[Central Vista Case] Decision Making Process Totally Opaque; Values Of Transparency Overlooked : 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 Wednesday, Senior Advocate Shyam Diwan drew the bench's attention to yet another representation to the government by a well-known architect for holding an open competition among architects for choosing the best concept and design for such a prestigious project. Yesterday, he had taken the court through the representations made by the Council of Architecture and the Indian Institute of Architects (IIA).

He also indicated a press note released by the IIA, Northern Chapter, averring that any development in such a sensitive zone is to be planned in a holistic manner and that "the methodology of selection of the lowest bidder is akin to a supplier of goods". "They wrote that the unseemly haste with which the government is proceeding shall bring about disastrous consequences- an unmitigated cultural and environmental disaster"

"None of these representations received any response! The CPWD is going ahead with the current course of things...", remarked Mr. Diwan.

"So the emphasis on prior consultation, open design competition, objection to the lowest bidder auction is common in all the representations?', asked Justice Khanwilkar.

"All the objections are anchored to the global best practice, which is the established norm...it is important for the deepening of democracy in India and the value-based system that we follow", replied the senior advocate.

"Yes, open competition is the global best practice", agreed Justice Khanwilkar.

Mr. Diwan indicated, by way of examples, that for the Indira Gandhi National Centre for Arts, conceptualised in 1986-89, an open single stage global design competition was held, where over 120 bids were received. For the Parliament Library, in 1989, a national design competition was conducted. And most recently,for the National War Memorial and Museum in 2016, a two-stage open global design competition was held where over 400 bids were received.

"So in Lutyen's Central Vista zone, this has been the norm. In stark contrast to this is the Central Vista redevelopment project, where a Quality Cost Based Selection (QCBS) Tender system has been employed...", explained Mr. Diwan.

Perusing the documents submitted by the petitioner, Justice Khanna asked, "For the War Memorial, it says that all the wining designs were rejected by the Delhi Urban Arts Commission?" Mr. Diwan assured that he shall revert to the court as to what the stage of the project is.

"Is there any particular reason for giving us the names of the members of the statutory authorities which grant approvals?', asked Justice Khanwilkar. Mr. Diwan replied in the negative.

"The bid document states that they are creating a legacy for 150-200 years. But the time-lines provided clearly don't support this...Your Lordships said that the court can't go into whether 21 days are provided and whether it is enough as it is a policy matter. But is this a tender for a marriage hall or something much more profound and firm? They are acting as the trustee of a public trust here!", he continued.

"It was a 7-week process. As per the pre-bid meeting, 24 bidders had participated. A total of 6 bids were received. After the technical bids, presentations were to be made on approach and methodology to a jury whose composition is not known. Ultimately, 4 were selected for the financial bids. The tender was awarded to H1 Bidder 'APC Designs' at 229 crores", submitted Mr. Diwan.

"Did any of these 24 participants mention about the short time-lines? We'll take note of it here itself", asked Justice Khanwilkar.

"Yes. At least 10 said we need more time. Alteast 10 sought 2-3 weeks or 3-4 weeks more time. They said they need more time to work out the approach and methodology and the vision and the master plan", replied Mr. Diwan.

"And in response, the government asked them to see the corrigendum by virtue of which an extension of 1 week was given? So they asked for 3-4 weeks but were given only 1 more week?", observed Justice Khanwilkar.

Continuing, Mr. Diwan contended, "This is the Parliament, Surely, after so many years, they must show to the public what studies preceded the NIT? But there are no studies in the public domain at all! Perhaps there were secret studies!". He indicated the November 8, 2019 Proposed Development Guidelines issued by the INTACH (Indian National Trust for Art and Cultural Heritage), on which the CPWD also leans, to submit that it was this level of detailed heritage impact assessment which was needed in the present case.

Besides, he walked the court through the responses received to RTI queries by a journalist associated with India Today as on March 6 this year- "When asked about the composition of the committee to decide on the selection of the firm for the redevelopment of the Central Vista, there was no satisfactory response. We need to know who was part of the jury! The next question was 'which buildings form par of the development plan?' The reply was that comprehensive planning is in progress and these modalities are yet to be finalised! And this was on March 6! When it was inquired based on what criteria ACP Design was chosen, the response reads that the criteria is spelt out in the tender document which is public domain"

"The most troubling reply is when they were asked if the PMO is involved in the selection, they replied 'no'! So the CPWD is to decide whether the people of India get a new Parliament or a refurbished Parliament and it doesn't even do that itself! It leaves it to a consultant who is unknown and could have even been a foreign party! This is the lowest threshold of a democracy! Just this one point is enough to strike down the whole project", he urged.

Next, he discussed that it was in a meeting held by the Central Vista Committee amid the lockdown, via video conferencing, where it granted its No-Objection to the construction of a new Parliament- "The minutes of the April 30 meeting of the Special Advisory Group of Central Vista and Central Secretariat show that it was not attended by 4 expert and independent members- the Commissioner, Planning, DDA; the President, IIA; the member representative, IIA; and the President, Town Planners, India...they just noted that some members expressed their inability to join the meeting on account of travel restrictions and as senior citizens, being confined to their houses, and also lack of technical capacity, and requested for a postponement. But naming the importance of the project for the nation and the timescale for its implementation as the reasons, the meeting was held anyway"

"The minutes are of a previous meeting of April 23", pointed out Justice Khanwilkar, upon which Mr. Diwan apologised.

Next, Mr. Diwan pointed out that the Committee gave no reasons for according its clearance to the project; that under 'Observations', it merely stated 'No Objections' and that 'the features of the new building are in sync with the existing building'

"I ask myself, when they are building institutions for preserving the heritage, is there anything to suggest that these gentlemen have done something other than abdicating? If you are in such a daring hurry, acting during the lockdown through video conferencing, then in view of the checks-and-balances in the Constitution, you are even more duty-bound to scrutinise, apply your mind and raise issues! This is necessary to inspire public confidence, because not everything reaches the court! But the Committee was completely overwhelmed and in thrall of the project and just rubber stamped its approval! It is illegal, null and void and not worth the paper it is written on!", he argued.

Moreover, he indicated the June 5 decision of the DUAC disapproving the proposal for the new Parliament building, and communicating its recommendations- "It is advised to integrate both buildings with adequate distance between the two...the elevation and design to be less overbearing and more representative of the democracy of India"

"None of these documents are in the public domain! The public has the right to know whether the proposal was challenged or not! It is no defence secret!", contended Mr. Diwan.

Then, he referred to the July 1 decision of the DUAC communicating its approval to the proposal, in view of the "revised building plan" and "incorporation of observations" made by it. Mr. Diwan has sought a quashing of this decision.

Then he continued to draw the bench's attention to certain constitutional provisions: in as much the Preamble reads "We, the people of India...give to ourselves", he advanced, "This is indicative of limited governance- a Constitutional governance which limits the authority of the State and keeps vast spaces open for the citizenry, because we have given this Constitution to ourselves!"

"The Preamble asserts we are a 'democratic, sovereign, Republic'. Democracy is the impulse which inspired the freedom movement! Being a sovereign and a republic, we cannot even imagine a situation where the CPWD leaves significant decisions to an unspecified firm, which may even be a foreign entity!", he pressed.

He indicated Article 49, on the protection of monuments, advancing that the Central Vista and the Parliament, being a continuous, living heritage, is a very important facet of the broad constitutional philosophy in Article 49.

He relied on Article 51A(a), obligating all citizens to abide by the Constitution and respect its ideals and institutions; 51A(c) making it the duty of every citizen to uphold the sovereignty, unity and integrity of the nation; 51A(f) obligating citizens to value and preserve the rich heritage of its composite culture.

He mentioned Article 75(3) making the Council of Ministers collectively responsible to the House of People, Article 245 on the pan-India extent of laws which may be made by Parliament and their extra-territorial operation; Lists I and III of the 7th Schedule; and Article 253 on the jurisdiction of the Parliament to frame legislations for giving effect to international agreements. "There is enormous importance that the Constitution gives to the Parliament in the hierarchy of structures it creates. It points to the weighty nature of the Parliament under the Constitution, as the icon of Indian democracy! This is much higher than just another tender matter!", he advanced.

"Was this issue raised in the Parliament in the question hour, or otherwise debated? Is there any record as to it and how it was responded to by the government?", asked Justice Khanwilkar. Mr. Diwan assured the bench that he shall get back to the court on this.

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

Democratic due process & Judicial review

"In a case which required the highest standard of scrutiny, the response of the government has been 'show us the law and we will show you how we complied with it'. They are taking to the Rule by Law rather than the Rule of Law! Everything from the conception and planning was done in an opaque manner, followed by a wiggly tender, intended to achieve a predetermined outcome! This case also challenges us as an institution! Is there a concept of democratic due process? What are its contours, its parameters? Where is it embedded- in the language of the Constitution, or the judgments of the Court?", argued Mr. Diwan.

"Democratic due process is nothing but good habits which develop into a convention. And this begins before the NIT and continues at every stage- first, in arriving at a decision as to whether a new Parliament building is needed, and second, at the implementation. The government is the trustee for the public of the most valued treasure of the heritage of democracy!", he urged.

"The counter affidavit of the Respondents states that there are no statutory provisions for public consultation, heritage impact studies, design competition for redeveloping the Central Vista. The petitioners say that where Fundamental Rights are concerned and the Basic Structure of the Constitution and National Symbols are involved, there has to be wide public debate and impact assessment studies and the maximum possible participation! In Lok Prahari, Your Lordships have held that the principle of limited governance applies to heritage and that public property cannot just be handed out to a government functionary even if they have rendered yeoman service!", he pressed.

"Governments come and go. But when they are acting as trustees of property of such constitutional significance, they must comply with democratic norms...not just when they are elected, but throughout!...The Central Vista is not just for any one generation, but it is a living symbol of democracy!", contended Mr. Diwan.

"There were no empirical studies to justify the destruction of such property at huge cost to the public exchequer. Nothing to show that there are problems with the Central Vista and that the existing Parliament cannot be utilised. There is just a bare averment in their counter affidavit that there are studies but there is no such thing in the public domain...The process was totally opaque and the values of transparency, disclosure and the right to know were overlooked", he argued.

"This calls for heightened judicial scrutiny standards. Your Lordships may adopt a hands-off approach in a case of a tender of marriage hall, but here, on account of the arbitrariness and the unreasonableness of Executive action, the checks and balances of the Constitution have to be applied rigorously by the Court! The government ought to have identified the best method to preserve the heritage much before the Central Vista project commenced! Instead, they deliberately skirted any inquiry and arrived at a decision sans any public deliberation or consultation or discussion on the fairness of the method of procurement adopted!", he pressed.

Mr. Diwan cited examples of the procedures followed in the cases of the "Mother Parliament" of Westminster and the US Congress, both of which are equipped with modern facilities. "It is the global norm to have an expert inquiry as to whether to restore or to preserve...You can't just get a consultant, marry him to the authorities who are required to apply their minds, finish all this in the lockdown and start construction! This is not due process!", he submitted.

"Judicial review is necessary to examine the decision-making process of the government! A hands-off approach would be incompatible with Article 13, and the recourse to 32 and 226 in case of violation of Fundamental Rights", he said.

Limited Government

"When you are dealing with the Parliament, you have to have checks and balances- costs, scrutiny, repairs, what to do, when to do, how to do- at all stages. You can't just leave it to the CPWD who also leaves it to an unknown consultant! It can be done only pursuant to a parliamentary legislation", advanced Mr. Diwan, citing the UK Act as an example.

"Even the present incumbents of the Parliament didn't do anything. It is just the Executive wing, with the PMO not involved. This is unthinkable!", he continued.

"CJ Bobde has described privacy as a traveling right. That has some resonance in this case. Democracy is also a traveling right, it has no terminus. It demands expert views, sensitivity to heritage, consultation before embarking on the project, application of mind and not leaving it to the consultant, competition, a jury to evaluate how the design to be tested...this is nothing new", he explained.

"If you want to supplant the Parliament, you can only do it through a statute. Direct Parliamentary supervision or policy is needed. No doubt, the power of the Executive is co-extensive with the Parliament, but this is an apex situation, for altering the one-of-a-kind Central Vista, which is the root of democracy!", suggested Mr. Diwan.

"Or, if we are wrong about legislation, then the government must atleast hold consultation, ensure the maximum transparency at all stages of decision-making, fair competition, give adequate time to ensure maximum participation, and a diverse and representative jury of experts", he continued.

"Otherwise, the next government may come and say 'I don't like this'. Some government may want to shift the capital, like Mohammad Tughlaq! That cannot be allowed under our Constitution", he advanced.

Public Participation, Consultation and Right to Know

Mr. Diwan discussed how this right has evolved- through Constitutional jurisprudence, the rights evolved by the court have come to be embedded in statutes, and how the right to know has acquired Constitutional status.

"A large number of statutes are now engrafting some sort of stakeholder consultation. The emphasis is on participatory democracy", he said.

"We are dealing with Executive action. Here, surely, where there is administrative action, right of participation is important. But first, making the entire process accessible is necessary. When the Central Vista and the political heart of the country is being re-ordered, participation is a very important right, which has been ignored", he continued.

"If we accept this argument for public participation at the stage of planning or conception of the idea, then would it apply to all Grade 1 Heritage buildings?", asked Justice Khanwilkar.

"No, definitely not for all buildings of a high level Heritage priority. The Central Vista and the Parliament are sui generis case. The respondents have also recognised it, having called it "unique" and the "heart beat of modern India" in their documents", replied Mr. Diwan.

"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?", asked Justice Dinesh Maheshwari.

Mr. Diwan shall reply to this query tomorrow.

Advocates Gautam Bhatia and Vrinda Bhandari also appeared for the petitioners,

The Petition has been filed through Advocate Shadan Farasat