'Don't Citizens Have A Right To Know About Central Vista?': Divan Argues In SC For Public Consultation

The Supreme Court on Thursday 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. On Wednesday, Justice Maheshwari had inquired from Senior Advocate Shyam Diwan for the petitioners, "There is no express provision for public involvement in our Constitution. Are you drawing support only from Article 19(1)(a)? Right to know is a part of participation, but which provision, overall scheme are you relying on?" On Thursday, Mr. Diwan replied, "As in the case of the South African Constitution, there is no express provision corresponding to public involvement in our Constitution. So it is a derivative right, outside the express Constitutional scheme. I am going to name some statutes which provide for public consultation" He gave the example of the SC/ST Forest Dwellers Act, 2006: "The experts may say that an enclave is very important since certain species is endangered, even though there are forest dwellers there. For resettlement under the Act, three levels of Authority are prescribed, including the free and informed consent of the Gram Sabha". Next, he gave the example of Land Acquisition Act, 2013 which provides for Social Impact Assessment (SIA), requiring consultation with the Panchayat, the Gram Sabha, the Municipality or the Municipal Corporation in carrying out the SIA. It also envisages the assessment report to be made available to the general public, followed by a public hearing. Further, he cited the Airport Economic Regulatory Authority Act of 2008 which requires the Authority to ensure transparency in exercising power. Finally, the IBC and the General Clauses Act were cited for their provisions of pre- publications, suggestions and objections. "If the Parliament had made the Statute (for the re development of the Central Vista), all this would have come in as these are contemporaneous requirements of law. Instead everything has been done through an executive action." explained Mr. Diwan. Continuing, he discussed the decision of the Kenyan Court of Appeal in Kiambu County Government v. Robert N. Gakuru. In this context, Justice Khanwilkar asked "Does this entail a situation where the public participation process was complied at the first stage and some legislation came to be drafted, incorporating the inputs, and when the legislation is introduced after substantial change, it has to be put up for discussion again? The process would be unending then. The Parliament has taken a holistic view and made the law. Does it need to go through the round of participation again? The Parliament is the final law making body after all" "Your Lordships adopt a cautious approach while applying foreign authorities in our jurisdiction as those provisions are different. There is an evolving global norm of participatory democracy which manifests in different ways. There is devolution of power at a constitutional level- town planning statutes entrusting the responsibility to Municipalities. In a recent judgment, Justice Rohinton Nariman has said that in the course of subordinate or delegated legislation, objections are taken frequently...As regards your concern, that the process would be unending, in my opinion, if the second draft is radically, substantially and dramatically different from the first one, then a second round of participation is needed even in our system. If it is broadly the same, then there is no need." replied Mr. Diwan. "The Kenyan decision captures public participation in two words- quantitative and qualitative." noted Justice Khanwilkar. In context of Judicial Review and Limited Government, Mr. Diwan advanced that this is a huge national project and thus, the Public Trust Doctrine applies with great force- "the Public Trust Doctrine mandates a high degree of judicial scrutiny. Both sides recognise that the whole of the political heart of the country is being reordered. This requires the highest standard of judicial review" Public Consultation, Transparency, Open Governance Referring to the 2019 Supreme Court case of Hanuman Laxman Aroskar, Mr. Diwan 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 ...

'Don't Citizens Have A Right To Know About Central Vista?': Divan Argues In SC For Public Consultation

Mehal Jain

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