Judicial Review – Scope and amplitude of – Central Vista Project of the Government of India – Judicial scrutiny regarding its’ permissibility – Government’s duty to consult – Scope and ambit of the citizen’s right to participate in quasi legislative exercise – Issues concerning decisions taken by the statutory Authorities including regarding the change in land use, grant of statutory and other permissions, environmental as well as heritage clearances etc. – Challenge to change in land use of six plots in the Central Vista under the Delhi Development Act, 1957, and the permissions /approvals granted by the Central Vista Committee, the Delhi Urban Arts Commission under the Delhi Urban Arts Commission Act, 1973 and clearance/no-objection for construction of a new Parliament House under the Environment Protection Act, 1986 – Failure to take prior permission/approval of the Heritage Conservation Committee as per Annexure II of the Unified Building Bye-Laws, alleged – Plea of absence of sufficient public participation in the entire process – Held (per majority) (per A.M. Khanwilkar, J. [for himself and Dinesh Maheshwari, J.]): There is no infirmity in the grant of “No Objection” by the Central Vista Committee (CVC); “Approval” by the Delhi Urban Art Commission (DUAC) as per the DUAC Act, 1973; and “Prior approval” by the Heritage Conservation Committee (HCC) under clause 1.12 of the Building Byelaws for Delhi, 2016 – Further, exercise of power by the Central Government u/s.11A(2) of the DDA Act, 1957 is just and proper and thus modifications regarding change in land use of plot Nos. 2 to 8 in the Master Plan of Delhi, 2021/Zonal Development Plan for Zone-D and Zone-C vide impugned notification dated 20.3.2020, confirmed – Recommendation of Environmental Clearance (EC) by Expert Appraisal Committee (EAC) and grant thereof by Ministry of Environment and Forest (MoEF) is just, proper and in accordance with law including the 2006 Notification – Project proponent may set up smog tower(s) of adequate capacity, as being integral part of the new Parliament building project; and additionally, use smog guns at the construction site throughout the construction phase is in progress on the site – The stage of prior permission under clause 1.3 of the Building Bye Laws of the Heritage Conservation Committee (HCC), is the stage of actual development/ redevelopment etc. work is to commence and not the incipient stage of planning and formalisation of the Project – Accordingly, respondents to obtain prior permission of the designated Authority before actually starting any development /redevelopment work on the stated plots/structures/ precincts governed by the heritage laws including on plot No. 118, if already not obtained – Held (per Sanjiv Khanna, J.) (partly dissenting) (Minority judgment): The dissent is only on aspects of public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee (HCC) and order passed by the Expert Appraisal Committee (EAC) – However on aspects of Notice inviting Bid, award of consultancy and the order of the Urban Arts Commission, as a standalone and independent order, there is no disagreement – Final notification of modification /change of the land use dated 28th March 2020 in respect of the 6 plots in the Central Vista quashed and set aside, with directions – Order of EAC dated 22nd April, 2020 and environment clearance by Ministry of Environment and Forest dated 17th June, 2020 set aside, and an order of remit to the EAC passed with a request that they may decide the question on environment clearance, without awaiting the decision on the question of change/ modification of land use – Delhi Development Act, 1957 – s.11A(2) – Delhi Urban Arts Commission Act, 1973 – Environment Protection Act, 1986 – Building Byelaws for Delhi, 2016 – Master Plan of Delhi, 2021. Doctrines / Principles – Principle of Rule of Law – Held: The principle of Rule of Law runs as a common thread through the substantive as well as procedural laws – A democratic polity requires all organs of the state to attach equal importance to substance of law as well as to the procedure delineated to perform such substantive functions – That must be the constant endeavour to touch both ends as well as means. Judiciary and Rule of Law – The duty enjoined upon the judiciary is to ensure checks and balances; and to place itself between the Government and citizens when they come face to face in a Court of law – The judicial organ is not meant to impose the citizens’ or even its own version of good governance upon the Government in the name of Rule of Law in exercise of its power of judicial review. Government Policy – Interference with – Judicial Review – Scope – Held: The Courts do not sit in appeal over the decisions of the Government to do merit review of the subjective decision as such – 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. Judicial Review – Principled judicial review – “Constitutional due process” – Held: In a principled judicial review a “check” is maintainable without tilting the “balance” – An elected Government is the repository of public faith in matters of development – Dispensation of judicial review cannot be resorted to by the aggrieved /dissenting section for vindication of their point of view until and unless it is demonstrated that the proposed action is in breach of procedure established by law or in a given case, colourable exercise of powers of the Government – Therefore, it is important for the Courts to remain alive to all the attending circumstances and not interfere merely because another option as in the perception of the aggrieved/dissenting section of public would have been a better option. Doctrines / Principles – Constitutionalism – Held: Constitutionalism is a relative concept which envisages a constitutional order wherein powers and limits on the exercise of those powers are duly acknowledged – It is a tool which is used to reach up to the ultimate goal of constitutionalization of governance but it cannot be deployed to present an alternative model of governance – Principle of constitutionalism is a work in progress which is meant to infuse life and blood into an existing scheme which has stood the test of constitutional validity and not to nudge with the scheme itself – It may only be deployed to evolve minimum standards of procedures prescribed by law – It is not to undermine or supplant the elaborate statutory regulatory schemes. B Constitution of India – Role of – Held: Constitution in our system plays twin role – First, Constitution as the guardian of fundamental rights and second, Constitution as the structure of governance. Democracy – Principle of participatory democracy – Elements – Scope of public involvement in Government processes – Held: The principle of participatory democracy has two integral elements – first, public participation in decision making and second, placing information regarding Government actions in public domain – The scope of public involvement in Government processes is however a matter dependent on legal framework of a country and the Court should be loath to venture into that area in the guise of eminence of the project under consideration – In a democratic setup where the citizen has entrusted abundant governance to the Government, it is bounden obligation of the Government to keep the citizens well informed about its actions, as a prudent trustee would. Policy and Development – Role of the Courts – Held: Courts operate within the boundaries defined by the Constitution, and cannot be called upon to govern, for, they have no wherewithal or prowess and expertise in that regard – The political issues including regarding development policies of the Government of the day must be debated in the Parliament, to which it is accountable – The role of Court is limited to examining the constitutionality including legality of the policy and Government actions – The right to development is a basic human right and no organ of the State is expected to become an impediment in the process of development as long as the government proceeds in accordance with law – Judiciary.