Thread by @barandbench

Supreme Court Bench headed by Justice AM Khanwilkar resumes hearing challenge to the #CentralVista project and the government's proposal to construct a new Parliament.

Sr. Adv. Shyam Divan argues why public participation is needed in such decisions.

#SupremeCourt

Senior Advocate Divan now advances case laws on how transparency aspect is important while such decisions are taken by the executive.

Divan: Centre was to consult a heritage committee, but no such thing has been done yet

Divan: conservation of heritage has to be before and not after the entire project has been cooked. The whole notion of conservation of heritage, experts are consult at the conception stage itself

Divan is taking the Court through the statutory provisions regarding participative process in the environmental impact assessment required before granting permissions.

(Divan refers to the procedure adopted in UK regarding Parliament House)

Divan: Parliament itself is deeply involved in the procedure, it's not some PWD and consultants Parliamentary statute is there in the UK.

Divan: Huge amount of consultation process is built in the statute itself and there are bodies which are periodically involved.

(Divan suggests this procedure is lacking cin India on an issue as pertinent as "supplanting India's Parliament building")

SC: Your perception is this is supplanting the Parliament building. Government's view may be that this is supplementary.

Divan: CPWD doesn't know whether they are supplanting or supplementing. When they floated a tender, they didn't know about this.

Divan: When the govt initiated the process, records reflect they had not decided whether they were supplanting or what.

As long as living heritage is concerned, it will be supplanted because parliament session will be held in new building.

Divan: Present vision is this present building will be used for museum or something.

If we look at this as a building, it will be supplementary.

Divan: Please look at this as the whole Central Vista of which Parliament is a very important part.

Any enterprise on that scale has to be in the form of a statutory plan.

(Divan gives examples of statues and development plans in Maharashtra and DDA in Delhi etc)

Divan: There are obligations on the trustees before taking such steps ~

- Obligation to secure information to themselves.

- Then put it out in public domain and invite objections.

- To have democratic element at every stage

Divan: The Parliament building has a living history of 70 years which has now become a very Important part of the living heritage of the world's largest democracy.

(Divan refers to the statute in UK which deals with decisions on Parliament House)

SC observes: Indian Parliament building is not as old as the UK Parliament... As of now, in India there is no statute on this but maybe in future govt may consider bringing a statute

Divan reads from the Supreme Court Constitution Bench's judgment on Aadhaar where the SC said that a study should have been conducted before implementing Aadhaar.

Divan makes a point that even for Central Vista project, studies must be conducted

SC questions about the difference in terms of individual rights and public rights.

Divan: Govt action in executive sphere must be proportionate. You're dealing with one of the most important politico-cultural monuments with embedded values.

Divan: As far as Parliament is concerned, it is equally Important in public sphere as individual rights.

Cultural right you associate with Parliament and SC buildings, there is a in personal sentiment involved and therefore it's personal and public.

(Divan now refers to the #Cryptocurrency Judgment)

Divan: This entire judgment is crafted by Justice V Ramasubramanian like a film script.

Divan: This judgment does not directly apply but opens a window for how we look at proportionality.

One of the tests of proportionality that can be applied is were there studies conducted and carried out before deciding on Central Vista, that is my core argument

Bench breaks for lunch.

Arguments to continue at 2PM.

Hearing resumes.

Senior Counsel Shyam Divan continues to make his submissions.

Divan is taking the Court through the judgments of the Courts where observations as regards historical and cultural importance of heritage buildings are made by the Supreme Court.

Divan: These buildings were regarded as unique and sui generis and Supreme court had passed directions keeping in mind their cultural heritage and importance.

Divan: Our Constitution now has a Role of Municipal corporation.

We're in a different realm now and have to govern our cities and States with responsibility.

(Divan refers to the Maharashtra regional town planning Act and DDA)

Divan: If you want to redo Central Vista which is so rich in cultural, environmental heritage you have to come out with a plan because the law says so and provides for ways to conserve and protect it.

Divan: Master Plan and Zonal Development Plans are statutory.

Zones may be ward wise or concept wise (like political district, heritage district).

Divan: This is not just land use change. When you're changing Central Vista, you need a new zonal plan, a new specialised conservation plan. The whole character of the land is changing, so you need a new plan.

Divan: When you seek to conserve, you cannot make new plans to demolish change etc and then decide on conservation.

(Divan makes a case for Delhi's historical, heritage and cultural importance)

Divan: The stated object here is to change the character of Central Vista.

How can you do it without a detailed process of I voting objections is a question I ask myself.

Divan: The most important authority that should have looked into this was Constitutional institution of the Parliament.

Divan: When we are creating the primary source of law at the very highest level, the home of that institution, should we not strictly follow the law for it?

Divan: The approach should be a much more capacious and value based principle based approach.

Divan points out that a submission in the counter affidavit D says that heritage clearance on buildings will be obtained as and when a detailed plan is made.

SC: Your stance is prior clearance at formative stage before the actual work on ground begins will have to be obtained?

Divan: My request is approach this with the sensitivity it deserves.

Divan: When you talk about prior permission for a precinct then how can you talk about retrofitting?

Divan: Suppose the objections raised later are so overwhelming in the sense of being persuasive then what will happen.

SC: The advice is binding according to this.

Divan: The permission has to be at prior stage.

SC: We understand your submission to be that even before designing, permission has to be taken.

Divan: What is the point of objections and suggestions being deferred to the stage when construction has begun.

Divan is now taking the Court through the Venice charter on the topic of living heritage.

Hearing for the day concludes.

The matter will now be heard next on Monday, November 2.

Central Vista Project: Senior Advocate Shyam Divan argues on why public participation is needed [LIVE UPDATES from the Supreme Court]

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