[Central Vista] 'Construction Of Building Executive Function; Court Should Not Become Approval Authority': Solicitor General In SC

The submissions were made before a Bench comprising of Justices AM Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna.

The SG resumed his submissions by averring that the challenge to the contract was not by a person in competition; there was no business rival before the Court, but the matter had been brought vide a Public Interest Litigation by people with public interest in mind.

It was submitted by the SG that the duty of the government was to show the Court that there was no "hanky-panky" involved.

"There is no element of personal subjectivity which can leave room for doubt that one person was selected and another was left".

In making the aforementioned submission, the SG addressed the reason why international bids were not taken.

"I never undermine Indian talent, but there is an impression that good things can only happen when the colour of your skin is different. This is a personal observation and not the contention of the Respondent. There are international firms which could qualify, but there was a condition that if you did not have previous experience in Indian climate, then you would not be selected".

The Bench noted that this would limit the scope for bidders. To this, the SG responded that no international firm had come forward to state that they embodied all the qualifications, but were unable to apply for this one condition. He submitted that it was important for the bidders to the be acclimatized to the Indian environment of working as the same was radically different from the work environment in other countries.

At this juncture, the Bench asked whether the argument could be framed in a manner to state that the candidate had no knowledge of the working of the country as well as its heritage.

"Nothing has been placed before us on how the design is so faulty that the appointment of the consultant comes into question. We want you to make us understand this".

The SG elaborated upon the design of the project and stated that writ jurisdiction could not cover the grievance of the Petitioners.

"There was no abdication of duty in the selection of consultants. Every stakeholder participated in the process and gave suggestions. An argument that we could have adopted a better process cannot be a sufficient ground to set aside the project", submitted the SG.

He further submitted that the Central Vista Committee was an advisory body and its advice was not binding. Further, there was already the Delhi Urban Arts Commission Act which provided for the Delhi Urban Arts Commission. This Commission had rejected the initial proposal with objections; the project had only been allowed after reconsideration.

The SG went on to state, "The Petitioners state that a law should have been promulgated. Whenever the Constitution has stipulated that Executive government can only take some decisions by way of law, the Constitution provides for the same. Construction of a building is essentially an executive function. Importance of the building would not change the character of the function".

An example was cited by the SG that the difference between the construction of a hospital and the Parliament was that in the latter case, the government had an onerous responsibility to ensure that the heritage of the building remained intact, but there was no Constitutional imperative to bring in a law.

The SG then made submissions on the aspect of "participative democracy" and submitted that the Indian Government functioned through a Council of Ministers which was accountable to the Parliament, and the Parliament in turn was accountable to the citizens.

"This is the nature of representative democracy. Participative democracy under the Indian Constitution is different. Due to the largeness and diversity of the country, our Constitution cannot envisage a participative democracy-like structure".

It was then averred that the Petitioners had failed to show that there was any violation of Constitutional or statutory provisions.

"They have only provided an alternative, but that does not mean that the entire project will be dismissed."

On the topic of applicability of foreign judgements from the Kenyan Court of Appeal and South African Constitutional Court which had been cited by the Petitioners, the SG submitted the Indian jurisprudence already accounted for Article 14 and there was no need for application of foreign judgements.

"I don't find it necessary to go on a world tour and rely on Congo or South Africa. These judgements have no direct bearing here. For instance, take the democratic due process. We have our Constitution and we do not deviate from it. Their argument of democratic due process is an extension of American substantive process".

The SG then cited a few cases on the issue of intervention of the Court in matters of policy.

"If any project is approved after due deliberation, the Court should refrain itself from interfering in it. It should not become an approval authority".

The matter will now be taken up tomorrow, i.e. Thursday, at 10.30 AM.