Everything You Need to Know About Central Vista Judgment and Dissent

The central government’s Central Vista redevelopment project has got a green signal from the Supreme Court. In a 2:1 verdict, Justice AM Khanwilkar and Justice Dinesh Maheshwari wrote the majority view and Justice Sanjiv Khanna the dissenting view.

The Rs. 20,000 crore Central Vista redevelopment project proposes to build a new Parliament that will be three times bigger than the existing 93-year-old heritage building. It will modify the use of 86.1 acres of land in Lutyens Delhi.

The project will reconstruct the North and South blocks of central Delhi. It will also bring all ministries under one roof.

The Centre is empowered to take the final call on changes, minor or major. Thus, the central government is not restricted from modifying the plan; though the changes must be within the limits of law and in harmony with the Master Plan.

The timing and opacity of the project has led to severe criticisms given it was cleared during the ongoing pandemic while the economy is struggling. Four petitions against going ahead with the project were filed in the Supreme Court.

Delhi Development Act Permits Modifications in Master Plan

Section 11A of the Delhi Development Act allows changes to the Master Plan. According to Section 11(A)1, the DDA can make minor modifications, while Section 11A(2) empowers the central government to make changes, including in the Zonal Development Plan.

The Centre is empowered to take the final call on changes, minor or major. Thus, the central government is not restricted from modifying the plan; though the changes must be within the limits of law and in harmony with the Master Plan.

The court ruled that a Writ petition cannot be used to review the government’s past decisions unless the review is substantive.

On the question of public hearings, the majority said they are not necessary under Section 11A. The principles of natural justice include the right to a fair hearing, however, this cannot be blindly applied.

Therefore, Justice Khanna held, these changes envisaged fall under Section 11A(2) of the DD Act, which gives wider powers of modification to the Master Plan. In his opinion, the central government must consider objections raised before notifying the modification.

While principles of natural justice are very important, they do not have a blanket application.

The court felt that the petitioners were unable to show any principle of natural justice has been violated in the redevelopment plan.

In his dissenting view, Justice Khanna said the changes to the Master Plan envisaged in the Central Vista project are not minor. What was being done, such as “…locating modern government office building blocks complete with building design, engineering services design, site development infrastructure, landscape, water bodies, lighting amongst other components”, will amount to completely redeveloping the Central Vista.

Therefore, Justice Khanna held, these changes envisaged fall under Section 11A(2) of the DD Act, which gives wider powers of modification to the Master Plan. In his opinion, the central government must consider objections raised before notifying the modification.

He noted that the Central Government and Authority had continuously taken conflicting stances on the issue of classification of the project under Section 11-A(1) or (2). He noted that the written submissions concede that the change would fall under Section 11A(2) however, in the same breath it was also pleaded that the notification be considered under Section 11A(1). Taking note of this, Justice Khanna stated, “This ambiguous and oscillating stand, which is also contradictory, goes to the root of the issue and question of the authority empowered and competent to legislate.” He also stated that the Centre did not place on record anything to show that they had taken charge of the project or to show that they had considered the objections and suggestions.

Taking note of the government’s changing stance, Justice Khanna said that the procedure under Section 11A was not followed.

Is India a Participatory Democracy?

This issue of participatory democracy was a major point of divergence between the majority and minority opinions.

A public notice was issued for raising objections regarding the change in land use. However, the personal hearing of the parties was held with a one-day prior notice, which the petitioners argued violated natural justice.

While the majority argued that a fine balance must be drawn in participatory democracy and not every individual can participate in a country with a large population, Justice Khanna said the two laws—the Delhi Development Act and Delhi Development (Master Plan and Zonal Development Plan) Rules—envisage a high level of public participation.

However, the government argued that 1,156 of the 1,292 objections received were similar in nature.

The petitioners also argued that no information was disclosed regarding the invitation of tenders to provide consulting services to the project.

There were two issues: First, it was a common concern that the project was being carried out in a clandestine fashion. There was not enough information regarding it in the public domain. This made it difficult for the public and experts to have an informed opinion.

Second, the individuals who had posed objections were not given enough time to make their case during an oral hearing held on 6 and 7 February last year. A public notice was given via newspapers on 5 February. Emails regarding the hearing were also received with less than 48 hours’ notice, which made it difficult for most individuals to appear for the hearing.

The majority view held that it is rare to see an administrative action of the government to become a subject for public debate.

Democratic participation in executive action is regulated by statutes.

While the majority argued that a fine balance must be drawn in participatory democracy and not every individual can participate in a country with a large population, Justice Khanna said the two laws—the Delhi Development Act and Delhi Development (Master Plan and Zonal Development Plan) Rules—envisage a high level of public participation.

All the information regarding the project was accessible to the public, said the majority.

The CVC is an outcome of an executive order and when an executive order is made without legislation, it is done by the government for its day-to-day functioning, said the majority.

However, Justice Khanna argues that merely uploading a gazette notification does not mean sufficient information has been given to the public. This lapse was conceded by the Board of Enquiry and Hearing (BoEH) too. Relying on various judgments, Justice Khanna highlighted the importance of public consultations in transparency. He made note of the “gunning principle” as per which the public should be informed and objections should be invited right at the initial stage.

As per J Khanna, the government has a duty to ensure the public consultation process is “sensible and meaningful”.

Only 42 of the 1,292 objectors had appeared before the BoEH on the two dates. Section 45 of the DD Act says that if no time-frame is specified regarding a notice, then the same be a ‘reasonable time’. Justice Khanna observed, “Lack of reasonable time, therefore, prevented the persons who had filed objections and given suggestions to present and appear orally state their point of view.”

Central Vista Committee Did Not Apply its Mind

The petitioners contended that permission required by the Central Vista Committee (CVC) was reduced to a mere formality. They argued that the committee did not apply its mind to the proposal before granting a No-Objection Certificate or NOC. However, the government argued that CVC is not a statutory body and hence need not follow principles of administrative decision-making.

However, the committee, though not a statutory body, has the features of a statutory body, argued the petitioners. They relied on the tender inviting bids for the redevelopment to demonstrate that the committee performs public functions similar to statutory bodies.

After reading the minutes of the meetings, Justice Khanna, however, said the CVC had failed to fairly and independently apply its mind.

The majority and minority opinions differed drastically on the question of “application of mind” by the Central Vista Committee (‘CVC’) in granting the NOC.

The CVC is an outcome of an executive order and when an executive order is made without legislation, it is done by the government for its day-to-day functioning, said the majority.The formation of the CVC is an internal matter and it is constituted for extra scrutiny. However, if there is a conflict, then the government’s decision will prevail.

On the question of an insufficient quorum, the court said the members were given the opportunity to attend it virtually and none of the members raised objections.

After reading the minutes of the meetings, Justice Khanna, however, said the CVC had failed to fairly and independently apply its mind.

Parliament is owned by the legislature and the ministry comes under the executive. The majority held that the buildings do not come in the same site, hence a cumulative environment assessment cannot be held.

The meetings suffered from several infirmities.

First, the member from the Indian Institute of Architects wanted detailed facts, but this request was ignored. Second, despite the pandemic, the committee convened an online meeting on April 23, 2020, at the end of which came the no-objection. The minutes of the meeting provide no reason or even details of the material considered or discussion held. The petitioners argued that usually detailed reasons and assessments are undertaken in similar committees’ meetings, such as of the National War Museum.

Further, the committee was mandated to engage architects and town planners to advise the government, but only government representatives were present at the meeting which granted the no-objection.

Expert Committee Recorded No Reasons

Clause 4 of the environment clearance notification of 2006 states projects shall be categorised “A” or “B” depending upon the potential risks to humans and resources.

The majority opined that the level of scrutiny of a project depends on its categorisation and that the 2006 notification strikes a balance. It does not require the same level of scrutiny for all projects.

The petitioners argued that the project was wrongly categorised because Parliament was initially excluded from the Central Vista Project. In a development project, the government is the sole authority to decide the nature, activity and timeline.

The Central Vista Project mainly consists of the Parliament and the various ministries. The petitioners argued that the Central Secretariat should be assessed with Parliament project. Parliament is owned by the legislature and the ministry comes under the executive. The majority held that the buildings do not come in the same site, hence a cumulative environment assessment cannot be held.

The court accepted the government’s argument that there are substantial differences in the functions performed by the legislature and the executive. Court further opined that “Principally speaking, in a matter of planning and development activity, the Government has the sole prerogative to decide the nature, expanse and timeline of development work.”

The Expert Appraisal Committee was constituted under the Ministry of Environment. The main function of the Committee is to assess the environmental impact of each project and give its recommendations to the Ministry.

After going through the decision of the Expert Appraisal Committee, Justice Khanna noted two things. One, that there was a lack of application of mind as they had accorded no reasoning for the decision. He stated that the EAC acts like an investigator and adjudicator. The proceedings before it are not adversarial in nature. Further, the EAC is supposed to present reasons for its decisions before the court.

With regard to the issue of categorisation, Justice Khanna refrained from commenting as the EAC had not considered the matter. Further, he noted that these issues are best left to experts.

Heritage Conservation Committee Clearance

One of the main concerns raised was the lack of prior approval from the Heritage Conservation Committee (HCC). The petitioners alleged that the bids did not go by due process. The government argued that there is no heritage structure in the proposed plan.

As per the Unified Building Bye-Laws, the project needs prior approvals/NOCs from external agencies such as the HCC. In December 2019, the Technical Committee of the DDA said that steps will be taken to seek approval of the HCC. However, no such approval was ever taken. The bench unanimously held that prior permission should be obtained from HCC.

Justice Khanna agreed with the majority on this. Parliament House, the National Archives, North Block, South Block, and other precincts of the Central Vista precincts are Grade-I buildings to which several restrictions apply which make prior approvals mandatory.

The article was originally published in The Leaflet.

(Navya Sony and Shagun Bhargava are law students and are currently interning with The Leaflet. The views are personal.)