Bangalore: The Supreme Court’s dismissal within days of petitions that have since last year called for suspension of the Indian government’s signature Central Vista Redevelopment Project, and the highest court’s enthusiastic go-ahead to the project purely on technical grounds, have created a precedent that dilutes the constitutional principles of the public-trust doctrine.

The newest symbol of civic contestation is the transformation of the Central Vista, the central administrative area located around Raisina Hill and its precincts in India’s capital. The project envisages the radical redesign of a grand avenue flanked by public open space into offices of the central government, residences for the prime minister and the vice president and the Houses of Parliament.

Initiated in 2019, the national government sanctioned the project at a cost of Rs 13,450 crore. Despite the Covid -19 pandemic that India faces, with health and economic emergencies, the government has been resolute in proceeding with construction.

Given the historical, social, political and architectural significance the project commands, architects, urbanists, artists and citizens have repeatedly called for its suspension (see here and here). Several writ petitions were filed critiquing the loss of democratic process and architecture, and the highest court’s adoption of a limited procedural stance while deciding these is bound to have wider implications.

First, the Supreme Court self-assumed the opportunity to hear the petitions which were originally placed with the High Court of Delhi, arguably in favour of public interest. Then, the Supreme Court extended its arms to examine challenges to environmental clearances on the project which are technically vested in the domain of the National Green Tribunal.

While negating all other contentions, the Supreme Court narrowed its preference to focus entirely on procedural challenges to change of land use, approvals on heritage structures and environmental clearances.

It endorsed the project’s compliance with all legal requirements and dismissed all other challenges to the Central Vista project. We analyse key contentions pertaining to change of land use and public participation in the judgement on the petition, Rajeev Suri v. Delhi Development Authority & Ors.

Change Of Land Use

On 17 October 2017, the ministry of housing and urban affairs under section 11 (A) of the Delhi Development Act (DDA), 1957, issued a notification towards making modifications to the Master Plan for Delhi 2021 and permitting change of land use of nine plots along the Central Vista, from ‘recreational’ and ‘public-semi public’ use to ‘government office’. Section 11 (A) of the Act permits only minor modifications to the Master Plan for Delhi.

These nine plots cumulatively measured a substantial 90 acres in the heart of Delhi. In the proposal for redevelopment of the Central Vista, of the 90 acres ‘recreational’ land use was retained for 9.54 acres or just over a tenth. Land use for the remaining 80.46 acres was changed to ‘government office’ use.

Permitting this change of land use implies exclusion of public access to this otherwise vast expanse of open space at the heart of Delhi which, by virtue of its historic spirit rooted in the struggle for freedom, symbolises a place for the commons.

As one of the petitioners argued: “The proposed redevelopment reduces drastically the space available to the public for recreational, public and semi-public use. This is a loss not just to the people of Delhi but to the people of India.”

The Court dismissed the petitioners’ contentions that the proposed changes to land use at the Central Vista were not minor modifications to original intentions of the Master Plan for Delhi and approved revisions on change of land use to the Master Plan on the grounds that the Delhi Development Authority (DDA), the custodian of that Master Plan, had not violated procedural requirements for processing change of land use under section 11 (A).

Public Consultation

Petitioners, critics and architects such as R J Vasavada, A G K Menon and Prem Chandavarkar have contended that the vision for redevelopment of a public space, particularly one as significant as the Central Vista must be undertaken through a deliberative process involving wider debate on the nature of transformation.

Civil society’s expectation from the DDA is a progressive and highly decentralised ‘public participation process’ involving reciprocal communication and relationship between the Planning Authority and the citizens. However, section 11-A (3) of the DDA Act limits its mandates to only ‘public objections and suggestions’ to change of land use. Section 11-A on modifications to the Master Plan mandates:

(3) Before making any modifications to the plan, the Authority or, as the case may be, the Central Government shall publish a notice in such form and manner as may be prescribed by rules made in this behalf inviting objections and suggestions from any person with respect to the proposed modifications before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the Central Government.

The same section further stipulates that the “Planning Authority” (or the Central government) must publish modifications thus made along with information on the date on which the modification comes into force.

However, the Planning authority is not vested with any obligations to steward a proactive communication process with contenders. Urban planners and lawyers have long sought amendments to planning laws to include a deliberative and participatory process, rather than stipulate limited procedural requirements for public objections.

The DDA simply followed the archaic planning legislation. The Court pursued the same logic. While the Court endorsed due process, it overlooked the need for deliberations on wider public implications of depriving inhabitants of the city public use of vast extents of land.

The Public Trust Doctrine and the Right to the City

The dedicated technical and procedural reasoning adopted by the Supreme Court also compromised the very fundamentals of the public trust doctrine. The public trust doctrine promulgates that common resources are meant to be held by the state in trust for its citizens.

While generally evoked to safeguard natural resources, the doctrine equally applies to public access property and commons held in trust for the public. The Supreme Court’s own ruling in MC Mehta v. Kamalnath emphasises this:

"Three types of restrictions on governmental authority are often thought to be imposed by the public trust: first, the property subject to the trust must not only be used for a public purpose, but it must be held available for use by the general public; second, the property may not be sold, even for a fair cash equivalent; and third property must be maintained in particular types of uses".

However, Justices J Khanwilkar and J Maheshwari stated in the judgement, “…for proving a violation of public trust, it falls upon the petitioners to establish that public resources are being squandered and used or planned to be used in a manner which cannot be termed as beneficial for public use and that the Court would look for an actual deprivation of public’s right over common resources.”

The Court did not view the change from public and recreational park use to government buildings in this instance as a deprivation of the people’s right over public land. On the contrary, it even went on to hold that the change in land use would not result in any deprivation of recreational spaces. To buttress its position, it construed public land as property assets of the government and termed the change of land use to ‘government offices’ as a decision in public interest.

Carol Rose’s expansion of Joseph Sax’s work on tenets of public trust from the realm of environment management offers a compelling argument for the protection of public land at the Central Vista. Her work is a reminder of guardianship and responsibility of public property doctrines towards community needs, where reservation of public land is essential for public needs in order to “connect people with the wider world and one another and allow all to interact in a social whole”.

Such a construct allows all inhabitants, present and future, the right to the city, to occupy, use and produce just, inclusive and sustainable urban places. Even the Delhi High Court in Ajay Maken and Ors. v. Union of India affirmed the right to the city as essential to ensuring quality public spaces, protection of biodiversity, enhancement of social interaction and inclusive citizenship.

Violation here is therefore not meant to be scrutinised as a narrow measure of regulatory and procedural compliance for permitting change of land use. At stake is nothing less than the loss of ‘publicness’. Change of land use to ‘government office’ at the Central Vista will only erode the bonding of strangers in a crowd and take away unspoken relationships of trust of a historically rooted polity, infusing purposeful interactions–dry and even phony, as Richard Sennett laments, in his book, The Fall of Public Man.

By examining procedural compliance from a narrow perspective and rejecting substantive violations of public trust, the Court has set a precedent that encourages local governments to perpetuate indiscriminate change of land use and take away public open spaces for government use, at the cost of public trust.

(Jayna Kothari is a senior advocate and executive director, Centre for Law and Policy Research, Bengaluru. Champaka Rajagopal is an independent practicing urban policy and planning expert and faculty at Azim Premji University.)