RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & ORS

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A Existing Parliament Building at Parliament Street, New Delhi”; b. Pass an order in the nature of a Writ/Order calling for the records of the Environmental Clearance dated 17.06.2020 issued by the Respondent No. 1 and thereafter hold that the entire decision making process as carried out by the Expert Appraisal Committee in the build-up to the issuance of the Environmental Clearance dated 17.06.2020 is vitiated and accordingly set aside the same; c. Pass an Order in the nature of a Writ/Order declaring that the subject project being Development /Redevelopment of Parliament Building, Common Central Secretariat and Central Vista at New Delhi is a composite project for the purposes of seeking Environmental Clearance;” In addition to the aforesaid prayer for quashing the Clearance, the petitioners in W.P. (C) 681/2020 have alleged a case of deliberate concealment of information and supply of misleading information in the proposals submitted for EC and prayed thus: “2. Direct action against Respondent No. 3 as Project Proponent for concealment of information and submission of false and misleading information; classifying the project as a Category B2 E instead of Category B1; and a Schedule 8(a) project instead of 8(b); and obtaining Environment Clearance; which attracts conditions stipulated in Clause 8 of the EIA Notification of 2006, ‘Grant of Rejection of Prior Environmental Clearance’, and the penal conditions of sub clause (vi); leading to cancellation of F Environment Clearance.”

56Copy pinpoint56. The petitioners in W.P. (C) 845/2020 have submitted that the EAC failed to apply its mind while considering the proposal and both the proposal and objections by various persons were treated in a mechanical manner. The submission is buttressed by placing reliance upon Hanuman Laxman Aroskar49, wherein this Court observed that EAC being an G expert body must apply itself to every relevant aspect of the project and its bearing upon environment.

57Copy pinpoint57. The petitioners, in common rejoinder, have furthered the argument by contending that merely seeking certain clarifications from 49 H (supra at 32)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 351 ORS. [A. M. KHANWILKAR, J.]

the project proponent is not sufficient compliance and it would only be A upon a detailed scrutiny of the response/data/statements that the requirement of application of mind could be satisfied. It is added that the absence of a reasoned order by EAC advances the case of the petitioners as administrative/quasi-judicial authorities cannot grant approvals without recording reasons. B

58Copy pinpoint58. To support this argument, it is submitted that EAC failed to note that the project proponent deliberately separated the Parliament project out of the larger Central Vista Project with an objective to lower the scrutiny level by considering it on a standalone basis. Due to this segregation, the project was categorised as B2 project (Building and Construction) in item 8(a); whereas a collective assessment of the project C would make it fall in item 8(b) i.e., Township and Area Development, falling under category B1 in terms of the 2006 Environmental Impact Assessment 50 Notification 51. As a result of this categorisation, as contended, the respondents unscrupulously did away with the requirements of preparing a comprehensive Terms of Reference (TOR), D Scoping and EIA Report as these requirements do not apply to B2 category projects. To buttress this submission, it is added that it was only to bypass the comprehensive scrutiny that the respondents characterised the proposal as a “renovation” and “expansion” project, instead of specifying that a whole new building with a built-up area measuring 65,000 sq.m. is being proposed alongwith the development of Central E Vista precincts as a whole.

59Copy pinpoint59. According to the petitioners, the proposed Project is a single project with three components – Development /Redevelopment of Parliament Building, Common Central Secretariat and Central Vista. The argument of deliberate disintegration and slicing of the project is F further supported by referring to various documents of the Government wherein a single vision was projected by the Government viz: (i) CPWD notice inviting bids which referred to the project as “Development/Redevelopment of Parliament Building, G 50 For short, “EIA” 51 For short, “2006 notification” or “EIA Notification”, as the case may be. [Although this notification has been described as “ 2006 notification” it has been reprinted in August, 2015 (pages 3-55 in Compilation of Documents filed by respondents), incorporating all the amendments thereto until 6.7.2015, and the extracted portions of the notification in this judgment are from the reprinted version]. H

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A Common Central Secretariat and Central Vista at New Delhi.” (ii) Public notice of DDA dated 21.12.2019 inviting objections and suggestions proposed change in land use of 8 plots collectively. B (iii) MoHUA Press Release dated 25.10.2019 treats it as an integrated project as it reads: “With an aim of improving the old buildings on Raisina Hills, make improved Common Secretariat Buildings, refurbish old Parliament building, make new space for new requirement of MPs and upgrade the entire Central Vista area by revisiting entire Master Plan, a world class Consultant was required. ….”

60Copy pinpoint60. The petitioners have relied upon OM dated 24.12.2010 issued by MoEF which refers to “Consideration of Integrated and Inter-linked projects” to urge that legal mandate requires collective appraisal of interlinked and integrated projects for the purpose of EC so that their cumulative impact can be assessed. To buttress the submission, it is urged that the said O.M. ought to be given a purposive meaning so as to procure comprehensive information on such projects in line with the objective of environmental protection. Reliance has been placed upon Alaknanda Hydropower Company Limited v. Anuj Joshi & Ors. 52 to supplement the view that combined impact of a project must be considered to arrive at a true assessment of environmental impact. Emphasizing on the meaning of the phrase “cumulative impact”, the petitioners have relied upon the decision of NGT in T. Muruganandam F v. Ministry of Environment & Forests53 to contend that cumulative assessment involves a holistic approach towards all present and reasonably foreseeable future activities so that actual impact on ecology can be determined.

61Copy pinpoint61. It is further submitted that the respondents wilfully concealed G relevant information from the Expert Committee regarding cumulative effects, proximity to other existing or planned projects, etc. which would attract clause 8(vi) of 2006 Notification pertaining to concealment of information and submission of false information. Reliance has again been 52 (2014) 1 SCC 769 53 H Manu/GT/0135/2014 (NGT decision dated 10.11.2014 in Appeal No. 50/2012)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 353 ORS. [A. M. KHANWILKAR, J.]

placed upon Hanuman Laxman Aroskar54 to contend that submission of authentic information without any concealment is a basic expectation under the 2006 Notification and any clearance granted on the basis of a defective Form-I is liable to be rejected.

62Copy pinpoint62. The petitioners submit that the project proponent failed to conduct any assessment studies for examining the real impact of the project on environment. The respondents’ statement that the new Parliament building shall have minor and incremental impacts on the environment is alleged to be baseless and unfounded. It is urged that absent any scientific assessment to back its claim, the project proponent misinformed the expert committee and gave false assurances regarding impact on air pollution, noise pollution, geology, ecology and biodiversity. C The respondents’ assurance on transplantation of trees is also assailed as baseless and lacking in substance as no study was conducted to determine the age, girth and species of the trees which are essential elements for examining the potential of survival of a transplanted tree.

63Copy pinpoint63. The petitioners further submit that the project proponent D misinformed and misled the expert committee as regards the requirement of parking space and acted in violation of Master Plan which mandates a parking requirement of 1.8 ECS (Equivalent Car Space) per 100 sq.m. of built-up area. Contrary to this specification, parking space of 100 ECS was stated in the requirements for the proposed built-up area of 65,000 sq.m. which is grossly low. E

64Copy pinpoint64. Relying upon Vellore Citizens’ Welfare Forum v. Union of India & Ors.55 and A.P. Pollution Control Board II v. Prof. M.V. Nayudu (Retd.) & Ors.56, the petitioners have contended that EAC ought to have given regard to the precautionary principle during appraisal as it is attracted in all those cases where an identifiable risk of F environmental degradation is present and thus, there was heavy burden on the project proponent to demonstrate the absence of environmental harm. In this case, the EAC could not have relied upon blanket assurances without undertaking any analysis as it would otherwise be a case of non- application of mind. The threshold submission is that the role of EAC under 2006 Notification is well carved out and in Hanuman Laxman G Aroskar57, this Court had highlighted the importance of reasons and undertaking a detailed analysis of all environmental factors. 54 (supra at 32) 55 (1996) 5 SCC 647 56 (2001) 2 SCC 62 57 (supra at 32) H

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65Copy pinpoint65. Mr. Shyam Divan, learned senior counsel appearing for the petitioners, further submitted that as per Lafarge Umiam Mining Private Limited v. Union of India (UOI) & Ors. 58, doctrine of proportionality and non-application of mind standards can be invoked in environmental review cases and as per Hanuman Laxman Aroskar59, an in-depth merits review is mandated by the 2006 Notification and EAC B failed to undertake the same. Thus, the respondents are bound by these high standards and the entire matter needs to be examined on that basis by this Court.

66Copy pinpoint66. The petitioner in W.P.(C) No. 681/2020 has adopted similar submissions to assail the EC and they are not being repeated. Referring C to Clause 7 of 2006 Notification, the petitioner submitted that the notification contemplates four stages of EC for new projects and by showcasing this project as an “expansion” instead of new construction, the respondents have evaded the crucial stages. It is further submitted that EAC ought to have considered the proposal in the light of principles D of sustainable development, public trust and inter-generational equity.

67Copy pinpoint67. To support their submissions, petitioners have relied upon Keystone Realtors Private Limited v. Anil V. Tharthare & Ors.60, Bengaluru Development Authority v. Sudhakar Hegde & Ors. 61, Sunil Kumar Chugh & Ors. v. Secretary, Environment Department, E Government of Maharashtra & Ors.62, Samata & Anr. v. Union of India & Ors.63, Intellectuals Forum, Tirupathi v. State of A.P. & Ors. 64, Common Cause v. Union of India & Ors.65, Sarpanch, Grampanchayat, Tiroda, Tal. Sawantwadi, District Sindhudurg, Maharashtra & Ors. v. Ministry of Environment & Forests & Ors.66and Goel Ganga Developers India Private Limited67. F

68Copy pinpoint68. In counter affidavit filed by CPWD, it is submitted that the new Parliament building is being constructed adjacent to the existing 58 (2011) 7 SCC 338 59 (supra at 32) 60 (2020) 2 SCC 66 (para 19) 61 2020 SCCOnline SC 328 (paras 99 and 100) G 62 MANU/GT/0153/2015 [Appeal No. 66 of 2014 decided on 3.9.2015 (paras 24 to 26)] 63 2013 SCCOnline NGT 101 (para 38) 64 (2006) 3 SCC 549 (paras 66 to 69, 72 to 76, 78 and 82) 65 (2017) 9 SCC 499 (paras 208, 209 and 210) 66 2011 SCCOnline NGT 10 (para 19) 67 H (supra at 16, para 17)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 355 ORS. [A. M. KHANWILKAR, J.]

building and both buildings will supplement each other in terms of A functionality. Simultaneously, the existing building shall be retrofitted and renovated in accordance with the limitations prescribed for Grade-I structures and thus, the project was rightly named as an expansion and renovation project.

69Copy pinpoint69. It is submitted that in terms of 2006 Notification, no detailed B EIA is required for building projects with built-up area of less than 1,50,000 sq.m. as they fall under category 8(a), and since the built-up area of subject project is less than 1,50,000 sq.m., no such assessment is required as per the notification and thus, EAC was right in not insisting for any such impact assessment. Learned Solicitor General, would further submit that categorisation as 8(a) or 8(b) would not be of much consequence as the nature of categorisation causes no prejudice in considering the cumulative impact of the project on environment, if any. To buttress this submission, it is urged that as per the mandate of law, a detailed EIA would be carried out for the Central Secretariat project as it falls under category 8(b) i.e., Township and Area Development. Such assessment, as per law, would examine land use within the radius of 10km and since Parliament falls within these dimensions, environmental concerns (if any) associated with it may also be addressed in the same assessment and additional mitigating measures could be imposed.

70Copy pinpoint70. To the argument that both these projects are integrated projects calling for a collective appraisal, the counter affidavit states that the expression “Integrated Projects” refers to those projects that cannot exist without each other to the extent that their existence as well as functionality is inevitably dependent upon each other. In present case, submitted the respondents, both these projects are marked by different timelines, different budgetary allocations, different wings of the Union F of India (Parliament and Executive) and also for different utilities. In that, Parliament project is supposed to culminate in 2022, the other project may go on till 2026. It is further urged that budgetary allocation for Parliament project is made by Lok Sabha Secretariat and that for North/ South Block project is made by Ministry of Culture. To further justify G separate EC application for Parliament project, the consolidated reply states that as a matter of practice, EC is not given merely on the basis of preliminary vision/Master Plan and such application ought to be made for those projects only for which detailed drawings, planning layouts etc. are available so that an informed impact assessment (site specific) can H

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A be made. The central secretariat project has not reached that stage yet. The submission reads thus: “8. ...Therefore, an application for Environment Clearance can be made effectively and accurately only in the final stages of the planning and execution of a project and not at a broad macro level B without mentioning the minute details of the project.”

71Copy pinpoint71. Learned Solicitor General urged that merely because the project was mentioned in the comprehensive project and in the bid document for engagement of the Consultant, it does not mean that the project proponent is obliged to treat it as a whole for all future purposes. C Whereas, the Government is well within its rights to even drop the plan of Central Secretariat project without impacting the Parliament project. It is urged that expansion/renovation of Parliament and development of new Central Secretariat in that sense are two distinct projects and attract different procedural compliances under law before the construction thereof commences, as stated in the written submissions thus: D “20. It is submitted that carrying out architectural and engineering planning of all the components through a single consultant with a view to benefit from cost and planning efficiencies does not automatically mean that the Parliament project and the remaining Central Vista redevelopment projects are, for the purposes of an E environment clearance, is a single project. It is submitted that Parliament Project and the remaining Central Vista redevelopment are different projects and the planning in respect of such projects is carried out in different stages. It is submitted that execution of the different projects shall be taken up in phases ...”

72Copy pinpoint72. It is submitted that the total built-up area of the proposed Parliament building is 65,000 sq.m. whereas that of proposed Central Secretariat is approximately 17 lakh sq.m. and it was a conscious policy decision of the competent authority to treat the Parliament project as an independent one being most urgent and to prevent it from falling prey to G delays owing to the vast territorial expanse of the comprehensive plan. Thus, the conscious decision of the Government is to ensure completion of building project in a smooth manner and not to link it up with the town development project.

73Copy pinpoint73. The contention regarding non application of mind by EAC has been countered by respondent MoHUA in its reply affidavit wherein it is H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 357 ORS. [A. M. KHANWILKAR, J.]

submitted that EAC comprises of scientific experts who have been A considering proposals for EC for past 1.5 years. It is submitted that detailed deliberation took place in the 49th EAC meeting after which supplementary information was sought in a revised Form-1/1A regarding scope of renovation of existing building, status of pending cases, traffic management plan, response to objections received from public, updated B Master Plan showing land use of plot no. 118 and accordingly, entire information was placed before the Committee and the same was duly considered in the next meeting before formulating its recommendation. Thus, application of mind is writ large in the entire process. As regards the allegation of fraud and misrepresentation while providing information regarding connected projects in Form-I, the written submissions state C that O.M. dated 24.12.2010, relied upon by the petitioners to extend this argument, was misconceived as the concept of inter-linked projects is used in reference to multi-sectoral projects and the subject project does not involve a multi-sectoral component and is a standalone building construction project. D

74Copy pinpoint74. In written submissions filed by the respondents, it is further submitted that a detailed study was conducted to identify the possible impacts of the proposed project and concerns relating to air emissions, water, soil etc. were duly addressed by EAC by prescribing an Environment Management Plan (EMP) and operational measures. It is informed that measures including setting up of sewage treatment plant at the site, usage of recycled water, rain water storage tanks, usage of recycled material, solid waste management etc. shall be followed.

75Copy pinpoint75. Learned Solicitor General has sought to distinguish the judgment of this Court in Hanuman Laxman Aroskar68 by contending that in the said case, the analysis was done in context of a Category-A project and moreover, the view of the Court as regards the requirement of reasons was in the context of the facts of that case. It is submitted that as per the 2006 Notification, reasons are required only in cases of rejection of objections and not in all cases. To buttress this submission, the argument advanced in W.P. (C) 638/2020 that decisions taken by experts are not akin to those taken by judicial/quasi-judicial bodies has been reiterated. W.P. (C) No. 853/2020

76Copy pinpoint76. On 2.9.2019, the respondent CPWD invited bids vide NIT No. 04/CPM/RPZ/NIT/2019-20 from national/international design and 68 (supra at 32) H

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A planning firms for appointment of Consultant (Consultancy Services) for a comprehensive architectural and engineering planning for development/redevelopment of Parliament Building, Common Central Secretariat and Central Vista. The minimum eligibility criteria required the bidders to have an average annual turnover of Rs. 20 crores from consultancy services in India. On 4.9.2019, the Indian Institute of B Architects69 gave a representation to the respondent raising certain objections to the eligibility conditions in the tender document. The Council of Architecture, on 9.9.2019, also raised similar objections and called for an Open Design Competition. On 12.9.2019, a pre-bid meeting was held for the interested parties for clarifications regarding the NIT. After the C pre-bid meeting discussion, CPWD released a corrigendum and addendum to Consultation Services NIT whereby, the date of online submission was extended from 23.9.2019 to 30.9.2019 and sum of earnest money was reduced to Rs.25 lakhs. After this process, five firms qualified for technical bids and four firms qualified for financial bids. On 25.10.2019, MoHUA announced that M/s. HCP Designs has been awarded the D Consultation Services NIT for the development of entire Central Vista region. This was followed by DDA’s public notice for change in land use, public hearing on objections, final notification of change in land use and grant of no objection by CVC at relevant points of time as already discussed above.

77Copy pinpoint77. On 5.6.2020, Delhi Urban Art Commission70, in its 1542nd meeting considered the proposal for Parliament project and recorded various observations regarding urban form, aesthetics, integration of old building with proposed old building, incorporation of green building features etc. Thereafter, on 1.7.2020 (1544th meeting), DUAC considered a F revised building plan proposal submitted by the project proponent and granted its approval along with some observations regarding parking requirements, public art, skylights and height of the building.

78Copy pinpoint78. The petitioners herein seek to raise a comprehensive challenge to the project by assailing various stages of the project elaborated above. G The relevant extract of the prayers read thus: “a. A declaration that the Central Vista Project including but not limited to the Parliament building is ultra vires the Constitution of India and is illegal, null and void; 69 For short, “IIA” 70 H For short, “DUAC”

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 359 ORS. [A. M. KHANWILKAR, J.]

b. A declaration that a project for redesigning the Central Vista A including Parliament building may be carried out (i) only pursuant to an objective and independent assessment made after stakeholder consultation which confirms the necessity for such a project; (ii) through a widely publicized Open Design Competition; (iii) by adopting a transparent process with adequate timelines that enable wide participation in the consultancy, design and execution phases; and (iv) through the selection of the design by a representative and independent jury; c. A declaration that Parliament building is a part of India’s national political heritage; that it is a living symbol of Indian democracy; and that it can only be supplanted by following a transparent process involving the widest stakeholder consultation and global best practices for selecting excellence in design; d. A writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction ordering and directing Respondent No. 1 and No. 2 to disclose and furnish copies to the D Petitioners of each and every document, correspondence and any other communication (including electronic records) relating to the conception of the impugned Project and up to the date of the issuance of the impugned Notice inviting Bid NIT No. 04/CPM/ RPZ/NIT/2019-20 dated 02.09.2019 issued by Respondent No. E 1, CPWD (the Consultation Services NIT), including all documents relating to the preparation of the Consultation Services NIT, which are in the possession and control of Respondent No. 1 and No. 2 or their officers, including any document, correspondence or any other communication exchanged inter se with the other Respondents or any of their officers;” F Apart from the above prayers, further prayers to quash and set aside the following are made: “(i) Notice inviting Bid NIT No. 04/CPM/RPZ/NIT/2019-20 dated 02.09.2019, issued by Respondent No. 1, the Central Public Works G Department; (ii) The award of the consultancy bid to Respondent No. 9, HCP Design, Planning and Management Pvt. Ltd., dated 18.10.2019; (iii) The Notice inviting pre-qualification bids, NIT No. 01/CE/ PCWZ/CPWD/2020-21, dated July 2020, for the Construction of H

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A New Parliament Building at Plot No. 118 Parliament House Estate, New Delhi, released by Respondent No. 1 in July 2020. (iv) The approval granted by Respondent No. 3, the Delhi Urban Art Commission in its 1545th meeting dated 01.07.2020 to the “proposal for New Parliament Building, Plot No. 118, N.A., B New Raisina Road, New Delhi”; (v) The notice inviting objections from the public against the changes proposed to be made to the Master Plan for Delhi 2021/ Zonal Development Plan for Zone-D under Section 11-A of the DDA Act, 1957 dated 21.12.2019, issued by Respondent No. 7, C Delhi Development Authority; (vi) The consequent decision dated 10.02.2020 made by DDA approving the change in land use for the aforementioned plot including Plot No. 118 wherein the new Parliament House is proposed to be made; D (vii) Notification dated 20.03.2020 under Section 11-A of the DDA Act, 1957, allowing the change in land use in Central Vista, including the change in land use for the proposed new Parliament building; (viii) Decision taken by Respondent No. 8, the Central Vista Committee dated 23.04.2020, as reflected in minutes published E on 30.04.2020.”

79Copy pinpoint79. Appearing for the petitioners, Mr. Shyam Divan, learned senior counsel supported by Ms. Vrinda Bhandari and Mr. Gautam Bhatia, learned counsel, submits that this petition seeks to interrogate the State at a very fundamental level so as to enforce the principle of “Rule of F Law” as distinguished from “Rule by Law”. Broadly, it is the petitioners’ case that the respondents have followed the principle of “Rule by Law” right from the stage of conception of the subject project and have failed to comply with the idea of substantive due process including in obtaining various approvals and clearances for the same. As is manifest from the aforesaid prayer, the petitioners have called upon this Court to issue G suitable declarations relating to democratic due process, standards of transparency, public consultation and procedural fairness in a project of this nature and importance.

80Copy pinpoint80. In addition to grounds already urged with respect to common prayers in previous petitions, the primary submission of the petitioners H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 361 ORS. [A. M. KHANWILKAR, J.]

herein is that any decision to change or renovate the Parliament building ought to be preceded by widest public consultation as it is an essential feature of democratic due process. The petitioners contend that a project of this nature should be backed by a legislation and even if the same is not made, the executive Government is bound to work under the contours of a limited Government ensuring minimum standards of stakeholder consultation, transparency, fair competition, adequate participation time and excellence in design. Reliance has been placed upon State of Madhya Pradesh & Anr. v. Thakur Bharat Singh71 to contend that there are well recognised constitutional limitations on the Government of the day. The manner of consultation, as envisaged by the petitioners in writ petition and rejoinder to consolidated reply, involves two elements- consultation with expert agencies and consultation with common public.

81Copy pinpoint81. The argument regarding lack of expert consultation states that the respondents failed to consult Heritage Conservation Committee72 which is an expert body in matters involving heritage structures and ought to have been consulted right from the stage of conception of the project. It is contended that even before the design is freezed, the project proponent was obliged to consult HCC. For, as it would be of no use to consult it after the procedure is complete and development work is about to commence. It is submitted that the respondents have violated their obligation to protect and conserve the heritage as per globally accepted international principles. It is submitted that principles of adaptive re-use and minimal impact must be adhered to and any operation of restoration or modification ought to be considered as a special operation to be compulsorily preceded by a detailed archaeological and historical study. It is added that non-adherence to due procedure in the present case is also violative of Article 49 which, being a Directive Principle, is meant to be fundamental in the governance of the country. Similarly, consultation with other bodies such as DUAC and CVC was not only inadequate and arbitrary but also delayed as it ought to have been done at the plan conception stage itself. It is urged that the tender document called upon the consultant to make a new Master Plan for Central Vista without undertaking any assessment by expert bodies such as HCC or CVC. It G is further contended that CPWD ought to have conducted a physical audit of heritage structures and called for views of special committee of Parliament. To buttress this submission, it is further submitted in written 71 AIR 1967 SC 1170 72 for short, “HCC” H

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A submissions that post 2015, no Parliamentary Committee has had examined the prospects of repairing the existing structure or the need for transformation of the entire Central Vista.

82Copy pinpoint82. The petitioners invited our attention to the Parliament Buildings (Restoration and Renewal) Act, 2019 passed by UK Parliament to contend that this comprehensive legislation reflects the best practices adopted by other democracies while undertaking projects of this nature.

83Copy pinpoint83. Assailing the decision of DUAC, the petitioners have argued that the Commission acted in a manner contrary to its statutory scheme as per Memorandum No. 1(2)/82-DUAC dated 7.7.2005 which enjoins it with the duty of preservation. As a statutory body, the petitioners submit, the Commission ought to have considered the impact of this project on heritage by conducting a thorough study and it failed to fulfil its mandate by not doing so. This mandate is borne from Section 11 of the Delhi Urban Art Commission Act, 197373 which enjoins the Commission with a duty to advise the Government and lay down guidelines for the local bodies. The petitioners submit that this duty to advise must continue at all stages of the process including the pre-tender stage.

84Copy pinpoint84. While taking exception to the No Objection granted by CVC, the petitioners’ stand is similar to that taken in W.P. (C) 638/2020 as has been set out hitherto. Hence, the same is not reiterated for brevity. The E primary submission pertains to non-application of mind, absence of reasons, mechanical approval and abdication of real duty envisaged for CVC.

85Copy pinpoint85. In addition to arguments set forth in previous petitions regarding need for empirical data, the petitioners herein have placed reliance upon F K.S. Puttaswamy (Retired) & Anr. (II) v. Union of India & Anr.74 and Internet and Mobile Association of India v. Reserve Bank of India75 in the written submissions to reiterate the need for proper/ empirical independent studies before taking actions in larger public interest. Reference has been made to Internet and Mobile Association76 to G support the view that empirical data is essential to understand the degree of harm and a decision based on lack of proper studies must fail the test of proportionality. The requirement of conducting proper scientific studies 73 For short, “the DUAC Act” 74 (2019) 1 SCC 1 75 (2020) 10 SCC 274 76 H (supra at 75)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 363 ORS. [A. M. KHANWILKAR, J.]

is also borne from Article 9 and 10 of Venice Charter for the Conservation A and Restoration of Monuments and Sites, 1964.

86Copy pinpoint86. Advancing the argument regarding direct public consultation, the petitioners have stated that the concept of participatory democracy demands that a project of this nature must involve the common public as they are the real stakeholders of national heritage and must be consulted at every stage of the project including prior to drawing outline of the project, releasing consultancy tender, modifying the Master Plan and finalisation of the design and making changes therein. Reliance has been placed upon Hanuman Laxman Aroskar77 and clause 1.3 of Annexure- II of UBBL to contend that the mandate of law requires inviting suggestions from public and consideration thereof by the expert bodies before granting any permission. To buttress this submission, Mr. Divan has contended that the nature of Indian democracy envisages public participation at the most fundamental level of decision making. Placing reliance upon Cellular Operators Association of India & Ors. v. Telecom Regulatory Authority of India & Ors.78, it is submitted that D CPWD ought to have followed a three-step process including – stakeholder consultation, inviting submissions from stakeholders, full documentation of all decisions supported with reasons. Further reliance has been placed upon K.S. Puttaswamy & Anr. (I) v. Union of India & Ors.79 to contend that akin to privacy, democracy is also a travelling right which travels across all tenets and all stages of the project. E

87Copy pinpoint87. The written submissions of petitioners state that right to public participation and consultation is a pre-requisite for consequential state action and it flows from 19(1)(a) of the Constitution. It is submitted that this requirement is born out of reasonableness and State is under a constitutional duty to take affirmative measures to ensure maximum F participation. It is urged that what extent of participation may be reasonable in a given case may be determined on a case-to-case basis keeping in mind certain parameters including – scope and public importance of State action, urgency involved, availability of forums to engage with public, efficacy of public participation etc. G

88Copy pinpoint88. The petitioners, in written submissions, have supported the idea of wide public participation by drawing strength from comparative 77 (supra at 32) 78 (2016) 7 SCC 703 79 (2017) 10 SCC 1 H

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A constitutional position on the subject-matter in other jurisdictions. Reliance has been placed upon Doctors for Life International v. Speaker of the National Assembly & Ors.80, delivered by the Constitutional Court of South Africa, wherein an express provision providing for public consultation was considered to be a practical and symbolic part of the democratic process. While describing the nature and scope of such right, the petitioners adopt observations from para 98 of the judgment wherein indirect participation through elected representatives and direct participation by public are both recognized as essential tenets of democracy. Additionally, the petitioners also submit that in Doctors for Life International81, the right to political participation is recognized even beyond the express provision by referring to various international and regional human rights instruments.

89Copy pinpoint89. Mr. Divan, in order to advance the submission on public participation, placed further reliance upon the decision of Court of Appeal, Kenya in Kiambu County Government & Ors. v. Robert N. Gakuru D & Ors.82 wherein public participation was envisaged both quantitatively and qualitatively. While enunciating the concept of participatory democracy, the Court in Kiambu County83 further observed that arms- length democracy is not participatory democracy.

90Copy pinpoint90. The petitioners, in Rejoinder to Third Consolidated Reply filed by the respondents, submit that public participation is premised on the principle of democratic due process which requires the fulfilment of at least six basic parameters: (i) decision based upon extensive debate and discussion; (ii) Robust statutory framework laying out specific obligations of different bodies involved in the process; (iii) Budgetary control through Parliament; (iv) Public portal for continuous exchange with public and stakeholders; G (v) No substantial alteration of heritage; (vi) Disclosure and transparency. 80 2006 (12) BCLR 1399 81 (supra at 80) 82 Civil Appeal No. 200 of 2014 decided on 30.6.2017 (Court of Appeal, Kenya) 83 H (supra at 82)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 365 ORS. [A. M. KHANWILKAR, J.]

91Copy pinpoint91. To conclude, the petitioners have submitted a set of principles which can be termed as essential features of “consultation” in any such process and we reproduce the same for clarity of thought and better consideration of the case thus: “(a) There are two sets of parties involved – (1) the proposer, upon whom a duty to consult has been cast – in this case, the State, acting through the Respondents; and (2) the stakeholder, who has a claim to be consulted and whose input is sought – in this case, the entire citizenry of India, represented non-exclusively through the Writ C Petitioners. (b) There must be a ‘meeting of minds’ between the proposer and the stakeholder; (c) The precursors for an effective ‘meeting of minds’ are that D the stakeholder must be: (1) provided all relevant materials available to the proposer, and (2) given sufficient time to prepare its response; (d) The parties must ‘deliberate’ upon the subject matter, such that there is full and meaningful communication of each party’s E proposals and counter-proposals, and the parties ‘make their respective points of view known to the others’ and ‘discuss and examine the relative merits of their views’; and (e) While a consensus is not necessary, the minimum preference is for there to be a ‘satisfactory solution’ for all concerned. It is submitted that the Central Vista Project has failed to meet these requirements.”

92Copy pinpoint92. The petitioners, in written submissions, have adopted a ground similar to that taken in T.C. (C) 230/2020 to contend that availability of information is essential for public consultation. Mr. Divan has submitted that the opaque manner in which various steps of this project have proceeded has jeopardized the citizens’ right to know, which is considered to be fundamental under Article 19(1)(a) of the Constitution as per Justice K.S. Puttaswamy (I)84and State of U.P. v. Raj Narain & Ors.85as 84 (supra at 79) 85 (1975) 4 SCC 428 H

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A well as under the broad spirit of the Constitution. Further reliance has been placed upon Reliance Petrochemicals Ltd. v. Proprietors of Indian Express Newspapers, Bombay Pvt. Ltd. and Ors.86 to contend that right to know is also traceable from Article 21. It is urged that any modification/alteration/renovation with respect to structures like Parliament that reflect living heritage of the country must be undertaken in a manner wherein the voice of common public is recognised. To buttress this submission, it is argued that unless public is made aware of Government actions, it would not be in a position to question such actions and democratically participate in the decision-making process.

93Copy pinpoint93. Regarding Respondent No. 9 (Consultant) as well, the petitioners submit that it is an agent of the State and is duty bound to adopt practices and procedures akin to the State including public consultation with respect to design, architecture, heritage impact etc.

94Copy pinpoint94. In order to assail Consultation Services NIT, the petitioners contend that it undermined the principles of fair competition and prevented international firms from applying. The fact that six bidders applied for the tender demonstrates unfairness of the process. It is urged that an Open Design Competition ought to have been organized by the project proponent as it is a standard practice across the world. As per global standards, the petitioners have submitted, such competitions entail three basic norms – a two-part open competition, competition to be judged by jury (with citizen participation), encouragement of widest participation. Various domestic examples were also cited – including of National War Memorial and Indira Gandhi National Center for Arts - to demonstrate how an open design competition is the standard norm.

95Copy pinpoint95. The petitioners contend that Consultation Services NIT was issued in violation of existing heritage conservation regulations as it called for redevelopment of entire area including demolition and construction of buildings which is violative of clause 7.26, UBBL 2016 which specifies that no changes other than prolonging the life of the heritage structures are permissible. The argument is on similar lines with those taken already G in W.P. (C) Nos. 638/2020 and 845/2020 and is not being elaborated.

96Copy pinpoint96. The petitioners have further submitted that no estimated cost of project was provided in the tender document which is not only arbitrary but also violative of Rule 182 of General Finance Rules, 2017 which 86 (1988) 4 SCC 592 H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 367 ORS. [A. M. KHANWILKAR, J.]

envisages for an estimation of reasonable expenditure. It is submitted that consultation NIT sought to employ a Quality and Cost Based Selection (QCBS) system while at the same time, inviting bids on a cost percentage basis which effectively made it impossible to rank different bids in a fair and non-discriminatory manner. The provision regarding percentage- based fee has also been alleged to be contrary to clause 3.4.2 of Manual of Procurement of Consultancy & Services (Ministry of Finance) which discourages percentage-based fee as it lacks incentive for economic design.

97Copy pinpoint97. Advancing the ground of public trust adopted in previous petitions, in this petition as well, Mr. Divan has stoutly contended that the respondents have compromised with the doctrine of public trust while proceeding with this project. Placing reliance upon M.C. Mehta v. Kamal Nath & Ors.87, it is submitted that a transient Government holds the resources in trust for the public and they can only be utilised for the benefit of public. It is further submitted that under American law (Illinois Central Railroad Co. v. People of the State of Illinois88) as well, the public trust doctrine extends to properties which are of “special consequence” and extending the same logic, it is urged that Central Vista is of special consequence for the nation, thereby calling for a high threshold of due process. To further the argument of suppression of public trust, it is urged that the bid document reveals that the decision of constructing a new Parliament building or to renovate the existing building was left to be decided by the private consultant and entrusting a private consultant with a fundamental decision of this nature does not fall in sync with the principles of public trust.

98Copy pinpoint98. In addition to cases noted above, the petitioners have placed reliance upon I.R. Coelho (Dead) by LRs v. State of T.N.89, Government (NCT of Delhi) v. Union of India & Anr.90, Lok Prahari Through its F General Secretary v. State of Uttar Pradesh & Ors. 91, Rajeev Mankotia v. Secretary to the President of India & Ors.92, Sushanta Tagore & Ors. v. Union of India & Ors.93, K. Guruprasad Rao v. State of Karnataka & Ors.94, Manohar Joshi v. State of Maharashtra 87 (1997) 1 SCC 388 G 88 [146 US 387 : 36 L Ed 1018 (1892)] 89 (2007) 2 SCC 1 (paras 48, 109, 139-141 and 151) 90 (2018) 8 SCC 501 (paras 53 to 57) 91 (2018) 6 SCC 1 (paras 2, 26, 27 and 38) 92 (1997) 10 SCC 441 (paras 4, 6, 13, 18 and 19) 93 (2005) 3 SCC 16 (paras 21 and 32) 94 (2013) 8 SCC 418 (paras 15, 71, 94, 95 and 102) H

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A & Ors.95,Public Interest Foundation & Ors. v. Union of India & Anr. 96, Brajendra Singh Yambem v. Union of India & Anr. 97, Hindustan Construction Company Limited & Anr. v. Union of India & Ors.98, State of Punjab & Anr. v. Khan Chand99, Shayara Bano v. Union of India & Ors.100, Natural Resources Allocation, In re, Special Reference No. 1 of 2012 101, Manoj Narula v. Union of B India 102, Global Energy Limited & Anr. v. Central Electricity Regulatory Commission103, Sakal Papers (P) Ltd. & Ors. v. Union of India104, Bennett Coleman & Co. & Ors. v. Union of India & Ors.105, Union of India & Ors. v. Motion Picture Association & Ors. 106, Life Insurance Corporation of India v. Prof. Manubhai D. Shah 107, C Secretary, Ministry of Information & Broadcasting, Govt. of India & Ors. v. Cricket Association of Bengal & Ors. 108 , Chandramouleshwar Prasad v. Patna High Court & Ors.109, Orissa Mining Corporation Limited v. Ministry of Environment & Forests & Ors.110, Democratic Alliance & Anr. v. Masondo NO & Anr.111, Matatiele Municipality & Ors. v. President of the Republic of South D Africa & Ors.112, South African Veterinary Association v. Speaker of the National Assembly & Ors.113, Law Society Case of Kenya v. Attorney General & Ors. 114 , Archaeological Survey of India v. Narender Anand & Ors.115, Nagar Nigam, Meerut v. Al Faheem 95 E (2012) 3 SCC 619 96 (2019) 3 SCC 224 (para 99) 97 (2016) 9 SCC 20 (para 38) 98 2019 SCCOnline SC 1520 (para 17) 99 (1974) 1 SCC 549 (para 12) 100 (2017) 9 SCC 1 (para 85) 101 (2012) 10 SCC 1 (paras 149 and 184) F 102 (2014) 9 SCC 1 (para 82) 103 (2009) 15 SCC 570 104 AIR 1962 SC 305 105 (1972) 2 SCC 788 106 (1999) 6 SCC 150 107 (1992) 3 SCC 637 108 (1995) 2 SCC 161 G 109 (1969) 3 SCC 56 (para 7) 110 (2013) 6 SCC 476 (paras 50, 51, 66 and 70) 111 2003 (2) BCLR 128 (CC) (South African Constitutional Court) 112 2007 (1) BCLR 47 (CC) (South African Constitutional Court) 113 2019 (2) BCLR 273 (CC) (South African Constitutional Court) 114 Civil Appeal No. 96 of 2014 decided on 27.9.2019 (Court of Appeal, Kenya) 115 (2012) 2 SCC 562 (para 7) H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 369 ORS. [A. M. KHANWILKAR, J.]

Meat Exports Pvt. Ltd. & Ors.116, Dutta Associates Pvt. Ltd. v. Indo A Merchantiles Pvt. Ltd. & Ors.117, Meerut Development Authority v. Association of Management Studies & Anr.118, Manohar Lal Sharma v. Principal Secretary & Ors.119, Radha Krishna Agarwal & Ors. v. State of Bihar & Ors.120, Uttar Pradesh Avas Evam Vikas Parishad & Ors. v. Om Prakash Sharma 121, Akhil Bhartiya Upbhokta B Congress v. State of Madhya Pradesh & Ors.122, Harminder Singh Arora v. Union of India & Ors.123, Jagdish Mandal v. State of Orissa & Ors. 124and Ramana Dayaram Shetty v. International Airport Authority of India & Ors.125.

99Copy pinpoint99. The respondents have filed elaborate written submissions to respond to petitioners’ arguments on the concept of democracy, as it exists in India and democratic due process as envisaged under the Constitution. It is contended that the manner of public participation in India is through the representative mode, as we have adopted the representative model of governance. It is submitted that the public elects its representatives and the Council of Ministers are collectively responsible to the Parliament. To buttress this argument, the written submissions state that a necessary element of democratic process is that directly elected persons represent true will of the people and they must take decisions that affect the people.

100Copy pinpoint100. The respondents have contended that the principle of Rule of Law, as envisaged in India, requires due adherence to existing statutory and constitutional principles. To include imaginary steps in the process of decision making by democratically elected representatives would be antithetical to the Rule of Law. It is urged in written submissions that the nature of participatory process proposed by the petitioners is akin to a referendum. Such process is not envisaged under our Constitution. F

101Copy pinpoint101. To demonstrate ample consultation within Lok Sabha Secretariat, the respondents have placed a short affidavit on General 116 (2006) 13 SCC 382 (para 16) 117 (1997) 1 SCC 53 (paras 3 and 4) 118 (2009) 6 SCC 171 (paras 28 and 37 to 39) 119 (2014) 9 SCC 516 G 120 (1977) 3 SCC 457 (paras 9 and 10) 121 (2013) 5 SCC 182 (para 29) 122 (2011) 5 SCC 29 (paras 62 to 66) 123 (1986) 3 SCC 247 (para 19) 124 (2007) 14 SCC 517 125 (1979) 3 SCC 489 H

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A Purpose Committee126 which states that the idea of GPC, originally constituted for the first time on 26.11.1954, was to enable the Presiding Officer/Speaker to take into confidence all members of the House irrespective of party lines while considering matters relating to the affairs of the House. Learned Solicitor general has further submitted that the need for this project was expressed by the then Speaker of Lok Sabha B in writing vide letter dated 9.12.2015. In 2019, another letter was addressed by the present Speaker to the Prime Minister. Furthermore, separate presentations were conducted by the officials of the concerned departments before Speaker of Lok Sabha and Chairman of Rajya Sabha i.e., Vice-President of India in order to apprise them about the project. It C is submitted in the affidavit that GPC for 17th Lok Sabha was constituted on 21.11.2019 and present composition of the said Committee has representation from the following national political parties; whose members were elected representatives in the Parliament: • Bhartiya Janata Party (BJP) D • Dravida Munnetra Kazhagam (DMK) • All India Trinamool Congress (AITC) • Indian National Congress (INC) • Shiv Sena (SS) E • Biju Janata Dal (BJD) • Bahujan Samaj Party (BSP) • Lok Jan Shakti Party (LJSP) • Revolutionary Socialist Party (RSP) F • Telangana Rashtra Samiti (TRS) • Yuvajana Sramika Rythu Congress Party (YSR Congress Party) • Janata Dal (United) (JDU) • Nationalist Congress Party (NCP) G • Samajwadi Party (SP)

102Copy pinpoint102. It is submitted that a detailed presentation was made before GPC on 19.3.2020. The meeting was attended by Members of Parliament 126 H For short, “GPC”

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 371 ORS. [A. M. KHANWILKAR, J.]

being representatives of prominent national political parties having presence in the Lok Sabha, one Special Invitee, six Secretariat members, Secretary and Joint Secretary of MoHUA, Dr. Bimal Patel, Director, HCP Designs, and was chaired by the Speaker of Lok Sabha (Chairperson of GPC). The aforesaid persons were present during the presentation regarding the new Parliament Building project. Furthermore, the budgetary considerations were placed before the relevant committee comprising of members across party lines and no objections is placed on record. Therefore, it would be wrong to allege that Parliament was kept in the dark regarding the project.

103Copy pinpoint103. Responding to the contention that a legislation ought to have been passed for this purpose, the respondents have submitted that there was no constitutional requirement to adopt the legislative route as construction projects can be carried out in discharge of executive functions.

104Copy pinpoint104. The respondents have specifically addressed in the written submissions that extensive reliance on foreign decisions may not be useful in the Indian context. In any case, that cannot be made the basis to answer the matters in issue. It is urged that the precedents relied upon by the petitioners had dealt with express statutory provisions for public participation, as applicable in the concerned country, and judicial opinion was rendered in that specific context. Besides, these precedents deal with prior public participation in legislative action. That is entirely different than extending similar public participation in the matter of executive and administrative functions such as planning and development of a national project, in absence of any statutory requirement in that regard.

105Copy pinpoint105. As regards approval by DUAC, the respondents, in consolidated reply, have submitted that every local body in Delhi is required to procure approval by DUAC, which is a statutory body meant to advise and guide the Government on matters submitted to it. It is submitted that as per Section 11 of the DUAC Act, the proposal must be submitted for scrutiny by DUAC in respect of any project of building operations or engineering operations or any development proposal. It is stated that considering different stages for different components of the project, DUAC approval as regards the Parliament project has been obtained whereas the approval for rest of central vista precincts shall be taken as and when the development activity thereat is proposed in future. As regards application of mind, it is stated that the proposal was first H

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A considered by the committee in its 1542nd meeting dated 5.6.2020 wherein it was deferred due to insufficient information as regards vehicular parking plan and landscape plan. Thereafter, a revised proposal was placed before the committee in its 1545th meeting dated 1.7.2020 wherein it had been approved. It is further submitted that the minutes of the committee reveal that all representations concerning heritage, parking, landscape etc. were B placed before the committee and duly considered by it while granting approval. To buttress this submission, it is urged that the minutes were ratified by the committee in its 1547th meeting on 10.7.2020 and no amendments were suggested by any member at the time of such ratification.

106Copy pinpoint106. As regards the preservation of heritage structures and permission of HCC, in addition to grounds already urged above, the respondents submit that no heritage structure is being affected in the entire project. In the written submissions, it is stated that heritage conservation does not prohibit improving the heritage structures by taking necessary action for increasing their life. The genesis of this argument could be understood by reproducing the following extract form para 150 of the written submissions: “150. ...The present project represents not a radical break from the past so as to lean on the future, rather entails a judicious policy attempt to conserve the delicate heritage and historical value of the area whilst allowing room for growth and development for future generations. ….”

107Copy pinpoint107. It is further submitted that as per relevant laws, permission would be required only for retrofitting of existing Parliament building and no such prior permission is needed for the construction of new building in the neighbouring independent plot, without affecting the existing heritage Parliament building. Reliance has been placed upon Annexure- II of UBBL to show that regulations on development/redevelopment are only for listed buildings and even for such buildings, no such approval from HCC is needed at the planning stage. All such approvals are required at the development stage only. To buttress this submission, it is urged that the mandate of HCC is limited to buildings only and it does not concern the areas adjacent to such buildings. As far as area is concerned, DUAC is empowered to consider such changes and grant approval and accordingly, it has already granted its approval, as aforesaid. H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 373 ORS. [A. M. KHANWILKAR, J.]

108Copy pinpoint108. Repelling the challenge to Consultation Services NIT on the ground of limited competition, it is submitted that both national and international design firms were invited to participate in the process and widest choice was given to applicants to encourage participation. It is urged that the requirement of prior experience of Government work was consciously provided for to ensure that the firm is capable of working in the administrative framework of Government. The respondents have also contended that even if any irregularity could be pointed out in the tender process, none of the participants raised any grievance as regards the same and the petitioners have no locus to escalate it at this stage by way of a public interest litigation.

109Copy pinpoint109. On the alleged irregularities in percentage-based fee mechanism, it is submitted that the apprehension regarding percentage- based fee for consultancy services is not sustainable as the consultancy fee was consciously pegged by the Government vide corrigendum dated 23.9.2019 and thus, there was no incentive left for the consultant to escalate the cost of the project. D

110Copy pinpoint110. Addressing the contention of heightened judicial review in this case, the respondents, in addition to grounds already urged in T.C. (C) 229/2020, have submitted that the subject project involves a set of policy decisions, namely – construction of new Parliament, location of proposed structure, common Central Secretariat, treating them as mutually independent projects and to achieve these objectives without impinging upon heritage. It is urged that the scope of judicial review must be limited to the examination of violation of statutory and constitutional principles and theoretical and academic questions need not be entertained or invoked for striking down policy decisions otherwise in compliance with the statutory provisions and mandate of the Constitution. The respondents, in their written submissions, have placed reliance upon Justice K.S. Puttaswamy (II) 127 to contend that the expression “procedure established by law” connotes a fair and reasonable procedure and it cannot be equated with the due process clause, as understood and applied in the American constitutional scheme. Reliance has been placed upon G Sunil Batra v. Delhi Administration128and Rajbala & Ors. v. State of Haryana & Ors.129 to contend that this Court has expressly rejected the existence of substantive due process under the Constitution. To 127 (supra at 74) 128 (1978) 4 SCC 494 129 (2016) 1 SCC 463 H

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A buttress this submission, it is submitted that judicial review in India, in context of Article 13, is to be understood in reference to actual violation of any of the provisions of Part III of the Constitution.

111Copy pinpoint111. Learned Solicitor General has submitted that the entire case of the petitioners merely presents an alternative and to choose between available alternatives is not within the domain of judicial review. It is urged that when appeal is made to the Court on flimsy and abstract grounds which are incapable of any precise definition, the Court must be cautious and must interpret in line with the language of the Constitution. Reliance has been placed upon Keshavan Madhava Menon v. State of Bombay130 to advance this proposition. It is also submitted that if procedure has been complied with substantially and in a broad sense and application of mind is duly revealed, then no minute enquiry is called for on the basis of exposition in Lafarge Umiam Mining131.

112Copy pinpoint112. Addressing the contention regarding public trust, the respondents categorically submit that they are principally in agreement with the notion that a Government ought to act in accordance with public trust. However, this doctrine does not prohibit the Government from utilising the resources held in public trust for the advancement of public interest itself.

113Copy pinpoint113. Responding to the contention that respondents compromised with public trust by entrusting the decision of new construction/renovation to the consultant, it is submitted that the task of making a Master Plan or of deciding whether or not a new building is required was never entrusted to the consultant and it was a conscious decision taken by the Government after consultation with all relevant entities. The Consultation NIT merely called upon the prospective bidders to prepare a vision document which could be used to understand the vision of the bidders regarding the project and scrutinize their applications on that basis and therefore, it cannot be said that Government abdicated its duty. The consultant was merely to advise whether renovation would suffice or a new structure would be imminent and final decision regarding all aspects of the project rested with the Government.

114Copy pinpoint114. To support their position, the respondents have placed reliance upon Narmada Bachao Andolan v. Union of India & Ors.132, Shimnit 130 AIR 1951 SC 128 131 (supra at 58) 132 H (2000) 10 SCC 664 (paras 226 to 235)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 375 ORS. [A. M. KHANWILKAR, J.]

Utsch India Private Limited & Anr. v. West Bengal Transport A Infrastructure Development Corporation Limited & Ors.133, State of Madhya Pradesh v. Narmada Bachao Andolan & Anr.134,Directorate of Film Festivals & Ors. v. Gaurav Ashwin Jain & Ors.135, State of Kerala v. Joseph Antony136, G. Sundarrajan v. Union of India & Ors.137, University of Mysore v. C.D. Govinda B Rao & Anr.138, Tata Iron & Steel Co. Ltd. v. Union of India & Anr.139, Federation of Railway Officers Association & Ors. v. Union of India140, Avishek Goenka v. Union of India & Anr.141, Dental Council of India v. Subharti K.K.B. Charitable Trust & Anr.142, Basavaiah (Dr.) v. Dr. H.L. Ramesh & Ors.143, K.T. Plantation Private Limited & Anr. v. State of Karntaka144, Rohit Dhupar & Ors. v. Lt. Governor C & Ors. 145, Cynamide India 146, Canara Bank v. V.K. Awasthy 147, Haryana Financial Corporation & Anr. v. Kailash Chandra Ahuja148, Punjab National Bank & Ors. v. Manjeet Singh & Anr.149, Karnataka State Road Transport Corporation & Anr. v. S.G. Kotturappa & Anr.150,Viveka Nand Sethi v. Chairman, J&K Bank D Ltd. & Ors.151, Ranjan Kumar Mitra v. Andrew Yule & Co. Ltd. & Ors.152, Jagjit Singh v. State of Haryana & Ors.153, Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee154, Sohan Lal Gupta (Dead) through LRs. & Ors. v. Asha Devi Gupta 133 (2010) 6 SCC 303 (para 34, 42 to 48 and 52) 134 (2011) 7 SCC 639 (paras 36 and 37) E 135 (2007) 4 SCC 737 (para 16) 136 (1994) 1 SCC 301 (para 14) 137 (2013) 6 SCC 620 (paras 200, 201, 207 to 212) 138 (1964) 4 SCR 575 (para 12) 139 (1996) 9 SCC 709 (para 68) 140 (2003) 4 SCC 289 (para 12) 141 (2012) 5 SCC 275 (paras 20 to 22 and 25) F 142 (2001) 5 SCC 486 (paras 11 and 16) 143 (2010) 8 SCC 372 (paras 13, 20 to 22 and 38) 144 (2011) 9 SCC 1 (para 59) 145 (2009) SCCOnline Del 487 (paras 7 to 9) 146 (supra at 17, paras 27, 31 and 35) 147 (2005) 6 SCC 321 (paras 6 to 9 and 18) 148 (2008) 9 SCC 31 (paras 22 to 24, 35, 36, 40, 42, 44 and 45) G 149 (2006) 8 SCC 647 (paras 17, 19 and 22) 150 (2005) 3 SCC 409 (para 24) 151 (2005) 5 SCC 337 (paras 19, 20 and 22) 152 (1997) 10 SCC 386 (para 1) 153 (2006) 11 SCC 1 (paras 14, 20, 24 to 27, 44, 46, 47 and 49) 154 (1977) 2 SCC 256 (para 13) H

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A & Ors.155, Major G.S. Sodhi v. Union of India156, Bhim Sen & Ors. v. State of Punjab157, Barium Chemicals Ltd. & Anr. v. Company Law Board & Ors.158, Rohtas Industries v. S.D. Agarwal & Ors.159, M. Jhangir Bhatusha & Ors. v. Union of India & Ors. 160, Haryana Financial Corporation & Anr. v. Jagdamba Oil Mills & Anr.161, Puranlal Lakhanpal v. President of India & Ors.162,Union of India B & Ors. v. E.G. Nambudiri163, Maharashtra State Board164, Mahabir Jute Mills Ltd., Gorakhpore v. Shibban Lal Saxena & Ors.165, Sarat Kumar Dash and Ors. v. Biswajit Patnaik and Ors.166,Dr. Ashwani Kumar v. Union of India & Anr.167,R.K. Garg v. Union of India & Ors.168, Premium Granites & Anr. v. State of T.N. & Ors.169, Delhi C Science Forum v. Union of India 170, BALCO Employees’ Union (Regd.) v. Union of India & Ors.171, State of Madhya Pradesh v. Narmada Bachao Andolan172, Natural Resources Allocation173, G.B. Mahajan & Ors. v. Jalgaon Municipal Council & Ors.174, Meerut Development Authority175, Indira Nehru Gandhi v. Raj Narain176, State of Karnataka v. Union of India & Anr.177, Kuldip Nayar & D Ors. v. Union of India & Ors.178, Ashoka Kumar Thakur v. Union of India & Ors.179, Supreme Court Advocates-on-Record Association 155 (2003) 7 SCC 492 (paras 29, 43 and 44) 156 (1991) 2 SCC 382 (paras 35 to 37) 157 AIR 1951 SC 481 158 AIR 1967 SC 295 (para 10, 27, 60 and 64) E 159 (1969) 1 SCC 325 (paras 7 to 9, 11 and 13) 160 1989 (2) Supp. SCC 201 (paras 8, 9 and 13) 161 (2002) 3 SCC 496 (para 10) 162 AIR 1961 SC 1519 163 AIR 1991 SC 1216 (paras 6 to 10) 164 (supra at 46, paras 22 and 23) 165 (1975) 2 SCC 818 (para 3) F 166 1995 Supp (1) SCC 434 (para 11) 167 2019 SCCOnline SC 1144 (paras 8 to 16, 19, 22 to 37, 43 and 44) 168 (1981) 4 SCC 675 (para 8) 169 (1994) 2 SCC 691 (para 54) 170 (1996) 2 SC 405 (para 7) 171 (2002) 2 SCC 333 (paras 77 to 88) 172 G (supra at 134, para 36) 173 (supra at 101, paras 146 to 150) 174 (1991) 3 SCC 91 (paras 22 to 26) 175 (supra at 118, paras 40 to 46, 61, 62, 67 and 68) 176 1975 Supp. SCC 1 (paras 176 and 661) 177 (1977) 4 SCC 608 (para 238) 178 (2006) 7 SCC 1 (para 107) H 179 (2008) 6 SCC 1 (para 116)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 377 ORS. [A. M. KHANWILKAR, J.]

& Anr. v. Union of India180, Council of Civil Service Unions v. A Minister for the Civil Service 181,Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 182 , Indian Railway Construction Company Ltd. v. Ajay Kumar183, R v. Secretary of State for the Home Department, Ex Parte Daly184, Regina (Mahmood) v. Secretary of State for the Home Department 185, Huang & Ors. v. B Secretary of State for the Home Department186, Asia Foundation & Construction Ltd. v. Trafalgar House Construction (I) Ltd. and Others187, Reliance Airport Developers (P) Ltd. v. Airports Authority of India & Ors. 188 , Himachal Pradesh Housing and Urban Development Authority v. Universal Estate & Anr. 189, Villianur Iyarkkai Padukappu Maiyam v. Union of India & Ors.190, Centre C for Public Interest Litigation & Anr. v. Union of India & Ors. 191, Jagdish Mandal 192, Sterlite Industries (India) Limited & Ors. v. Union of India & Ors.193, Municipal Corporation, Ujjain & Anr. v. BVG India Limited & Ors.194, Lafarge Umiam Mining195, N.D. Jayal & Anr. v. Union of India & Ors. 196 ,Alaknanda Hydropower D Company197,M/s. Lithoferro & Ors. v. Ministry of Environment and Forests198, Lochner v. New York199, New State Ice Co. v. Liebmann200, West Coast Hotel Co. v. Parrish201, United States v.Carolene Products 180 (2016) 5 SCC 1 (para 381) 181 1984 (3) All ER 935 182 (1947) 2 All ER 680 E 183 (2003) 4 SCC 579 184 [2001] 3 All ER 433 185 [2001] 1 WLR 840 186 [2005] 3 All ER 435 187 (1997) 1 SCC 738 (paras 9, 10 and 11) 188 (2006) 10 SCC 1 (paras 56, 77 and 89 to 92) 189 (2010) 14 SCC 253 (paras 22, 23 and 26) F 190 (2009) 7 SCC 561 (paras 113 to 115 and 165 to 170) 191 (2000) 8 SCC 606 (para 19 to 22) 192 (supra at 124, paras 21, 21.1., 21.6 and 22) 193 (2013) 4 SCC 575 (paras 31 and 32) 194 (2018) 5 SCC 462 (paras 14, 15 and 27) 195 (supra at 58, paras 105 to 111) 196 G (2004) 9 SCC 362 (paras 19 and 20) 197 (supra at 52, paras 13 to 16) 198 (2013) SCC Online NGT 40 (paras 17 to 21 and 39) 199 198 U.S. 45 (1905) 200 285 U.S. 262 (1932) 201 300 U.S. 379 (1937) H

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A Co.202, American Federation of Labor Et. Al. v. American Sash & Door Co. 203, Ferguson, Attorney General of Kansas, Et. Al. v. Skrupa204, Kharak Singh v. State of U.P. & Ors.205, Satwant Singh Sawhney v. D. Ramarathnam, Assistant Passport Officer, New Delhi & Ors.206, Wolf v. Colorado207,Rustom Cavasjee Cooper v. Union of India208,Maneka Gandhi v. Union of India & Anr.209, Bachan Singh B v. State of Punjab210, State of A.P. & Ors. v. McDowell & Company & Ors.211, Mohd. Arif alias Ashfaq v. Registrar, Supreme Court of India & Ors. 212 , Shayara Bano 213 ,K.S. Puttaswamy & Anr. (I)214,Swiss Ribbons Private Limited & Anr. v. Union of India & Ors.215, Kesavananda Bharati Sripadagalvaru v. State of Kerala & C Anr.216, Peerless General Finance and Investment Co. Limited & Anr. v. Reserve Bank of India217 and Daroga Singh & Ors. v. B.K. Pandey 218.

115Copy pinpoint115. Appearing for Respondent No. 9 (Consultant), Mr. Harish Salve, learned senior counsel stoutly contends that allegations of bias and favouritism have been made by the petitioners which colourises this challenge as one based on malice in fact. That allegation cannot proceed further in absence of the person against whom such case of bias is pleaded, by name. It is submitted that the virtue of participatory democracy is laudable but the extent and nature of participation cannot be enforced through the medium of judicial review. Mr. Salve argues that participatory democracy is a two-tier process of which a major element is Parliamentary law making which is done through the representative mode 202 304 U.S. 144 (1938) 203 335 U.S. 538 (1949) 204 372 U.S. 726 (1963) 205 F AIR 1963 SC 1295 206 AIR 1967 SC 1836 207 338 U.S. 25 (1949) 208 (1970) 1 SCC 248 209 AIR 1978 SC 597 210 (1980) 2 SCC 684 211 (1996) 3 SCC 709 G 212 (2014) 9 SCC 737 213 (supra at 100) 214 (supra at 79) 215 (2019) 4 SCC 17 216 (1973) 4 SCC 225 (paras 634, 1436, 1437 and 1442) 217 (1992) 2 SCC 343 218 (2004) 5 SCC 26 (para 30) H

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in India and not by a referendum. It is submitted that the nature of participation envisaged in India requires participation without causing hindrance in the system. It is for the Government to decide who is to be heard, for instance, in EC issues, only local affected people are meant to be heard.

116Copy pinpoint116. It is further urged that even arguably, mere absence of sufficient participation would not be capable of being termed as Wednesbury unreasonableness so as to quash the whole process. Further, the argument of participatory democracy in respect of important decisions to be taken by the Government such as in respect of construction of a new Parliament building, if accepted, would be forcing the judiciary to define the type of Government decisions where such procedure need to be followed by applying the same logic. That will be groping in the dark and by no standards a judicial function. In that, same logic may then be invoked to compel the Government of the day to undertake public participation before going for a war on the fronts due to aggression by the neighbouring country, which is more important than a decision to construct a new Parliament building.

117Copy pinpoint117. Mr. Salve submits that the scope of judicial review should be focussed on two enquiries only – first, whether there is any illegality or infraction of any statutory mandate and second, whether there is any procedural unfairness which can be checked by judicially manageable standards. As regards the lack of information in public domain, it is submitted that it is one thing to place information in public domain, but it does not mean that mere absence of information would render the decision as vitiated.

118Copy pinpoint118. To buttress his submissions, Mr. Salve placed reliance upon F Aruna Roy219. W.P.(C) No. 922/2020

119Copy pinpoint119. On 17.10.2017, the MoHUA, while acting under Section- 11A of 1957 Act, had issued notification S.O. 3348 (E) whereby Chapter- 17 (clause 8(2)) of Master Plan “Permission of Use Premises in Use G Zones” was modified to permit the usage of land allocated for Public/ Semi Public (PSP) usage for the purpose of Government offices. The said notification is assailed by the petitioners herein with the following prayer: 219 (supra at 30) H

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A “i. Issue an appropriate writ, order or direction calling for records and for quashing the Notification S.O. 3348 (E) dated 17.10.2017, promulgated by Respondent No. 1 being ultra vires the power under the Delhi Development Authority Act of 1957, and in violation of Article 14 and 21 of Constitution of India;”

120Copy pinpoint120. In addition to grounds urged in T.C. (C) 229/2020, it is submitted that the said notification violates the tenets of Wednesbury Principle of Reasonableness and can be assailed on the three grounds of – illegality, irrationality and procedural impropriety. The petitioners submit that the notification was the result of a colourable exercise of power and no such power vested with the respondents so as to permit the usage of C land for uncontemplated purposes.

121Copy pinpoint121. To support their case, the petitioners have relied upon Syed Hasan Rasul Numa & Ors. v. Union of India & Ors.220, Mackinonn Mackenzie & Company Limited v. Mackinnon Mackenzie Employees Union221, Babu Verghese & Ors. v. Bar Council of Kerala D & Ors.222, State of Uttar Pradesh v. Singhara Singh & Ors.223, Kedar Nath Yadav v. State of West Bengal & Ors.224, Khub Chand & Ors. v. State of Rajasthan & Ors.225, S. Rama Rao & Ors. v. Jawaharlal Nehru Technological University, Hyderabad & Anr. 226, Aircel Cellular Ltd. v. Union of India227 and Legg & Ors. v. Inner London E Education Authority228. W.P. (C) No. 1041/2020

122Copy pinpoint122. This petition seeks to challenge various approvals including award of tender dated 2.9.2019, EC dated 17.6.2020 and No Objection by CVC dated 30.4.2020. The prayer reads thus: F “i. Issue a writ in the nature of order and/or direction(s) calling for the records of the various approvals/decisions granted/taken to redevelop Central Vista including the Parliament such as the 220 (1991) 1 SCC 401 (paras 11 to 14) 221 (2015) 4 SCC 544 (paras 42 and 44) G 222 (1999) 3 SCC 422 (paras 31 and 32) 223 AIR 1964 SC 358 (paras 7 and 8) 224 (2017) 11 SCC 601 (paras 85, 88 and 89) 225 AIR 1967 SC 1074 (para 7) 226 1977 SCC Online AP 271 (paras 23, 24, 28 and 31) 227 2016 SCC Online Mad 8463 (paras 141, 142, 144 and 152) 228 H [1972] 1 WLR 1245 (Chancery Division)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 381 ORS. [A. M. KHANWILKAR, J.]

tender awarded pursuant to the Notice dated 02.09.2019 NIT A No. 04/CPM/RPZ/NIT/2019-20, Environmental Clearance dated 17.06.2020 in relation to the Parliament, the Central Vista Committee “No objection” dated 30.04.2020, and after reviewing the same to quash and set aside the said approvals/decisions.”

123Copy pinpoint123. The grounds adopted by the petitioner herein are similar to B those adopted by the petitioners in W.P. (C) No. 853/2020 and W.P. (C) No. 638/2020 and we do not intend to dilate on the same for brevity. CONSIDERATION RULE OF LAW C

124Copy pinpoint124. After ruminating on the blistering and exquisite arguments of the learned counsel for the parties, we find that the same are proffered on the hypothesis of governance by Rule of Law with specific emphasis on the high constitutional tenets and values of democratic polity, as adopted in India, and the principle of constitutionalism. All other grounds, relating to alleged violations of statutory and municipal laws, flow from D the petitioners’ understanding of the aforesaid fundamental principles and thus, we begin our discussion by examining this fundamental premise so as to understand to what extent, if at all, and in what manner policy/ administrative decision-making can be overseen in judicially manageable standards in the light of such principles. E

125Copy pinpoint125. To consider the matters in issue, we deem it apposite to traverse through some illuminating discourse of founding fathers of our country. On 9.12.1946, when the Constituent Assembly embarked upon the journey to create the most fundamental instrument of future governance of the country, it had two concepts in mind – democracy and Rule of Law. The reason for this pin-pointed emphasis reflects aptly from the words of Sir S. Radhakrishnan, who rose to speak up as the first speaker after election of Permanent Chairman on 11.12.1946. He said: “...We have to remember with gratitude all those great souls who worked and suffered for the freedom of this country, for the dawn of this day. Thousands died, more thousands suffered privation, imprisonment, and exile, and it is their suffering that has cemented and built up this great edifice ...229” 229 Constituent Assembly Debates Vol. I (9.12.1946 – 23.12.1946) H

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126Copy pinpoint126. The fact that millions of Indians had struggled incessantly to breathe in a democratic polity which treated them not as mere subjects but as cardinal constituents on which the whole edifice of the nation stands, was the primary reason that our Constitution makers wanted an environment where law operates equally upon one and all, where Rule of Law trumps over even the slightest notion of rule by whims, where the equation between state and citizens is not marked by imbalance and where law, as it exists, governs all legal relationships.

127Copy pinpoint127. When an effort is made to decipher the understanding of members as regards the concept of governance by Rule of Law during the Constituent Assembly Debates, an interesting pattern emerges and we must delineate it henceforth. During the discussion on Part-III, Mr. Naziruddin Ahmad emphatically stated that democracy means rule of law. He elaborated his viewpoint by stating thus: “We are erecting one of the finest democracies in the world. But the implication of democracy must be squarely faced. Democracy D means a rule of law as opposed to a rule of force. In autocracies and in Totalitarian States the law is not supreme. But democracy means supremacy of the law where no one, be he the highest individual, is above the law. We should therefore all respect law and should be law-abiding citizens in order to inculcate that sense of law-abidingness wherein lies the E safety of democracy. We should ourselves follow democratic principles, democratic methods and respect the law. 230” (emphasis supplied) On another occasion, Dr. P.K. Sen exposited that Rule of Law is meant to save the Government from disruptive tendencies. He said: F “…The rule of law is, in my humble judgment, the rule that should save the Government from all manner of disruptive tendencies…231” While speaking on the administrative setup that the British left for us, Dr. P. Subbarayan observed Rule of Law to be a concept on which G future of the country depends. He said: “The second point I wish to touch upon is the rule of law which I think is a peculiar part of the English legal system. If there is 230 Constituent Assembly Debates Vol. VIII (16.5.1949 – 16.6.1949) 231 Constituent Assembly Debates Vol. VIII (16.5.1949 – 16.6.1949) H

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anything which I would like to cling to in the future of this country, it is this rule of law…232” On 17.9.1949, Mr. K.M. Munshi rose to speak on the evolution of Supreme Court of India for the independent India and expressed an earnest hope premised on nothing but the ideal of Rule of Law. He said: “Sir, the British Parliament and the Privy, Council are the two great institutions which the Anglo-Saxon race has given to mankind. The Privy Council during the last few centuries has not only laid down law, but coordinated the concept of rights and obligations throughout all the Dominions and Colonies in the British Commonwealth. So far as India is concerned, the role of the Privy C Council has been one of the most important. It has been a very great unifying force and for us Indians it became the instrument and embodiment of the rule of law, a concept on which alone we have based the democratic institutions which we have set up in our Constitution.233” D (emphasis supplied) He added: “Sir, on the 26th of January our Supreme Court will come into existence and it will join the family of Supreme Courts of the democratic world of which the Privy Council is the oldest and perhaps the greatest. I can only hope and trust that though we part with the Privy Council our Supreme Court will carry forward the traditions of the Privy Council, traditions which involve that judicial detachment, that unflinching integrity, that subordination of everything to the rule of lawand that conscientious regard for the rights and for justice not only between subjects and subjects but also between the State and the subjects.” (emphasis supplied) What emerges from this discourse is that the makers of the Constitution envisaged a legal and political system which would be subservient to Rule of Law.

128Copy pinpoint128. Rule of Law inter alia posits four universal tenets. It is a system of laws, institutions, norms and community commitment that 232 Constituent Assembly Debates Vol. XI (14.11.1949 – 26.11.1949) 233 Constituent Assembly Debates Vol. IX (30.7.1949 – 18.9.1949) H

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A envisages – Accountability of Government and private actors alike under the law; The laws must be just, clear, publicized and stable and applied evenly, protect fundamental rights and human rights; Open Government – meaning thereby the processes by which the laws are enacted, administered and enforced are accessible, fair and efficient; and Accessible justice – to include timely delivery of justice by competent, B ethical, and independent representations and neutrals who are accessible, have adequate resources and mirror the traits of the communities they serve 234.

129Copy pinpoint129. Theoretically, the concept of Rule of Law was understood and applied to advance even autocratic regime. Louis XIV, Napolean C and Hitler had Governments based on nothing but Rule of Law. But with the evolution of political discourse, the expanse of Rule of Law traversed from an autocratic to a democratic one. It underwent a transformation from being a concept used by autocrats to control their subjects to a living idea of governance wherein citizens and state interact with each other on a level playing field.

130Copy pinpoint130. For the purposes of present examination, we need to provide life and meaning to this idea as a concept capable of judicial application with manageable standards and not just as an idea of political rhetoric. The difference between these two approaches is real and reflects in the introductory words of T.R.S. Allan in “Constitutional Justice” where he notes thus: “Its rhetorical power in aid of an argument about governmental authority, individual liberty, or constitutional legitimacy, makes the rule of law an object of understandable suspicion as much as one of reverence: its uncertain and contested content allows it to be too readily invoked in support of opinions whose cogency might not withstand careful scrutiny…235” (emphasis supplied)

131Copy pinpoint131. The principle of Rule of Law coalesces two words – rule and law. The two words are not only connected with each other but also control the meanings attributable to each other. “Rule” refers to the idea of governing the state and depending on the nature of model adopted in a country, such rule can be effected in multiple ways. When we gave to 234 worldjusticeproject.org 235 T.R.S. Allan, Constitutional Justice, Oxford University Press (Edn. 2001) pg. 1 H

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ourselves the Constitution, we categorically envisioned such rule to be A “DEMOCRATIC” i.e., Government of the people, by the people and for the people. The word “law”, now, lays down the precise contours of mode of ruling in India. Article 13 provides an inclusive definition of “law” as understood in India and reads thus: “13. Laws inconsistent with or in derogation of the fundamental B rights.— (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. C (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. (3) In this article, unless the context otherwise requires,— D (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India E before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. (4) Nothing in this article shall apply to any amendment of this F Constitution made under article 368.” The first written safeguard, mentioned in Article 13, categorically prohibits the making of any law which contravenes the fundamental rights. The legislation passed in Parliament is not included in this definition but is covered separately in Articles 245 and 246. What is clear is that the structure of rule in India is duly codified by the makers. It primarily G means a democratic rule based upon law as envisaged in the Constitution.

132Copy pinpoint132. With passage of time, the word “law” has also been circumscribed by a plethora of safeguards, written and unwritten, thereby widening the array of rights which were not articulated by the founding H

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A fathers. For, the most remarkable features of a living and dynamic Constitution are its ability to grow and stay effective with the growth of socio-economic structures and vicissitudes. To elaborate further, the characteristics of reasonableness, non-arbitrariness and fairness have time and again shown direction to law and thus, to rule by such law.

133Copy pinpoint133. The above discussion is instructive on at least three counts- first, Rule of Law requires law in existence; second, such law must qualify as law within the meaning of the Constitution and must satisfy the standards laid therein and third, legally applicable meaning of Rule of Law in India can be best understood as a democratic rule within the four corners of the Constitution, as originally envisaged and as is interpreted from time to time. The existence of democracy per se does not guarantee adherence to Rule of Law, but abidance of Rule of Law by one and all is the hallmark of a real thriving democracy.

134Copy pinpoint134. The fact that all power flows from law and must be exercised in accordance with such law is easy to be theorized in a constitutional discourse, but difficult to be sustained in the aftermath of ever-expanding potpourri of the law itself. It is for this very reason the statement – ‘Rule of Law’ must encompass a dynamic concept albeit rooted in four corners of the Constitution. It provides a constant trigger to any state-citizen intercourse and calls upon this Court to strike a just balance between two entities, both equally bound by the same principle of superiority of law. A just and time-tested methodology to strike this balance lies in the end product of furthering the avowed goal of a democracy premised upon Rule of Law and not dragging it backwards.

135Copy pinpoint135. 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.

G DEMOCRATIC DUE PROCESS AND JUDICIAL REVIEW

136Copy pinpoint136. The petitioners have called upon this Court to apply the scale of “democratic due process” for examining the validity of procedures adopted by the respondents at various stages. Before expressing our opinion on whether the concept of Rule of Law in India envisions H

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something akin to a democratic due process or not, we must make an endeavour to understand the meaning of this phrase.

137Copy pinpoint137. The phrase “democratic due process” is not privy to any reasonably acceptable definition and thus, it is relevant to understand it in substance. Rodney A. Smolla, in his seminal work “Democratic Due Process: Administrative Procedure after Bishop v. Wood” 236 explained this phrase in the form of a negative concept i.e., one that diminishes constitutional protections rather than enhancing them, as opposed to the petitioners’ understanding. He couched it as a phenomenon wherein: “... the responsibility for defining, shaping and limiting administrative due process has been taken from the courts and given to the legislatures. By placing this responsibility in the hands of elected representatives, the Supreme Court has in effect created a “democratic due process clause…..”

138Copy pinpoint138. The background story leading upto the enunciation of this phrase can be understood by making a reference to Bishop v. Wood237 D wherein the US Supreme Court upheld the termination of Carl Bishop, a policeman in North Carolina, who was terminated without a prior hearing. The Court affirmed the decision on the ground that the applicable statutory employment laws did not mandate any prior hearing and the same could not be compelled by the invocation of the due process clause. Upon further examination, one would note that this decision was not an isolated one, rather, it was a culmination of prior decisions on terminations from public employment, as noted by Smolla in his work. Beginning from Arnett, Director, Office of Economic Opportunity, Et. Al. v. Kennedy Et. Al. 238 and Board of Regents of State Colleges Et. Al. v. Roth239, the US Supreme Court made a conscious departure from the due process clause, as enshrined in 14th amendment of the US Constitution. The basis of this departure is reflected in the opinion of Justice Stewart, writing for the Court in Roth240 wherein he observed that there are some processes in the Government wherein due process clause may not be imported. He relied upon the language of fourteenth amendment which lays down that no state shall “deprive any person of life, liberty, or property, G 236 Duke Law Journal, Vol. 1977, No. 2, Eighth Annual Administrative Law Issue (May, 1977), pp. 453-488 237 426 U.S. 341 (1976) 238 416 U.S. 134 (1974) 239 408 U.S. 564 (1972) 240 (supra at 239) H

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A without due process of law” to hold that due process clause would become operative only when a person’s life, liberty or property is at stake. The underlying idea behind shifting the judicial eye from blanket application of due process to enforcement of specific processes under statutes is that, due process must be restricted to matters involving actual deprivation of life, liberty or property. Smolla, in the aforesaid work, B notes that all administrative due process decisions were primarily marked by two characteristics: “….. first, a property interest is not an abstract expectation of a benefit, but a legitimately claimed entitlement; and second, in determining whether an asserted interest is a mere expectation or C a matured entitlement, the Court will look not to the Constitution, but to an independent source of law, such as a state statute 241.” This conscious judicial departure from blanket application of due process clause is understood in the American constitutional discourse as evolution of due process into democratic due process - as it restates giving effect to the mandate of statutes duly enacted by elected D representatives.

139Copy pinpoint139. Though the petitioners have used this phrase in a manner which is purportedly opposite to the way democratic due process is perceived in U.S., the above discussion is relevant to understand the thrust of the petitioners on acceptance of a procedural standard akin to E “due process” in administrative matters. The above discussion irresistibly offers the following takeaways – first, the requirement of due process is envisaged in matters involving deprivation of individual rights; second, before asserting deprivation of a right, the claimant has to discharge the onus of proving the entitlement to such right; third, such deprivation needs to be demonstrably proved in order to remedy it; fourth, even in U.S., there is judicial acceptance of the tenet that the requirement of due process cannot be enforced in all Government processes; fifth, there can be situations when existence of duly enacted and valid statutes may preclude the application of the principle of due process in adjudication. 241 Duke Law Journal, Vol. 1977, No. 2, Eighth Annual Administrative Law Issue (May, 1977), pg. 454 H

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140Copy pinpoint140. Reverting to the Indian context, the inroad of due process clause in the Indian Constitution has a unique history of its own. When Pandit Shri Thakur Das Bhargava, in the Constituent Assembly, proposed an amendment to Article 15 (now Article 21) to substitute the words “procedure established by law” with “due process of law242”, he was supported by many other stalwarts of the Assembly who, in one voice, considered that inclusion of thelater expression would be much more effective in safeguarding personal liberty of persons. The proposed change, however, did not appeal to others including Dr. B.R. Ambedkar and Mr. Alladi Krishnaswami Ayyar. Drawing upon the origin and dubious acceptability of the doctrine in U.S., Ayyar said: “… Today, according to Professor Willis, the expression means, what the Supreme Court says what it means in any particular case. It is just possible, some ardent democrats may have a greater faith in the judiciary than in the conscious will expressed through the enactment of a popular legislature. Three gentlemen or five gentlemen, sitting as a court of law, and stating what exactly is due process according to them in any particular case, after listening to long discourses and arguments of briefed counsel on either side, may appeal to certain democrats more than the expressed wishes of the legislature or the action of an executive responsible to the legislature. In the development of the doctrine of `due process’, E the United States Supreme Court has not adopted a consistent view at all and the decisions are conflicting. One decision very often reversed another decision. I would challenge any member of the Bar with a deep knowledge of the cases in the United States Supreme Court to say that there is anything like uniformity in regard to the interpretation of `due process’. F One has only to take the index in the Law Reports Annotated Edition for fifteen years and compare the decisions of one year with the decisions of another year and he will come to the conclusion that it has no definite import. It all depended upon the particular Judges that presided on the occasion. Justice Holmes took a view favourable to social control. There were other Judges of a G Tory complexion who took a strong view in favour of individual liberty and private property…243" (emphasis supplied) 242 Constituent Assembly Debates Vol. IX (30.7.1949 – 18.9.1949) 243 Constituent Assembly Debates Vol. VII (4.11.1948 – 8.1.1949) H

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A Before the amendment was negatived by voting, Dr. B.R. Ambedkar rose to sum up the controversy in the Assembly and noted as to how the distinction between “due process” and “procedure established by law” is essentially one of the extents and scope of judicial review that the Courts must be empowered to exercise in independent India. He said: B “… The question now raised by the introduction of the phrase ‘due process’ is whether the judiciary should be given the additional power to question the laws made by the State on the ground that they violate certain fundamental principles.244" C He went on to elaborate and, in a way, to reinforce the express negation of due process clause which was to follow his speech and said: “The question of “due process” raises, in my judgment, the question of the relationship between the legislature and the judiciary. In a federal constitution, it is always open to the judiciary to decide whether any particular law passed by the legislature is ultra vires or intra vires in reference to the powers of legislation which are granted by the Constitution to the particular legislature. If the law made by a particular legislature exceeds the authority of the power given to it by the Constitution, such law would be ultra vires and invalid. That is the normal thing that happens in all federal constitutions. Every law in a federal constitution, whether made by the Parliament at the Centre or made by the legislature of a State, is always subject to examination by the judiciary from the point of view of the authority of the legislature making the law. The ‘due process’ clause, in my judgment, would give the judiciary the power to question the law made by the legislature on another ground. That ground would be whether that law is in keeping with certain fundamental principles relating to the rights of the individual…” (emphasis supplied) G The above discussion vividly expounds that the makers of the Constitution expressly rejected the incorporation of a due process clause.

141Copy pinpoint141. The express deletion of “due process” from the draft Constitution and replacement thereof by “procedure established by law” 244 Constituent Assembly Debates Vol. VII (4.11.1948 – 8.1.1949) H

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as noted by Jurist Granville Austin, is adverted to by this Court in K.S. A Puttaswamy(I)245 thus: “276. The third major change which the Constituent Assembly made was that the phrase “due process of law” was deleted from the text of the draft Constitution. Following B.N. Rau’s meeting with Justice Frankfurter, the Drafting Committee deleted the phrase B “due process of law” and replaced it with “procedure established by law”. Granville Austin refers to the interaction between Frankfurter and B.N. Rau and the reason for the deletion [Granville Austin, The Indian Constitution : Cornerstone of a Nation (Oxford University Press, 1966) at p. 103.] : C “Soon after, Rau began his trip to the United States, Canada, Eire, and England to talk with justices, constitutionalists, and statesmen about the framing of the Constitution. In the United States he met Supreme Court Justice Felix Frankfurter, who told him that he considered the power of judicial review implied in the due process clause both undemocratic—because a few D Judges could veto legislation enacted by the representatives of a nation—and burdensome to the Judiciary. Frankfurter had been strongly influenced by the Harvard Law School’s great constitutional lawyer, James Bradley Thayer, who also feared that too great a reliance on due process as a protection against legislative oversight or misbehaviour might weaken the democratic process. Thayer’s views had impressed Rau even before he met Frankfurter. In his Constitutional Precedents, Rau had pointed out that Thayer and others had ‘drawn attention to the dangers of attempting to find in the Supreme Court— instead of in the lessons of experience—a safeguard against the mistakes of the representatives of people’.”

142Copy pinpoint142. Further, the whole idea of due process was meant to safeguard personal liberties of individuals by ensuring that the process to be used for taking away such liberty complies with certain standards. It was never meant to be used to circumscribe or to questionthe administrative decisions by applying higher bench mark than the statutory defined/ articulated obligations. This is not to say that administrative action was left unchecked by the Constitution. The Constitution provides for a scheme wherein “law” is made subject to all the provisions of Part-III 245 (supra at 79) H

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