Central Vista Ruling Sets Dangerous Precedent for Judicial Review

With the Central Vista’s validation, the halls that once housed our Constituent Assembly will now be abandoned.

Image used for representational purposes.

(Photo: Arnica Kalra/The Quint)

The Supreme Court, by a majority of 2:1, recently upheld — as constitutional — the manner in which the Executive has undertaken the re-development of Delhi’s Central Vista. The reasoning of the majority ignores the significance of the vista and effaces the Court’s significant role under the Constitution.

The Central Vista, spanning from the Rashtrapati Bhavan to India Gate, including the Parliament and various ministries, is perhaps India’s most significant symbol of democracy.

In 2009, the Government of Delhi designated the precinct and specific buildings including Parliament as heritage properties under the Unified Building Bye-Laws of Delhi. These regulations impose strict limitations on the government with respect to the kind of changes that may be made to heritage buildings and adjoining areas. The importance of the precinct has been recognised by the Central Government in numerous reports as well as in the Delhi Master Plan that mandates the local bodies to come up with special plans to conserve heritage sites.

Petitioners’ Submissions

The crux of the petitioners’ case before the Court was that the process followed to commence the Central Vista redevelopment was so superficial that it falls short of the obligations imposed on the government to protect heritage buildings.

For instance, the only material given to the Court to justify the construction of a new parliament were two letters by two speakers seeking more space — written in 2015 and 2019 — followed by an Office Memorandum of Ministry of Housing and Urban Affairs directing the CPWD to float a request for proposal to redevelop the Central Vista.

Strikingly, there was no study conducted by heritage experts to determine whether the existing parliament structure could still be used for retrofitting, or whether the only alternative was to develop a new one on an adjoining land.

It was further contended that the approval of change in land use and the environmental clearance was pushed through amidst the pandemic with insufficient public consultation.

The Majority’s Stance

In an over-400 page judgment, the majority concluded that the process adopted by the respondents did not violate any statutory provisions or constitutional principles. Ordinarily, a judgment would first analyse what rights and principles are applicable to the particular facts of a case and then examine whether they have been violated.

In this case, the petitioners claims were grounded in the right to know and the corresponding requirements of public disclosure, public participation, stake holder consultation under Article 19(1)(a) and the notions of rule of law, duty to give reasons and the principle of non-arbitrariness recognised under Article 14.

Curiously, the Court suggested that such requirements have been recognised only in matters of personal liberty through the standard of due process.

However, this completely overlooks the Court’s recent decision in Shayara Bano v. Union of India where it held that the requirement of due process or reasonableness runs through the entire fundamental rights chapter and is expressed as non-arbitrariness under Article 14.

The Correct Approach Is A ‘Third’ Approach

Having failed to appreciate how the petitioners’ submissions were grounded in fundamental rights doctrine, the majority judgment then proceeded to make observations about the scope of judicial review in the abstract. In particular, it cited several precedents to argue that in cases involving “policy decisions” the Court has a severely limited role.

According to the majority, the Court is “strictly excluded” from “second-guessing” or “substituting” policy decisions, as such substitution would involve budgetary allocations and complex technicalities that is best left to experts.

Judges often conceive of this principle of deference as leading them to a binary between a completely hands-off approach and substituting the decision arrived at by an expert body.

However, as demonstrated by the dissenting opinion in this case, the correct approach is a third approach. Under this approach, the Court does not review the decision of the expert but examines the decision-making process to check whether the expert body based its decision on consultations, deliberation and is supported by reasons demonstrating why the decision is necessary. Unfortunately, the majority falls into the trap of the binary.

Through a largely hands-off approach, the majority uncritically accepts the assertions of the Government, thus negating the safeguard of judicial review.

For instance, the Petitioners had challenged the approval granted by the Central Vista Committee to the parliament building as suffering from non-application of mind because it was devoid of any substantive reasons. The majority accept the government’s submission that an administrative authority was not mandated to give reasons. However, by the Court’s own admission the duty to give reasons would depend on the nature of the subject matter and the consequences of the decision.

How The Majority ‘Granted Wide Discretion’ To The Govt

In the present case, the CVC had to consider whether the plans in fact complied with the special regulations relating to the Central Vista and the Government’s constitution obligation to protect “monument or place or object of artistic or historic interest.. from spoliation, disfigurement, destruction, removal, disposal” under Article 49. These aspects do not enter the majority’s reasoning.

Similarly, with respect to the change of land use by the Central Government, the Petitioners relied on Sections 11A and 45 of the DDA Act to argue that the authority was required to provide reasonable notice to invite objections from the public and that the 3 day notice given was insufficient.

The majority however, interpreted these provisions so as to grant wide discretion to the Government to decide what constitutes a reasonable amount of time, and it held that no prejudice was caused to the Petitioners by the fact that only three days’ notice had been given.

This approach entirely overlooks the rationale of the notice requirement which is meant to enable stake-holder participation and proper engagement with issues raised through this process.

Irony Of Supreme Court’s ‘Inconsistent’ Jurisprudence On Judicial Review

The majority’s approach is perhaps strangest when it comes to the consideration of validity of Environmental Clearance granted to the project.

Leaving aside the fact that the Court failed to consider whether the EAC had provided reasons for all aspects of its decision, the Court goes on to give a substantive direction to install smog towers and utilise smog guns during construction.

On the one hand, the Court suggests that it lacks the legitimacy and competence to review policy decisions of the government, and on the other hand, it directs the government to install smog towers.

Here we see the irony of the Court’s inconsistent jurisprudence on judicial review playing out mostly clearly.

Time and again, the Court relies on decisions demanding deference when the Court reviews State action as violative of the Constitution and yet these judgments make no appearance when the Court wishes to take up a PIL that entails judicial policymaking. The majority opinion offers a rare opportunity to see this inconsistency play out within the same judgment.

The Dissenting Opinion

The dissenting opinion, to a great extent, holds a mirror up to the majority’s flawed approach. Beginning with an emphasis on the significance of the Central Vista, the dissent notes that the judicial review entails examining the decision making process to determine if the concerned authority has acted reasonably, fairly and that the action does not go beyond what is necessary.

The Court recognises that these requirements flow from Article 14 and further recognises that corresponding to the citizens’ right to know is the duty of the government to ensure transparency and participation in significant projects like the Central Vista.

Against this backdrop, the Court closely examines the reasons given by the experts on specific issues. In respect of the approval granted to the CVC, the Court noted that the requirement of reasons was crucial given the mandate of the Committee to study and advise proposals. The Court even relied CVC’s own past meetings where it had provided extensive reasons for other projects.

In respect of the manner in which the DDA carried out public consultation, the Court noted that a last minute intimation of a hearing could not be considered reasonable as it did not give stakeholders enough notice to meaningfully participate in the process.

Finally, on the question of environmental clearance, the Court set aside the order on the ground that the EAC had failed to give a finding on whether the government had validly sliced the project into different components.

In this context, the Court also noted that the mere reproduction of different viewpoints would not demonstrate that the requirement of application of mind has been satisfied. Instead, the authority must provide reasons explaining how it considered and chose between competing view-points.

What The Majority Judgment Fails To Recognise

While the minority opinion carefully weaves together the structure of the Constitution and fundamental rights to interpret the relevant statutory provisions, the majority’s opinion segregates these dimensions of the case in a manner that is contrary to the spirit of the Constitution. Incidentally, the majority cites an earlier judgment to argue that the appeals to the spirit of the Constitution are emotional and are of limited relevance in a Court of law.

Strikingly, the majority judgment omits to note that the Constitution’s chief architect, Dr BR Ambedkar, had emphasised the significance of the spirit of the Constitution both in the Constituent Assembly and while arguing before the Supreme Court.

With the validation of the Central Vista project, the halls that once housed India’s Constituent Assembly will now be abandoned. It is hoped that with this move the spirit of the Constitution is not altogether forgotten.

(Disclosure: One of the authors was involved in the drafting of a writ petition challenging the Central Vista Project.)

(Vikram Aditya Narayan and Jahnavi Sindhu are Delhi-based advocates. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)