Participatory democracy, heightened judicial review and more: The Supreme Court's majority decision in the Central Vista case

The majority decision delivered by Justices AM Khanwilkar and Dinesh Maheshwari, apart from going into the technicalities of the matter, delves into larger questions of jurisprudence.
Participatory democracy, heightened judicial review and more: The Supreme Court's majority decision in the Central Vista case
Justice AM Khanwilkar and Justice Dinesh Maheshwari, Central Vista

Today’s Supreme Court ruling in the Central Vista redevelopment case saw a majority of two judges uphold the Centre’s proposed plan, even as a third judge dissented.

The majority decision delivered by Justices AM Khanwilkar and Dinesh Maheshwari, apart from going into the technicalities of the matter, delves into larger questions of jurisprudence. In fact, more than 100 pages of the 431-page majority opinion discusses the topics of Rule of Law, Judicial Review, participatory democracy and others, in relation to the Central Vista case.

Here is a summary of the discussion on those aspects, which effectively laid the foundation for the Court’s decision to give the green signal to the project.

Rule of Law and Judicial Review

While broaching the topic, the Court noted that a line must be drawn between executive action which has a direct bearing on personal liberty of an individual and executive action which comprises administrative functions with no direct impact on individual liberties. In this light, the judgment notes,

“The petitioners, despite their best of efforts, have not been able to demonstrate a case of deprivation of life or personal liberty of any individual on account of any of the impugned executive action. Whereas, it is essential for the petitioners to demonstrate a real and direct impact or restriction on their core fundamental rights due to the impugned executive action to invoke the due process argument. A cause-effect relationship is essential. Only then the burden would shift on the State to either show the absence of restrictions or justification of restrictions within the permissible exceptions of Part-III.”

The judgment goes on to state that the judiciary is not meant to impose the citizens’ or even its own version of good governance upon the government in the name of Rule of Law, in exercise of its power of judicial review.

The case of State of MP v. Narmada Bachao Andolan was cited to highlight,

“In matters which may appear to be wholesome for accomplishing ideals of administrative efficiency including democratisation of the decision-making process, even if a Court is of the opinion that a different procedure (in addition to the statutory scheme) would be more just and appropriate, it may not attempt to implement its ideal by way of judicial review, much less to strike it down.”

Therefore, it held that a Court viewing statutory processes through its subjective notions would be antithetical to the fundamental tenet of Rule of Law which requires “all power in the State” to be exercised in accordance with the procedure established by law.

On the issue of “subjective satisfaction of the Executive” with regard to policy decisions, the Court held,

“The interference of Courts is neither warranted to look into the quality of material relied upon by the Government to approach a decision nor to adjudicate upon the sufficiency of such material. These matters are of a subjective character and if legislature permits subjective powers on one organ of the State, the other (in the name of judicial review) is not expected to substitute its own subjective opinion in its place The sole concern of the Court is to look at the relevancy of the material relied upon to take a decision in order to see that the decision is not devoid of application of mind.”

Heightened Judicial Review

Some of the petitioners in the Central Vista matter called for the Court to exercise “heightened judicial review” while considering the matter. The Court asks itself in the judgment,

“Would it be justified for the Court to innovate and elevate the standard of review after a decision has already been taken by the executive in accordance with the procedure established by law, in pursuance of a policy?”

Answering this question in the negative, the Court held,

“Whether a particular development project calls for urgency or deserves special treatment or requires maximum attention of the Government or is to be deferred for budgetary reasons or requires authority ‘A’ to initiate the proposal and not authority ‘B’, is a matter of policy decision of the executive. Moreover, there is absolutely no legal basis to “heighten” the judicial review by applying yardstick beyond the statutory scheme and particularly when the Government has accorded no special status to the project and has gone through the ordinary route of such development projects as per law…”

Highlighting the presumption of constitutionality of laws, the Court noted that when the legislature enacts a law, it is presumed that it has undertaken a thorough analysis as regards the involvement of stakeholders – experts and non-experts, institutions, procedures, timelines for approval, intradepartmental appeals, inter-department appeals etc.

The Government is entitled to commit errors or achieve successes in policy matters as long as constitutional principles are not violated in the process.
Majority decision of Supreme Court

“A Court sitting in review does not have this machinery available before it and the Constitution never wanted it to do so. Therefore, when a review is brought before the Court, it cannot choose to adopt a different (or the so-called heightened) approach for reviewing the administrative process involved in reference to a particular project.”

Significantly, it went on to observe,

“Thus, an elected Government is the repository of public faith in matters of development. Some section of the public/citizens may have another view point if not complete disagreement with the course of action perceived by the elected Government, but then, the dispensation of judicial review cannot be resorted to by the aggrieved/dissenting section for vindication of their point of view until and unless it is demonstrated that the proposed action is in breach of procedure established by law or in a given case, colourable exercise of powers of the Government...

The Government is entitled to commit errors or achieve successes in policy matters as long as constitutional principles are not violated in the process. It is not the Court’s concern to enquire into the priorities of an elected Government.”

Participatory Democracy

Under this head, the Court sought to ascertain the meaning of the phrase “rule by the people” as used in understanding the meaning of democracy. On the limits of public participation, it said,

“The element of participation, however, is regulated not only by statutes but also by the Constitution. The Constitution, if it would have envisaged every important decision to be flowing from the public in the manner proposed by the petitioners herein, would have clearly provided for that dispensation. It has not.”

The Court then juxtaposed public participation with Rule of Law, stating that under our Constitutional scheme, a fine balance has been struck between need for public participation and effective functioning of administration.

“...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.”

Public Trust

The judgment states that for proving a violation of public trust, the petitioners need to establish that public resources are being squandered and used or planned to be used in a manner which cannot be termed as beneficial.

The Court notes that the Central government has “elaborately demonstrated the imminent need” for the Central Vista project. Having held earlier in the verdict that the change in land use does not result into any deprivation of recreational spaces, the Court states,

“On the contrary, the changes would result into optimisation and greater access to open spaces including entail in assets creation. The respondents have repeatedly assured the Court of adhering to all norms and conditions necessary for preservation of environment and heritage including urban aesthetics...

...The project does not involve any conversion into private ownership and has no element whatsoever of permitting commercial use of vital public resources. The proposed project is in line with the standards of public trust and the petitioners have failed to point out any circumstance which would suggest otherwise.”

Change in Land Use

Coming to the technical considerations of the case, the Court arrived at the conclusion that the change in land use by the government for the Central Vista project was in accordance with law. It did so after noting that Section 11A(2) of the Delhi Development Authority Act bestows expansive power upon the Central government to alter the character or extent of the master plan or zonal plan in public interest and for the proper development of Delhi. Further,

“...plans can undergo mid-course corrections and modifications to mould the policies in the right direction for the proper development of Delhi....must be exercised in public interest and meet the tests of reasonableness, non-arbitrariness and fairness. It is not an untrammelled power in that sense.”

Procedure followed for effecting change in land use
Procedure followed for effecting change in land use

After noting how the redevelopment of the plots of land in question would not cause public harm, the Court held,

“...the master plan itself envisages intensive utilization of existing Government land and utilization of surplus land by the Government as essential components of optimum utilization of Government land resource. The public trust doctrine obligates the Government to use the available resources prudently and to subserve the common good. The proposed use is not to bestow largesse on private persons but for assets creation and for public use. Naturally, if such optimum utilization requires changing the land use of Government lands, that must follow in public interest.”

Closing Remarks

In a “postlude” at the end of the judgment, the Court reiterates the restrictions on judicial review and interference with executive policy. It states,

“We are compelled to wonder if we, in the absence of a legal mandate, can dictate the government to desist from spending money on one project and instead use it for something else, or if we can ask the government to run their offices only from areas decided by this Court, or if we can question the wisdom of the government in focusing on a particular direction of development. We are equally compelled to wonder if we can jump to put a full stop on execution of policy matters in the first instance without a demonstration of irreparable loss or urgent necessity, or if we can guide the government on moral or ethical matters without any legal basis. In light of the settled law, we should be loath to venture into these areas.

We need to say this because in recent past, the route of public/social interest litigation is being increasingly invoked to call upon the Court to examine pure concerns of policy and sorts of generalised grievances against the system. No doubt, the Courts are repositories of immense public trust and the fact that some public interest actions have generated commendable results is noteworthy, but it is equally important to realise that Courts operate within the boundaries defined by the Constitution. We cannot be called upon to govern. For, we have no wherewithal or prowess and expertise in that regard.”

Justice AM Khanwilkar and Justice Dinesh Maheshwari, Central Vista
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