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[Central Vista] 'Constitution Envisages Representative Democracy Not Participative":SG Tushar Mehta Tells Supreme Court

Mehal Jain & Radhika Roy
4 Nov 2020 5:35 AM GMT
[Central Vista] Constitution Envisages Representative Democracy Not Participative:SG Tushar Mehta Tells Supreme Court

The Supreme Court on Tuesday resumed hearing on the challenge to the Central Vista project and the government's proposal to construct a new Parliament in Lutyen's Delhi. A bench of Justices AM Khanwilkar, Dinesh Maheshwari & Sanjeev Khanna had earlier decided to hear the challenge on 3 issues, vis-à-vis change of land use, violations of municipal law, violations of...

The Supreme Court on Tuesday resumed hearing on the challenge to the Central Vista project and the government's proposal to construct a new Parliament in Lutyen's Delhi.

A bench of Justices AM Khanwilkar, Dinesh Maheshwari & Sanjeev Khanna had earlier decided to hear the challenge on 3 issues, vis-à-vis change of land use, violations of municipal law, violations of environmental law. Subsequently, the Court disposed off the petitions challenging change in land use of plot number 1 of the Central Vista Project, adding that it will be taken up at a later stage as the decision on its usage had not yet been taken by the Government.

"We Are Not Spending Money; We are Saving Money", Submits SG In Central Vista Matter

On Tuesday, Solicitor-General Tushar Mehta commenced his submissions on the challenge to the Central Vista project and the government's proposal to construct a new Parliament in Lutyen's Delhi. 

In the pre-lunch hearing, the SG, appearing on behalf of the Union of India, submitted to the Court that he was not seeing the issue as an adversarial litigation, but would like to assist the Court.

"The Central Government welcomes scrutiny of the Supreme Court. But, considering the history of the place where the redevelopment is happening, the Centre should be allowed some leeway", stated the SG.

SG emphasized on the stand that the important decision which was taken was on the construction of the Parliament complex and the Central Secretariat; these could not be built at Gurgaon, Panipat or Noida, and had to be at Central Vista.

It was also submitted that the old buildings were dilapidated and there was an urgent need to shift the offices. 

In response to the submissions that had been made by Senior Advocate Shyam Divan, the SG stated that India did not embody the concept of participatory democracy and was a representative democracy.

"Participatory democracy is a Utopian idea. If we go wrong, we have the Supreme Court in place to us and tell us what to do", remarked the SG.

SG also informed the Bench that when it came to constructing monuments such as the India Gate, War Memorial etc., design competitions were held as the monuments were purely ornamental and had no function. However, for the Parliament and Central Secratariat, concept competitions were held. 

It was further submitted to the Bench that an impression had been created that the project was a greenfield project and that that would not be a case. It was also submitted that the Delhi Urban Art Commission Act bestowed powers on a statutory body which had raised objects and rejected the proposal first. However, after changes were made and the project was reconsidered, was the go-ahead given; this showed application of mind. 

SG then highlighted the reasons why a new building was needed as periodic changes to the current Parliament building which had led to seepage and destroyed the heritage nature of the building.

"There are no fire safety norms or earthquake safety measures. There is a need for a new building because with increase in representation, the allocation of seats has also been increased. The current Parliament building was built in 1927 prior to Independence and was intended to house Legislative Council and not the Bicameral Legislature that we have today".

SG then submitted that both Lok Sabha and Rajya Sabha were packed, and when joint sessions were held, members were forced to sit on plastic chairs, thereby diminishing the dignity of the House. Further, the situation was even more embarrassing for the Central Secretariat. 

SG stated,

"People are asking why thousands of crores are being spent. This is not spending money, but this saving money".

The ease of connectivity from one Ministry to another was also referred to by the SG – "North Block and South Block are spread across 90 acres and it is a complete waste of space. A person from one Ministry has to travel to another. The new building will house everything". 

The SG then stated that a provision for interlinking of metro stations was also taking place which would minimize the use of two and four wheelers. The policy decision was that all Central ministries would be at one place and that one place would have historical significance. 

This would also allay the concerns of the Petitioners regarding environmental protection as it would be an integrated project which would enable efficient management of space/efficient governance and vehicular movement would be minimized. 

The SG submitted that the government was coming up with an iconic project and would ensure that care was taken and laws were not violated; they had a responsibility.

The Bench, at this juncture, informed the SG that the note submitted by the Central Government did not include what was intended to be done during the construction activities and there was bound to be environmental issues. SG responded that the same would be revised. 

The Bench asked the SG if it could be said that the decision of the government to separate the clearance required for the Parliament building was a nuanced policy decision by the government; "a vision document for the entire area to separate this from other projects because of its importance". The SG agreed to the same. 

In the post-lunch session on Tuesday, SG Tushar Mehta sought to explain his earlier comments in response to contentions that the principle of participative democracy had been overlooked by the government in the proposed project and that the decision was also not backed by any studies or expert opinion.

"During lunch, it was pointed out to me that my submissions could be misunderstood and conveyed in a sense not intended by me. On participative democracy, it was Mr. Diwan's argument that people should get to participate in such decisions as to whether there should be a new Parliament, what should be its design etc. My submission is that participative democracy is a concept of some western nations, which are much smaller, and which hold a referendum. Like as to whether Sunday should be a holiday or Saturday should be a holiday, a referendum is held. In view of the complexity of our country, the number of people etc, this participative democracy is not contemplated in our Constitution. What our Constitution envisages is representative democracy- where people are supreme, the government is for the people, of the people and by the people, all decisions are also of the people but are taken in a representative way! The people are sovereign, but the decision-making is by their representatives under the Constitution", he advanced.

"Where statutory requirements called for invitation of public participation, the same was done. As at the time of land-use change, we had received 60,000 cyclostyled objections...", he said.

Earlier, the SG had argued that all projects are based on estimations and they don't need separate studies- "If I am living in a house, I don't need an expert to tell me that it is not liveable", he had advanced.

Later, he clarified, "I had said that if my home is in a dilapidated condition, I know that! I didn't mean that I deem the Parliament to be my home or in my ownership, or that the government deems the Parliament to be its personal property! What I meant is that when we have the Speaker, the Rajya Sabha Chairman and in-house reports since years telling us that the space needs to be increased or some upgradation is needed, we don't need an outside expert to tell us that 'this is a 100-year old building! Have mercy!'"

"It has already been disclosed that the need for a new Parliament building has risen due to signs of distress and over utilisation of the Parliament complex such as increase in parliamentary activities and the number of people working there along with a spike in visitors. The scope for reorganising the existing Parliament House was thoroughly examined. The Parliament building lacks adequate space to meet the current needs. Additional office space in the newly constructed annexe and library building is insufficient. The number of Lok Sabha seats is also likely to go up with the delimitation of constituencies and the present building (Lok Sabha and Central Hall) may not be adequate to house all the members. It is a 90-year-old structure with no available documents about the structure's design life. The current audio-video-voting systems are also outdated and furniture is uncomfortable", cited the SG, commenting that all material facts have been pointed out and nothing has been concealed.

On the aspect of non-application of mind by the Expert Appraisal Committee in granting Environmental Clearance

"Even after the Environment impact Assessment was carried out, the report says that there will be no serious impact on the environment. So unless something is absolutely unpalatable, the project or the EC is not withheld. Instead stringent conditions are imposed for mitigation. Suppose, if there was to be a nuclear power plant, which entails drastic consequences, the EC may be refused. But here, considering the sanctity of the area...", submitted the SG.

"Your Lordships are dealing with decision of an expert body which cannot write judgment like the courts or other quasi-judicial authorities. At the end, all that is needed is that there should be application of mind and we should be able to cull out the reasons for its decision. ", continued the SG.

"The Committee was under no pressure that it dealing with the Parliament and treated it like any other project", he advanced, citing from the report how the project proponent was asked to give a detailed presentation and the Committee was informed at that stage itself that a challenge to the land-use change is pending before the Delhi HC, which was the only ongoing court proceeding at that time.

"There was categorical application of mind and complete non-concealment", pressed the SG.

"The application was for 'expansion and renovation of the existing Parliament building'. The Committee noted that the project/activity is covered under category 'B' of item 8(a) 'Building and Construction projects' of the Schedule to the EIA Notification, 2006. And that is our case! We want it to come up fast so that when the C-Sec is considered, we have the impact before us", he continued.

He walked the bench through the point-wise replies to the numerous representations received, which had come to be considered by the EAC:

It was alleged that the application completely disregards the historical, cultural and social importance of the existing Parliament by treating its "expansion and renovation" as any other regular construction project. "But it is like any other project from the point of view of the environment!", he asserted.

"The EAC was told that it is precisely because of the need to protect its heritage value, besides other practical aspects such as seating more members for the future and providing them with necessary infrastructure, that the project has been conceived, that the proposed project aims to undertake necessary structural and other activities required to sustain the existing Parliament Building for use by future generations of Indians. It was asserted that the Parliament expansion will be reviewed by the Central Vista Committee and will also be presented for review and approval by the Delhi Urban Arts Commission (DUAC) which will review the Building from the relevant angles within its mandate and purview", he pointed out to the bench.

Next, he indicated that it had been alleged that The application contains false and misleading information stating that the project will have no 'cumulative effects due to proximity to other existing or planned projects with similar effects', that there will be no significant impacts on ecology and public space, and on areas protected under conventions or legislations for their ecological, landscape, cultural or other values.

"This is a few thousand sq.m., that is 17 lakh sq.m.! The EAC noted that there is no significant impact on ecology since trees that require to be transplanted will be sent to holding nurseries for the time being. Thereafter, these will be moved to Plot 118 as part of the external site development. Trees that cannot be accommodated within Plot 118 will be transplanted within the Central Vista area. It was also noted that there will be no significant impacts on public space whatsoever due to the proposed Parliament expansion. This is so because on Plot 118, which is adjacent to Plot 116 on which the existing Parliament Building stands, currently houses parking, ancillary services and a reception to the Parliament House since about four decades. The reception was built in 1976 and utilities such as the AC chiller plant was built in 1981-82 whilst the sub-station was built in 1974, since it was not possible to accommodate these facilities within Plot 116", he continued.

He also indicated the responses to the objection that the application is full of subjective responses to questions of scale and duration of various impacts that are likely to be caused by the proposed construction, and that these can only be treated as opinions because there are no studies or detailed assessments to support the application.

"Then there were some additional objections which the CPWD received from the MoEF regarding Increase in Cost of the Project. We responded that as per standard CPWD norms guidelines whenever a new project is taken up, initially a general assessment is made. Based on this CPWD indicated tentative cost of Rs. 776 crores, based on initial concept plan prepared by Consultant. After a general assessment is made, CPWD has to necessarily add specific requirements of the end-users: in this case the Lok Sabha Secretariat, Rajya Sabha Secretariat and Security Agencies etc. After detailed deliberation with all stakeholders the Consultant modified the concept plan with built up area as 65,000 Sqm and accordingly tentative cost has been increased. The cost of Rs. 922 Crore has therefore been arrived at based on revised built up area in consultation with user agencies", continued the SG.

"The rationale for integrating the Existing and Proposed Parliament Building ECs was questioned. We said that the existing Parliament Building and the proposed parliament expansion are definitely inter-related, both in terms of function - since certain functions of the Parliament will be conducted in the Existing Building and simultaneously certain functions will be conducted in the Proposed Building - but also in terms of physical utilities. In fact, Plots 116 and 118 are inter-related even today (and since about four decades) because the existing Parliament Building houses its utilities at the same plot (118) where the Parliament expansion is proposed. Moving forward, it has been proposed to have a common utility block for both, the existing and Proposed Parliament Buildings. Therefore, it also follows that the proposed Parliament Building is indeed an expansion of the existing Parliament Building / Structure", he continued.

"This is only an expansion and not a green-field project! The structure will be part of the existing Parliament complex and will be put to the same use. Standards of good practice are to be followed at every stage. We told the EAC that there will be no increase in air pollution beyond existing levels, in fact there is a Potential decrease as state of the art and low or no emission vehicles get introduced over time...there is no increase in noise levels beyond existing levels...Reduced water consumption due to reuse of treated waste water...we gave an exhaustive traffic circulation and management plan for the new building, detailing how many traffic movement routes there are and for whom", he advanced.

"The project proponent as well as the MoEF while granting the EC were both alove to the issues and were very considerate!", he insisted.

"After detailed deliberation, EAC asked the project proponent to submit a revised Form I with details of total built-up area for proposed expansion; scope of renovation of existing building; any cases existing before any court or tribunal; traffic management plan; update the Master Plan showing land-use change of the relevant plot. Point-wise replies to the representations received were also called for! This shows the application of mind by the EAC", he said.

"This is no thermal power plant or a nuclear plant or a chemical plant. There are to be no hazardous substances in the air. This is only a building coming up. There were studies to identify the impact of the proposed project and generic and site-specific mitigation measures to control the adverse impact!

"The EAC deliberated on the proposal and found that a larger parliament building for the Nation is needed for better functioning of the legislature. The project will also provide short term as well as long term employment opportunities. It is envisioned that the proposed project will also make a positive contribution to social infrastructure and overall development of the region", he continued.

"So all aspects, including the other projects which are in the offing, were before the Committee which analysed them...And this was all considered in the meeting of April 22?", asked Justice Khanwilkar. "Yes...there was a detailed plan before the EAC, backed by studies, which it considered before giving clearance", replied the SG.

"Justice Maheshwari said there might have been 2-3 meetings on that day. I spoke to a joint secretary who said that there were and that time-slots were given and that he had to wait. So it is not as if this project was treated as special", advanced the SG.

"It was considered the same as an airport project or a transport project", remarked Justice Maheshwari. "It was not considered standalone by the EAC atleast", commented Justice Khanwilkar.

"The EAC noted the mitigations suggested by the project proponent and granted clearance subject to certain specific conditions! This alone presupposes the application of mind!", he argued. Indicating the conditions on which the EC is contingent, he advanced that this clearance is subject to the outcome of the proceedings of Special Leave Petition before the Supreme Court of India. "They are aware of the facts! Nothing was mechanical!", he commented. "Further, the EAC stated that the Consent to Establish/Operate for the project shall be obtained from the Delhi Pollution Control Committee as required under the Air (Prevention and Control of Pollution) Act, 1981 and the Water (Prevention and Control of Pollution) Act, 1974...they even noted our undertaking that there shall be no cutting of trees. Where absolutely necessary, tree transplantation shall be carried out with prior permission under the Delhi Preservation of Trees Act, 1994. A minimum of 1 tree for every 80 sqm of land should be planted and maintained...", he contended.

"All this is on record?", asked Justice Khanwilkar. "Yes. It is in the convenience compilation", replied the SG.

"The convenience compilation that was conveniently not adverted to", remarked the judge in a lighter vein.

"We are noting all this. It is very detailed", commented Justice Khanna.

"And the petitioners had argued that we are demolishing everything without any plan at all!", replied the SG.

"Had you placed all this in the public domain, perhaps their grievance would have reduced", said Justice Khanwilkar.

"Everything is on the website and easily accessible. Form 1A was in fact annexed by the petitioners and not by us! In the era of transparent governance, nothing can or should remain hidden!", asserted the SG.

"Give us a note on which documents are in public domain, department-wise and date-wise, post the in-principle decision until the permission and from the permission till the NIT...their whole argument is that nothing is in public domain", said Justice Khanwilkar, adding, "But whatever is in the public domain on the website might not be the same as the official record. So don't download from the website"

"What is this investment cost of the project of 776 crores? It is based on what? It has been argued that till that time, estimates were not prepared at all?", asked Justice Khanwilkar. The SG replied that it was the broad estimate, taken as the benchmark for the Parliament building.

Standalone project

In the application, environment clearance had been sought for "Expansion and Renovation of Existing Parliament Building." However, the entire Central Vista project, as defined in the CPWD tender, covers "Development/Redevelopment of Parliament Building, Common Central Secretariat and Central Vista at New Delhi." An objection was raised that the application treats the expansion of the Parliament as a stand-alone project when it is only one part of the proposed redevelopment of the Central Vista heritage precinct. It was also contended that treatment of the Parliament expansion as a separate project violates the MoEF&CC's OM for 'consideration of integrated and inter-related projects for grant of environmental clearance'.

"So your argument is that it is the nuanced policy decision of the government that while the vision document is for the whole area, the Parliament can't wait and so it should be separated from the whole area and proceeded with first?", asked Justice Khanwilkar.

The SG replied in the affirmative.

"What is the net effect of the Central Secretariat and the Parliament being separated from the Central Vista? The whole area would be more?", asked Justice Khnawilkar.

"The ratio is 20:80. The Parliament is 65000 sq. m. as against the C-Sec which is manifold this", replied the SG.

"What was the date of application for clearance for the C-Sec?", asked Justice Khanwilkar. He was told that it was 18.9.2020, as against 12.2.20020 for the Parliament building.

"Whichever building is to be touched, only that is to be considered. The annexe and the library of the Parliament are standalone buildings and are not to be touched for even retrofitting", advanced the SG.

"In case of an integrated project, you have to seek clearance for the entire area, prior to the construction, and not just what you want to construct", noted Justice Khanna. "The purpose is cumulative analysis", added Justice Khanwilkar.

"Even in that situation only the buildings in my immediate vicinity are to be considered. My immediate neighbour is the existing Parliament. The way the petitioners have argued, the building adjoining the annexe and the one adjoining that will also have to be considered!", replied the SG.

The SG drew the bench's attention to the responses given before the EAC to other representations that the application for clearance treats the expansion of the Parliament as a stand-alone project when it is only one part of the proposed redevelopment of the Central Vista heritage precinct, and the treatment of the Parliament expansion as a separate project violates the MoEF&CC's OM for 'consideration of integrated and inter-related projects for grant of environmental clearance'. "The EAC was told that 'Integrated and inter-related projects are those projects without which the necessary functional outcome of the proposed project cannot be achieved. For example, such projects would include a captive power plant attached to a coal mine, or a jetty attached to a Liquid Natural Gas (LNG) terminal. The proposed Parliament Building cannot therefore be considered as an integrated and inter- related project vis-à-vis the other proposed central vista buildings for the simple reason that it already exists, and it can definitely operate independently of the other structures", explained the SG.

"The petitioners said this is an area development project and not a building project...but Integrated and Interlinked projects are those which have multi-sectoral construction, mining, geology are all different sectors. Then, we need respective EACs to look into the sector-specific requirement...the integratedness of a project depends on the feasibility of a standalone project", he elaborated.

Ownership of the Parliament

"The application and the Form I are by the project proponent and not the owner. But if there is more than one owner, then do we see it as one project for all owners or separate projects for separate owners? Contracts would be independent contracts?", inquired Justice Khanwilkar. "Yes. And someone has already been awarded the contract", replied the SG.

"The Parliament is not owned even by the Ministry of Parliamentary Affairs. It is its own owner! Yes, the people of the country are its owners, but the Parliament itself is the owner of the Parliament building", he advanced.

"The sovereign is in the people. The government, the bureaucracy or even the judiciary- we are just acting as the agents, the representatives of the people. The government is the trustee under the Constitution", observed Justice Khanna.

The bench asked the SG to elaborate on the aspect of ownership.

"The Lok Sabha Secretariat owns the Parliament. But the application is made by the project proponent. For the C-Sec, we have just applied for the EC, while for the Parliament, even the contract has been awarded. The contract has not been challenged by anyone...We have timelines to follow, that is why we didn't want to mix the Parliament building with the C-Sec. For the C-Sec, we have time until 2026...", submitted the SG.

"The Master Plan for the Central Vista is a broader vision document to be implemented in 6 years. It is not a Master Plan under the DDA. It is a broad-based plan on architecture and other aspects. It does not contain the minute details which will be finalised only when the formal stage of construction is entered", he explained.

"You said the Parliament building is owned by the Lok Sabha Secretariat. We take the ownership aspect that way. Is there any sale deed? No. This is all in the name of the GOI which must have acquired the land. The ownership rights have not been transferred to anyone. So the owner has to apply for the sanction of the building plan, as the project proponent may be different...", noted Justice Maheshwari.

"The owner is the President of India, even though portions have been allotted to different departments, including the Parliament and even the SC", added Justice Khanwilkar.

"The land is owned by the GOI. It is owned in the name of the President by the Land and Development Office. But the building is vested in the respective Ministries and the Parliament. Their budgetary allocations for any renovations they want to make is also different. I am only on the explanation for why there are distinct projects", suggested the SG.

Judicial review

"The execution of the new Parliament building does not depend on the development of other buildings in the Central Vista area, which are various stages of planning. Environmental clearance can be applied for only when the final form has been taken. Your Lordships may undertake a merit review, but not of the decision of the EAC, if you think that the Committee considered all aspects and no prejudice was caused", advanced the SG.

"Merit review argument comes from Hanuman Aroskar's case. The petitioners have argued that if the NGT can do it, so can this court", noted Justice Khanwilkar.

"Whether the mitigation suggested is enough or not, Your Lordships can do a merit review...this is a sui generis case, nothing of the sort has happened till date neither will it happen in the future...the nation must have a Parliament. The decision to have a Parliament building is not arbitrary or atrocious...we wanted the two buildings side-by-side, we wanted synergy, we wanted continuity- not just in terms of the exterior but also functionally. The old Parliament building is to continue, though with lesser quantum of functionality", advanced the SG.

"It has been said that the acceptance by the EAC of the integration point showed non-application of mind. If a new Parliament building is needed, nobody can object. But there was no discussion on whether the existing Parliament building can be refurbished", observed Justice Khanna.

"Whether there will be the existing building or a new building, it is not for the MoEF but the government to decide. It is a policy decision, which cannot be second-guessed only because the petitioners are asking for it", said the SG.

"Whether judicial review is possible in this case, we will have to see", observed Justice Khanwilkar.

As regards Public Consultation, Transparency and Open Governance, the petitioners had relied on the 2019 Supreme Court case of Hanuman Laxman Aroskar. Senior Advocate Shyam Diwan had advanced that if in the context of environmental clearance for an international airport in Goa, such high standards are stipulated, so surely public views regarding the new design of the Central Vista are indispensable.

"The judgment speaks of public hearing, written responses, State Pollution Board to hold hearings, placing a summary of the EIA report on the website, making of appropriate changes in the draft EIA and EMP, submission of the final EIA report to the regulatory authority for appraisal. So definitely there was a duty to disclose and share what you plan to do on the part of the government even in this case. Everything was totally opaque, no studies are there and even if there are, none have been placed before this Court...Hanuman's case is highly relevant and persuasive here. There were a huge number of general objections even here, which the government was conscious of but rejected anyway. Primarily, on the heritage aspect, there was complete non- consideration", Mr. Diwan had argued.

On Tuesday, the SG advanced that reasons are to be recorded only when application is rejected. Where the permission is being granted, the application of mind must reflect in the process. "In Hanuman Aroskar, there were concealments which would shock the conscience of any court! Initially, the project proponent had said that only a few trees, mostly bushes, would be felled, but subsequently, it was revealed that 55,000 trees would have to be felled...the project site was in the reserved forest area, there were concerns regarding the wildlife and villages surrounding the project site...and the EAC had just said that the project-site is not in eco-sensitive area", he argued.

"And this judgment was cited on non-disclosure and concealment", commented Justice Khanwilkar.

"We can internally keep changing the design even during the construction by the contractor if it doesn't affect the environment", he said.

"The judgment envisages public consultation only in the worst scenario. All I need is an EIA and not public consultation. Even if this highest level of scrutiny is applied, it would be only in respect of the immediate neighbours", pressed the SG.

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