Great dissenters make great judges because it is easy to assent with the majority without cogent reasons but difficult to dissent from them to uphold the people’s rights. This is why Justice Sanjiv Khanna’s dissenting ratiocination appears to be correct because he upheld the right of the people to take part in projects of national importance, like the Central Vista Project, costing the nation Rs 20,000 crore. Justice Khanna has joined the ranks of famous dissenters like his uncle, Justice Hans Raj Khanna and Justice Jasti Chelameswar.
Indira Gandhi superseded Justice H R Khanna in 1977, to make Justice M H Beg the Chief Justice of India, because he dissented from the majority. The junior Justice Sanjiv Khanna will take over as the 51st Chief Justice of India after Justice Dhananjaya Chandrachud retires in 2024. Justice Khanna is 184 days younger than Justice Chandrachud. So the nephew will achieve what Indira Gandhi denied his uncle.
Change in land use
Justice Khanna was of the view the change in land use must be struck down on both procedural and substantial grounds. On procedure, the judge noted it was initiated without a consultation process. “Mere uploading of the gazette notification giving the present and the proposed land use with plot numbers was not sufficient compliance, but rather an exercise violating the express as well as implied stipulations that is, necessity and requirement to make adequate and intelligible disclosure,” Justice Khanna declared in his dissenting judgment.
He held that the Central Government did not give adequate thought to the concerns of the public and not enough time for those who raised objections to make their case. He wrote that the permissions given by the CVC appeared to be pre-determined. He disagreed with the majority view that the modification was substantial and not a “minor change”.
Before preparation of any plan and its submission to the Central Government, the Delhi Development Authority (DDA), under law, was required to invite objections and suggestions from the public or any local authority. The DDA had to also appoint a Board of Enquiry and Hearing (BoEH) for considering the representations regarding the draft master plan for the Central Vista project.
The Central Vista is much more than a set of grandiose buildings housing our MPs and ministers. It represents the will of the Indian people, as declared in the preamble of the Constitution. But when the people of India have been denied adequate opportunity to voice their opinions on an enterprise that will shape India through its laws, the will of the people has been thwarted. When the Central Vista is completed at a cost of Rs 20,000 crore, it will define the will of those who govern us, and not those who voted them to govern us.
This is why the petition in the Supreme Court was basically a plea for the government to comply with the due process of law which encapsulates transparency in formulating, selecting and developing the final design of the Grand Vista. The majority judgment of Justices A M Khanwilkar and Dinesh Maheshwari have failed to redress this grievance.
The judiciary has laid down a 'lakshman rekha' comprising the defence, economic, labour and foreign policies of the government with which it will never interfere, on the assumption that the government is accountable to the people, whereas the judiciary is not.
But it is obvious from the record, the government never sought the approval of the Heritage Conservation Committee (HCC), which is mandatory for the land use to be changed. Holding that strict approval is not needed because some members of the committee set up another committee which had approved the project is specious logic. Ipso facto, the aim of setting up an HCC has been defeated.
Stranger still is the two judges upholding the environmental clearance given only to the renovation and expansion of the Parliament building. As Justice Khanna’s dissenting judgment observes, allowing piecemeal environmental clearance after slicing up this massive project requires cogent reasons, which the government failed to give.
Justice Khanna’s verdict upholds the rights of the people but does not have the force of law because it is the majority verdict which prevails. The two-judge majority judgment means yet another victory for the government.
This opens the Supreme Court to the allegation that it is an executive-friendly court, as stalwarts like retired Delhi High Court Chief Justice Ajit Shah has said. The Supreme Court is seen as the last bulwark between aggrieved citizens and the government. When it upholds the government stance time and again, the inference is obvious. The Supreme Court defers to the wisdom of the government by reneging on its role as supreme arbiter between the governed and those governing us.
Matter of policy
Both the majority and minority verdicts refused to discuss the rationale for displacing Parliament from its current complex or the aesthetics and undesirability of redevelopment by disturbing the overall architectural harmony in a heritage zone. That may be a matter of policy but indirectly allowing pollution by allegedly bypassing the HCC implies the judiciary will allow the executive to have the last word on the reasoning that it (the judiciary ) lacks the resources and experience to govern.
During crises such as the farmers’ demand to repeal anti-agrarian laws, such costly redevelopment plans like the Central Vista project will entail cutting MPLAD funds, to ensure our elected representatives are seated in a grandiose building, while the welfare of migrant workers and farmers is ignored.
Justice Khanna’s judgment quashed the land use change and directed the Central authority to put all drawings, layout plans and explanatory memoranda on its website, invite suggestions and objections and conduct public hearings before the HCC. His judgment is a victory for the people. The majority judgment of Justices Khanwilkar and Maheshwari is a victory for the government.
The writer holds a PhD in law and is a senior journalist-cum-lawyer of the Bombay high court.