Constitutional tradition requires the state’s decisions to be just, fair and reasonable and adhere to procedure
There is a pattern that emerges out of the contemporary Supreme Court of India’s most notable judgments. These rulings invariably begin with an homage to the ideas of the rule of law. But the opening tributes are left by the wayside when it comes time for the Court to apply those ideas to the case at hand. The invariable upshot: the executive government’s caprice trumps due process, and the rule of law survives only in name.
The judgment delivered on January 5 in Rajeev Suri v. Delhi Development Authority, in which a 2:1 majority of the Court granted its imprimatur to the proposed redevelopment of the Central Vista in the national capital, fits the trend.
Right to public participation
The majority’s ruling begins in now-customary fashion. It holds that in a republic governed by the rule of law, the government’s actions, “howsoever laudable” they might be, must stand the test of the Constitution. But when you read on from there, a shudder of déjà vu soon sets in.
The early paeans to the “high principles of democratic values” are enfeebled by the Court’s refusal to acknowledge the existence of a right to public participation, a right, which ought to be seen as fundamental in a democracy, properly understood. What is more, a repudiation of basic environmental norms is condoned, because, according to the Court, “the principle of sustainable development and precautionary principle need to be understood in a proper context”, one in which “competing public interests” must be harmonised and balanced. As we know only too well, every time the Court uses the language of harmony and balance, development eclipses every other concern.
A state-people link
Delhi’s Central Vista, originally conceived by Edwin Lutyens, stretches from India Gate to Rashtrapati Bhavan. Littered with sprawling parks and lawns, it houses not only an ensemble of landmark government buildings — from Parliament House to the Secretariats on the North and South Block — but also a number of other important public structures: among others, the National Archives of India, the National Museum and the National War Memorial. Its open spaces and the easy physical access that it affords to seats of power also mean that it has served in many ways as a link between the state and its people.
In 2009, the Central Vista was considered important enough to be designated, after extensive public consultation, as a Grade-I heritage precinct. This meant that any development inside the area had to be “regulated and controlled” in a manner that would leave its grandeur unscathed. But the proposal today, which portends enormous costs, is not any simple act of development within the boundaries of the area.
Instead, it seeks to remake the space. A new Parliament house will be erected next to the existing heritage building — it has been suggested, the central hall, where Nehru made his “Tryst with Destiny” speech, where the Constitution was adopted, would be converted into a “museum of democracy”. A new secretariat and a new residence for the Prime Minister will be built, and a number of post-Independence buildings, including the National Museum, will be taken down.
Petitions and claims
Petitions originally filed in the Delhi High Court, and transferred later to the Supreme Court, alleged that the government had failed to follow due process in approving the project. Two claims stand out: first, that the state had sanctioned an alteration to the existing land use permitted under law without sufficient public consultation; second, that the environmental clearance for the project is unreasoned, and was, in any event, obtained by illegitimately carving the project into two.
In his judgment for the majority, Justice A.M. Khanwilkar, writing on behalf of himself and Justice Dinesh Maheshwari, holds that the project required no special judicial scrutiny. According to the Court, the petitioners’ case was not predicated on the violation of any fundamental right, but only on the rigours prescribed by statute, in this case, the Delhi Development Act, 1957.
That law, though, as Justice Sanjiv Khanna’s dissenting opinion notes, does, in fact, mandate, among other things, the granting of an opportunity to the public to place on record its objections, and for those objections to be considered by hearing the objectors.
Here, although objections were invited from the public, a mere three-days’ notice was given for the hearing on those complaints. The majority rules that the law does not make personal hearings mandatory, and, therefore, it was irrelevant whether sufficient time was granted or not.
There are, at least, two problems with this finding: one, the Court has consistently held in the past that arbitrary state action violates fundamental rights, in particular the equality clause of Article 14. This would mean that in a project such as this, where a transformational change is brought about to the Master Plan framed under the 1957 Act, the public ought to have been accorded a sufficient chance to place on record all its objections, and a sufficient chance to be heard personally on those complaints.
Two, any civic participation can be productive only if complete information is placed in the public domain. In this case, the Board of Enquiry and Hearing (BoEH) which was appointed to consider the objections raised on the change in the land use, recognised the merit in the objectors’ plea that the full details of the project were not made available.
“Among the respondents, majority of whom are Planners/Architects, there appears to be a feeling that authentic technical information on this iconic project of Central Vista is not available in public domain, which is leading to avoidable misgivings….,” its report noted. Moreover, it also recommended that “impact assessment studies on traffic, environment and heritage” ought to be commissioned at the earliest. But despite these findings the Delhi Development Authority sanctioned the proposal.
Need for adequate disclosures
According to the majority, it was sufficient that the authority had the power to do so. The absence of a reasoned order overriding the BoEH’s specific concerns was found to be of no value. As a result, the Court had effectively determined that the Constitution guarantees no independent right to public participation.
But, as the dissenting judgment shows us, the most basic principles of procedural fairness — doctrines that flow from an array of constitutional promises — require the state to make adequate and intelligible disclosures. This is especially so in this case, because, as Justice Khanna identifies, the project, when executed, will have permanent and irreversible consequences.
The nature of the project ought to have also led to a more careful scrutiny on the environmental clearance granted to it by the Expert Appraisal Committee. Clearance had been sought not for the redevelopment of the Central Vista but only for the construction of a new Parliament building.
This meant that the application was considered simply as a “Building and Construction Project” rather than as a “Township and Area Development Project”, which would have enhanced the level of inspection. Again, as the dissent observes, the Expert Appraisal Committee’s order granting sanction does not so much as render a finding on why the project was sliced into two
These concerns over procedure, and over the denial of adequate public participation, might not strike us intuitively as matters of grave importance. But if the rule of law must mean something, we must regard the basic goals of our constitutional tradition with respect.
That tradition, more than anything else, requires decisions made by the state to be just, fair and reasonable, both in its substance, and, however tedious it might be, in its adherence to procedure.