indicating the September, 2019 manual issued by the CPWD on the 'Conservation and Audit of Heritage Buildings', he argued, "This manual is a contemporaneous document, and it shows that the understanding of the CPWD is that the International conventions in this context are very important. The government should be held to what they have stated here"

"The internationally-accepted norms and the charters have to be followed if you are re-designing the heart of India! The emphasis is on conservation, on restoring the estate without the loss of authenticity! This is what was done in Westminster and with the US Congress! You don't abandon the structure!", he pressed.

"When the NIT was floated, there was no eligibility requirement as to knowledge and expertise on heritage. The consultant could even be a foreign party! ", he argued, indicating that the notice inviting bids for consultancy services mentioned national and international design and planning firms.

"The notice inviting the bids is dated September 2, 2019. It was uploaded on September 4. And the last date of submission was September 23, which was extended by a week and made 30. Even the date and time for the pre-bid meeting was decided as September 11! People need time to download, study, understand and digest the document! The time frames were grossly inadequate! There are national and international norms to this effect! For even the most basic tender, where a government university wants a new hostel, you have to give adequate time!", contended Mr. Diwan.

"Is there a corrigendum? Maybe the expression 'pre-bid meeting' is inappropriate. Maybe it was something else", asked Justice Khanwilkar.

"Between the opening of the bids and the last date, the meeting that is called for giving clarifications is called the pre-bid meeting. What I find absurd are the time frames! For such a complex document, and given its purpose!", submitted Mr. Diwan.

"I am only on the standpoint of the citizen who is entitled to ensure that when the Central Vista is re-designed, there is adequate participation. I am not on whether this condition was fulfilled or that condition was complied with. Don't approach this as a tender matter, but one of the greatest Constitutional significance", he urged.

"How many respondents were there to the bid? If there were only 1 or 2, we can understand your grievance. If there were more and only 4 are found eligible, then that is the tender process. That can't be the basis to question everything!", observed Justice Khanwilkar, adding that the Senior Counsel's other arguments are nevertheless "valid".

"The initial notice also carries the date of the pre-bid meeting as September 11. The meeting has no significance other than for offering clarification to any contractor", repeated Justice Dinesh Maheshwari.

"Should we say that the time-frame is inadequate? That is a policy issue...We can doubt on the heritage point and on the environmental issue, but not on this", said Justice Khanwilkar.

"We'll ask the SG to explain the purpose of the pre-bid meeting", suggested the bench. "It is of no relevance to me. We can skip this argument", said Mr. Diwan.

"We'll note it, but give it no relevance. We are on the planning issue, not on the execution or the tender. We have noted the consultation argument with urgency...in these matters, there is nothing like 'me' against 'you'. It is non-adversarial", said Justice Khanwilkar.

Moreover, Mr. Diwan pointed out that the government has stated that "there is an imperative need to re-design and re-develop the existing Parliament building with the same outer facade 'OR' to construct a new, state-of-the-art building in close vicinity". "There is no decision as to where the Parliament is to sit, reside and to transact its business! You can't just leave the decision to a consultant, let alone a foreign consultant! This alone delivers a stake into the heart of the Constitution, and the Republic of India!", he advanced.

Asserting that this is not a "virgin territory" and there are internationally-accepted norms holding fort in the field, he explained that globally, where such an endeavour is embarked on, there is a two-part open competition; there is invariably a jury, including the citizens' representatives, to judge the competition; and the widest possible participation is encouraged. "Of course, in India, the government asks a consultant to tell if the people of India want a new Parliament or a refurbished Parliament so that it can implement it!", he commented.

He pointed out that in response to the September, 2019 advertisement, the Indian Institute of Architecture had addressed a representation to the government, indicating that the conditions of Earnest Money Deposit, turn-over and over-emphasis on the technical criteria is resulting in the exclusion of the Indian architectural firms. Besides, even the Council of Architecture had written that the tender should be executed on the basis of best design solution and concept rather than lowest-bidding; it was suggested that the government conduct an open architectural design competition through a fair and transparent procedure.

"The NIT is a bold from the blue! There was no examination, no reports, no committees, no expert opinion, no public debate!", concluded Mr. Diwan.

Justice Khanwilkar inquired if the Joint Parliamentary Committee (concerned with the need for upscaling parliamentary facilities), which was reconstituted in 2014, submitted any proposal in connection with the issue at hand.

"We looked carefully and found there are no reports of either the first or the second Committee in the public domain. Apparently, they are in the process of reconstituting another similar Committee", replied Mr. Diwan.

As the bench was about to rise for the day, it sought to know from SG Tushar Mehta whether asking the consultants to draw a draft Master Plan was permissible under the DDA Act.

"The Master Plan, as we understand it under the DDA Act, is for the whole Delhi. In context of the Central Vista, there is a broader plan, which is loosely called the Master Plan.

"So it is a project plan? But it has to confirm to the Master Plan finally. That is why there was the change of land use...", commented Justice Khanwilkar.

The Petitioners were represented by Senior Advocate Shyam Divan, Advocates Gautam Bhatia and Vrinda Bhandari 

The Petition has been filed through Advocate Shadan Farasat