Bench : A.M. Khanwilkar, Dinesh Maheswari and Sanjiv Khanna JJ.
- Objectives of the Central Vista Project-
As per the policy documents, the need for the development of the Project is rooted in the creation of a larger working space for efficient functioning of the highest legislative wing of the country and for integrated administrative block for Ministries/Departments presently spread out at different locations including on rental basis. Present arrangement has a sitting capacity of only 440 people. Present structure does not have adequate fire, water and electrical safety norms . Hence, new structure is needed. In order to address the concerns stated above, the Central Government decided to construct a new Parliament building with a futuristic approach and the House of People being 3 times the size of the present chamber. That along with the present Parliament building and Annexe attached therewith, would be referred to as the Parliament Complex. It is further proposed that all the 51 Ministries of the Central Government be housed in 10 buildings within an integrated complex marked with underground transit connectivity and structural identity.
- It has been stated that the new Parliament shall symbolize the 75th Independence Day of the country in 2022 as well as the Global G20 Summit to be hosted by India in the same year
- The objectives of the project are:
- A new Parliament Building with space and technology to meet the present and emerging needs of vibrant Indian democracy.
- Common Central Secretariat with all Ministries in a single location for efficiency and synergy in functioning.
- Central Vista to be redeveloped as a world class public space and venue for national and international events.
- Argument of parties- Not very important
- Judgment –
- Rule of Law- Discussion by examining this fundamental premise so as to understand to what extent, if at all, and in what manner policy/administrative decision-making can be overseen in judicially manageable standards in the light of rule of law.
- Constituent assembly has two fundamental instruments for governing this country – Democracy and Rule of Law. Constitution makers wanted an environment where law operates equally upon one and all, where Rule of Law trumps over even the slightest notion of rule by whims, where the equation between state and citizens is not marked by imbalance and where law, as it exists, governs all legal relationships.
- The constituent assembly discusses the various facets of rule of law
- Democracy means a rule of law as opposed to a rule of force. Democracy means supremacy of the law where no one, be he the highest individual, is above the law [Mr. Naziruddin Ahmad]
- the rule that should save the Government from all manner of disruptive tendencies [ Dr. P.K. Sen]
- The rule of law is a concept on which the democratic institutions in our Constitution are based. Rule of law means subordination of everything to the rule of law and that conscientious regard for the rights and for justice not only between subjects and subjects but also between the State and the subjects [ K.M. Munsi]
- Rule of law posits four universal tenets
- It is a system of laws and institutions that envisages accountability of government and private actors
- The laws must be just, clear, publicized and stable and applied evenly, protect fundamental rights and human rights
- Open Government –the processes by which the laws are enacted, administered and enforced are accessible, fair and efficient
- Accessible justice – to include timely delivery of justice by competent, ethical, and independent representations and neutrals who are accessible, have adequate resources
- The principle of Rule of Law coalesces two words – rule and law. “Rule” refers to the idea of governing the state and depending on the nature of model adopted in a country, such rule can be effected in multiple ways. The word “law”, now, lays down the precise contours of mode of ruling. For example, our preamble speaks of the rule “Democratic” whereas Art. 13 speaks about the laws. The existence of democracy per se does not guarantee adherence to Rule of Law. But in a thriving democracy there should be three tenets of rule of law: first, Rule of Law requires law in existence; second, such law must qualify as law within the meaning of the Constitution and must satisfy the standards laid therein and third, legally applicable meaning of Rule of Law in India can be best understood as a democratic rule within the four corners of the Constitution.
- Democratic due process and judicial review-
- There is no definition of democratic due process. Rodney A. Smolla, in his seminal work “Democratic Due Process: Administrative Procedure after Bishop v. Wood describes democratic due process as
- Rule of Law- Discussion by examining this fundamental premise so as to understand to what extent, if at all, and in what manner policy/administrative decision-making can be overseen in judicially manageable standards in the light of rule of law.
“… the responsibility for defining, shaping and limiting administrative due process has been taken from the courts and given to the legislatures. By placing this responsibility in the hands of elected representatives, the Supreme Court has in effect created a “democratic due process clause…..”
- Dr. B.R. Ambedkar noted the distinction between “due process” and “procedure established by law” is essentially one of the scope of judicial review. Ambedkar says “The ‘due process’ clause, in my judgment, would give the judiciary the power to question the law made by the legislature on another ground. That ground would be whether that law is in keeping with certain fundamental principles relating to the rights of the individual…”
- The whole idea of due process was meant to safeguard personal liberties of individuals by ensuring that the process to be used for taking away such liberty complies with certain standards. It was never meant to be used to question the administrative decisions by applying higher bench mark than the statutory defined/articulated obligations. This is not to say that administrative action was left unchecked by the Constitution.
- The Constitution provides for a scheme wherein “law” is made subject to all the provisions of Part-III 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.
- Certain case laws
|Maneka Gandhi v UoI||“procedure established by law” to be just, fair and non-arbitrary, as distinguished from fanciful, arbitrary and oppressive|
|Mithu V State of Punjab (1983) 2 SCC 277||standards of fairness and non-arbitrariness were held to be the inherent meaning of the word “law” as well in the phrase “procedure established by law” when individual liberty is at stake|
|Sunil Batra v State of Delhi|
|Rajbala and Ors. v. State of Haryana and Ors (2016) 2 SCC 445||doctrine of substantive due process is nonexistent under the Indian Constitution|
|K.S. Puttaswamy I||“substantive due process” results in the 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.|
- It is wrong to believe that we have gradually transformed from chosen “procedure established by law” into once consciously rejected “due process of law”. For matters of personal liberty procedure established by law has strict standard.
- 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.
- The present matter is an administrative or quasi legislative action with no direct impact on personal liberties as such. A judicial review is an exercise in reference to some existing rights and the 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 balaThences; 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.
Certain judgments on judicial review
|Chief Constable of the North Wales Police v. Evans  1 WLR 1155||“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.”|
|Reliance Airport Developers v Airports Authority of India & Ors (2006) 10 SCC 1||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.|
|Tata Cellular v. Union of India (1994) 6 SCC 651||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|
|Premium Granites v State Of T.N 1994 AIR 2233, 1994 SCR (1) 579||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 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.|
- Rule of Law is based on the concept of “expository jurisprudence” which requires exposition of contents of actual legal system as it exists. 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 requires consistency and uniformity of approach by one and all and in particular, by a judicial forum. In a judicial review, the court does not sit in a discussion on idealism in Government actions, rather, the court’s domain is to examine its legality on the touchstone of constitutional values and the procedure prescribed by law in that regard. 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. 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
- Barium Chemicals v The company Law Board 1967 AIR 295 gives the contour of juridical review-
- 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;
- However, the subjective opinion/satisfaction of the Government is required to be arrived at based on facts/circumstances, which the Government must be able to objectively establish to exist;
- Mala fides, fraud or corruption would vitiate the formation of the opinion/satisfaction; and
- 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 (b) it was impossible for anyone to form the opinion/satisfaction based on those facts/circumstances,
- The Constitution provides an effective mechanism to review the law itself under which administrative power is being exercised. The “law” in the expression “Rule of Law” must be good law within the realm of the Constitution. 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 effect to it. In the present case no procedure was violated.
- 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”. All organs of the state are constitutionally committed to 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 there from. There is no difference between democratic due process or constitutional due process.
- Need for heightened judicial review
- The Courts do not sit in appeal over the decisions of the Government to do merit review of the subjective decision as such.
- Barium Chemicals v The company Law Board 1967 AIR 295 gives the contour of juridical review-
|Natural Resources Allocation In Re , Special Reference No. 1 of 2012||Government decisions concerning public resources have an “intricate economic value” attached with them and to elevate the standard of review on the basis of a subjective understanding of the subject matter being extraordinary would be dehors the review jurisdiction.|
|Narmada Bachao Andolan v. Union of India||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. Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if 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 could have approached the court at that time|
|Shimnit Utsch India v. W.B. Tpt.Infrastructure||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|
|State of Madhya Pradesh v. Narmada Bachao Andolan||The Court cannot strike down a policy decision taken 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 are contrary to statutory or constitutional provisions or arbitrary or irrational or an abuse of power|
|Tata Iron & Steel v S.R. Sarkar 1961 AIR 65||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.|
|Narmada Bachao Andolan v. Union of India||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|
|Directorate of Film Festivals v Gaurav Ashwin jain||. 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 entitled to formulate|
- judicial review primarily involves a review of State action – legislative, executive, administrative and policy. The primary examination in a review of a 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 lawmaking 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 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 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 cannot be deployed to present an alternative model of governance. Constitutionalism 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.
- Participatory Democracy in India
- Direct public participation is not envisaged in pr constitution. We have adopted a representative democracy system, hence direct participation of people is not required.
Some important case laws:
|Bhanumati and Ors. v. State of Uttar Pradesh & Ors (2010) 12 SCC 1||The main purpose behind Art. 40 is to ensure democratic decentralisation on the Gandhian principle of participatory 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|
|K. Krishna Murthy and Ors. v. Union of India (UOI) and Anr (2010) 7 SCC 202||The objectives of democratic decentralisation are not only to bring governance closer to the people, but also to make it more participatory, inclusive and accountable to the weaker sections of society|
|Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors (1978) 1 SCC 405||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 confidence. So we have adult franchise and general elections as constitutional compulsions.|
|Janhit Manch and Anr. v. The State of Maharashtra and Ors (2019) 2 SCC 505||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 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”|
- 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
|S.P. Gupta & Ors. v. President of India & Ors AIR 1982 SC 149||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|
|R.K. Jain v. Union of India (1993) 4 SCC 119||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. …”|
|Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal (2020) 5 SCC 481||RTI Act provides for a balance between effective government, efficient operations, expenditure of such transparent systems and 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.|
|T.S.R. Subramanian and Ors. v. Union of India and Ors (2013) 15 SCC 732||right to information was traceable from Article 19(1)(a) even before the 2005 Act came into force|
- The principle of “political justice” is meant to inform all institutions of national life and is essential for securing a just social order. Further, securing political justice is envisioned as a step towards “welfare of the people”. In Raghunathrao Ganpatrao v. Union of India the court defined political justice as 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.
- We are in an 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 citins to participate in good governance.
- Town Planning –
- The court discussed the concept of major and minor modification in land development acts. In Machavarapu Srinivasa Rao & Anr. v. Vijayawada, Guntur, Tenali, Mangalagiri Urban Development Authority & Ors. (2011) 12 SCC 154, Court considered the Andhra Pradesh Urban Areas (Development) Act, 1975 and found distinction between minor and substantial modifications and observed that the Development Authority did not possess the power to effect substantial modifications to the plan, however, the State Government possessed that power.
- In Puranlal Lakhanpal v The President of India 1961 AIR 1519 held that, the word “modify” means inter alia “to make partial changes in; to change (as object) in respect of some of its qualities; to alter or vary without radical transformation.” Similarly the word “modification” means “the action of making changes in an object without altering its essential nature or character; the state of being thus changed; partial alteration”. …”
- . The legislature has consciously used the term “modification”. It implies that the changes contemplated under Section 11A must not qualitatively alter the original identity of the plan. Indeed, any modification entails a deviation from the prevailing plan, but it has been permitted by the legislature as long as it coalesces with the spirit of the original plan. The expression “or otherwise” occurring in sub-Section (2) needs to be so construed. The deviation must not be of a nature that virtually leads to the replacement of the original plan. The distinctiveness, fundamental identity and basic features of the plan must be preserved in a modification exercise as far as possible. The real test is that the broad vision of development envisaged in the plan stays intact. The modification may become necessary to infuse improvement, suitability or effectiveness into the governing plan, due to supervening circumstances including to address the dynamic factors and contemporary overlapping needs of the public and effective governance.
- it can be noted that the proposed plan seeks to change the land use of certain Government plots in the central vista area in order to use them for similar purposes – Government offices, public and semi-public use and recreation. The underlying nature of usage of land in this area is not being altered in any substantial manner. By its very nomenclature, Public and Semi-Public use refers to the usage of space for a legitimate public purpose including for official use, something which is antithetical to private use. Such public use could be effected in multiple ways. No doubt, Government use and semipublic use may overlap in certain circumstances. For, Government use is one of the facets of public use itself. It will depend upon specific facts and circumstances of the case
- The challenge to the modified plan govt order is made after three years. The challenge to this S.O. is being raised by the petitioners after the expiry of three years, that too after it was relied upon by the respondents in their reply. This particular challenge must fall on the ground of laches itself. It is not the case of the petitioners that the impugned notification was beyond access for the period of three years and they could not have assailed it at any prior stage. Merely because the notification has now come handy in favour of the responding party, the petitioners cannot jump upon it and multiply the scope of challenge without any sound basis. In Prabhakar v. Joint Director, Sericulture Department and Anr (2015) 15 SCC 1 the court held that:
. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases courts have coined the doctrine of laches and delays as well as doctrine of acquiescence and non-suited the litigants who approached the Court belatedly without any justifiable explanation for bringing the action after unreasonable delay. Doctrine of laches is in fact an application of maxim of equity “delay defeats equities.
- The land usage requires the Authority “to consider” the objections and suggestions received from the public before modifying the plan. The legislature has not thought it fit to specify any particular manner of consideration in the governing provision of modification. No strict proposition can be laid down in an enquiry of this nature when the legislature has consciously chosen not to provision for personal/public hearing during consideration of the proposal. But only in the form of written suggestions/objections. The petitioners have stated that personal/public hearing is usually given in such cases.
- The question is whether such a requirement can be read in this provision by way of necessary implication. The test of necessary implication usually comes into the picture when there is a danger that failure to so infer would necessarily render the provision otiose. It is not a tool used to substitute an opinion out of convenience or out of an uncontrolled exercise of the power of the judicial pen, rather, it is used to preserve an enactment from reaching an unconscionable conclusion.
- In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Corporation of Calcutta AIR 1967 SC 997 a nine-Judge bench of this Court examined the usage of the interpretative tool of necessary implication and observed “an inference of necessary implication binding the State may be drawn if “the conclusion that the State is not bound by the specific provision of a given statute would hamper the working of the statute, or would lead to the anomalous position that the statute may lose its efficacy”.
- To read a strict and absolute requirement of personal/public hearing in a particular form and manner in the present case would be to rewrite the provisions altogether. That is uncalled for. The power of judicial review cannot be converted into a power to legislate and the law as regards this proposition is settled.
- Next the court decided the phrase ““such such a provision is only an enabling provision to facilitate the subordinate legislating body to obtain relevant information from any source and it is not intended to vest any right in anybody other than the subordinate legislating body. That process is an enquiry leading to a legislative activity, and no implications of natural justice can be read into it unless it is a statutory condition to afford personal hearing.
- Thus, no case of prejudice whatsoever has been made out by the petitioners in the process of public consultation. It is well settled that principles of natural justice are not an unruly horse. It would be an empty formality to permit large number of persons to raise same 13 objections multiple times. An attempt was made to impress upon us that due to pandemic situation most of the objectors were unable to remain present on the specified day and time for hearing. As aforesaid, none of the petitioners have invited our attention to any objection taken by them in writing which was different than the 13 points/questions noted by the Authority which were common in all the objections received by it. Hence, even this plea raised by the petitioners is of no avail. In other words, though the petitioners have vehemently argued about denial of natural justice, the same has not been demonstrated sufficiently to meet the basic standards of judicial conscience so as to warrant our interference.
- Indeed, principles of natural justice infuse life and blood into legal processes both judicial and administrative. However, the occasion of their application is not uniform and it cannot be stated as a proposition of blanket application that all administrative exercises are subject to unalterable and absolute standards of natural justice. Important case laws:
|Harayana Financial Corporation v Kailash Chandra Ahuja||Even in those cases where procedural requirements have not been complied with, the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant|
|State Bank of Patiala & Ors. v. S.K. Sharma (1996) 3 SCC 364||Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-productive exercise.|
|Karnataka State Road Transport Corporation v Lakshmidevamma||The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality|
|Secretary, Andhra Pradesh Social Welfare Residential Educational Institutions v. Pindiga Sridhar & Ors (2007) 13 SCC 352||By now, it is well settled principle of law that the principles of natural justice cannot be applied in a straitjacket formula. Their application depends upon the facts and circumstances of each case. To sustain the complaint of the violation of principles of natural justice one must establish that he was prejudiced for nonobservance of the principles of natural justice …”|
|Chairman, Board of Mining Examination V Ramjee 1977 AIR 965||Natural justice is no unruly horse, no lurking landmine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating|
- In short, the petitioners have not been able to demonstrate any case of denial of natural justice. For, the prescribed procedure, both by statute and convention, seems to have substantially been followed. In fact, in circumstances when challenge is raised to a project of immense national importance which is not limited to any particular city or state or intended to give benefit to any private individual, impediments cannot be induced by reading in requirements which are not mandated by law. The principle of “Rule of Law” requires rule in accordance with the law as it is, and not in accordance with an individual’s subjective understanding of law. Substantial justice is the core of any such inquiry and it is in this direction that processes are to be understood and adjudicated upon. The Court needs to be conscious of all aspects in a non-adversarial public interest litigation where public interest is the sole premise of enquiry.
- Quasi-Legislative Function –
- There is an argument that the nature of power exercised in the present case falls in the realm of legislative or quasi-legislative exercise and not an administrative exercise of power per se and therefore, the standards of natural justice and judicial review would be restricted.
- The court held It is no doubt true that the classification of legislative or administrative functions can no more be done like a pigeon-holes classification. It was because of this reason that the phrases “quasi-legislative” and “quasi-administrative” have made inroads in the modern administrative law. In fact, in practical parlance, even quasi-legislative functions are treated as falling under the wider ambit of administrative functions The following judgments were referred.
- Quasi-Legislative Function –
|Lachmi Narain and Ors. v. Union of India & Or (1976) 2 SCC 953||when called upon to adjudge whether a certain exercise of power was that of delegated legislation or conditional legislation, the court held that whether you camouflage it under the veiling name of “administrative or quasi-legislative power” necessary for bringing into operation and effect an enactment, the fact remains that it has a content, howsoever small and restricted, of the law-making power itself. …|
|Ganesh Bank of Kurundwad Ltd. & Ors. v. Union of India & Ors (2006) 10 SCC 645||Administrative action is stated to be referable to the broad area of governmental activities in which the repositories of power may exercise every class of statutory function of executive, quasi-legislative and quasi-judicial nature|
- Post Land use- CVC clearance : Application of mind in legislative/ executive decisionsThe requirement of due application of mind is one of the shades of jurisprudential doctrine that justice should not only be done but seen to be done. It requires a decision-making body, judicial or quasi-judicial, to abide by certain basic tenets of natural justice, including but not limited to the grant of hearing to the affected persons. Rules of natural justice are not embodied rules. They are means to an end and not end in themselves. The goal of these principles is to prevent prejudice. It is from the same source that the requirement of application of mind emerges in decision making processes as it ensures objectivity in decision making. In order to ascertain that due application of mind has taken place in a decision, the presence of reasons on record plays a crucial role. The presence of reasons would fulfil twin objectives of revealing objective application of mind and assisting the adjudicatory body in reviewing the decision.In cases when the statute itself provides for an express requirement of a reasoned order, it is understandable that absence of reasons would be a violation of a legal requirement and thus, illegal. However, in cases when there is no express requirement of reasons, the ulterior effect of absence of reasons on the final decision cannot be sealed in a straightjacketed manner. Such cases need to be examined from a broad perspective in the light of overall circumstances.. It is settled that in cases where individual rights are affected by the decision, an opportunity of being heard and application of mind couched in the form of reasons form part of the jurisprudential doctrine. Such cases need to be distinguished from cases which do not impinge upon individual rights and involve ordinary administrative processes. For, similar standards cannot be deployed to decide both these cases. When petitioners allege illegality on a ground such as absence of reasons in a pure administrative process, they must bear the burden to demonstrate the requirement of reasons in the first place. It is not as if reasons are mandatory in all decisions. What we are dealing with is the opinion of an advisory (administrative) body which is appointed by the same Government which calls for its advice and not to adjudicate upon rights of individuals. Even if we assume that the no objection by an advisory body would have the effect of affecting the objectivity of the final decision, the fact remains that it does not take the final decision. It is meant to invoke its expertise in light of the subject proposal placed before it and advise the Government as regards the feasibility of the proposed development in connection with the existing central vista region. The final decision would be that of the competent authority of the concerned department. Furthermore, what purpose would it serve to entangle an advisory body into rigidity of recording elaborate reasons when its advice is not going to affect any stakeholder whatsoever nor can be made the basis to challenge the final decision of the competent authority. Not being a statutory body, its opinion has no finality attached to it nor could be appealed against to superior forum. Undeniably, in the process of decision-making, the Government may choose to consult as many bodies and agencies as it desires and opinion of every such advisory body cannot be assailed by supplying fictional standards without keeping in view the nature of body and context of advice.The requirement of reasons in cases which do not demand it in an express manner is based on desirability and the same is advised to the extent possible without impinging upon the character of the decision-making body and needs of administrative efficiency.
- Legitimate Expectation-
legitimate expectations may arise in administrative matters depending on the factual matrix of a case. Legitimate expectations may arise in cases when the decision making body deviates from a set standard, thereby impinging upon the rights of those who are subjected to the decision. In the present case, had the project proponent entirely skipped the step of consultation with CVC, enforcing such consultation by operation of legitimate expectation may have come into play.
|Punjab Communications Ltd. v. Union of India & Ors Union of India & Ors. v. Hindustan Development Corporation & Ors||the requirement of legitimate expectation is not based on mere hope or wish or anticipation. “The legitimacy of an expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. … Such expectation should be justifiably legitimate and protectable.|
|Ram Pravesh Singh & Ors. v. State of Bihar & Ors||Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy, that may ordinarily flow from a promise or established practice. The term “established practice” refers to a regular, consistent, predictable and certain conduct, process or activity of the decision-making authority. The expectation should be legitimate, that is, reasonable, logical and valid.|
A total stranger unconnected with the authority or a person who had no previous dealings with the authority and who has not entered into any transaction or negotiations with the authority, cannot invoke the doctrine of legitimate expectation, merely on the ground that the authority has a general obligation to act fairly.
Important points to remember about legitimate expectation –
- does not convey a tangible right.
- it is a mere expectation of fair and reasonable treatment and the legitimacy of that expectation would strictly depend upon the facts and circumstances of a case, particularly on whether or not the absence of a procedural step had led to failure of fairness.
- Legitimate expectation is a locus-based principle and it is not meant to assuage the expectations of those whose interests are unaffected by a decision.
- It is easy to form an expectation but difficult to find a legitimate basis for such expectation.
- such expectation gets developed only on the basis of an established practice in context of the decision being taken and in context of the body taking the decision, and the petitioners have not demonstrated any established practice which has been deviated from in the present case.
- Environmental Clearance [EC]
MoEF in their 2006 notification has mandated Environment Impact Assessment [ EIA]for development projects which have chances of creating environmental degradation.
Some Basic Facts about EC-
Which projects require EC?
- Projects listed in the schedule to notification (as Category A and B projects)
- All new projects or activities listed in the Schedule to this notification
- Expansion and modernization of existing projects or activities listed in the Schedule to the notification
- Any change in product – mix in an existing manufacturing unit included in Schedule
EC by whom?
- Category A projects: Central Government in the Ministry of Environment and Forests
- Category B projects: At state level the State Environment Impact Assessment Authority (SEIAA)
Stages EC process-
- Stage 1: Screening (Only for Category ‘B’ projects and activities)
- Stage 2: Scoping
- Stage 3: Public Consultation
- Stage 4: Appraisal
Stage 1: Screening details-
- Only for Category B projects and activities to determine if they need EIA
- Category A projects compulsorily need EIA
- Scrutiny of an application seeking EC by State level Environment impact assessment committee for determining whether or not the project or activity requires further environmental studies
- Classify projects as B1 (require EIA) and B2 (don’t require EIA)
- For categorization of projects into B1 or B2, the MoEF shall issue appropriate guidelines from time to time
Stage -2 : Scoping – who does Scoping ?
- Expert Appraisal Committee (EAC) in the case of Category ‘A’ projects or activities
- State level Expert Appraisal Committee (SEAC) in the case of Category ‘B1’ projects
- Determine comprehensive Terms Of Reference (TOR) addressing all relevant environmental concerns for preparation of an Environment Impact Assessment (EIA) Report based on
- on the basis of the information furnished by applicant in the prescribed application Form1/Form 1A including
- proposed by the applicant
- a site visit by a sub- group of EAC or SEAC only if considered necessary
Stage – 3 : Public consultation
- Process by which the concerns of local affected persons and others who have plausible stake in the environmental impacts of the project or activity are ascertained
- All Category ‘A’ and Category B1 projects or activities shall undertake Public Consultation
- Public Consultation shall ordinarily have two components
- public hearing at the site or in its close proximity- district wise, to be carried out in the manner prescribed in Appendix IV, for ascertaining concerns of local affected persons
- obtain responses in writing from other concerned persons having a plausible stake in the environmental aspects of the project
Public Hearing –
- Public hearing shall be conducted by the State Pollution Control Board (SPCB)
- forward proceedings to the regulatory authority concerned within 45 days
- If not appoint another independent organization to do the same within another 45 days
- If the public agency nominated reports that it is not possible to conduct the public hearing in a manner which will enable the views of the concerned local persons to be freely expressed
- It shall report the facts in detail to the concerned regulatory authority
- After due consideration of the report shall rule that the public consultation in the case need not include the public hearing
Stage -4 : Appraisal
- EAC or SEAC shall
- shall recommend to the regulatory authority concerned
- either for grant of prior environmental clearance on stipulated terms and conditions
- or rejection of the application for prior environmental clearance, together with reasons for the same.
- shall recommend to the regulatory authority concerned
Without a doubt, there is no requirement of public consultation in category B2 projects and building or construction projects. It is also made clear that such consultation, wherever required, is to cater to the concerns of locally affected persons and others who have a plausible stake in the environmental impacts of the project or activity. The Schedule attached with the Notification incorporates a “List of Projects or Activities Requiring Prior Environmental Clearance”. Item 8 in category B is divided into two sub-categories – item 8(a) titled “Building and Construction projects” and item 8(b) titled “townships and Area Development projects”. The distinction lies in the expanse of built-up area of the proposed project. The Schedule specifies that a project with built-up area falling between 20,000 sq.m. and 1,50,000 sq.m. would be categorized as building and construction project in item 8(a). Principally speaking, in a matter of planning and development activity, the Government has the sole prerogative to decide the nature, expanse and timeline of development work. The Government may choose to begin the development of an entire region at once or do it in a phased manner. Once an expert committee has duly applied its mind to an application for EC, any challenge to its decision has to be based on concrete material which reveals total absence of mind. Absent that material, due deference must be shown to the decisions of experts. The facts of the case do not reveal any deliberate concealment of fact/information from the EAC or supply of any misinformation. The landscape of this project does not involve a greenfield component surrounded by forests and significant wildlife. It does not involve complete non-application of mind regarding a crucial aspect of the project, such as Ecologically Sensitive Zones.
K. merits review by NGT
Section 16 of the National Green Tribunal Act, 2010 empowers “any aggrieved person” to file an appeal against the grant of EC for the scrutiny of NGT. The scheme of 2010 Act, provides for a host of remedies to the aggrieved persons, including compensation and other reliefs depending on the injury. Section 20 lays down the basic principle on which the tribunal is expected to exercise its jurisdiction. It states :
“20. Tribunal to apply certain principles. —The Tribunal shall, while passing any order or decision or award, apply the principles of sustainable development, the precautionary principle and the polluter pays principle.”
The expression “merits review” signifies that the tribunal must scrutinize the merits of the decision and must not restrict itself to a cursory examination of the process of decision making. Section 20 makes it amply clear that the principles of sustainable development, precautionary principle and polluter pays principle must inform its examination. The requirement of merits review is to be understood in the light of the statutory jurisdiction of NGT under the 2010 Act and not beyond it. Statutorily, NGT is vested with a limited mandate to hear an appeal before it in light of the aforesaid principles and grant limited reliefs as provided in the 2010 Act. Section 16 specifies that the jurisdiction of NGT may be invoked when any person either feels that the project should not be carried forward or should be subjected to certain safeguards under the Environment Protection Act, 1986. The NGT, therefore, is a body meant for the assessment of a limited facet of the project i.e., environmental facet and is not meant to be a panacea for all ills.
NGT is not a plenary body with inherent powers to address concerns of a residuary character. It is a statutory body with limited mandate over environmental matters as and when they arise for its consideration. In a cause before it, NGT cannot directly go on to adjudicate on concerns of violation of fundamental rights and once the contours of a subject matter traverse the scope of appeal from a grant of EC, the merits review by tribunal cannot traverse beyond the scope of jurisdiction vested in it by the statute.
Environment and development are not sworn enemies of each other. It would be an anomalous approach to consider environment as a hurdle in development and vice-versa. The entities like EAC and NGT are created to strike a just balance between two competing interests and a time-tested principle of striking this balance is timely invocation of mitigating environmental measures amidst a development activity. True that mere application of certain mitigating measures may not alleviate environmental concerns in all matters and in some circumstances, the project is simply incomprehensible with the environment. But as long as a legitimate development activity can be carried on in harmony with the idea of environmental protection and preservation including sustainable development, the Courts as well as expert bodies should make their best endeavour to ensure that harmony is upheld and hurdles are minimized by resorting to active mitigating measures.
The principle of sustainable development and precautionary principle need to be understood in a proper context. The expression “sustainable development” incorporates a wide meaning within its fold. It contemplates that development ought to be sustainable with the idea of preservation of natural environment for present and future generations. It would not be without significance to note that sustainable development is indeed a principle of development – it posits controlled development. The primary requirement underlying this principle is to ensure that every development work is sustainable; and this requirement of sustainability demands that the first attempt of every agency enforcing environmental rule of law in the country ought to be to alleviate environmental concerns by proper mitigating measures. The future generations have an equal stake in the environment and development. They are as much entitled to a developed society as they are to an environmentally secure society.
The right to development, thus, is intrinsically connected to the preservation of a dignified life. It is not limited to the idea of infrastructural development, rather, it entails human development as the basis of all development. The jurisprudence in environmental matters must acknowledge that there is immense inter-dependence between right to development and right to natural environment. In matters of balancing between competing environmental and development concerns, the Court has to be project-specific. In environmental matters, even one fact here or there may have the effect of attributing a totally distinct character to the project and accordingly, the scope of judicial review may vary. The proper balance of judicial review in environmental matters in a constantly developing society is a matter of great debate across all jurisdictions. Important Foreign case law : ETHYL CORPORATION V EPA.
Judges must always look for a careful balance when two equally relevant interests compete with each other. The task may not be easy, but is the only reasonable recourse. For the proper application of these principles, the first and foremost thing to be kept in mind is the nature of the project. In the present case, the subject project is an independent building and construction project wherein one-time construction activity is to be carried out. It is not a perpetual or continuous activity like a running industry. It is absolutely incomprehensible to accept that a project of this nature would be unsustainable with the needs and aspirations of future generations. Furthermore, the increase in footprint is not shown to be substantial and the inclusion of new members of Parliament after the delimitation exercise is anyway going to lead to an inevitable increase in footprint (floating though) that cannot be countenanced as a concern here.
L. Selection of the consultant –
The petitioners raised objection about the selection of the consultant for the project saying the tender process was not fair because less players participated in the tender. The court held :
- The argument that the participants were less in number would be of no significance unless it is shown that the conditions of tender or other circumstances attributable to the respondents had prevented others from participating.
- The law regarding interference by the Court in award of tender is well settled. In Michigan Rubber (India) Limited v. State of Karnataka and Ors the court held that,
“the Government and their undertakings must have a free hand in setting terms of the tender and only if it is arbitrary, discriminatory, mala fide or actuated by bias, the courts would interfere. The courts cannot interfere with the terms of the tender prescribed by the Government because it feels that some other terms in the tender would have been fair, wiser or logical. In the matter of formulating conditions of a tender document and awarding a contract, greater latitude is required to be conceded to the State authorities unless the action of the tendering authority is found to be malicious and a misuse of its statutory powers, interference by courts is not warranted”
- As long as there is fair play in Government action, it is no one’s concern to assail a commercial transaction by levelling vague and unsubstantiated allegations. The genesis of a public interest litigation lies in public interest; and public interest lies in vindicating the rights of those who lack the wherewithal to reach the Court to remedy injustice against them. The tool of public interest litigation or “social interest litigation”, as it is more appropriately called, was devised to open the doors of the constitutional Courts for remedying glaring injustices against humans, that is, for securing constitutional rights. It was never meant to transform the constitutional Court as a superlative authority over day-to-day governance.
- In Narmada Bachao Andolan v. Union of India the court held that, Public interest litigation should not be allowed to degenerate to becoming publicity interest litigation or private inquisitiveness litigation. While exercising jurisdiction in PIL cases the court has not forsaken its duty and role as a court of law dispensing justice in accordance with law. It is only where there has been a failure on the part of any authority in acting according to law or in non-action or acting in violation of the law that the court has stepped in. No directions are issued which are in conflict with any legal provisions.
M. Doctrine of public trust
- The doctrine of public trust has traversed a long journey in legal jurisprudence. The doctrine enjoins the State to exercise its control over common public resources in a manner which furthers preservation and protection in public interest. It requires the management and distribution of public resources in a manner that public is not deprived of them. The doctrine of public trust involves basic element of due diligence in State’s management of public resources.
- The Constitution posits this doctrine at various places, particularly in Part-IV. Illustratively, Article 39(b) mandates justness in “ownership and control of material resources” so as to “subserve common good”. Article 48A enjoins the State to protect and improve the environment thus:
“48A. The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.”
Furthermore, Article 49 enjoins the State to protect monuments of historic and artistic interest thus:
“49. It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.”
Article 49 reveals a crucial dimension of public trust. It categorically specifies that the obligation of State to protect monuments pertains to those monuments which are declared to be of national importance by a law made by Parliament. The doctrine of public trust does not operate in vacuum. It depends on several factors including, the resource under question, usage of the resource in the past, proposed usage of the resource, management of the resource and nature (public or private) of the entity which is entrusted with its management. The ground of public trust is invoked when argument of increased protection is pitched against enhanced use of resources. Another important facet of public trust doctrine is that it limits the State from excessive entrustment of natural public resources to commercial entities. It requires an abdication of responsibility. There are two aspects to public trust doctrine- first, resolution of conflict between those who want to preserve and those who want to meet societal exigencies in accordance with changing needs is for the legislature and not Courts and second, the executive cannot convert public resources into private ownership. [ M.C. Mehta v Kamal nath, 23 DEC 1996]
From Kamal Nath case it is clear that most of the cases in which this doctrine is invoked involved conversion of public ownership into private ownership; or commercial use of resources; or abdication of responsibility; or unjust denial to common public. None of these circumstances exist in the present case. The project does not involve any conversion into private ownership and has no element whatsoever of permitting commercial use of vital public resources. The proposed project is in line with the standards of public trust and the petitioners have failed to point out any circumstance which would suggest otherwise.
N. Preliminary objections in I.A. –
The petitioner raised the issue of propriety of the Court’s order to collectively entertain the wide range of issues connected with the present subject matter, including those relating to EC. It has been submitted by the petitioner that the order resulted into a denial of statutory right to approach other forums and could not have been passed. But the court held that:
- There is ample support to the proposition that when larger national interest is involved and concerns of public exchequer are directly involved in the lis, the Court must act at the earliest opportunity. For, each day’s delay has a direct impact on the exchequer.
- In Kalpana Mehta & Ors. v. Union of India & Ors observed that “When courts enter upon issues of public interest and adjudicate upon them, they do not discharge a function which is adversarial.” Such a proceeding is essentially in the nature of a collective enquiry to determine whether the State is acting in accordance with settled principles of law and such collective enquiry is always targeted towards larger public interest. What purpose will a public interest proceeding serve if the fulfilment of one notion of public interest leads to a clear subjugation of another legitimate action of the State taken in public interest and as the petitioners themselves put it, concerning project of national importance touching upon democratic polity. That is where the role of this Court comes in, which ought to be active and not passive in such proceedings.
- When competing public interests are brought before a constitutional Court, it becomes the duty of the Court to harmonize and balance such interests, even if it requires the invocation of an extraordinary power. The performance of this function by the Court becomes even more indispensable when the grievance of the petitioners is that national interest is at stake. It is precisely for such occasions that this Court is bestowed with such a plenary power.
(i) We hold that there is no infirmity in the grant of:
(a) “No Objection” by the Central Vista Committee (CVC);
(b) “Approval” by the Delhi Urban Art Commission (DUAC) as per the DUAC Act, 1973; and
(c) “Prior approval” by the Heritage Conservation Committee (HCC) under clause 1.12 of the Building Byelaws for Delhi, 2016.
(ii) We further hold that the exercise of power by the Central Government under Section 11A(2) of the DDA Act, 1957 is just and proper and thus the modifications regarding change in land use of plot Nos. 2 to 8 in the Master Plan of Delhi, 2021/Zonal Development Plan for Zone-D and Zone-C vide impugned notification dated 20.3.2020 stands confirmed.
(iii) The recommendation of Environmental Clearance (EC) by Expert Appraisal Committee (EAC) and grant thereof by MoEF is just, proper and in accordance with law including the 2006 Notification. We uphold the same along with appropriate directions therein to ensure that the highlighted mitigating measures are followed by the project proponent in their letter and spirit
(iv) The project proponent may set up smog tower(s) of adequate capacity, as being integral part of the new Parliament building project; and additionally, use smog guns at the construction site throughout the construction phase is in progress on the site.
(v) We also call upon the respondent MoEF to consider issuing similar general directions regarding installation of adequate capacity of smog tower(s) as integral part in all future major development projects whilst granting development permissions, particularly in cities with bad track record of air quality – be it relating to Government buildings, townships or other private projects of similar scale and magnitude, including to use smog guns during the construction activity of the Project is in progress.
(vi) The stage of prior permission under clause 1.3 of the Building Bye Laws of the Heritage Conservation Committee (HCC), is the stage of actual development/redevelopment etc. work is to commence and not the incipient stage of planning and formalisation of the Project. Accordingly, the respondents shall obtain aforementioned prior permission of the designated Authority before actually starting any development/redevelopment work on the stated plots/structures/precincts governed by the heritage laws including on plot No. 118, if already not obtained.
(vii) The selection/appointment of Consultant, in light of the limited examination warranted in this case, is held to be just and proper.
Separate judgement – Sanjiv Khanna
- It is a concurring judgment with regards to the otice inviting Bid, award of consultancy and the order of the Urban Arts Commission, as a standalone and independent order, but a dissenting opinion with regards to public participation on interpretation of the statutory provisions, failure to take prior approval of the Heritage Conservation Committee and the order passed by the Expert Appraisal Committee.
- Conventionally, judicial review is not much concerned with the merits of an administrative decision, but rather, with the process of arriving at it, and with the question of jurisdiction. The question of procedure can be categorised under three principal heads – illegality, procedural impropriety and irrationality. Illegality occurs when the decision-maker acts in excess of his powers such as when he acts ultra vires or in error of law and/or fact, unauthorisedly delegates his power, acts for improper purpose or in bad faith or fails to act, considers irrelevant factors, imposes onerous conditions etc. Procedural impropriety may be due to failure to comply with the mandatory procedure of law or breach of principles of natural justice such as audi alteram partem, rule against bias, duty to act fairly duty to give reasons, respecting legitimate expectation, etc. Irrationality takes into its umbrella Wednesbury unreasonableness,( Associated Provincial Picture Houses v. Wednesbury Corporation1947 (2) All ER 680 (CA)) which considers a decision as unreasonable if it is so outrageous in its defiance of logic or accepted moral standards that no sensible person, applying his mind to the question, could have arrived at it (All India Recruitment Board and Another v. K. Shyam Kumar and Others, (2010) 6 SCC 614)
- Another ground for review is the test of proportionality, considered by many as more intensive, and distinct from Wednesbury unreasonableness. To some jurists it requires the court to make a value judgment, independent of the decision-maker, based on factors such as suitability or appropriateness, necessity and the balance or imbalance of benefits and disadvantages.
- In Anuradha Bhasin v. Union of India reference was made to the earlier decision of this Court in Modern Dental College and Research Centre v. State of Madhya Pradesh and Others and held that the principle of proportionality is inherently embedded in the Indian Constitution under the doctrine of reasonable restriction, which means the limitation imposed on a person should not be arbitrary or of an excessive nature beyond what is required in the interest of public.
- In K.S. Puttaswamy (Aadhaar-5J) D.Y. Chandrachud had referred to the threefold requirement of legality which postulates the existence of law; need defined in terms of a legitimate state action; and proportionality which ensures rational nexus between the objects and means adopted to achieve them. The third principle, it was held, is the essential role of test of proportionality. Anuradha Bhasin also refers to the four-pronged test suggested by Sanjay Kishan Kaul, J. in his concurring opinion in the Aadhar (5 Judge Bench) judgment, to elucidate that the action must be sanctioned by law; the proposed action must be necessary in a democratic society for legitimate aim; the extent of interference must be proportionate to need for such interference; and there must be procedural guarantees against abuse of such interference. Accordingly, in Anuradha Bhasin it is observed that the current state of doctrine of proportionality, as it exists in India, is the key tool to achieve judicial balance
- In Gwalior Rayon Silk Mfg. Co. Ltd. v. Assistant Commissioner of Sale Tax the Constitutional Bench of this Court had referred to the precedents on constitutional limitation on delegation. It observed that there are limits to delegation which flow from the rule and necessary postulate of the sovereignty of the people and, therefore, it is not permissible in the matter of legislative policy to substitute the views of individual officers or other authorities, however competent they may be, for that of the popular will as expressed by the representatives of the people in the primary legislation.
- Indian Express Newspapers v. Union of India holds that subordinate legislation does not carry the same degree of immunity as enjoyed by a statute passed by a competent legislature. In addition to the grounds on which primary legislation may be contested, subordinate legislation can also be questioned on the ground that it does not conform to the statute under which it was made, it is contrary to some other statute, or that it was not formed in consonance with the legislative intent as reflected in the rule making power given under the statute. Under Article 14 of the Constitution of India, administrative decisions and subordinate legislations can be challenged and struck down when an action exhibits manifest arbitrariness.
- In Kerala Samsthana Chetu Thozhilali Union v. State of Kerala & Ors it was observed that subordinate legislation it is trite must be reasonable, in consonance with the legislative policy and also give effect to the purport in the main enactment and in good faith. The reason being that the subordinate law making body is bound by the terms of the delegative and the derived authority and the court, as a general rule, shall not give effect to the rules except where it is satisfied that all the conditions precedent for validity of the rules have been fulfilled.
- In Ispat Industries Limited v. Commissioner of Customs (2006) 12 SCC 583 it was held henever there is conflict between a norm in a higher layer in this hierarchy and the norm in the lower layer, the norm in the higher layer will prevail. In India, the hierarchy puts the Constitution at the highest level followed by statutory law either by the Parliament or the State Legislature, delegated or subordinate legislation which are in the form of rules made under the Act, regulations made under the Act and then at the lowest level are the administrative orders or executive instructions without any statutory backing
- In Central Board of Secondary Education v. Aditya Bandopadhyay (2011) 8 SCC 497 ourt had divided information into three categories, namely, (i) information, that promotes transparency and accountability in the working of every public authority, and may also help contain or discourage corruption, enumerated in clauses (b) and (c) of Section 4(1) of the Right to Information Act; (ii) other information, that is, information not falling within clauses (b) and (c) of Section 4(1) of the Right to Information Act; and (iii) information not held by, or under the control of the public authority, which cannot be accessed by a public authority under the law for the time being in force.
- In Lachmi Narain v. Union of India (1976) SCC 2 953 in the context of legislation requiring publication of notice and public consultation three observations were made. Firstly, the requirement for publication of notice of not less than three months before amending the Second Schedule of the Sales Tax Act was held to be mandatory and not directory as the intention of the law makers was expressed in the law itself – the word ‘must’ instead of ‘shall’ had been used. When the provision is couched in prohibitive or negative language it can rarely be directory; pre-emptory language in negative form is per se indicative of the intent that the provision is mandatory. Secondly, the period fixed in the notice, was mandatory keeping in view several factors such as the imposition of new tax burden or exemption from taxes should cause least dislocation or inconvenience to the dealer in collecting tax for the government, keeping accounts and filing proper returns, and to the Revenue in assessing and collecting the same. Thirdly, dealers and others likely to be affected by the amendment, must get sufficient time and opportunity for making representation, objection, suggestion, in respect of the intended amendment. Accordingly, period of not less than three months was absolute and the span of the notice was thus the essence of the legislative mandate
- In Hanuman Laxman Aroskar v. Union of India (2019) 15 SCC 401 on the question of public consultation in the case of environment clearance had observed
“Public consultation cannot be reduced to a mere incantation or a procedural formality which has to be completed to move on to the next stage. Underlying public consultation is the important constitutional value that decisions which affect the lives of individuals must, in a system of democratic governance, factor in their concerns which have been expressed after obtaining full knowledge of a project and its potential environmental effects.”
- In Rajendra Shankar Shukla v. State of Chhattisgarh (2015) 10 SCC 400 , wherein with regard to town planning and development reference was made to the ‘principles of natural justice’, when the town planning and development authority wanted to reconstitute the plots and change the land use. Referring to the functioning of the committee which had to hear the objections of the parties, it was observed:
“The Committee rejected the objections submitted by the appellants without providing any reasons for the same and not even providing any hearing opportunities to put forth their objections before the said Committee. Therefore, the recommendations of the Committee did not carry any weight. This action of the State Government is vitiated in law and therefore liable to be set aside
- In Syed Hasan Rasul Numa v. Union of India (1991) 1 SCC 401 Court had interpreted requiring issue of public notice inviting objections is mandatory to the proposed modifications in the Master Plan
- Any change or modification in the practice adopted by the respondents and their application to modifications of the master plan would also be governed by the principle of procedural legitimate expectation which has special application in planning law. Court in State of Jharkhand v. Brahmputra Metallics Limited Civil has elaborately referred to the doctrine of legitimate expectation by referring to the English Law. The doctrine means that the public authorities should be held bound by the representations since citizens continue to live their lives based on the trust they repose in the State. When public authorities fail to adhere to their representations without providing adequate reasons, it violates the trust reposed by the citizens in the State. The basis of the doctrine of legitimate expectation is reasonableness and fairness, the denial of which may amount to abuse of power. The remedies against public authority must also take into account the interest of general public which the authority seeks to promote. There is denial of legitimate expectation when in a given case it amounts to denial of a right that is guaranteed, or is arbitrary, discriminatory, unfair or biased or gross abuse of power or in violation of principles of natural justice so as to attract Article 14 of the Constitution. However, mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. This means that public authorities cannot play fast and loose with the powers vested in them which have to be exercised in the larger public and social interests. Every authority is under a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which powers were conferred. In this context, good faith for legitimate reasons, that is, bona fide for the purpose and none other. In this way, legitimate expectation is a way in which the constitutional law guarantees non-arbitrariness enshrined under Article 14.
- Procedural legitimate expectation is distinct from substantive legitimate expectation as explained in R (Bhatt Murphy) and Others v. Independent Assessor (2008) EWCA Civ 755 [ foreign case law] as procedural expectation arises where a public authority has provided an unequivocal assurance, whether by means of express promise or established practice that it will give notice and a chance of hearing to the affected party before it changes an existing substantive policy. In such cases, the court will not allow the decision maker to effect proposed change without notice or consultation, as the case may be, unless there is overriding legal duty to the contrary or countervailing public interest which requires departure from the express promise or established practice. It is generally agreed that ordinarily every government or authority, has the right to change the existing policy unless such change is hit by Wednesbury principle of unreasonableness, etc.. Therefore, normally substantive legitimate expectation rarely results in a relief unless there is a specific undertaking directed to a particular individual or a group by which the relevant policy’s continuance is assured. Even in such cases, substantive promise cannot be binding if it is ultra vires or inconsistent with the statutory duties imposed on the authority. The present case is concerned about procedural legitimate expectation. This principle has often been applied when there is lack of consultation which results in failure to follow procedural promises or established practice in municipal law as has been held in R (Majid) v. London Borough of Camden , and R (Kelly) v. London Borough of Hounston, where the claimant was not informed of the date of the committee meeting in time to address it and in R (on the application of Vieira) v. London Borough of Camden which was a case relating to grant of retrospective planning permission for a conservatory and for a building by a local authority, which was struck down.The grounds included failure to make documents and reports available on the website for comment before the panel meetings as stated in the published procedure for members briefings.
- In the present case, The authority had decided to accord approval in principle “as the process for change of land use had been taken up by the competent authorities” and then records “accordingly, the final approval for change of land use may be communicated”. Member representing Indian Institute of Architects had wanted detailed facts on the matter. His request was ignored. Conspicuously there is no discussion on the aspect of lack of information. Use of the word ‘in principle’ is indicative, if not reflects tentativeness, as if, it was not an expression of a firm opinion.
- What is of concern is lack of discussion, reasons or even the conclusion or finding on the aspect of slicing or inclusion. On the matter of “appraisal” in Bengaluru Development Authority v. Sudhakar Hegde (2019) 15 SCC 401 court has elucidated:
“Appraisal by the SEAC is structured and defined by the 2006 Notification. At this stage, the SEAC is required to conduct “a detailed scrutiny” of the application and other documents including the EIA report submitted by the applicant for the grant of an EC. Upon the completion of the appraisal process, the SEAC makes “categorical recommendations” to the SEIAA either for: (i) the grant of a prior EC on stipulated terms and conditions; or (ii) the rejection of the application. Significantly, the recommendations made by the SEAC for the grant of EC, are normally accepted by the SEIAA and must be based on “reasons”.
- Proceedings before the EAC are not adversarial in nature. EAC acts both as a fair investigator and an independent objective adjudicator when deciding whether or not to grant environmental clearance. There must be application of mind which is reflected when reasons justifying the conclusion are recorded. Mere reproduction of the contesting stands is not sufficient. On the contrary it would reflect mechanical grant without application of mind. Further, it is not for the court/appellate forum to assume what weighed, whether the conclusion relies on material which is relevant, irrelevant or partly relevant, or whether the decision is partly based on surmises and conjectures and partly on evidence. (See, the Constitutional Bench decision of the Court in Dheeraj Lal and Girdhari Lal v. Commissioner of Income Tax)
- . It was faintly argued before the court that the relevant clause of the EIA Notification of 2006 does not require giving of reasons when environment clearance is granted. The majority judgment is per incuriam to Hanuman Laxman Aroskar v. Union of India (2019) 15 SCC 401.