'We Cannot Be Called Upon To Govern. For We Have No Wherewithal or Prowess And Expertise In That Regard': Supreme Court In Central Vista Case

"We cannot be called upon to govern. For, we have no wherewithal or prowess and expertise in that regard.", remarked the Supreme Court in its judgment in Central Vista Project case.

Justice AM Khanwilkar, in his majority judgment, said that, in recent past, the route of public/social interest litigation is being increasingly invoked to call upon the Court to examine pure concerns of policy and sorts of generalised grievances against the system. The Courts are repositories of immense public trust and the fact that some public interest actions have generated commendable results is noteworthy, but it is equally important to realise that Courts operate within the boundaries defined by the Constitution, the court observed. 

The 'postlude' to the judgment was a response to some of the grievances raised by the petitioners against the Central Vista Project which, according to it, venture into territories that are way beyond the contemplated powers of a constitutional court. The court said:

We are compelled to wonder if we, in the absence of a legal mandate, can dictate the government to desist from spending money on one project and instead use it for something else, or if we can ask the government to run their offices only from areas decided by this Court, or if we can question the wisdom of the government in focusing on a particular direction of development. We are equally compelled to wonder if we can jump to put a full stop on execution of policy matters in the first instance without a demonstration of irreparable loss or urgent necessity, or if we can guide the government on moral or ethical matters without any legal basis. In light of the settled law, we should be loath to venture into these areas.

The court observed that the judicial organ is not meant to impose the citizens' or even its own version of good governance upon the Government in the name of Rule of Law in exercise of its power of judicial review:

The constitutionally envisaged system of "checks and balances" has been completely misconstrued and misapplied in this case. The principle of "checks and balances" posits two concepts - "check" and "balance". Whereas the former finds a manifestation in the concept of judicial review, the latter is derived from the well enshrined principle of separation of powers. The political issues including regarding development policies of the Government of the day must be debated in the Parliament, to which it is accountable. The role of Court is limited to examining the constitutionality including legality of the policy and Government actions. The right to development, as discussed above, 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 law.

The court also observed that second guessing by the Court or substitution of judicial opinion on what would constitute a better policy is strictly excluded from the purview of Judicial review enquiry. The court observed:

"In a democracy, the electors repose their faith in the elected Government which is accountable to the legislature and expect it to adopt the best possible course of action in public interest. Thus, an elected Government is the repository of public faith in matters of development. Some section of the public/citizens may have another view point if not complete disagreement with the course of action perceived by the elected Government, but then, the dispensation of judicial review cannot be resorted to by the aggrieved/dissenting section for vindication of their point of view until and unless it is demonstrated that the proposed action is in breach of procedure established by law or in a given case, colourable exercise of powers of the Government. Therefore, it is important for the Courts to remain alive to all the attending circumstances and not interfere merely because another option as in the perception of the aggrieved/dissenting section of public would have been a better option."

Regarding Constitutionalism, the court observed thus: 

"Constitutionalism, therefore, is a relative concept which envisages a constitutional order wherein powers and limits on the exercise of those powers are duly acknowledged. It is a tool which is used to reach upto the ultimate goal of constitutionalization of governance and it cannot be deployed to present an alternative model of governance. We must state that it would not only be absurd but also fraught with dangers of overreach and ambiguity if subjective principles of interpretation are applied by detaching them from the textual scheme of the Constitution, particularly when the textual scheme lays down an elaborate structure of administration. For, to do so would be to drag a duly elected Government on the edges as it would be under a constant fear of being adjudged wrong on the basis of undefined principles which appeal to "three gentlemen or five gentlemen sitting as a Court".

Justice Sanjiv Khanna also observed that he would not comment on merits of the vista project. Our interference does not reflect on merits of the stands, but is on account of procedural illegalities and failure to abide the statutory provisions and mandate, the judge said in his dissenting opinion.

Central Vista- Lack Of Public Consultation, No Approval From HCC, Non Speaking Order Granting Environment Clearance: Justice Sanjiv Khanna In His Dissent

Click Here To Download Judgment

[Read Judgment]