Participating democracy
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This article is written by Shivam Gupta, from MNLU, Aurangabad.

Introduction

A system of government can be established but what shape it will take is a matter of great importance for any nation. The outcome of democracy is not confined only to the presence of different ideological groups or can also be called as political parties, but the quintessence of democracy is the successful participation of the person in the actual governance of the nation. The more noteworthy and more compelling the investment of the person in the decision-making process, the more successful the democracy will be because democracy is still just an idea which presently can’t seem to be reached by mankind.

The journey for achieving democratic system was started back in the 18th century when Indian Councils Act, 1861 by which non-official members were inducted in Viceroy’s legislative council and it was followed by Indian Councils Act, 1892 because of which members of local bodies are allowed to suggest individuals form part of the legislature. It was after the enactment of the Indian Councils Act, 1909 because of which for the first time elections were held for 32 non-official members and by which a kind of representative element was introduced. 

The way for representative democracy was further cleared by the introduction of the Government of India Act, 1919 and can also be considered as a threshold point for the commencement of parliamentary culture in India. After the Government of India Act, 1935 was introduced; people were allowed to vote and choose their representatives in the provinces and hence provincial autonomy was established. 

Participatory Democracy 

Participatory democracy can be characterized as a framework in which people can actually participate in the policymaking process of the nation. In a participatory democracy, people not only choose their representative to make policies for them but also participate in a series of administrative processes while making a policy. In the case of King & Ors. v. Attorneys Fidelity Fund Board of Control & Anr., the Supreme Court of South Africa noted that public involvement can be in the form of public participation through the submission of commentary and representations.

By way of laws such as Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013; Airports Economic Regulatory Authority of India Act, 2008; The Insolvency and Bankruptcy Code, 2016, etc. constant efforts were made to achieve more extensive public participation, at every possible opportunity and whenever required, keeping in the view the productivity of administration and rule of law. Apex Court in case of Union of India v. Cyanamide India Ltd. observed that even rules of natural justice are not applicable to legislative action, when the statute bound the authorities with duties and obligations to consult. 

Rajeev Suri v. Delhi Development Authority (“Central Vista” Case)

Facts of the Case

The dispute arose because of the redevelopment and modification of the Central Vista which is the highlight and living legacy of Delhi. 

On 2nd September 2019, the Central Public Works Department published a notice welcoming offers for the construction work to be done at Common Central Secretariat, Parliament Building and Central Vista at New Delhi.

After the completion of the tender process and the making of the draft master plan on 21st December 2019, a public notice was published for inviting objections and suggestions from the public in terms of sub-section 3 of Section 11-A of the Delhi Development Act, 1957 (hereinafter “Development Act”) and Rule 16 of the Delhi Development (Master Plan and Zonal Development Plan) Rules, 1959 (hereinafter “Development Rules”). 

A synopsis of the objections and suggestions was made and given to the Board of Enquiry and Hearing (hereinafter BoEH). On 6th and 7th, February 2020 hearings were held before BoEH and after having interaction with the public, BoEH found merit in the objection that there is absence and paucity of data in the public domain and recommended that more data should be disclosed in the public domain. 

Laws under consideration 

Development Act – Section 7 to 11 which deals with master and zonal planning regarding any development project in Delhi.

Development Rules – Rule 5 which relates to public notice regarding the making of a Master Plan and invites suggestions and objections in writing in respect of the master plan. Rule 6 which prescribes the mode in which notice shall be published as given in Section 44 of the Development Act and likewise should also be published in the official gazette. Rules 8, 9, 10 and 11 which prescribe the mode in which objections and suggestions are to be considered and also deals with the making of the final draft Master Plan.

Issue

The issue relates to the government’s obligation to consult and the scope and ambit of the citizen’s right to participate in the administrative exercise.

Arguments of the Petitioner 

  1. That privilege of public participation and consultation is a pre-essential for consequential state activity and it comes from 19(1)(a) of the Constitution and the necessity is conceived out of reasonableness and the State has a constitutional obligation to take all possible measures so that maximum participation can be there.
  2. That there is not enough disclosure of the information about the government actions taken regarding the Central Vista project in public Domain.
  3. That adjudication by courts which is done by the legal standards of procedural reasonableness and power of judicial review cannot be a replacement for public participation before and at the time of decision-making stage. 

Arguments of the Respondent

    1. That the mode of public participation in India is through the representative mode, as India has adopted the representative model of governance. The public elects its representatives and the Council of Ministers is collectively responsible to the Parliament.
    2. That absence of required public participation would not qualify as being termed as unreasonableness so as to quash the whole process.
    3. That absence of information in the public domain would not vitiate the decision taken by the government.

Judgement

The court held that simply the publication of the gazette notification through which providing the present and the proposed land use was not adequate compliance, but instead, an activity which neglected the express as well as implied duty to do intelligible disclosure and also to provide sufficient information and BoEH acknowledged and accepted lapse and failure in providing the data regarding the project in the public domain and also recommended to disclose and furnish more details. The citizens of the country have the right to know intelligible information about the project which can help them to participate and correctly express themselves in giving suggestions and objections. 

The court further held that formative and constructive participation forms the essence of the legislative scheme proposed by the Development Rules and the Development Act and for fulfilment of the same, every possible effort must be made to effectuate the participatory rights to the most extreme degree, instead of reading them down as simple inconsistency or weaken them as useless or not mandated.

The court directed the Central Government/Authority to put intelligible and adequate information on public domain on the web regarding the 6 plots in Central Vista and follow the prescribed procedure mentioned in the Development Act and Development Rules.  

Moreover, the court significantly discussed the principle of Participatory Democracy and stated that Participatory Democracy consists of two important elements which are:

  1. Public participation in decision making and, 
  2. Placing information regarding Government actions in public domain.

Further various observations were made by the court regarding both the elements. 

Observations regarding public participation in decision making

  1. Rule of Law or procedure established by law governs the process of public participation. A reasonable balance has been made between the need for public participation and smooth functioning of the administration. For achieving the same, the legislature has expressly provided for such public participation and also prescribed its limits and extent through its various governing enactments. 
  2. The process of public participation involves three features – the stage, the nature and the degree of participation. The degree and nature of admissible participation are dependent upon a large number of elements including the phase of the procedure, nature of subject matter, persons to be affected, local conditions, geography, vital significance of the project, budgetary limitations of the project etc. 
  3. The notion of public involvement in administrative matters is conditioned upon the stage and extent of representation prescribed by the legislature. No nation with a sizable populace like India can give a guarantee of direct interest to each person in the dynamic cycle of the public authority in regulatory issues except if the law so prescribes. Therefore, this activity can’t be attempted in abstractness merely on the ground that participation is one of the features of a democratic structure. The Supreme Court in case of Janhit Manch and Anr. v. The State of Maharashtra and Ors., opined that consultative process is always helpful but the point of view of people may differ and if the elected bodies which have policymaking power, is to be superseded by the beliefs of every person, the situation would be chaotic.
  4. Public participation is not to override the power of the government to make decisions or to hinder any kind of government activity. It is just for welcoming helpful suggestions/objections from all affected parties for smooth implementation of the policies of the government, to support the public interest.
  5. The extent of public inclusion in government processes is an issue which is subject to the legal structure of a country and the courts must refrain themselves from wandering into that area. 

Observations regarding placing information regarding government actions in the public domain

  1. In a democracy, divulgence of full data is strengthened and goes about as an empowering agent for important support and by allowing open access to data likewise makes sure about the objective of transparency. This observation was made in light of the case of S.P. Gupta & Ors. v. President of India & Ors., in which the Supreme Court observed that the citizens must know what their government is doing as they have a right to know by whom and by what rules they will be administered. Also in the case of R.K. Jain v. Union of India, the Apex Court opined that disclosure of data concerning the working of the Government should be the rule and secrecy can only be justified in cases where the strict requirement of public information was assumed. The courts should try to approach the cases with a view to ease the territory of secrecy as far as possible and that too constantly for the necessity of public interest because the disclosure also additionally serves as a significant part of public interest. 
  2. The rule of “political justice” is intended to inform all organizations regarding national life and is fundamental for making sure a just social order. Further, achieving “political justice” is considered as a step towards “welfare of the people”. The expression “political justice” is of extreme significance because it isn’t only fundamental to the governance of the nation considering its positioning in the Directive Principles of State Policy and also being significantly elucidated in the PREAMBLE of the Constitution of India. In the case of Raghunathrao Ganpatrao v. Union of India, the Apex Court tried to give a meaning to the expression political justice and stated that “political justice relates to the principle of rights of the people, i.e. right to universal suffrage, right to a democratic form of Government and right to participation in political affairs”. 

Conclusion

The case highlights the importance of participatory democracy in any democratic nation. It further highlights the importance of the participatory rights mentioned in the statutes that are to be followed irrespective of any reasoning because the object of such acts and rules is to take the public participation into consideration before taking any decision. As the nation is formed from its citizens and they have every right to participate in the decision making process whenever possible and also have the right to know about the decisions taken by its government.    

In this regard, the Right to Information Act, 2005 has gone a far way to strengthen democracy by necessitating that the public authority should be transparent and open in its activities. Only then corruption can be curtailed by an informed citizenry and also in this way public authorities will be accountable to the people.

Further from the judgement, it is clear that providing information regarding government actions is necessary for the public domain so that the interconnection between accountability, transparency and democracy can be achieved. In the case of CPIO, Supreme Court of India v. Subhash Chandra Agarwal Justice P.N. Bhagwati opined that participatory democracy is based upon the accessibility of data about the working of the Government. The right to know is a pillar of a democratic State which is necessary for positive content in democracy and it also ensures that democracy does not stay static but becomes a constant process. So if confidentiality is maintained regarding any government action then it must ensure that if such information is disclosed in the public domain then public harm arising out of such disclosure is greater than the public interest. 


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