Central Vista Avenue Redevelopment Project referred to as the Central Vista Project (CVP) has attracted a lot of eyeballs in the recent past due to the PILs filed in Supreme Court and then Delhi High Court and the political statements issued by opposition in this context. A set of media articles has also spent bottles of ink highlighting the problems with this project. Delhi High Court while judicially reviewing a case against CVP (PIL: Anya Malhotra vs. Union of India), declared the CVP as “an essential project of National Importance”, and went ahead to mention in the order that “this is a motivated petition preferred by the petitioners and not a genuine public interest litigation” with imposing a cost of Rs. 100,000/- (one lakh). Pradeep Kumar Yadav has now challenged the May 31st decision of the High Court in an appeal before the Supreme Court. Interestingly, Supreme Court has already in a 611 page order (2:1) in the case of Rajeev Suri vs. Delhi Development Authority & Ors (decided on 5th January 2021) has given a green signal to the project. Hon’ble Justice Sanjiv Khanna dissented from the majority on the issues of “public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee (HCC) and the environmental clearance order passed by the Expert Appraisal Committee (EAC)”; however, concurring with the majority on “the aspects of Notice inviting Bid, award of consultancy and the order of the Urban Arts Commission”.
Public Interest Litigation: PIL is basically a relaxation in the rule of ‘locus standi’ (the right or capacity to bring an action or to appear in a court). The traditional rule is that a person who brings the action must have the cause of action/ locus standi. In cases of fundamental rights, it is the person whose rights have been infringed brings this locus. However, there are situations in which the aggrieved person may not be able to reach Supreme Court or High Courts for vindication of his/her rights, in such situations Supreme Court has allowed any ‘public spirited citizen’ to bring a case on behalf of the aggrieved person. Justice V.R. Krishna Iyer observed in Akhil Bhartiya Soshit Karmachari Sangh Case (1981) that “access to justice through ‘class actions’, ‘public interest litigation’ and ‘representative proceedings’ is the present constitutional jurisprudence”. The concept of class action comes from the American jurisprudence.
Hussainara Khatoon vs. State of Bihar (1979) became the first reported case of PIL which focused on the inhuman conditions of prisons and under trial prisoners that led to the release of more than 40,000 under trial prisoners (petition filed by Kapila Hingorani). Justice P.N. Bhagwati in SP Gupta case (1982) laid down the foundation of modern PIL in India by stating “any member of the public having sufficient interest can maintain an action for judicial redress for public inquiry arising from breach of public duty or from violation of some provisions of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provisions.”
A PIL may be filed against ‘State’ both under Article 32 before Supreme Court (only for breach of fundamental rights) and under Article 226 before High Court. The Court can itself take cognizance of the matter and proceed suo motu as well on the basis of public information received by it through newspapers or any other source. Supreme Court has entertained even letters as petitions in some cases (epistolary jurisdiction). Evolution of PIL as a mode of helping people became the purpose/objective for many Non-Governmental Organisations (NGOs) like Peoples Union for Democratic Reforms, Rural Litigation and Entitlement Kendra, Indian Council for Enviro-Legal Action, People’s Union for Civil Liberties, etc.
There are hundreds of PIL decided by Supreme Court and High courts. These PILs have ushered in the era of judicial activism. Supreme Court has used its jurisdiction under Article 32 in a creative manner, also referred to as Judicial Activism, giving new dimensions, meaning, scope and purpose to many fundamental right, especially Article 21 – the Right to Life and Personal Liberty.
Publicity Interest Litigations: While elaborating the concept of locus standi, Justice PN Bhagwati had also cautioned, “but we must be careful to see that the member of the public, who approaches the court in case of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The courts must not allow its process to be abused by politicians and others….” Supreme Court in several cases has deprecated the practice of PILs turning into ‘Private Interest Litigation’ or ‘Political Interest Litigation’ by imposing heavy costs on the petitioner.
Supreme Court Guidelines on PIL excludes the following cases from being entertained as PIL: (1) Landlord-Tenant matters. (2) Service matter and those pertaining to Pension and Gratuity. (3) Complaints against Central/ State Government Departments and Local Bodies except those relating to the listed matters to be entertained as PIL (4) Admission to medical and other educational institution. (5) Petitions for early hearing of cases pending in High Courts and Subordinate Courts.
In the Central Vista Case, while disposing of a bunch of petitions on this subject, the Supreme Court has observed, “The tool of public interest litigation or “social interest litigation”, as it is more appropriately called, was devised to open the doors of the constitutional Courts for remedying glaring injustices against humans, that is, for securing constitutional rights. It was never meant to transform the constitutional Court as a superlative authority over day-to-day governance.”
Delhi High Court rejected the argument of petitioners being ‘public spirited citizens’ in Central Vista PIL on the ground of being selective of one construction project when similar constructions at other places were not challenged. The court said “It was vehemently argued that the fact that the petitioners have chosen to be ‘public spirited citizens’ only with regard to one project, speaks volumes of their ill-intent behind filing the present petition as well as lack of bonafides, which is the foremost issue that the Court has to consider while entertaining a public interest litigation. The ‘public spirit’ and ‘public interest’ of the petitioners is evidently selective and the present petition being completely motivated must be dismissed on this ground alone.”
The Central Vista Project
In the heart of the national capital, and within the “Lutyens’ Bungalow Zone” (LBZ), lies the Central Vista – the centrepiece and living heritage of Delhi. The Indian National Trust for Art and Cultural Heritage (INTACH) describes Central Vista as the “ensemble with main axis Rajpath…the Rashtrapati Bhawan at Raisina Hills, flanked by the Secretariat (North and South Blocks)…the Parliament House…the hexagonal round-about that has the India Gate and the Canopy…” (Supreme Court). The present Central Vista has emerged out of the urban architectural design of Edward Lutyens and Herbert Baker when British Raj decided to move the capital city from Calcutta to Delhi on December 12, 1911. It all began with the construction of the palatial residence for the Viceroy of India at Raisina Hills. About 300 families were displaced by the application of Land Acquisition Act, 1894. When we got independence and Dr. Rajendra Prasad became the first president of independent India, it was named as Rashtrapati Bhawan. The other buildings which came up surrounding this were the Sansad Bhawan, North and South Blocks and first building of the National Archives. The Rajpath
The policy on the re-development of the Central Vista Avenue emerged out of the need to have larger working space and efficient functioning of the legislature and integrated administrative blocks presently spread in different locations. The first building requiring attention was the Parliament House, a Grade I heritage structure which has been transformed several times during the past 74 years of independence. The population has significantly grown from about 55 crore to 130 crore and the next delimitation exercise to be done in 2026 would require an increase in the number of Lok Sabha seats from the current 545. The new Parliament shall symbolize the 75th Independence Day of the country in 2022. The initiative of redevelopment got a shot in the arm with a letter written by the OSD of Lok Sabha speaker to Secretary, Urban Development Ministry highlighting the stress on the present infrastructure and the need for large space (July 13, 2012).
The second sub-project is the redevelopment of Central Vista Avenue which is basically the public space on both sides of the Rajpath starting from India Gate to Rashtrapati Bhawan where the Republic Day Celebrations are held on 26th January every year. It is proposed to hold the Republic Day parade of 2022 in the new re-developed Rajpath. Solicitor General in his submissions before the Supreme Court had stated that it is very important public place and most widely visited by common public and tourists and hence the scope of the work includes “(i.) Providing public amenities like toilet blocks, paths, parking space, vendor zone; (ii.) Making four pedestrian underpasses below Janpath and C-Hexagon Road. (iii.) Improvement of canals, bridges, lawns, lights etc.”
The Politics of Central Vista: Of late, it has been very difficult for the citizens to differentiate between the issues which has pure political angle versus the legal issues concerning the larger public interest. Unfortunately, the politics have driven itself away from larger public interest towards the short-term election goals. The jibe ‘Modi Mahal’ terming CVP as the project to provide a house for the Prime Minister Narendra Modi is nothing but a gimmick, as any infrastructure created by the Government of India belongs to the public and is to be utilized for the public for the times to come. For example the ‘Nehru Memorial Museum & Library’ (NMML), housed within the Teen Murti complex, cannot at any stretch of imagination be called the “Nehru Mahal”, or for that matter, the large Samadhi sthals created for our beloved leaders. These are all public places and have its own social, cultural and historical importance. Another major political question has also been about the timing of the CPV. Whether it was right to invest in such infrastructure project when the country is fighting with COVID? The logic is indeed emotional and touches our heart, but the question is do we stall all our activities because of the pandemic? Is there a Financial Emergency declared under the Constitution? Interestingly, a bit of a research shows that a Times print in 1964 (when NMML was founded) reported “Hunger grows in India: major crisis in the nation is feared as population growth outpaces that of food production”. Do we say the investment in NMML was not right at that time? If yes, probably we could not have an institution to foster academic research on modern and contemporary history. Any infrastructure developed under this project will be utilized by the successive generations to come, however, yes in the history, the credit of doing the work will go to the political party in power at that point in time. However, as a researcher in law one has to stay away from these logics and political hullaballoo. The harmful effect of muddling the legal and political issues is that the genuine legal issues get subsumed into the chatter and noise around the gimmicks and sloganeering. A series of decisions/ oral remarks in past couple of years by the various courts in India have shown that judiciary cannot remain completely uninfluenced by what is happening around, including the perceptions created by the media reporting. This would require another study.
Another interesting angle of political criticism arose due to the decision of Prime Minister doing Bhumipujan by the Prime Minister. A group of former secretaries raised this issue in an open letter stating “We wonder what locus standi the Prime Minister has to lay the foundation stone of the Parliament building. The Prime Minister is the head of the executive, not of the legislature. For a building that will accommodate the two Houses of Parliament, the appropriate protocol would have been for the President of India to lay the foundation stone. This was a clear instance of breach of Constitutional propriety”. Well, this brings us to an interesting perspective of ‘propriety and law’, which is indeed a grey area. All faith prayer marked the foundation stone-laying ceremony of the new parliament building with Bhumipujan being performed as per Hindu rites. Some may initiative arguments of ‘secularism’ on this, but again not a point to discuss for this article.
There is always a logic given that why do we need such infrastructure development, we could have had hospitals and schools instead. My take is that country requires everything including hospitals and schools, at the same time also a world class infrastructure which we could be proud of. It is about balancing the interests keeping in view the needs of future generation.
Challenge before the Supreme Court: Legal scholars would be looking at the outcome of the appeal against the decision of Delhi High Court, however, keeping in view that Supreme Court’s three judge bench has already decided 2:1 in favour of the project, a different outcome is very unlikely, and moreover when Delhi is unlocking from the pandemic. Supreme Court in its January 5th decision had already said, “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.”
Still, if there is a chance that matter is entertained, what could be legal issues before the court? One of the preliminary issue in the appeal against the decision would come on the ground of locus of the appellant as it appears that original petitioners before Delhi High Court have not yet preferred the appeal. Some of the other issues could be:
A. Public Health Issues – violation of Disaster Management Act (DMA) – The main ground of challenge before Delhi High court was violation of DMA in continuing with the construction of CVP and causing thread to public health. Court noted that “the construction activity is not prohibited under paragraph-8 of the order of the DDMA dated 19th April, 2021 issued under Section 22 of the Disaster Management Act, 2005, where workers are residing on-site, contrary to the stand of the petitioners.” It is argued that there were construction workers coming from another site of the vendor. I doubt, there emerges any ‘question of law’ to be entertained in appeal.
B. Welfare of Labour – The PIL espouses the cause of the safety of the labour working at the construction site. Stalling the project in fact affects the labour more, as most of these labour are migrant laborers. In the past, Supreme Court has been called upon by several quarters to order Central and State Government to ameliorate the plight of these migrant workers. A view contrary to this is very unlikely.
C. Breach of ‘Public Trust Doctrine’ – One of the major challenges is about breach of ‘public trust’ doctrine by the Government. It is argued that stakeholders who would be affected by the project have not been consulted while sanctioning the change in land use under the Delhi Development Act, 1957. Supreme Court rejected the argument on sustainable development stating “In the present case, the subject project is an independent building and construction project wherein one-time construction activity is to be carried out. It is not a perpetual or continuous activity like a running industry. It is absolutely incomprehensible to accept that a project of this nature would be unsustainable with the needs and aspirations of future generations.” Supreme Court in its order has already held otherwise, except the dissenting opinion, which provides some hope to the potential appellant. However, this would require a constitution bench of minimum 5 judges to take a contrary view.
D. Heritage Clearances – Supreme Court has already stated that the requisite heritage clearances shall be obtained before proceeding with any alteration to the heritage sites. In this case 7 out of 141 listed heritage sites are of relevance and these are parliament house and campus, central vista precincts (Rajpath), National Archives and campus, grave platform, and vice-president’s house. A clearance made by HCC not in conformity of the laws, may be challenged at appropriate forum. So is the case with environmental clearance, however, Supreme Court did not find any merit for ‘Merits Review’ by National Green Tribunal (NGT). The questions raised in the petition have been termed as ‘mere suspicions’ not meriting any in-depth technical analysis.
E. Cost of the Project – There have been a lot of discussions around the cost of the project pipped at Rs. 20,000 crores, justification is that the project is spread over several years in different phases. The current projects are New Parliament Building and rejuvenation of Central Vista at an estimated cost of Rs. 862 crores and Rs. 477 crores respectively. In Tata Cellular case and subsequent cases, Supreme Court has already been established that it will normally not go into the strategic/policy wisdom of the government. In fact, the courts shall hesitate to stall the projects temporarily, as it would escalate the cost of the project and ultimately a burden on public exchequer. Ultimately, it is the tax payer’s money.
F. Timing of the Project – The project has been caught amidst the storm of COVID pandemic and thus so much of public attention and purported bad publicity. However, there is no legal issue to challenge this unless there is a declared financial emergency. At the most, it is a question to be discussed by the parliamentarians in the parliament. Ironically, will this be discussed in the parliament for not having a parliament building which provides with modern amenities and more space is doubtful.
I leave it to the readers to decide for themselves whether it is a “Public”, “Publicity” or “Political” interest litigation. However, looking at the PILs filed to challenge Central Vista project and the logic advanced reminds me of Delhi High Court’s observation while dismissing a PIL – “Chai peete peete idea aaya toh socha file karo PIL (while having tea you had an idea and decided to file a PIL). That is not how it is done. You may have an idea while walking on the road. “You have to do some homework and then file the petition.” (Economic Times – May 2, 2021). Why these cases can’t be brought before a mock moot court or youth parliament wherein the young generation discuss this at length and if a sound case emerges on legal point, courts may be approached. Country has a large pool of young legal professionals who needs to be nurtured and interest needs to be generated on these issues of public importance.
The Publicity Interest Litigations are doing a lot of harm to the genuine causes which are taken up by the courts through various PILs. It casts a shadow of doubt on the legitimate petitions and also eats away into the precious time of the courts, amidst the rising pendency of cases on a daily basis.
Dr Vijay Kumar Singh is Dean, School of Law at UPES Dehradun. Views are personal.
