Central Vista: Hands off of policy decisions
THE OBJECTIVE OF THE PROJECT WAS TO CREATE A COMPREHENSIVE AND COMMENSURATE WORKING SPACE FOR EFFICIENT functioning of the Union Parliament and to have an integrated building complex that could house the various ministries and departments, scattered throughout the capital, at one place. The felt need of a common union secretariat being the other reason. Accordingly the policy decision to re-develop the central vista was taken.
The much needed and forward looking infrastructure project of redevelopment of the Central vista is now in the clear. The need was evident and the action was timely, as the next delimitation exercise due in 2026 would have increased the numbers of parliamentarians substantially and the present parliament premises would not have been able to house the increased strength.
The objective of the project was to create a comprehensive and commensurate working space for efficient functioning of the Union Parliament and to have an integrated building complex that could house the various ministries and departments, scattered throughout the capital, at one place. The felt need of a common union secretariat being the other reason. Accordingly the policy decision to re-develop the central vista was taken.
This project of the Modi government will be a shining example of urban renewal, including the redevelopment of the Central Vista into a world class public space fit to be a venue for national and international events, competing and even surpassing some of the most awe-inspiring projects in the world. The new parliament building with a seating capacity of 1224 persons will be dedicated to the country in the 75th year of its independence and will be a symbol of vibrant India.
The project, being of high political significance and of course national importance, came to be questioned by the usual vested interests on various grounds, frivolous in varying degrees. The primary challenge was to the manner and procedure adopted in granting various clearances to the project including the omnibus allegation of violation of Article 21 and broad allegations of bias and favoritism in grant of NITS. Most challenges were hyper technical in nature and from bare perusal of the record it is evident that the opposition of the project was merely for the sake of opposing. And when all legal arguments weren’t able to impress the Supreme Court, the petitioners clutching at straws took to the argument whether it was an opportune time for the nation to be undertaking such expense, an argument which by no stretch of imagination was palatable.
Lamenting at the abuse of the PILS the Hon’ble Court in the Central Vista judgement observed that the Constitutional Courts cannot be converted in superlative authority to oversee the day to day functioning of the government:
“As long as there is fair play in Government action, it is no one’s concern to assail a commercial transaction by levelling vague and unsubstantiated allegations. The genesis of a public interest litigation lies in public interest; and public interest lies in vindicating the rights of those who lack the wherewithal to reach the Court to remedy injustice against them. 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. Judicial time is not meant for undertaking a roving enquiry or to adjudicate upon unsubstantiated flaws or shortcoming in policy matters of Government of the day and politicise the same to appease the dissenting group of citizens – be it in the guise of civil society or a political outfit.
There was no public interest involved which the petitioners sought to safeguard. This was another textbook example of the abuse of the PIL process, waste of precious judicial time and a drain on the limited resources of the highest court during the much strained pandemic period:
“395. The foregoing comments are not because the Courts feel burdened by untenable and frivolous claims but to highlight that Court time saved would be time-earned to be best spent on more deserving claims of have-nots due to long incarceration, affecting liberty, denial of pension and salary, motor accident claims, land acquisition compensation, including genuine corporate resurrection and revival to benefit large number of workmen and investors etc. The list of such deserving litigation is unending. We need to say so because we had to spend considerable time and energy on this matter (lest the petitioners entertain a feeling of having been denied a fair opportunity), despite the pandemic situation, which at the end, we find to be devoid of substance.”
It is an accepted fact that PIL has an important role to play in the civil justice system in that it affords a ladder to justice to disadvantaged sections of society, some of which might not even be well-informed about their rights. PIL could also contribute to good governance by keeping the government accountable. Last but not least, PIL enables civil society to play an active role in spreading social awareness about human rights, in providing voice to the marginalized sections of society, and in allowing their participation in government decision making. However, the Indian PIL experience also shows us that it is critical to ensure that PIL does not become a back-door to enter the temple of justice to fulfil private interests, settle political scores or simply to gain easy publicity. Courts should also not use PIL as a device to run the country on a day-to-day basis or enter the legitimate domain of the executive and legislature.
The law in respect of interference with policy matters has been settled starting from Justice Bhagwati, in S.P. Gupta v/s Union of India, where it was said that the courts must be very careful and should not make decisions which would amount to trespassing into areas which are the reserve of the executive and the legislature in accordance with the provisions of the Constitution. The general principle followed by the Courts is to refrain from interfering in policy matters while exercising powers under the writ jurisdiction (Article 32 and 226).
Therefore, a challenge to a public policy or a prayer to frame a policy has time and again been rejected being policy matters and falling under the ambit of the legislative/executive branch.
However in some cases this divide was blurred given the gargantuan violation of Article 21. In cases such as Vishakha (guidelines framed for prevention of sexual harassment at work place), M C Mehta v. UOI (vehicular pollution), Anand Gopal v. UOI (fire crackers were banned in Delhi), the courts did not hesitate to frame guidelines and issue directions, given that the Court was of the view that there was a clear violation of Article 21 in all aforementioned cases.
At times, courts have entertained matters which are not justifiable such as in a writ petition filed complaining of mismanagement in a mental hospital, the Supreme Court recommended that the institution run by the Delhi government should be taken over by the Union government and modelled on lines of a psychiatric specialty being run by NIMHANS at Bangalore. However, the Supreme Court rightly rejected a petition seeking directions to the Union of India and the State governments to enforce the policy of total prohibition, also petitions which were prematurely ill advised, intended merely to malign somebody were also rightly dismissed.
Within the Indian scenario, it is clearly seen that the Courts have generally been conscious of the limits of their powers and have evolved certain self-imposed limitations such as delay and laches, existence of alternate remedy, res judicata and non-interference in policy matters except to a limited extent. But otherwise the Hon’ble Courts have been reluctant to interfere in matters that are issues of policy and dissuaded litigants from filing PILS seeking directions that amount to framing of policy.
Perplexed with the prayer of the petitioners for a heightened judicial review, the Hon’ble Supreme Court expressed its anguish,
“159. The petitioners have argued at length as to why the present case calls for a heightened judicial review. The underlying idea is not restricted to the aforesaid
The law in respect of interference with policy matters has been settled starting from Justice Bhagwati, in S.P. Gupta v/s Union of India, where it was said that the courts must be very careful and should not make decisions which would amount to trespassing into areas which are the reserve of the executive and the legislature.
settled principles of judicial review in administrative decisions. The argument essentially stems from the principle of constitutionalism which informs all spheres of public activity. We are compelled to wonder as to what could be the circumstances, if at all any, wherein the Court not only surpasses the boundaries reserved for its oversight in the Constitution but also provides it an express recognition by acknowledging a heightened review. 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? If yes, what would be the basis or benchmark for the Court to identify the subject matters wherein such innovation or elevation is permissible?
160. The petitioners contend that standards may be heightened only for this project which is a sui generis one. Even the respondents have at one stage called for a sui generis treatment for this project. We must note at the very outset that we are impressed with none. To consider a particular subject matter as sui generis in common parlance is one thing, but to accord something with that character in a judicial proceeding is an altogether different thing. Concededly, exposition of any such jurisprudence would be fraught with unforeseen consequences and replete with uncertainties. 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.
161. 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. The role of Court is well defined and it must not leave the administration to grapple with multiplicity of alternate opinions by stepping into the shoes of policymakers.”
The decision in the Central Vista matter reiterates the hands off approach adopted by the judiciary in scrutinizing the policy decisions of the executive in the following words:- “A priori, the prescription of procedure to be deployed by the administration in taking their decisions in the ordinary course of their business is not for the Court to decide. More particularly, in cases where decisions are taken in tune with a duly enacted statutory scheme, it is not open to a Court of law to disregard the same on the specious reasoning that the governing statutory scheme is deficient for the nature of or significance of the project. Even if a Court finds it debatable, that can be no ground for the Court to quash an action taken strictly in accord with the prescribed procedure.
The Government may examine advantages or disadvantages of a policy at its own end, it may or may not achieve the desired objective. 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. Judicial review is never meant to venture into the mind of the Government and thereby examine validity of a decision.”
A crystal clear and much needed exposition of the cleavage between the spheres of influence of the executive and the judiciary. Senior Advocate Pinky Anand has served as the Additional Solicitor General (ASG) of India and also the head of the legal cell of the Bhartiya Janta Party (BJP).