RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & ORS

A depending on the nature of action and nature of consequence on the rights. The test of nature of action and nature of consequence is essential to determine the nature of remedy that the Constitution can offer. For this purpose, a line must be drawn between executive action which has a direct bearing on personal liberty of individual; and executive action which comprises of ministerial/administrative functions with no direct impact on individual liberties.

143Copy pinpoint143. The distinction is relevant to highlight a crucial aspect of the growth of constitutional law in India. As regards individual liberties, we have witnessed a wholehearted and rather expansive approach by the Court. One would note that it was during the review of an administrative action with bearing on personal liberty that this Court mandated the procedure in “procedure established by law” to be just, fair and non- arbitrary, as distinguished from fanciful, arbitrary and oppressive in Maneka Gandhi246. With unwinding of time, dimensions came to be added to increase the fairness of procedure so as to make it more exacting for the executive to put curbs on personal liberty of an individual. In Mithu v. State of Punjab247and Sunil Batra248, standards of fairness and non-arbitrariness were held to inform the word “law” as well in the phrase “procedure established by law” because individual liberties were at stake. In Sunil Batra249, Desai J. noted in para 228 thus: E “228. ... The word “Law” in the expression “procedure established by law” in Article 21 has been interpreted to mean in Maneka Gandhi case that the law must be right, just and fair, and not arbitrary, fanciful or oppressive. Otherwise it would be no procedure at all and the requirement of Article 21 would no be satisfied. If it is arbitrary it would be violative of Article 14...” F However, in Rajbala and Ors. v. State of Haryana and Ors.250,this Court succinctly observed about the non-existence of the doctrine of substantive due process in the Indian Constitution thus: “64. From the above extract from McDowell & Co. case [State G of A.P. v. McDowell & Co., (1996) 3 SCC 709, para 43] it is clear that courts in this country do not undertake the task of 246 (supra at 209) 247 (1983) 2 SCC 277 248 (supra at 128) 249 (supra at 128) 250 H (2016) 2 SCC 445

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 393 ORS. [A. M. KHANWILKAR, J.]

declaring a piece of legislation unconstitutional on the ground that the legislation is “arbitrary” since such an exercise implies a value judgment and courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution. To undertake such an examination would amount to virtually importing the doctrine of “substantive due process” employed by the American Supreme Court at an earlier point of time while examining the constitutionality of Indian legislation. As pointed out in the above extract, even in United States the doctrine is currently of doubtful legitimacy. This Court long back in A.S. Krishna v. State of Madras, AIR 1957 SC 297 C declared that the doctrine of due process has no application under the Indian Constitution [Municipal Committee, Amritsar v. State of Punjab, (1969) 1 SCC 475]. As pointed out by Frankfurter, J., arbitrariness became a mantra. (emphasis supplied) D In K.S. Puttaswamy (I)251, the Court was more categorical in noting the dichotomy between these two expressions and observed thus: “290. The constitutional history surrounding the drafting of Article 21 contains an abundant reflection of a deliberate and studied decision of the Constituent Assembly to delete the expression “due process of law” from the draft Constitution when the Constitution was adopted. In the Constituent Assembly, the Drafting Committee chaired by Dr. B.R. Ambedkar had included the phrase but it came to be deleted after a careful evaluation of the vagaries of the decision-making process in the US involving interpretation of the due process clause. Significantly, present to the mind of the Framers of our Constitution was the invalidation of social welfare legislation in the US on the anvil of the due process Clause on the ground that it violated the liberty of contract of men, women and children to offer themselves for work in a free market for labour. This model evidently did not appeal to those who opposed the incorporation of a similar phrase into the Indian Constitution ....” (emphasis supplied) 251 (supra at 79) H

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A It further noted the dangers of construing substantive due process as a rigid principle of constitutional interpretation in India and vagaries associated with it thus: “296. The danger of construing this as an exercise of “substantive due process” is that it results in the B incorporation of a concept from the American Constitution which was consciously not accepted when the Constitution was framed. Moreover, even in the country of its origin, substantive due process has led to vagaries of judicial interpretation. Particularly having regard to the constitutional history surrounding the deletion of that phrase in our Constitution, C it would be inappropriate to equate the jurisdiction of a constitutional court in India to entertain a substantive challenge to the validity of a law with the exercise of substantive due process under the US Constitution. Reference to substantive due process in some of the judgments is essentially a reference to a substantive challenge D to the validity of a law on the ground that its substantive (as distinct from procedural) provisions violate the Constitution.” (emphasis supplied)

144Copy pinpoint144. Therefore, the trajectory of our jurisprudence in review of matters involving personal liberties has been one of strict approaches. It E is, however, a misnomer to propagate that we have gradually transformed from chosen “procedure established by law” into once consciously rejected “due process of law”. Indisputably, we are not dealing with a matter of personal liberty per se. The petitioners, despite their best of efforts, have not been able to demonstrate a case of deprivation of life or personal liberty of any individual on account of any of the impugned executive action. Whereas, it is essential for the petitioners to demonstrate a real and direct impact or restriction on their core fundamental rights due to the impugned executive action to invoke the due process argument. A cause-effect relationship is essential. Only then the burden would shift on the State to either show the absence of restrictions or justification of restrictions within the permissible exceptions of Part-III.

145Copy pinpoint145. Concededly, we are sitting in review of the process of an administrative or so to say quasi legislative action which falls in the latter category, namely, with no direct impact on personal liberties as such. A H judicial review is an exercise in reference to some existing rights and the

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 395 ORS. [A. M. KHANWILKAR, J.]

reliefs and remedies prayed for. The Rule of Law, as accepted and settled in India, with regard to judicial interference in administrative and executive or policy matters is no more res integra. The duty enjoined upon the judiciary is to ensure checks and balances; and to place itself between the Government and citizens when they come face to face in a Court of law. It is meant to act as an equaliser and ensure that the flow of decisions from executive to citizens is overseen through the prism of well-established principles, as and when called upon to do so. The judicial organ is not meant to impose the citizens’ or even its own version of good governance upon the Government in the name of Rule of Law in exercise of its power of judicial review.

146Copy pinpoint146. In Chief Constable of the North Wales Police v. Evans252, C Lord Brightman very succinctly observed thus: “Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.” D Benjamin Cardozo, in his seminal work “TheNature of the Judicial Process” elaborated as to how a Judge derives his strength from hallowed principles thus: “… The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to “the primordial necessity of order in the social life.” Wide enough in all conscience is the field of discretion that remains…253.” In Reliance Airport Developers254, this Court discussed the scope of judicial review in administrative action and noted thus: “56. One of the points that falls for determination is the scope for judicial interference in matters of administrative decisions. G Administrative action is stated to be referable to broad area of 252 [1982] 1 WLR 1155 253 The Nature of the Judicial Process, Benjamin Cardozo, New Haven: Yale University Press, 13 th Edn. 1946 pg. 141 254 (supra at 188) H

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A governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi- legislative and quasi-judicial nature. It is trite law that exercise of power, whether legislative or administrative, will be set aside if there is manifest error in the exercise of such power or the exercise of the power is manifestly arbitrary (see State B of U.P. v. Renusagar Power Co. [(1988) 4 SCC 59 : AIR 1988 SC 1737] ). At one time, the traditional view in England was that the executive was not answerable where its action was attributable to the exercise of prerogative power. Professor de Smith in his classic work Judicial Review of Administrative Action, 4th Edn. C at pp. 285-87 states the legal position in his own terse language that the relevant principles formulated by the courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictates of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion, it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. …” F (emphasis supplied) The Court then summed up the principles into two broad categories thus: “56. …These several principles can conveniently be grouped in two main categories: (i) failure to exercise a discretion, and (ii) G excess or abuse of discretionary power. The two classes are not, however, mutually exclusive. Thus, discretion may be improperly fettered because irrelevant considerations have been taken into account, and where an authority hands over its discretion to another body it acts ultra vires.” H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 397 ORS. [A. M. KHANWILKAR, J.]

The Court further added the grounds of non-application of mind to relevant factors and non-existence of facts and noted thus: “57. ...If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated ...” In Council of Civil Service Unions255, Lord Diplock attempted to sum up the grounds of judicial review of administrative action under three broad heads and noted thus: C “… Judicial review has I think developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call D ‘illegality’, the second ‘irrationality’ and the third ‘procedural impropriety’. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ‘proportionality’ which is recognised in the administrative law of several of our fellow E members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.” (emphasis supplied) F Apart from noting that judicial review is warranted only in cases of illegality, irrationality and procedural impropriety, Lord Diplock prophetically noted that the categories of review could not be exhaustive in a society where administrative action is making inroads in all spheres of human activity and that “proportionality” could emerge as yet another ground of review in future. G

147Copy pinpoint147. This Court succinctly summed up the position in Tata Cellular v. Union of India256 and observed thus: 255 (supra at 181) 256 (1994) 6 SCC 651 H

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A “94. The principles deducible from the above are: (1) The modern trend points to judicial restraint in administrative action. (2) The court does not sit as a court of appeal but merely reviews the manner in which the decision was made. B (3) The court does not have the expertise to correct the administrative decision. If a review of the administrative decision is permitted it will be substituting its own decision, without the necessary expertise which itself may be fallible.

C …” (emphasis supplied)

148Copy pinpoint148. We must note that the scope, operation and extent of judicial review is dependent upon the nature of subject matter that a Court is dealing with. A constitutional Court cannot devise a uniform standard of interference particularly when nature of administrative action may involve expediency (in relative terms) in execution depending on the subject matter. In Council of Civil Service Unions257, Lord Scarman observed thus: “… Just as ancient restrictions in the law relating to the prerogative writs and orders have not prevented the courts from extending the requirement of natural justice, namely the duty to act fairly, so that it is required of a purely administrative act, so also has the modern law, a vivid sketch of which my noble and learned friend Lord Diplock has included in his speech, extended the range of judicial review in respect of the exercise of prerogative power. F Today, therefore, the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its subject matter.” (emphasis supplied)

149Copy pinpoint149. Graham Aldus and John Alder in their book “Applications for Judicial Review, Law and Practice”, as relied upon by the Court in Reliance Airport Developers258, have identified two categories of national security and foreign affairs to demonstrate how judicial review 257 (supra at 181) 258 H (supra at 188)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 399 ORS. [A. M. KHANWILKAR, J.]

can be restricted/moulded in light of the subject matter before the Court A in following words: “57. …..There is a general presumption against ousting the jurisdiction of the courts, so that statutory provisions which purport to exclude judicial review are construed restrictively. There are, however, certain areas of B governmental activity, national security being the paradigm, which the courts regard themselves as incompetent to investigate, beyond an initial decision as to whether the Government’s claim is bona fide. In this kind of non-justiciable area judicial review is not entirely excluded, but very limited. It has also been said that powers conferred by the Royal Prerogative C are inherently unreviewable but since the speeches of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service [1985 AC 374 : (1984) 3 WLR 1174 (HL) : (1984) 3 All ER 935] this is doubtful. Lords Diplock, Scaman and Roskili appeared to agree that there is no general distinction between powers, based upon whether their source is statutory or prerogative but that judicial review can be limited by the subject- matter of a particular power, in that case national security. Many prerogative powers are in fact concerned with sensitive, non- justiciable areas, for example, foreign affairs, but some are reviewable in principle, including the prerogatives relating to the civil service where national security is not involved. Another non- justiciable power is the Attorney General’s prerogative to decide whether to institute legal proceedings on behalf of the public interest.” (emphasis supplied) F

150Copy pinpoint150. It is noteworthy that even in R v. Secretary of State for the Home Department, Ex Parte Daly259, a case wherein Lord Cooke criticised the Wednesbury decision by stating that it heavily restricts the power of judicial review of a court by targeting only those actions which can be termed as extremely unreasonable, he made it a point to G categorically note that calling for a detailed judicial review can never be understood to translate it into a merit review of the administrative action. He observed thus:

259 (supra at 184) H

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A “[28] The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell has B pointed out, the respective roles of judges and administrators are fundamentally distinct and will remain so (see [2000] PL 671 at 681). To this extent the general tenor of the observations in R (Mahmood) v Secretary of State for the Home Dept [2001] 1 WLR 840 are correct. And Laws LJ (at 847 C (para 18)) rightly emphasised in Mahmood’s case ‘that the intensity of review in a public law case will depend on the subject matter in hand’. That is so even in cases involving Convention rights. In law context is everything.” (emphasis supplied)

151Copy pinpoint151. We may usefully borrow the dictum of Frankfuter, J. in Morey, Auditor of Public Accounts of Illinois Et. Al. v. Doud Et. Al. 260, noted with approval by this Court in R.K. Garg261 – “that the Courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, E the bewildering conflict of the experts, and the number of times the Judges have been overruled by events – self limitation can be seen to be the path of judicial wisdom and institutional prestige and stability.” In Premium Granites262, even this Court restated that it is not the domain of the Courts to embark upon unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a F better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative authorities, as the case may be. The Court may interfere only when the case involves infringement of fundamental rights guaranteed by the Constitution or any other statutory right.

152Copy pinpoint152. A priori, the prescription of procedure to be deployed by the administration in taking their decisions in the ordinary course of their business is not for the Court to decide. More particularly, in cases where 260 354 US 457 (1957) 261 (supra at 168) 262 H (supra at 169)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 401 ORS. [A. M. KHANWILKAR, J.]

decisions are taken in tune with a duly enacted statutory scheme, it is A not open to a Court of law to disregard the same on the specious reasoning that the governing statutory scheme is deficient for the nature of or significance of the project. Even if a Court finds it debatable, that can be no ground for the Court to quash an action taken strictly in accord with the prescribed procedure. B

153Copy pinpoint153. Indubitably, Rule of Law is based on the concept of “expository jurisprudence” which requires exposition of contents of actual legal system as it exists263. To say that in a given case the statutory scheme laying down the procedure is not good enough and a new standard of democratic due process ought to have been deployed by the executive would be a classic way of abjuring the principle of Rule of Law which C requires consistency and uniformity of approach by one and all and in particular, by a judicial forum. In matters which may appear to be wholesome for accomplishing ideals of administrative efficiency including democratisation of the decision-making process, even if a Court is of the opinion that a different procedure (in addition to the statutory scheme) D would be more just and appropriate, it may not attempt to implement its ideal by way of judicial review, much less to strike it down264. In a judicial review, we do not sit in a discussion on idealism in Government actions, rather, our domain is to examine its legality on the touchstone of constitutional values and the procedure prescribed by law in that regard. E

154Copy pinpoint154. The import of an expression like democratic due process in an administrative matter is fraught with at least three serious consequences – first, in a manner of speaking non-enforcement of a statutory process without any declaration of its invalidity; second, import of a process which is not “due” as per the prescribed law but is deemed to be due as per the subjective notions of the Court (or if we may borrow the exposition of Mr. Alladi Krishnaswami Ayyar – three gentlemen or five gentlemen sitting as a Court deciding or accepting an argument against the expressed wishes of the legislature or the action of an executive responsible to the legislature); and third, withdrawing the task of governance from the democratically elected representatives including the executive thereby creating an illusory bar on the exercise of their power to function freely despite being within the four corners of the law. 263 Black’s Law Dictionary, 11 th Edition (Page 726) 264 [see: Joseph Antony (supra) – para 14 and State of M.P. v. Narmada Bachao Andolan (supra) – paras 36 and 37] H

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155Copy pinpoint155. We must note that neither the principle of Rule of Law nor of judicial review envisage such a scenario. Justice J.C. Shah, in his published lecture on “The Rule of Law and the Indian Constitution” rightly noted that: “The Rule of Law in a democratic society may, in its ultimate analysis, be reduced to the following broad propositions:- (1) Without regard to the content of the law, all power in the State is derived from and must be exercised in accordance with the law. (2) The law itself is based on the supreme value of the human personality. For that purpose (a) protection of the individual’s rights is secured through the medium of an impartial judicial authority. By judicial it is not meant that the authority must have the paraphernalia of a trial in a civil court. An administrative tribunal infused with the requisite qualities for competently performing its functions consistently with the basic norms of the judicial process, acts judicially. When the tribunal departs from the basic norms of the judicial process or is swayed by irrelevant considerations or objects, the Rule of Law is violated; (b) the law must be designed to ensure for the individual equality of status and opportunity, in fields social, political and economic, and provide environment for development of his special forte and his capacities.265" (emphasis supplied)

F Thus, to add subjective notions of the Court in statutory processes would be antithetical to the fundamental tenet of Rule of Law which requires “all power in the State” to be exercised in accordance with the procedure established by law.

156Copy pinpoint156. Another dimension to be kept in mind is the factum of subjective satisfaction of the executive. The law regarding the involvement G of constitutional Courts in public interest in cases involving subjective satisfaction is well settled. The interference of Courts is neither warranted to look into the quality of material relied upon by the Government to approach a decision nor to adjudicate upon the sufficiency of such 265 published in 1972 at Bombay, pp. 24-25 H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 403 ORS. [A. M. KHANWILKAR, J.]

material. These matters are of a subjective character and if legislature permits subjective powers on one organ of the State, the other (in the name of judicial review) is not expected to substitute its own subjective opinion in its place. The sole concern of the Court is to look at the relevancy of the material relied upon to take a decision in order to see that the decision is not devoid of application of mind. It is based on the basic idea that the structure of a subjective decision stands on the foundation of objective reasons. The Court may interfere when a decision is devoid of any reason or affected by malafides or when the decision is reached in the aftermath of statutory violations. In Barium Chemicals266, the Court while dealing with an order in the exercise of statutory powers, adverted to the exposition of Privy Council and observed thus: “(60) ...Even if it is passed in good faith and with the best of intention to further the purpose of the legislation which confers the power, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation ...” This decision delineates the contours of judicial review, such as: E (i) The formation of the opinion/satisfaction by the Government was a purely subjective process and such an opinion could not be challenged on the ground of propriety, reasonableness or sufficiency; (ii) However, the subjective opinion/satisfaction of the F Government is required to be arrived at based on facts/ circumstances, which the Government must be able to objectively establish to exist; (iii) Mala fides, fraud or corruption would vitiate the formation of the opinion/satisfaction; and G (iv) If the opinion/satisfaction was reached in good faith it was immune from judicial review unless: (a) it was shown that the objective facts/ circumstances did not exist; or 266 (supra at 158) H

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A (b) it was impossible for anyone to form the opinion/ satisfaction based on those facts/circumstances, for then the Government’s opinion could be challenged on the ground of non-application of mind or perversity or on the ground that it was formed on grounds extraneous to the legislation and was beyond the scope of the statute. The aforesaid principles are restated in Rohtas Industries267 wherein this Court noted thus: “11. …For the reasons stated earlier we agree with the conclusion reached by Hidayatullah and Shelat, JJ. in Barium Chemicals case that the existence of circumstances suggesting that the company’s business was being conducted as laid down in sub-clause(1) or the persons mentioned in sub-clause (2) were guilty of fraud or misfeasance or other misconduct towards the company or towards any of its members is a condition precedent for the Government to form the required opinion and if the existence of those conditions is challenged, the courts are entitled to examine whether those circumstances were existing when the order was made. In other words, the existence of the circumstances in question are open to judicial review though the opinion formed by the Government is not amenable to review by the courts. As held earlier the required circumstances did not exist in this case.” (emphasis supplied)

157Copy pinpoint157. Be it noted that the Constitution provides an effective mechanism to review the law itself under which administrative power is being exercised. For, the “law” in the expression “Rule of Law” must be good law within the realm of the Constitution. Arguendo, if the law itself is challenged and consequently struck down, there would be no occasion for the Court to enforce such law and in the absence of law, the Court might be in a position to venture into areas of arbitrariness, justness and equity, so as to do complete justice in the cause before it. Such power is well ingrained in Article 142. However, in the absence of any challenge to an existing law enacted by the legislature prescribing the procedure, all actions taken thereunder and in substantial compliance thereof must continue to be valid and the Court would be duty bound to give true 267 H (supra at 159)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 405 ORS. [A. M. KHANWILKAR, J.]

effect to it. In the present case, none of the enacted (statutory) procedures is subject matter of assail.

158Copy pinpoint158. In India, what prevails is the “constitutional due process” i.e., the process which is due under the constitutional scheme. And what is due, as exposited above, is a principled judicial review wherein a “check” is maintainable without tilting the “balance”. For, all organs of the state are constitutionally committed to and beholden by the common goal of giving effect to processes and procedure established by law, ideals, expectations, rights and duties due under the Constitution and no deviation can be permitted therefrom. We must, however, make it clear that we do not mean to signify a conflict between the concept of democratic due process, as envisaged by the petitioners and constitutional due process, as exposited by us. NEED FOR HEIGHTENED JUDICIAL REVIEW

159Copy pinpoint159. The petitioners have argued at length as to why the present case calls for a heightened judicial review. The underlying idea is not restricted to the aforesaid settled principles of judicial review in administrative decisions. The argument essentially stems from the principle of constitutionalism which informs all spheres of public activity. We are compelled to wonder as to what could be the circumstances, if at all any, wherein the Court not only surpasses the boundaries reserved for its oversight in the Constitution but also provides it an express recognition by acknowledging a heightened review. Would it be justified for the Court to innovate and elevate the standard of review after a decision has already been taken by the executive in accordance with the procedure established by law, in pursuance of a policy? If yes, what would be the basis or benchmark for the Court to identify the subject matters wherein such innovation or elevation is permissible?

160Copy pinpoint160. The petitioners contend that standards may be heightened only for this project which is a sui generis one. Even the respondents have at one stage called for a sui generis treatment for this project. We must note at the very outset that we are impressed with none. To consider G a particular subject matter as sui generis in common parlance is one thing, but to accord something with that character in a judicial proceeding is an altogether different thing. Concededly, exposition of any such jurisprudence would be fraught with unforeseen consequences and replete with uncertainties. Whether a particular development project calls for H

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A urgency or deserves special treatment or requires maximum attention of the Government or is to be deferred for budgetary reasons or requires authority ‘A’ to initiate the proposal and not authority ‘B’, is a matter of policy decision of the executive. Moreover, there is absolutely no legal basis to “heighten” the judicial review by applying yardstick beyond the statutory scheme and particularly when the Government has accorded no special status to the project and has gone through the ordinary route of such development projects as per law.

161Copy pinpoint161. In a given project, the Government may well accord a sui generis status in its subjective wisdom provided it does not deviate from the prescribed procedural standards. Once the Government decides to construct a new space for its sitting or to construct a highway or water dam or school or university and follows the procedure prescribed under law commensurate with the nature of project, then the Court cannot act as a multiplier of regulations and add its own notion as to what ought to be additional essential procedure for going ahead with a particular project. D When a legislature, in its wisdom, decides to enact a legal framework, it is expected to and must be so presumed that it has undertaken a thorough analysis as regards the involvement of stakeholders – experts and non- experts, institutions, procedures, timelines for approval, intra-departmental appeals, inter-department appeals etc. A Court sitting in review does not have this machinery available before it and the Constitution never wanted it to do so. Therefore, when a review is brought before the Court, it cannot choose to adopt a different (or the so-called heightened) approach for reviewing the administrative process involved in reference to a particular project. The role of Court is well defined and it must not leave the administration to grapple with multiplicity of alternate opinions by stepping into the shoes of policymakers.

162Copy pinpoint162. A policy decision goes through multiple stages and factors in diverse indicators including socio-economic and political justice, before its final culmination. As per the nature of the project, the Government executes the project by taking certain steps – legislative, administrative etc. - and it is this which comes under the radar of the Court. The G increasing transparency in Government functioning by means of traditional and modern media is reducing the gap between citizens and Government and Government actions are met with a higher level of scrutiny on a real-time basis.

163Copy pinpoint163. In a democracy, the electors repose their faith in the elected H Government which is accountable to the legislature and expect it to adopt

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the best possible course of action in public interest. Thus, an elected A Government is the repository of public faith in matters of development. Some section of the public/citizens may have another view point if not complete disagreement with the course of action perceived by the elected Government, but then, the dispensation of judicial review cannot be resorted to by the aggrieved/dissenting section for vindication of their B point of view until and unless it is demonstrated that the proposed action is in breach of procedure established by law or in a given case, colourable exercise of powers of the Government. Therefore, it is important for the Courts to remain alive to all the attending circumstances and not interfere merely because another option as in the perception of the aggrieved/ dissenting section of public would have been a better option. C

164Copy pinpoint164. As noted earlier, the Courts do not sit in appeal over the decisions of the Government to do merit review of the subjective decision as such. In Natural Resources Allocation268, this Court noted that Government decisions concerning public resources have an “intricate economic value” attached with them and to elevate the standard of review D on the basis of a subjective understanding of the subject matter being extraordinary would be dehors the review jurisdiction. In Narmada Bachao Andolan v. Union of India269, this Court observed that: “229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. E Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people’s F fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if G challenged after its execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and 268 (supra at 101) 269 (supra at 132) H

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A could have approached the court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them.” (emphasis supplied)

165Copy pinpoint165. The Government may examine advantages or disadvantages of a policy at its own end, it may or may not achieve the desired objective. The Government is entitled to commit errors or achieve successes in policy matters as long as constitutional principles are not violated in the process. It is not the Court’s concern to enquire into the priorities of an elected Government. Judicial review is never meant to venture into the mind of the Government and thereby examine validity of a decision. In Shimnit Utsch India270, this Court, in para 52, observed thus: “52. … The courts have repeatedly held that the government policy can be changed with changing circumstances and only on the ground of change, such policy will not be vitiated. The Government has a discretion to adopt a different policy or alter or change its policy calculated to serve public interest and make it more effective. Choice in the balancing of the pros and cons relevant to the change in policy lies with the authority. But like any discretion exercisable by the Government or public authority, change in policy must be in conformity with Wednesbury [Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] reasonableness and free from arbitrariness, irrationality, bias and malice.” (emphasis supplied) F In State of Madhya Pradesh v. Narmada Bachao Andolan271, the Court was dealing with an issue of rehabilitation of persons displaced due to the construction of the dam. It went on to observe that judicial interference in a policy matter is circumscribed, in the following words: “36. The Court cannot strike down a policy decision taken G by the Government merely because it feels that another decision would have been fairer or more scientific or logical or wiser. The wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies 270 (supra at 133) 271 H (supra at 134)

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37. Thus, it emerges to be a settled legal proposition that the Government has the power and competence to change the policy on the basis of ground realities. A public policy cannot be challenged through PIL where the State Government is competent to frame the policy and there is no need for anyone to raise any grievance even if the policy is changed. The public policy can only be challenged where it offends some constitutional or statutory provisions.” (emphasis supplied)

166Copy pinpoint166. In Tata Iron & Steel272, in paragraph 68, the Court noted that whenever the issues brought before the Court are intertwined with those involving determination of policy and a plethora of technical issues, the Courts are very wary and must exercise restraint and not trespass into policy-making. Similarly, in Narmada Bachao Andolan v. Union of India273, in paragraph 228, the Court noted that a project may be executed departmentally or by an outside agency as per the choice of the Government, whilst ensuring that it is done according to some procedure or set manner. Further, the Court should be loath to assume that the authorities will not function properly and that the Court should have no role to play. Later in 2007, the Court restated the position in Directorate of Film Festivals274, as follows: F

16. The scope of judicial review of governmental policy is now well defined. Courts do not and cannot act as Appellate Authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive on matters of policy which the executive is G entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions 272 (supra at 139) 273 (supra at 132) 274 (supra at 135) H

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A of the Constitution, or opposed to any statutory provision or manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of the policy, and not the wisdom or soundness of the policy, is the subject of judicial review (vide Asif Hameed v. State of J&K [1989 Supp (2) SCC B 364], Sitaram Sugar Co. Ltd. v. Union of India [(1990) 3 SCC 223], Khoday Distilleries Ltd. v. State of Karnataka [(1996) 10 SCC 304], BALCO Employees’ Union v. Union of India [(2002) 2 SCC 333], State of Orissa v. Gopinath Dash [(2005) 13 SCC 495] and Akhil Bharat Goseva Sangh (3) v. State of A.P. [(2006) C 4 SCC 162)]. (emphasis supplied)

167Copy pinpoint167. To sum up the above discussion, it may be noted that judicial review primarily involves a review of State action – legislative, executive, administrative and policy. The primary examination in a review of a D legislative action is the existence of power with the legislature to legislate on a particular subject matter. For this purpose, we often resort to doctrines of pith and substance, harmonious construction, territorial nexus etc. Once the existence of power is not in dispute, it is essentially an enquiry under Article 13 of the Constitution which enjoins the State to not violate any of the provisions of Part-III in a law-making function. The review of executive action would depend upon the precise nature of the action. For, the domain of executive is wide and is generally understood to take within its sweep all residuary functions of the State. Thus, the precise scope of review would depend on the decision and the subject matter. For instance, an action taken under a statute must be in accordance with the statute and would be checked on the anvil of ultra vires the statutory or constitutional parameters. The enquiry must also ensure that the executive action is within the scope of executive powers earmarked for State Governments and Union Government respectively in the constitutional scheme. The scope of review of a pure administrative action is well settled. Since generally individuals are directly involved in such action, the Court concerns itself with the sacred principles of natural justice – audi altrem partem, speaking orders, absence of bias etc. The enquiry is also informed by the Wednesbury principles of unreasonableness. The review of a policy decision entails a limited enquiry. As noted above, second guessing by the Court or substitution of H

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judicial opinion on what would constitute a better policy is strictly excluded from the purview of this enquiry. Under the constitutional scheme, the government/executive is vested with the resources to undertake necessary research, studies, dialogue and expert consultation and accordingly, a pure policy decision is not interfered with in an ordinary manner. The burden is heavy to demonstrate a manifest illegality or arbitrariness or procedural lapses in the culmination of the policy decision. However, the underlying feature of protection of fundamental rights guaranteed by the Constitution must inform all enquiries of State action by the constitutional Court. CONSTITUTIONALISM C

168Copy pinpoint168. The principle of constitutionalism has been deployed by the petitioners to justify the alteration of aforesaid standards. The ideal of constitutionalism finds place in almost every constitutional discourse involving the state and the citizen and we need to reflect upon this ideal in the context in which it appears. “Constitutionalism”, as an expression of political theory, holds the distinction of receiving diverse meanings and unlike most other concepts, the meanings are fundamentally distinct and inexplicable beyond the specific context in which they are used. The need for understanding this principle in its correct terminology gets multiplied in a country with a written Constitution. What, then, is the role of the principle of constitutionalism for a Court of law performing functions under the umbrella of a written Constitution?

169Copy pinpoint169. A peculiar feature of the usage of this expression in constitutional matters is that one side tries to project it as an independent substantive rule, as opposed to it being a mere force behind the rule, and the other side brushes it down as a redundant theoretical concept. We F must note that the true import of constitutionalism cannot be understood by treating it as a standalone concept of judicial application. Jurists across the world have given different meanings to this word. Whereas some have associated it with fundamental concepts of Rule of Law and judicial review as envisaged in the Constitution, others have considered it as a radical idea for transforming the Constitution over and above its true G import. For some, judicial supremacy over functioning of executive and legislature is considered as essential to constitutionalism. For others, like Prof. Barendt275, the ideal of separation of powers is the essence of 275 E Barendt, An Introduction to Constitutional Law, (Clarendon Press, Oxford 1998), pg. 6 H

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A constitutionalism. Building upon the subjectivity of this concept, Jo Eric Khushal Murkens, in “The Quest for Constitutionalism in UK Public Law Discourse” notes that the substantive content of any constitutional discourse is not likely to change due to this principle thus: “… Every scholar above is able to convey her message (the B substantive concept of the rule of law, the legitimacy of government action, and the core institutional values) without requiring recourse to constitutionalism. In other words, if constitutionalism were eliminated from constitutional discourses, their substantive content would remain unchanged.276” C (emphasis supplied)

170Copy pinpoint170. Constitutionalism, therefore, is a relative concept which envisages a constitutional order wherein powers and limits on the exercise of those powers are duly acknowledged. It is a tool which is used to reach upto the ultimate goal of constitutionalization of governance and it D cannot be deployed to present an alternative model of governance. We must state that it would not only be absurd but also fraught with dangers of overreach and ambiguity if subjective principles of interpretation are applied by detaching them from the textual scheme of the Constitution, particularly when the textual scheme lays down an elaborate structure of administration. For, to do so would be to drag a duly elected Government E on the edges as it would be under a constant fear of being adjudged wrong on the basis of undefined principles which appeal to “three gentlemen or five gentlemen sitting as a Court”. And what will suffer is public interest in the form of public exchequer including sovereignty of the nation.

171Copy pinpoint171. In this regard, we must recall the enunciation of this Court in Keshavan Madhava Menon277, wherein it is observed that an argument on what is claimed to be the spirit of the Constitution is always attractive, for it has a powerful appeal to sentiments and emotion; but a Court of law has to gather the spirit of the Constitution from the language of the G Constitution. For, one may believe or think to be the spirit of the Constitution cannot prevail if the language of the Constitution does not support that view.

276 The Quest for Constitutionalism in UK Public Law Discourse, Jo Eric Khushal Murkens, Oxford Journal of Legal Studies, Vol. 29, pg. 446 277 H (supra at 130)

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172Copy pinpoint172. To conclude, the principle of constitutionalism is a work in A progress which is meant to infuse life and blood into an existing scheme which has stood the test of constitutional validity and not to nudge with the scheme itself. It may only be deployed to evolve minimum standards of procedures prescribed by law. It is not to undermine or supplant the elaborate statutory regulatory schemes. B PARTICIPATORY DEMOCRACY IN INDIA

173Copy pinpoint173. An argument has been advanced as regards the absence of sufficient public participation in the entire process. It stems from the understanding that India is a participatory democracy. Thereby citizens’ participation must be provisioned at all stages of decision making. Rarely C do we come across instances when the very nature of democracy in a country becomes a subject of debate in an administrative review action. It is, however, important to take this debate to a logical end, as enforceable participatory rights are alleged to flow from the nature of democracy. The question essentially is about the meaning of the phrase “rule by the people” as used in understanding the meaning of democracy. D

174Copy pinpoint174. Tracing the origin of mode of governance in India, one would invariably note that we have traversed a long journey beginning with the Indian Councils Act, 1861278. After the First War of Independence in 1857, Viceroy’s Legislative Council was opened up to include “non- official” members for the first time, however, there was no representative E character in the members. The limitations of this Council were noted by Mr. S.P. Verma in “Parliamentary Democracy in India – The Genesis” and the same is relevant to understand the journey of Parliamentary system in India: “…The functions of the Legislative Council at this time were of a F very limited nature. ‘It would meet only for legislative purposes and its members would have the right to speak only on some definite legislative projects. They would have no right to put questions to the members of the government and demand answers thereto. Nor would they have authority over the finances of the Government’279.” G It was followed by Indian Councils Act, 1892280 whereby indirect elections were introduced and members of local bodies were empowered 278 For short, “the 1861 Act” 279 Parliamentary Democracy in India (Ist Edn., 1987), pg. 5 280 For short, “the 1892 Act” H

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A to recommend members for the legislature. Mr. K. Raghu Ram Reddy, in “Roots of Parliamentary System in India”, noted the objects of this Act of which the relevant extract reads thus: “... “to widen the basis and expand the functions of the government of India, and to give further opportunities to the non-official and B native elements in Indian society to take part in the work of the government.””281 However, the same was not acceptable to the members of Indian National Congress and this disappointment came out in the words of Sir Chettur Sankaran Nair, a leading jurist and Congress President in 1897 session. He said thus: C “From our earliest school days the great English writers have been our classics. Englishmen have been our professors in colleges. English history is taught in our schools. We live now the life of the English. To deny us the freedom of the press; to deny us representative institutions, England will have to ignore those very principles for which the noblest names in her history toiled and bled.282” (emphasis supplied) A very significant takeaway from the aforesaid observation is that Sir Sankaran propagated what Indian freedom struggle was striving to achieve – representative institutions. The slow journey towards a democratic system then led to Indian Councils Act, 1909 283(popularly known as Morley-Minto Reforms) whereby elections were introduced for 32 non-official members out of total 68 members and representative element was introduced. Thereafter, the Government of India Act, 1919284 (in the aftermath of Montague-Chelmsford Reform) was introduced and this Act opened way for a representative democracy. On 20.8.1917, British Government made a declaration stating their policy. It read thus: “The policy of His Majestry’s Government with which the Government of India are in complete accord, is that of increasing the association of Indians in every branch of the administration and the gradual development of self-governing institutions with a view to the progressive 281 Parliamentary Democracy in India (Ist Edn., 1987), pg. 21 282 W.H. Morris Jones, Parliament in India (Philadelphia: University of California, 1957), pg. 83 283 For short, “the 1909 Act” 284 H For short, “the 1919 Act”

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realisation of responsible government in India as an integral part of the A British Empire.” The 1919 Act was considered as the threshold point of commencement of a parliamentary culture in India. Mr. Reddy says that it was an important beginning in the “sense of transfer of power to the people”. Afterwards, the Government of India Act, 1935285 was introduced which provided for greater right to vote and provincial autonomy with elected representatives in the provinces. The journey finally culminated in the Constituent Assembly when the members deliberated upon the question of the form of Government to be devised for independent India. The members were certain that a democracy is desirable, however, the exact shape that such democracy would take was not pre-decided, as perceivable from the words of Pandit Jawaharlal Nehru who said thus: “Whatever system of government we may establish here must fit in with the temper of our people and be acceptable to them.... We stand for democracy but what form of democracy, what shape it might take is another matter ... for this House to determine.286”

175Copy pinpoint175. In the Constituent Assembly, when the question of mode of governance came up for deliberation, many ambitious proposals were made by the members to suggest varying democratic structures. Few of such proposals suggested to bring in a clause for “recall” so as to enable the voters to vote out an elected member owing to poor performance. Proposals for a direct democracy were also placed for deliberation so as to establish a Government directly run by the people. The Assembly negatived all such proposals and adopted a representative model of democracy. It is useful to refer to the motion moved by Pandit Jawaharlal F Nehru on 21.7.1947 for the election of President. He said thus: “... Now Sir, one thing we have to decide at the very beginning is what should be the kind of governmental structure, whether it is one system where there is ministerial responsibility or whether it is the Presidential system as prevails in the United States of G America; many members possibly at first sight might object to this indirect election and may prefer an election by adult suffrage. We have given anxious thought to this matter and we came

285 For short, “the 1935 Act” 286 Parliamentary Democracy in India, V. Bhaskara Rao, B. Venkateswarlu, 1987, pg. 16 H

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A to the very definite conclusion that it would not be desirable, first because we want to emphasize the ministerial character of the Government that power really resided in the Ministry and in the Legislature and not in the President as such. At the same time we did not want to make the President just a mere figure-head like the French President. We did not give him any real power but we have made his position one of great authority and dignity. You will notice from this draft Constitution that he is also to be Commander-in-Chief of the Defence Forces just as the American President is. Now, therefore, if we had an election by adult franchise and yet did not give him any real powers, it might become slightly anomalous and there might be just extraordinary expense of time and energy and money without any adequate result. Personally, I am entirely agreeable to the democratic procedure but there is such a thing as too much of a democratic procedure and I greatly fear that if we have a wide scale wasting of the time, we might have no time left for doing anything else except preparing for the elections and having elections. We have got enough elections for the Constitution. We shall have elections on adult franchise basis for the Federal Legislature. Now if you add to that an enormous Presidential election in which every adult votes in the whole of E India, that will be a tremendous affair. In fact even financially it will be difficult to carry out and otherwise also it will upset most activities for a great part of the year. ....287” (emphasis supplied) The predicament exposited by him of preparing for the elections and having elections intermittently if not continually is so relevant even after passage of over 73 years.

176Copy pinpoint176. Be that as it may, we must note that our founding fathers were limpid about their vision for the nature of democracy we need to inherit. Further, the members of the Assembly were aware of challenges, particularly administrative challenges, that may fall in the way of efficiency of administration due to “too much of a democratic procedure”. Three days before the acceptance of the draft, on 23.11.1949, T.J.M. Wilson expressed a hope for increased public participation in future. He said thus: 287 H Constituent Assembly Debates Vol. IV (14.7.1947 – 31.7.1947)

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“The most elementary requisite of democracy is the right of every citizen to vote and we have provided for it in our Constitution. But even this was questioned by some of our friends on the ground that they are not sufficiently educated to carry on the Government of the country. Their contention is that only intellect is necessary for the Government of the country. But the conditions and also the philosophy have changed. Government also has changed— the Government is not something meta-physical or something mytic. Government has to deal today with the actual conditions of people and the needs of people, whether they are of food and cloth or of health and education and how can anybody else claim to know these needs of people better than the people themselves? Thought C is, of course necessary and intellect is really essential; but unless it is united with action, unless it is based upon the experience of the people, it will not achieve much. Therefore, the purpose of adult suffrage, the right of every person to vote is to bridge this gulf between action and thought. But is this right to vote once in five years enough? The essence of democracy is not so much the existence of what are called political parties, etc., but the essence of democracy is the effective participation of the individual in the actual government of the country. The greater and more effective the participation of the individual in the government, the greater is the democracy, because democracy is still only an ideal which has yet to be reached by humanity. Decentralisation would have done something in that direction, if we had provided for it in our Constitution.288” (emphasis supplied) F

177Copy pinpoint177. Article 40 in Part-IV was then made part of Directive Principles, which reads thus: “40. Organisation of village panchayats.—The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to G function as units of self-government.” The above hope for more decentralisation and opening up of democracy was vindicated in 1992 with the introduction of 73 rd and 74th 288 Constituent Assembly Debates Vol. XI (14.11.1949 – 26.11.1949) H

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A amendments in the Constitution which resulted into the inclusion of local self-governance in rural and urban India. This opening up of democracy in India was a step towards enhanced participation. It was noted by this Court in Bhanumati and Ors. v. State of Uttar Pradesh & Ors.289,wherein it was observed thus: B “26. What was in a nebulous state as one of the directive principles under Article 40, through the Seventy-third Constitutional Amendment metamorphosed to a distinct part of constitutional dispensation with detailed provision for functioning of panchayat. The main purpose behind this is to ensure democratic decentralisation on the Gandhian principle of participatory C democracy so that the panchayat may become viable and responsive people’s bodies as an institution of governance and thus it may acquire the necessary status and function with dignity by inspiring respect of common man. ….” (emphasis supplied) D Furthermore, the Supreme Court in K. Krishna Murthy and Ors. v. Union of India (UOI) and Anr.290, while observing on the participation through panchayats, had observed thus: “56. The objectives of democratic decentralisation are not only E to bring governance closer to the people, but also to make it more participatory, inclusive and accountable to the weaker sections of society. ...” In yet another post-independence judgment, this Court in Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New F Delhi and Ors.291, while noting how the representative model serves as the minimum requirement of a participatory democracy, observed thus: “24. Democracy is government by the people. It is a continual participative operation, not a cataclysmic, periodic exercise. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus political choice of his proxy. G Although the full flower of participative Government rarely blossoms, the minimum credential of popular government is appeal to the people after every term for a renewal of 289 (2010) 12 SCC 1 290 (2010) 7 SCC 202 291 H (1978) 1 SCC 405

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confidence. So we have adult franchise and general elections as A constitutional compulsions. ‘The right of election is the very essence of the constitution’ (Junius). It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more.” B (emphasis supplied)

178Copy pinpoint178. In fact, the very basis of inclusion of administrative details within the Constitution, as opposed to leaving them to be determined by ordinary enactments, was to avoid a scenario wherein functioning of the administration is hindered by pressing for undeclared rights and standards. On 4.11.1948, when Dr. B.R. Ambedkar placed the draft Constitution C before the Assembly, he spoke in unambiguous terms thus: “As to the accusation that the Draft Constitution has produced a good part of the provisions of the Government of India Act, 1935, I make no apologies. There is nothing to be ashamed of in borrowing. It involves no plagiarism. Nobody holds any patent D rights in the fundamental ideas of a Constitution. What I am sorry about is that the provisions taken from the Government of India Act, 1935, relate mostly to the details of administration. I agree that administrative details should have no place in the Constitution. I wish very much that the Drafting E Committee could see its way to avoid their inclusion in the Constitution. But this is to be said on the necessity which justifies their inclusion.” (emphasis supplied)

179Copy pinpoint179. The above discussion has vital takeaways for the purpose of the present controversy. It reveals that a direct democracy was never envisaged by our founding fathers as an ideal model in light of the domestic socio-economic set-up. Right from the days of struggle for freedom to the debates of Constituent Assembly and afterwards in independent India, we have invariably embraced the representative model of democracy wherein political sovereignty vested in the People of India and legal sovereignty vested in the Constitution of India. The rule is by the people through their elected representatives at all levels of the Government – from village panchayats to the Parliament.

180Copy pinpoint180. However, we must note that mere acceptance of a representative model did not seal the fate of the country once and for H

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A all. In fact, over a period of time, there has been a constant endeavour to encourage wider public participation, wherever possible and required, keeping in the view the efficiency of administration and Rule of Law. That, however, has been done by way of laws enacted by the legislature in that regard292.

181Copy pinpoint181. The introduction of local self-governance in 1992 could be seen as an acceptance of the above proposition. In the Indian scenario, it would be wholly wrong to say that public participation is limited to exercise of universal suffrage once in five years. Today, Government invites public to participate in a series of administrative processes as per the mandate of enacted laws envisaging public participation in the form of inviting representations against Government proposals. Besides, every citizen is vested with a guaranteed right to approach the constitutional Courts for seeking review of administrative action. We must note that Part III of the Constitution is the pivot around which democracy revolves as it creates an open market for diverse political and social ideas, expression of common interests and political associations. In King & Ors. v. Attorneys Fidelity Fund Board of Control & Anr. 293,the Supreme Court of South Africa noted the facets of public involvement thus: “22. … Public involvement might include public participation through the submission of commentary and representations: but that is neither definitive nor exhaustive of its content. The public may become ‘involved’ in the business of the National Assembly as much by understanding and being informed of what it is doing as by participating directly in those processes. It is plain that by imposing on Parliament the obligation to facilitate public involvement in its processes, the Constitution sets a base standard, but then leaves Parliament significant leeway in fulfilling it. …” (emphasis supplied) 292 Such as: (1) The Panchayats (Extension to the Scheduled Areas) Act, 1996; (2) G Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006; (3) Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013; (4) Airports Economic Regulatory Authority of India Act, 2008; (5) Environmental Impact Assessment Notification, 2006; (6) The Insolvency and Bankruptcy Code, 2016; (7) General Clauses Act, 1897; and (8) Forest Rights Act, 2006. 293 H 2006 (4) BCLR 462 (South African Constitutional Court)

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182Copy pinpoint182. Michael Walzer, in “Philosophy and Democracy”, A eloquently notes how the process involved in representative decision- making attaches immense moral value to those decisions. He notes thus: “For democratic theory, what makes governmental decisions morally binding is process: the people’s freely choosing representatives, those representatives’ debating and enacting policy B and later standing for reelection, and administrators’ enforcing that policy.294"

183Copy pinpoint183. A holistic understanding of the dispensation envisaged under our Constitution would reveal that we are a representative democracy with strong elements of participatory democracy embedded in it. The C element of participation, however, is regulated not only by statutes but also by the Constitution. The Constitution, if it would have envisaged every important decision to be flowing from the public in the manner proposed by the petitioners herein, would have clearly provided for that dispensation. It has not.Understood thus, the Constitution in our system plays twin role – first, Constitution as the guardian of fundamental rights and second, Constitution as the structure of governance295.

184Copy pinpoint184. The principle of participatory democracy has two integral elements – first, public participation in decision making and second, placing information regarding Government actions in public domain. As discussed above, the first element, no matter how desirable, is carefully circumscribed by the state of Rule of Law or procedure established by law, as present, and a fine balance has been struck between need for public participation and effective functioning of administration. The legislature has expressly provided for such public participation and the extent thereof in the governing enactments, referred to earlier296. F

185Copy pinpoint185. The participation itself involves three features – the stage, the extent and the nature of participation. The extent and quality of permissible participation is dependent upon a multitude of factors including, but not limited to, the stage of procedure, nature of subject matter, number of affected persons, local conditions, geography, strategic importance of G project, budgetary allocations for the project etc. The subject matter of 294 Constitutionalism and Democracy - Constitutions, Constitutionalism, and Democracy, Walter F. Murphy, Oxford University Press, pg. 4 295 Constitutionalism and Democracy, Transitions in the Contemporary World, Oxford University Press, 1993 296 (supra at 292) H

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A a development project having no direct bearing on lives and livelihoods cannot be equated with a project which has a direct impact upon their lives and livelihoods.

186Copy pinpoint186. Pertinently, this exercise cannot be undertaken in abstractness merely because participation is one of the facets of a democratic structure. Rather, it involves delicate analysis of a complex web of factors. Whether in a given case personal oral hearing is to be provisioned for or mere representations be invited or public discussion is called for, is a matter for the legislature to make a law in that regard.

187Copy pinpoint187. We may very well have our own notion of participation and it could be radically different from the prescribed one. It may be possible that some people feel unheard in a direct manner, however, a democracy, in an ultimate analysis, is about prevalence of collective wisdom of citizens, which may or may not commend to individual wisdom of few. The sentiment also resonated in the words of Thomas Jefferson when he wrote to John Taylor on 28.5.1816 that “the mass of the citizens is the safest depository of their own rights”297.

188Copy pinpoint188. The citizens are completely free to advocate any notion along the Government policy or the manner of making it in their free exercise of right to speech and expression, but enforcement of such notion cannot be fructified by resorting to judicial review. The idea of public involvement in administrative matters is based upon the stage and extent of representation prescribed by the legislature. No country with a sizeable population like ours can give a promise of direct participation to every individual in the decision-making process (of the Government) in administrative matters unless the law so prescribes.

189Copy pinpoint189. Having said thus, it must be borne in mind that such public participation is not to supplant the discretion of the Government or to retard the development work. It is only for inviting constructive suggestions/objections from all stakeholders for effective implementation of the policy of the Government, to subserve public interest.

190Copy pinpoint190. The Supreme Court in Janhit Manch and Anr. v. The State of Maharashtra and Ors.298, opined that consultative process is always helpful. However, it went on to caution that the perspective of elected 297 The Works of Thomas Jefferson, Federal Edition Vol. 11 (Correspondence and Papers 1808-1816), pp. 298 298 H (2019) 2 SCC 505

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bodies must give way to that of few individuals. The Court observed thus: “13. We have to keep in mind the principles of separation of powers. The elected Government of the day, which has the mandate of the people, is to take care of policy matters. There is a democratic structure at different levels, starting from the level of Village Panchayats, Nagar Palikas, Municipal Authorities, Legislative Assemblies and the elected Parliament; each of them has a role to perform. In aspects, as presented in the instant case, a consultative process is always helpful, and is one which has already been undertaken. The philosophy of Appellant 2 cannot be transmitted as a mandatory policy of the Government, which is what would happen were a mandamus to be issued on the prayers made. Perspective of individuals may vary, but if the elected bodies which have policy formulation powers, is to be superseded by the ideals of each individual, the situation would be chaotic. The D policies formulated and the legislations made, unless they fall foul of the Constitution of India, cannot be interfered with, at the behest of the appellants. The appellants have completely missed this point” (emphasis supplied) E

191Copy pinpoint191. The reliance placed by the petitioners upon Doctors for Life International299 and Kiambu County300 may not be of much relevance in absence of statutory regime in Indian context mandating public participation before formulation of the policy, in the light of principles discussed above. Despite the great persuasive value of these decisions, F we cannot escape some glaring differences which alter the character of these decisions. In Doctors for Life International301, the Court, in para 75, clearly noted that its opinion is founded upon clear and express statutory provisions mandating the National Council to facilitate public involvement. It observed thus: G “[75] The provisions of sections 72(1)(a) and 118(1)(a) (“the public involvement provisions”) clearly impose a duty on the NCOP and

299 (supra at 80) 300 (supra at 82) 301 (supra at 80) H

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A the provincial legislatures to facilitate public involvement in their respective legislative processes. The question is what is the nature and scope of the duty comprehended by these provisions and to what extent is it justiciable.” Similar position existed before the Kenyan Court of Appeal in B Kiambu County302.Secondly, the judgment of the Court examines scope of public involvement in legislative processes. In the introductory para, it notes thus: “… The first question concerns the nature and the scope of the constitutional obligation of a legislative organ of the state to facilitate public involvement in its legislative processes and those of its committees and the consequences of the failure to comply with that obligation. …” The petitioners have adopted a position that this judgment is not restricted to the express public consultation provision and in respect of legislative processes but it derives strength from international and foreign instruments to which India is also a signatory. However, the Court, in para 95, lays down the correct proposition of law and observed thus: “[95] The precise nature and scope of the international law right to participate in the conduct of public affairs is a matter for individual states to determine through their laws and policies. …” (emphasis supplied) In conclusion, it further expounded that international law right to political participation encompasses a “general right to participate” and “specific right to vote”. It noted thus: F “[105] The international law right to political participation encompasses a general right to participate in the conduct of public affairs and a more specific right to vote and/or be elected into public office. The general right to participate in the conduct of public affairs includes engaging in public debate and dialogue with elected representatives at public hearings. But that G is not all; it includes the duty to facilitate public participation in the conduct of public affairs by ensuring that citizens have the necessary information and effective opportunity to exercise the right to political participation.” (emphasis supplied) 302 H (supra at 82)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 425 ORS. [A. M. KHANWILKAR, J.]

As regards the nature of democracy envisaged in South Africa, A the Court noted thus: “[115] In the overall scheme of our Constitution, the representative and participatory elements of our democracy should not be seen as being in tension with each other. They must be seen as mutually supportive. General elections, the foundation of representative democracy, would be meaningless without massive participation by the voters. The participation by the public on a continuous basis provides vitality to the functioning of representative democracy. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made. It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling. Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist. E [116] Therefore our democracy includes as one of its basic and fundamental principles, the principle of participatory democracy. The democratic government that is contemplated is partly representative and partly participatory, is accountable, responsive and transparent and makes provision for public participation in the law-making processes. …” F

We must note at the very outset, Doctors for Life International303, barring the analysis on express provision on consultation, does not operate in conflict with the views expressed by us in this judgment. It duly recognises that precise contours of participation in the matter of governance are dependent upon local conditions, in particular G existence of municipal laws in that regard and the nature of subject matter. Suffice it to note that in the cited decisions referred to above, the Court was not dealing with challenge to administrative processes in relation to a development project. It is justly urged by the respondents 303 (supra at 80) H

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A that the prosaic, bland, inapplicable metaphysical principles of constitutional theory, imported from foreign jurisdictions, cannot create an extra-constitutional standard of judicial review or to extend involvement of public at every level of governance absent any statutory regime in that regard. Thus, the scope of public involvement in Government processes is a matter dependent on legal framework of a country and the Court should be loath to venture into that area in the guise of eminence of the project under consideration.

192Copy pinpoint192. It was also urged that like the approach adopted in Britain, with regard to upgradation or construction of a new Parliament, the Indian Parliament should enact a special legislation in that regard including to guarantee extensive public participation at all stages. Somewhat similar plea was dealt with in Dr. Ashwani Kumar304, wherein the Court after adverting to the settled legal position including in reference to the principles of separation of powers of the three constituents of the State, negatived the same. We may usefully refer to exposition in paras 26 to D 28 of this reported decision, the same reads thus: “26. Legislating or law-making involves a choice to prioritise certain political, moral and social values over the others from a wide range of choices that exist before the legislature. It is a balancing and integrating exercise to give expression/meaning to diverse and alternative values and blend it in a manner that it is representative of several viewpoints so that it garners support from other elected representatives to pass institutional muster and acceptance. Legislation, in the form of an enactment or laws, lays down broad and general principles. It is the source of law which the judges are called upon to apply. Judges, when they apply the law, are constrained by the rules of language and by well identified background presumptions as to the manner in which the legislature intended the law to be read. Application of law by the judges is not synonymous with the enactment of law by the legislature. Judges have the power to spell out how precisely the statute would apply in a particular case. In this manner, they complete the law formulated by the legislature by applying it. This power of interpretation or the power of judicial review is exercised post the enactment of law, which is then made subject matter of interpretation or challenge before the courts. 304 H (supra at 167)

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 427 ORS. [A. M. KHANWILKAR, J.]

27. Legislature, as an institution and a wing of the Government, is A a microcosm of the bigger social community possessing qualities of a democratic institution in terms of composition, diversity and accountability. Legislature uses in-built procedures carefully designed and adopted to bring a plenitude of representations and resources as they have access to information, skills, expertise and knowledge of the people working within the institution and outside in the form of executive. Process and method of legislation and judicial adjudication are entirely distinct. Judicial adjudication involves applying rules of interpretation and law of precedents and notwithstanding deep understanding, knowledge and wisdom of an individual judge or the bench, it cannot be equated with law making in a democratic society by legislators given their wider and broader diverse polity. The Constitution states that legislature is supreme and has a final say in matters of legislation when it reflects on alternatives and choices with inputs from different quarters, with a check in the form of democratic accountability and a further check by the courts which exercise the power of judicial review. It is not for the judges to seek to develop new all- embracing principles of law in a way that reflects the stance and opinion of the individual judges when the society/legislators as a whole are unclear and substantially divided on the relevant issues. In Bhim Singh v. Union of India, while observing that the E Constitution does not strictly prohibit overlapping of functions as this is inevitable in the modern parliamentary democracy, the Constitution prohibits exercise of functions of another branch which results in wresting away of the regime of constitutional accountability. Only when accountability is preserved, there will F be no violation of principle of separation of powers. Constitution not only requires and mandates that there should be right decisions that govern us, but equal care has to be taken that the right decisions are made by the right body and the institution. This is what gives legitimacy, be it a legislation, a policy decision or a court adjudication. G

28. It is sometimes contended with force that unpopular and difficult decisions are more easily grasped and taken by the judges rather than by the other two wings. Indeed, such suggestions were indirectly made. This reasoning is predicated on the belief that the judges are not directly accountable to the electorate and, therefore, H

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A enjoy the relative freedom from questions of the moment, which enables them to take a detached, fair and just view. The position that judges are not elected and accountable is correct, but this would not justify an order by a court in the nature of judicial legislation for it will run afoul of the constitutional supremacy and invalidate and subvert the democratic process by which legislations are enacted. For the reasons stated above, this reasoning is constitutionally unacceptable and untenable.”

193Copy pinpoint193. The other facet of participatory democracy is disclosure of information in public domain about the actions of Government. The petitioners’ argument is that for effective participation, the citizens must know what they are participating in and why. This merits consideration. For, unless complete and relevant information about Government decision is placed in public domain, the public would be ill-equipped to engage with the Government in a meaningful manner. In a democracy, disclosure of full information is empowerment and acts as an enabler for meaningful participation. Granting open access to information also secures the goal of transparency to which all public institutions are wedded. In S.P. Gupta & Ors. v. President of India & Ors.305, this Court discussed about the common thread running through information, transparency and accountability and observed as under: E “63. Now it is obvious from the Constitution that we have adopted a democratic form of Government. Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. It is only if people know how government is functioning that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy. “Knowledge” said James Madison, “will for ever govern ignorance and a people who mean to be their own governors must arm themselves with the power knowledge gives. A popular 305 H AIR 1982 SC 149

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 429 ORS. [A. M. KHANWILKAR, J.]

government without popular information or the means of obtaining it is but a prologue to a farce or tragedy or perhaps both.” The citizens’ right to know the facts, the true facts, about the administration of the country is thus one of the pillars of a democratic State. And that is why the demand for openness in the government is increasingly growing in different parts of the world.” (emphasis supplied) In R.K. Jain v. Union of India306, the Court observed again: “41. … It is only if the people know how the Government is functioning that they can fulfil their own democratic rights given to them and make the democracy a really effective participatory democracy. There can be little doubt that exposure to public scrutiny is one of the surest means of running a clean and healthy administration. Disclosure of information in regard to the functioning of the Government must be the rule and secrecy can be exceptionally justified only where strict requirement of public information was assumed. The approach of the court must be to alleviate the area of secrecy as much as possible constantly with the requirement of public interest bearing in mind all the time that the disclosure also serves an important aspect of public interest. ...” E

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A requirements of confidentiality for certain sensitive information. It recognises that these principles are inevitable to create friction inter se and there needs to be harmonisation of such conflicting interests and there is further requirement to preserve the supremacy of democratic ideal. The recognition of this normative democratic ideal requires us to further expound upon the optimum levels of accountability and transparency of efficient operations of the Government. …” The Court then highlighted how open access to information is crucial for the participatory element of democracy thus: “192. Bhagwati, J. expanded on the socio-political background that must inform any approach in a “democratic society wedded to the basic values enshrined in the Constitution”. He drew an interconnection between democracy, transparency and accountability to hold that a basic postulate of accountability, which is fundamental to a democratic government, is that information about the Government is accessible to the people. He held that participatory democracy is premised on the availability of information about the functioning of the Government. The right to know as a “pillar of a democratic State” imputes positive content to democracy and ensures that democracy does not remain static but becomes a “continuous process”. Thus, a limitation on transparency must be supported by more than a claim to confidentiality — it must demonstrate that the public harm arising from disclosure is greater than the public interest in transparency. …” In T.S.R. Subramanian and Ors. v. Union of India and Ors. 309, a similar proposition could be traced in para 34 thus: F “39. Democracy requires an informed citizenry and transparency of information. The Right to Information Act, 2005 (“the RTI Act”) recognises the right of the citizen to secure access to information under the control of public authority, in order to promote transparency and accountability in the working of every public G authority. …” In Anjali Bhardwaj and Ors. v. Union of India and Ors. 310, this Court recognised that right to information was traceable from Article 19(1)(a) even before the 2005 Act came into force and observed thus: 309 (2013) 15 SCC 732 310 H 2019 (3) SCALE 447

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 431 ORS. [A. M. KHANWILKAR, J.]

“10. Much before the enactment of RTI Act, which came on the A statute book in the year 2005, this Court repeatedly emphasised the people’s right to information to be a facet of Article 19(1)(a) of the Constitution. It has been held that the right to information is a fundamental right and flows from Article 19(1)(a), which guarantees right to speech. This right has also been traced to B Article 21 which concerns about right to life and liberty. There are umpteen number of judgments declaring that transparency is the key for functioning of a healthy democracy ...”

194Copy pinpoint194. It is right to say that the 2005 Act has empowered the citizen to obtain information from the Government but it would be absolutely untenable to say that there is no duty on the Government to be open. In C a democratic setup where the citizen has entrusted abundant governance to the Government, it is bounden obligation of the Government to keep the citizens well informed about its actions, as a prudent trustee would.

195Copy pinpoint195. It must be noted that the principle of “political justice” is meant to inform all institutions of national life and is essential for securing D a just social order. Further, securing political justice is envisioned as a step towards “welfare of the people”. The term “political justice” is of utmost importance, for it is not just fundamental to governance of the country owing to its positioning in the Directive Principles and being prominently expounded in the PREAMBLE of the Constitution which E strives ““…to secure to all its citizens: JUSTICE, social, economic and political; …” In Raghunathrao Ganpatrao v. Union of India 311, the Court F attempted to provide a meaning to the term political justice and observed thus: “96. ...Political justice relates to the principle of rights of the people, i.e. right to universal suffrage, right to democratic form of Government and right to participation in political affairs ...” G (emphasis supplied)

196Copy pinpoint196. The idea of political justice is not constrained to an orthodox understanding of a democratic form of Government. We are in an 311 AIR 1993 SC 1267 H

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A information age and political justice would be incomplete without informational justice which essentially requires the decision makers to consider the subjects of their decisions as rightful recipients of all information that may have an impact on their lives. Furthermore, open availability of information would also advance the objective of education and empowerment. Article 51(h) provides for the fundamental duty “to develop the scientific temper, humanism and the spirit of inquiry and reform”. The furtherance of spirit of inquiry and reform is largely dependent on the availability of information. It is nothing but a duty which enjoins the citizens to participate in good governance.

197Copy pinpoint197. Notably, the respondents in the present case have recognised the importance of openness and have placed elaborate data before us to demonstrate how all steps of the project including all permissions, orders, invitations, approvals etc. were made available for direct public access online from time to time at the earliest available opportunity. We shall be examining the same at an appropriate stage.

198Copy pinpoint198. Having thoroughly discussed the import, scope of application and substantial value of the aforesaid principles for the purpose of this case, we may now advert to specific challenges. CHANGE IN LAND USE

199Copy pinpoint199. In order to address the challenge against change in land use, three broad questions arise for consideration, namely: (i) Whether the change in land use of the subject plots is permissible in law? (ii) If permissible, to what extent can such change be made within the contours of law? (iii) Whether the parameters, procedural or otherwise, to be followed for effecting such change have been duly followed by the respondents? WHAT IS MASTER PLAN AND ZONAL PLAN G

200Copy pinpoint200. We may first advert to the legal framework relating to Master Plan, Zonal Plans and modifications therein, as envisaged in the 1957 Act and the Master Plan (master plan presently in force). Admittedly, thus far three Master Plans have been made for Delhi. Before the present plan, two master plans were in force – Master Plan, 1962 (in force for H

RAJEEV SURI v. DELHI DEVELOPMENT AUTHORITY & 433 ORS. [A. M. KHANWILKAR, J.]

20 years from 1962-1981), Master Plan, 2001 and now Master Plan, A 2007 (in force from 1981-2021). Section 7 of the 1957 Act provides for the preparation of a master plan and reads thus: “7. Civic survey of, and master plan for, Delhi. — (1) The Authority shall, as soon as may be, carry out a civic survey of, and prepare a master plan for, Delhi. B

(2) The master plan shall— (a) define the various zones into which Delhi may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used C (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and (b) serve as a basic pattern of frame-work within which the zonal development plans of the various zones may be prepared. (3) The master plan may provide for any other matter which is necessary for the proper development of Delhi.” (emphasis supplied) Primarily, the Master Plan is meant to delineate various territorial zones within Delhi and the manner of land use in each zone. It also acts as a basic framework or presaging for the consequent preparation of zonal plans. Sub-Section (3) is of a residuary character. It predicates that the master plan may also provide for any other matter (in addition to specified in earlier part of the same section) which is necessary for the proper development of Delhi.

201Copy pinpoint201. To effectuate the master plan, the 1957 Act mandates preparation of zonal plans for each zone created under the master plan. A zonal plan for the concerned zone must contain a site plan and use plan for the development of the zone in conformity with the land use prescribed therefor in the master plan, including other particulars referred to in sub-Section (2) of Section 8, for ensuring proper development. It is a subset of the master plan. Section 8 provides thus: “8. Zonal development plans.— (1) Simultaneously with the preparation of the master plan or as soon as may be thereafter, H

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