The Vacillating Status Of The Central Vista

The proposal was challenged before the Supreme Court on grounds that there was lack of transparency and public participation in the plan to alter the historical central vista, and also that attendant procedures had not been followed. The challenge was defeated vide judgement dated 5^th January 2021 (2021 SC Online SC7)

The Central Vista 'constructed' by the SC

Whatever may be the grand politico-cultural visions behind the Central Vista project, its legal framing was limited to being an ordinary administrative decision borne of a desire for enhanced efficiency in governance, through architectural modification in buildings, and therefore outside the realm of judicial scrutiny.

It was the Petitioner's case, on the other hand, that sought to frame the project not as a mere administrative detail, but as one that had a bearing on the affective and cognitive identities of citizens. The central precinct was part of India's historical, architectural, cultural and political heritage that belonged to the people of India. Any alteration thereof will impact people's rights to that shared heritage. The Petitioners argued that a project that involved an alteration of Parliament house itself was sui generis, and stood apart from other development/ construction projects: it was deserving of heightened judicial scrutiny.

The Petitioners further argued that the unique nature of this particular project provided an opportunity to 'interrogate the [democratic] state at a very fundamental level, so as to enforce the principle of "Rule of Law" as distinguished from "Rule by Law"' [Page 60]. It was their case that any project that impacted affective identities , as well as access to common heritage, should be evaluated not just for compliance with procedures (the Petitions did catalogue violations of land-use norms), but should also be answerable to broader democratic and constitutional processes like public consultations, heightened standards of transparency regarding the project, etc.

Thus, the Petitioners claimed that any decision to change/ renovate the Parliament building 'ought to be preceded by widest public consultation, as an essential feature of democratic due process. The concept of 'participatory democracy demands that a project of this nature must involve the common public, as they are the real stakeholders of national heritage and must be consulted at every stage of the project.' [ Page 61] They also contended that a project such as this should be debated in Parliament and backed by special legislation.

The Respondent state replied that 'participatory or direct democracy' was not a feature of the Indian Republic. India was a representative democracy and people's participation 'began and ended with elections', and with choosing representatives to take decisions for them. It also argued that if such people's participation were encouraged for every project, it would make it administratively difficult to achieve ends.

In their rejoinder, the Petitioners explained that participatory democracy was not a reference to 'referendums' on issues, but rather on 'the premise that democracy is not a one-time process, but a continuing process', that there should be processes whereby public dissent is taken on board before formulating policy, and that 'governance must be open, accountable and transparent at all times'. For good measure, they also pointed out that even if one were to agree that peoples' representatives were final arbiters (without any need for further participation from the public), in this case 'people's representative in Parliament have never had a chance to weigh in on the merits of the project on the floor of the House.'

By a 2:1 majority, the Supreme Court ruled that the Petitioners had not been able to demonstrate the impingement of any fundamental right by the administrative policy decision, and therefore judicial scrutiny would be limited to examining whether 'procedure had been followed' (in obtaining approvals and clearances), rather than applying the higher standard of 'due democratic and constitutional process' to determine if those procedures were quite sufficient in the first place: 'in cases where decisions are taken in tune with a duly enacted statutory scheme, it is not open to a Court of law to disregard the same on the specious reasoning that the governing statutory scheme is deficient for the nature of or significance of the project. Even if a Court finds it debatable, that can be no ground for the Court to quash an action taken strictly in accord with the prescribed procedure.' [Page 126]

In effect the majority judgment did not recognise the affective/cognitive association with any shared cultural, historical, political and social heritage as a right that accrued to the people of India. It treated the decision to alter said heritage as an adminsitrative decision like any other driven by exigencies of modern governance.

Justice Khanna's dissent agreed that alteration of the heritage precinct like the Central Vista should involve 'public participation'. He ruled that even adminsitrative decisions were subject to the test of 'proportionality': 'it requires the the court to make a value judgment, independent of the decision-maker, based on factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages.' [Page 39]. Such assessment in turn 'necessitates knowledge of various alternatives available to the Authority/Central Government, and this is a mandate enabled inter alia by the process requiring public consultation.'

In conclusion, however, the majority judgment framed the project as an ordinary construction project undertaken by the government, as opposed to a grand project of nation building. It acquired that aspect later. 'The petitioners contend that standards may be heightened only for this project which is a sui generis one. Even the respondents have at one stage called for a sui generis treatment for this project. We must note at the very outset that we are impressed with none. To consider a particular subject matter as sui generis in common parlance is one thing, but to accord something with that character in a judicial proceeding is an altogether different thing. Moreover, there is absolutely no legal basis to "heighten" the judicial review by applying yardstick beyond the statutory scheme and particularly when the Government has accorded no special status to the project and has gone through the ordinary route of such development projects as per law.' [Page 134; Emphasis supplied]

Delhi High Court and the Central Vista

During the peak pandemic days of April 2021, the Delhi Disaster Management Authority (DDMA) imposed restrictions on movements and everyday activities. Only very few movements were allowed, and those only in aid of 'essential services' for the city.

It was in this context that a different set of Petitioners moved the Delhi High Court claiming that continued construction activity at the Central Vista precincts was in violation of DDMA's Orders. The Delhi High Court judgment of 31^st May 2021 records the Petitioners' statement that they are conscious of the general legality of the project having been confirmed by the Supreme Court. They were, nevertheless, praying for a temporary stoppage in construction activity during the days of the pandemic, since continued activity threatened the health of ground workers, as also the safety of the people of Delhi for it heightened risks of further spread of infection.

The Petitioners' primary contention was that the Order of 19^th April 2021 only allowed construction on sites where workers were staying on the premises. They relied on news reports to claim that a special pass was issued for the movement of workers from their camps to the Central Vista construction site. This was in breach of Orders, since construction was not allowed on sites where workers had to be transported in.

The State countered these contentions through its own affidavit, which stated that workers were in fact staying on site and therefore construction activity at the Central Vista fell within the list of exempted activities. They claimed that there were facilities to lodge 280 workers on site and the movement passes had been issued only to ferry material and for the one time ferrying of workers from the camp to the site.

The Delhi High Court chose to rely on the state's affidavits and other material provided, and gave the finding that construction activity fell within the list of exempted activities as per the 19^th April Order and also subsequent Orders. The Petition was dismissed.

However, the Delhi High Court also gave a finding on the 'national importance' of the project, which to my mind is contrary to the reasoning of the majority judgment of the Supreme Court. 'To accord [...] that character in a judicial proceeding is an altogether different thing' [Supra.] – in fact, this was the broad reasoning for not according it heightened judicial scrutiny and according to the project 'due democratic and constitutional process'. Yet, the Delhi High Court, ironically referencing the Supreme Court's judgment, was pleased to record that the 'whole Central Vista Project is an essential project of National importance, where the sovereign functions of Parliament are also to be conducted. Public is vitally interested in this project.'[Page 21] The Supreme Court judgment is well reasoned, but lengthy. The Delhi High Court's order seems to have captured only the final endorsement of the project by the Supreme Court, perhaps deciding that that was ground enough to declare it to be of national importance, but neglecting to apply the broader jurisprudential points laid down.

Having declared the project to be of national importance, the Delhi High Court relied on no small measure on its own finding to also form the opinion that the Petitioners held mala fide intent in trying to stall projects of national importance. 'We completely disagree [...] that the project is not an essential activity. The Project in question is of vital importance and essential and has a direct nexus with the main project, namely, Central Vista Project. [...] We are of the view that this is a motivated petition preferred by the petitioners and not genuine public interest litigation. In view of the aforesaid, present petition is hereby dismissed with costs of Rs.1, 00,000/-'[Page 22]

What makes the nation: the (non-legal) sub-text

It is a long-standing accusation against PIL petitioners and activists that they bring the social/ political into the sphere of the legal, but really as any good theorist of law will tell you, jurisprudence too is constituted from contemporary cultural, political and social undertones in society. It also, in turn, reconstitutes politics and culture.

There is, of course, a cultural/political undertone to the contentions that were made both before the Supreme Court and the Delhi High Court with regard to the idea of nation building/ or national interest. The Petitioners before the Supreme Court were anchoring it in the idea of affective rights and common heritage, and in participatory processes that should mould democracy. Similarly, a second set of Petitioners before the Delhi High Court chose to locate national interest in the health of its people. 'Compared to the larger interest of protecting lives of people, sanctity of a date of completion of the Project for construction can have no meaning, relevance or importance.' [Page7, Delhi High Court judgment, Supra.]

On the other hand, the Respondent state's conception is, well 'statist', relying on grand monuments as symbols of the Republic. Works on democracy and architecture identify the 'idea of an axis establishing an imposing line of sight focusing on buildings and symbols of government as majestic monuments [as being based] on a very different conception of polity, casting government as a benevolent senior figure with capacities far greater than ordinary mortals, who must be revered from a distance, respected and obeyed, and, in reciprocation to this obedience, measures for citizen welfare may be sprinkled upon the masses.'[Chandavarkar,P.]

It is not reflected in the Delhi High Court judgment, but Public Architecture is a very developed field of study that helps to dilienate different conceptions of the polity as reflected in the design of public buildings, so that the statist one need not be taken as the only option.( The sentiment is reflected in Justice Khanna's dissent).

The contentions before the Courts do, in fact, reflect various ideas about 'public architecture'. For instance, whether the present boat club lawns should be an open space for pageantry, picnics and public protests, or should it be made less accessible (at least for public protests) and kept in readiness for state parades. The Respondent state repeated several times that the Central Vista Avenue had to be readied in time for the Republic day parade.

The Supreme Court had ruled that contesting ideas around public architecture are essentially policy decisions to be taken by elected representatives. The Delhi High Court sanctions a particular view, and without any apparent examination of the varying concepts of public spaces. It seems to suggest that public architecture's primary function is representational by describing it as 'a vital place where Republic Day Celebrations are held in Delhi.'[Page 19, Delhi High Court judgment, Supra.]

Elsewhere, authors have compared urban axes across world cities: the central vista avenue and the National Mall in Washington DC, or the Champs-Elysees in Paris, and have assessed their public function in terms of accessibility to the public.

"The immediate buildings located on both sides of the central greens in the Mall in Washington are all public buildings and museums. This implies that they can be accessed by any citizen of the United States or any tourist. People can walk right up to any of the buildings on the Mall. They can enter any of the buildings and access into the majority of them is free. Thus, by design, the Washington Mall is public in terms of access and sense of space for the ordinary citizen. US federal government buildings are located away from the Mall.

A similar study of the Central Vista in New Delhi clearly shows that more than half of the plots on both sides of Rajpath are government office buildings with limited access. People cannot walk right up to most the buildings and certainly cannot enter them freely. There is a clear dominance of government buildings on Rajpath and the surrounding areas with very few completely public buildings.'[ Bhakat, R]

The tonal dissonance: the resurrection

The Petitioners before the High Court came up in appeal before the Supreme Court challenging the finding of mala fide against them. On June 29^th 2021, the Supreme Court dismissed the special leave petition while asking the Petitioners to explain why they had selected only one of sixteen projects in the city that were apparently currently underway. Thus, it once again defined the Central Vista as just one amongst several projects of the government, while at the same time not examining the 'national importance' label ascribed to it, which would conceivably bring it under more scrutiny then any ordinary developmental/construction project.

On this the Delhi High Court and the Petitioners had spoken in one voice: that the Central Vista was sui generis. They differed of course on the Petitioners' contention that for that reason alone it should be held to the greatest standards of accountability (and as per Khanna, J's dissenting judgment, to the test of proportionality). In the event, the costs awarded for stalling a project of national importance remained.

Shahrukh Alam Studies Sociology and Practices Law

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