‘We can’t be called upon to govern’ — SC laments use of PILs to get courts into policy matters

Majority judgment in Central Vista case wonders if SC can ‘guide the government on moral or ethical matters without any legal basis’.

The Supreme Court of India | Manisha Mondal | ThePrint

New Delhi: Judicial time is not meant for looking into “unsubstantiated flaws” in government policies, and for politicising such flaws to appease dissenters.

This was a significant observation made by Justice A.M. Khanwilkar and Justice Dinesh Maheshwari in their majority judgment pronounced Tuesday in the Central Vista redevelopment case.

The court, with a 2:1 majority, paved the way for the Narendra Modi government to start construction work on the Central Vista, one of its most ambitious projects estimated to be worth over Rs 20,000 crore. The majority judgment said there were no infirmities in clearances granted for the project, but said the authorities executing the project will have to get clearance from the Heritage Conservation Committee before the work commences.

Justices Khanwilkar and Maheshwari said the tool of public interest litigation (PIL) or “social interest litigation” was “devised to open the doors of the constitutional courts for remedying glaring injustices against humans, that is, for securing constitutional rights”.

“It (PIL) was never meant to transform the constitutional court as a superlative authority over day-to-day governance,” the court said.

“We need to say this because in the recent past, the route of public/social interest litigation is being increasingly invoked to call upon the court to examine pure concerns of policy and sorts of generalised grievances against the system,” the judges said on page 420 of the majority judgment.

The judgment also spoke about frivolous PILs eating into judicial time which, it said, can be spent on more deserving cases. The court said while some PILs have “generated commendable results”, their limitations also need to be kept in mind.

The judges said this had to be highlighted because the court “had to spend considerable time and energy on this matter (lest the petitioners entertain a feeling of having been denied a fair opportunity), despite the pandemic situation, which at the end, we find to be devoid of substance”.

The court also asserted: “Judicial time is not meant for undertaking a roving enquiry or to adjudicate upon unsubstantiated flaws or shortcoming in policy matters of government of the day and politicise the same to appease the dissenting group of citizens — be it in the guise of civil society or a political outfit.”

It highlighted the other “deserving litigation” that judicial time should be spent on, instead of frivolous claims.

“The foregoing comments are not because the courts feel burdened by untenable and frivolous claims but to highlight that court time saved would be time-earned to be best spent on more deserving claims of have-nots due to long incarceration, affecting liberty, denial of pension and salary, motor accident claims, land acquisition compensation, including genuine corporate resurrection and revival to benefit large number of workmen and investors etc. The list of such deserving litigation is unending,” it observed on pages 393-394 of the judgment.

‘Postlude’

A section titled ‘Postlude’, beginning on page 419 of the verdict, added: “We are compelled to wonder if we, in the absence of a legal mandate, can dictate the government to desist from spending money on one project and instead use it for something else, or if we can ask the government to run their offices only from areas decided by this court, or if we can question the wisdom of the government in focusing on a particular direction of development.”

The judgment also wondered whether the court can “guide the government on moral or ethical matters without any legal basis”. They went on to say that this case wasn’t an anomaly but a recent trend involving petitions that demand that judges look into policy matters.

The court said it cannot be asked to govern and that its role is limited to examining the constitutionality of policy and government actions.

Justice Khanwilkar and Justice Maheshwari said they felt “constrained” to note that in this case the petitioners had called upon the court to “venture into territories that are way beyond the contemplated powers of a constitutional court”. They highlighted the principle of separation of powers and asserted that “political issues including regarding development policies of the government of the day must be debated in Parliament, to which it is accountable”.

“The role of the court is limited to examining the constitutionality including legality of the policy and government actions. We cannot be called upon to govern. For, we have no wherewithal or prowess and expertise in that regard,” the judges stated.

The court further asserted that the constitutionally envisaged system of “checks and balances” has been “completely misconstrued and misapplied in this case”.

“The principle of ‘checks and balances’ posits two concepts — ‘check’ and ‘balance’. Whereas the former finds a manifestation in the concept of judicial review, the latter is derived from the well enshrined principle of separation of powers,” it explained.

Right to development, it said, is a basic human right, and added that “no organ of the state is expected to become an impediment in the process of development as long as the government proceeds in accordance with law”.

SC got case transferred to itself

It needs to be pointed out here that petitions against the Central Vista project were originally filed before the Delhi High Court, and were transferred to the Supreme Court at the latter’s own initiative.

In February last year, Justice Rajiv Shakdher of the Delhi High Court had granted interim relief to the petitioners, ordering the Delhi Development Authority to inform the court before notifying any of the proposed changes in land use. However, a two-judge bench of the Delhi High Court stayed this order a few days later.

The petitioners then approached the Supreme Court challenging the limited aspect of the division bench granting the stay against the earlier order. But on 6 March 2020, the court transferred the petitions pending before the high court to itself, observing: “In our opinion, it is just and proper that writ petition itself is heard by this court instead of examining the grievance about the manner in which the interim directions have been passed and then vacated by the high court.”

It added: “Indeed, this order is not a reflection on the proceedings before the high court, in any manner, but in larger public interest, we deem it appropriate that the entire matter pertaining to challenge pending before the high court is heard and decided by this court expeditiously.”

The dissenting opinion

The third judge on the bench, Justice Sanjiv Khanna, offered a dissenting opinion, saying the change in land use of the area must be struck down as it was initiated without a consultation process. He asserted that the consultation process undertaken by the government was not sufficient — there was a lack of proper documentation made available to the public, and the government did not give a proper chance for people to raise their concerns.

Justice Khanna also clarified that he was not looking into the merits of the project, observing that “these are complex and esoteric issues which have to be at first stage considered and decided by the specialised authorities like the Heritage Conservation Committee”.

“If we consider and examine the merits of the pleas, we would be directly encroaching their jurisdiction and exceeding the power of judicial review,” Khanna added.