India A Representative Democracy With Strong Elements Of Participatory Democracy : SC In Central Vista Judgment

The Supreme Court's judgment upholding the Central Vista project process(by 2:1 majority), running into 611 pages, devotes a substantial portion to discuss the concept of 'participatory democracy'.This was in the context of the argument raised by the petitioners regarding the absence of public participation in the process.While the majority approved the project, Justice Sanjiv Khanna dissented to hold that the public consultation process must be re-done( Rajeev Suri vs Delhi Development Authority and others and connected cases).The majority judgment of Justices AM Khanwilkar and Dinesh Maheshwari, after tracing the history of mode of governance in India from the colonial times and also the debates in the Constituent assembly, observed that a "direct democracy" was never envisaged for India by the founding members."Right from the days of struggle for freedom to the debates of Constituent Assembly and afterwards in independent India, we have invariably embraced the representative model of democracy wherein political sovereignty vested in the People of India and legal sovereignty vested in the Constitution of India. The rule is by the people through their elected representatives at all levels of the Government –from village panchayats to the Parliament", the majority observed.However, the bench added, the adoption of representative democracy did not completely exclude public participation. "In fact, over a period of time, there has been a constant endeavour to encourage wider public participation,wherever possible and required, keeping in the view the efficiency of administration and Rule of Law", the majority said. The adoption of the local governance system in 1992 was cited as an example of public participatory model. Representative democracy with strong elements of participatory democracy"A holistic understanding of the dispensation envisaged under our Constitution would reveal that we are a representative democracy with strong elements of participatory democracy embedded in it. The element of participation, however, is regulated not only by statutes but also by the Constitution", the judgment authored by Justice Khanwilkar remarked.The principle of participatory democracy has two integral elements –Public participation in decision making and Placing information regarding Government actions in public domain. The first element is carefully circumscribed by the state of Rule of Law or procedure established by law and a fine balance has been struck between "need for public participation and effective functioning of administration". The participation itself involves three features –the stage, the extent and the nature of participation. The extent and quality of permissible participation is dependent upon a multitude of factors including, but not limited to, the stage of procedure, nature of subject matter, number of affected persons, local conditions, geography, strategic importance of project, budgetary allocations for the project etc. "No country with a sizeable population like ours can give a promise of direct participation to every individual in the decision-making process (of the Government) in administrative matters unless the law so prescribes", the majority said.Public participation not to supplant govt discretion but to give it suggestionsThe bench then added :"...it must be borne in mind that such 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".[Central Vista] 'Constitution Envisages Representative Democracy Not Participative":SG Tushar Mehta Tells Supreme CourtJustice Khanna's judgmentJustice Khanna, who wrote a separate judgment dissenting from the majority judgment regarding compliance of process relating to public participation, also elaborately discussed the principles of public participation.His judgment refers to the 'Gunning Principles' on public consultation as evolved by UK Courts, as follows:consultation must occur when the proposals are still at a formative stage;the proponent must give sufficient reasons for the proposal that permit intelligent consideration and response;adequate time must be given for consideration and response; andthe product of consultation must be conscientiously taken into account in finalising any statutory proposals.Justice Khanna observed that "Gunning Principles" can be substantially read as resonating in Sections 10, 11 and 11-A of the Delhi Development Act and Rules 4, 8, 9 and 10 of the Development Rules. These provisions involve public notice of the land use plans, inviting of public...

India A Representative Democracy With Strong Elements Of Participatory Democracy : SC In Central Vista Judgment

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India A Representative Democracy With Strong Elements Of Participatory Democracy : SC In Central Vista Judgment

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