India A Representative Democracy With Strong Elements Of Participatory Democracy : SC In Central Vista Judgment

The Supreme Court's judgment upholding the Central Vista project process(by 2:1 majority), running into 611 pages, devotes a substantial portion to discuss the concept of 'participatory democracy'.

This was in the context of the argument raised by the petitioners regarding the absence of public participation in the process.

While the majority approved the project, Justice Sanjiv Khanna dissented to hold that the public consultation process must be re-done( Rajeev Suri vs Delhi Development Authority and others and connected cases).

The majority judgment of Justices AM Khanwilkar and Dinesh Maheshwari, after tracing the history of mode of governance in India from the colonial times and also the debates in the Constituent assembly, observed that a "direct democracy" was never envisaged for India by the founding members.

"Right from the days of struggle for freedom to the debates of Constituent Assembly and afterwards in independent India, we have invariably embraced the representative model of democracy wherein political sovereignty vested in the People of India and legal sovereignty vested in the Constitution of India. The rule is by the people through their elected representatives at all levels of the Government –from village panchayats to the Parliament", the majority observed.

However, the bench added, the adoption of representative democracy did not completely exclude public participation. "In fact, over a period of time, there has been a constant endeavour to encourage wider public participation,wherever possible and required, keeping in the view the efficiency of administration and Rule of Law", the majority said. The adoption of the local governance system in 1992 was cited as an example of public participatory model.

Representative democracy with strong elements of participatory democracy

"A holistic understanding of the dispensation envisaged under our Constitution would reveal that we are a representative democracy with strong elements of participatory democracy embedded in it. The element of participation, however, is regulated not only by statutes but also by the Constitution", the judgment authored by Justice Khanwilkar remarked.

The principle of participatory democracy has two integral elements –

1. Public participation in decision making and
2. Placing information regarding Government actions in public domain.

The first element is carefully circumscribed by the state of Rule of Law or procedure established by law and a fine balance has been struck between "need for public participation and effective functioning of administration".

The participation itself involves three features –the stage, the extent and the nature of participation. The extent and quality of permissible participation is dependent upon a multitude of factors including, but not limited to, the stage of procedure, nature of subject matter, number of affected persons, local conditions, geography, strategic importance of project, budgetary allocations for the project etc.

"No country with a sizeable population like ours can give a promise of direct participation to every individual in the decision-making process (of the Government) in administrative matters unless the law so prescribes", the majority said.

Public participation not to supplant govt discretion but to give it suggestions

The bench then added :

"...it must be borne in mind that such public participation is not to supplant the discretion of the Government or to retard the development work. It is only for inviting constructive suggestions/objections from all stakeholders for effective implementation of the policy of the Government, to subserve public interest".

[Central Vista] 'Constitution Envisages Representative Democracy Not Participative":SG Tushar Mehta Tells Supreme Court

Justice Khanna's judgment

Justice Khanna, who wrote a separate judgment dissenting from the majority judgment regarding compliance of process relating to public participation, also elaborately discussed the principles of public participation.

His judgment refers to the 'Gunning Principles' on public consultation as evolved by UK Courts, as follows:

• consultation must occur when the proposals are still at a formative stage;
• the proponent must give sufficient reasons for the proposal that permit intelligent consideration and response;
• adequate time must be given for consideration and response; and
• the product of consultation must be conscientiously taken into account in finalising any statutory proposals.

Justice Khanna observed that "Gunning Principles" can be substantially read as resonating in Sections 10, 11 and 11-A of the Delhi Development Act and Rules 4, 8, 9 and 10 of the Development Rules. These provisions involve public notice of the land use plans, inviting of public objections, consideration of the objections before finalization of the plan etc.

"To ignore their salutary mandate as to the manner and nature of consultation in the participatory exercise, would be defeat the benefic objective of exercise of deliberation. Public participation to be fruitful and constructive is not to be a mechanical exercise or formality, it must comply with the least and basic requirements", Justice Khanna said.

Intelligible and adequate disclosure of information in the context of the Development Act and the Development Rules means and refers to the degree to which information should be available to public to enable them to have an informed voice in the deliberative decision making legislative exercise before a final decision is taken on the proposals.

Justice Khanna also remarked that approaching the courts after the decision making was not a substitute for participation at pre-decision stage.

"Deliberative democracy accentuates the right of participation in deliberation, in decision-making,and in contestation of public decision-making. Contestation before the courts post the decision or legislation is one form of participation. Adjudication by courts, structured by the legal principles of procedural fairness and deferential power of judicial review, is not a substitute for public participation before and at the decision-making stage".

Judges disagree on the degree of compliance of public consultation process

While the judges were in agreement on the principles of public participation, there was split in the bench regarding the compliance of the same by the Centre regarding the Central Vista project.

The majority observed that the respondents have recognized the importance of these principles and have placed data before the court to show that all information was put in public domain.

"Notably, the respondents in the present case have recognised the importance of openness and have placed elaborate data before us to demonstrate how all steps of the project including all permissions, orders, invitations, approvals etc. were made available for direct public access onlinefrom time to time at the earliest available opportunity".

The majority observed that all relevant documents from the stage of expression of need for the project by Speaker of Lok Sabha to appointment of consultant, issuance of public notice, conduct of public hearing, final notification for change in land use and minutes of meetings of CVC, DUAC and EAC were placed in public domain. The petitioners have not pointed out a single document which formed a part of the process and was not placed in public domain.

The majority also observed that mere absence of information does not vitiate an administrative process. The petitioners must show prejudice caused to them on account of alleged denial of information.

"The real effect of absence of information in public domain has to be tested on the anvil of actual prejudice on public's ability to participate in the decision-making process, wherever provided for. It must result into a denial of legally enforceable right. In the present case, none of the persons who participated in raising objections to change in land use or those who sent representations to DUAC and EAChave come forward to contend that they could not access information, thereby rendering them incapable of participating in the process or in raising informed objections", the majority observed.

Mere uploading of gazette notification not sufficient compliance, Justice Khanna's dissent

Justice Khanna had a different view on this. He observed that "mere uploading of the gazette notification giving the present and the proposed land use with plot numbers was not sufficient compliance,violating the express as well a simplied stipulations,that is, necessity and requirement to make adequate and intelligible disclosure".

He noted that in the present matter this lapse and failure was acknowledged and accepted by the BoEH, which had recommended disclosure and furnishing of details

"Intelligible and adequate disclosure was critical given the nature of the proposals which would affect the iconic and historical Central Vista. The citizenry clearly had the right to know intelligible details explaining the proposal to participate and express themselves, give suggestions and submit objections. The proposed changes,unlike policy decisions,would be largely irreversible. Physical construction or demolition once done,cannot be undone or corrected for future by repeal, amendment or modification as in case of most policies or even enactments.They have far more permanent consequences", Justice Khanna said.

He said that it was therefore necessary for the respondents to inform and put in public domain the redevelopment plan,layouts,etc. with justification and explanatory memorandum relating to the need and necessity,with studies and reports. Of particular importance is whether by the changes, the access of the common people to the green and other areas in the Central Vista would be curtailed/restricted and the visual and integrity impact,and proposed change in use of the iconic and heritage buildings.

"...given the nature and importance the statutory provisions which emphasise on fair participation of the public in the deliberations, and the importance and significance of Central Vista, we do not think it would be appropriate and correct to ignore failure on the part of the respondents to ascribe to the principle of intelligible and adequate disclosure to fulfil the requirement of public participation.Right to make objections and suggestions in the true sense, would include right to intelligible and adequate information regarding the proposal.Formative and constructive participation forms the very fulcrum of the legislative scheme prescribed by the Development Act and the Development Rules. Every effort must be made to effectuate and actualise the participatory rights to the maximum extent, rather than read them down as mere irregularity or dilute them as unnecessary or not mandated", Justice Khanna added.

Click here to read/download the judgment