Modi as Tuqhlaq

What “benefits” does the Central Vista Project bring to India’s people? What is to be gained by massive statues built on land or sea?

A view of the Central Vista redevelopment project in progress, near Parliament House in New Delhi on May 20.

Prime Minister Narendra Modi’s Central Vista Project deserves close analysis from three aspects—political, historical and constitutional. The political one stands out like a sore thumb. The issue is not the pandemic. It is whether the project with its enormous expenses is necessary at all. It is certainly not. No wonder that acclaimed town planners, architects, historians of Delhi and the like were not consulted. The genesis of the project is political. Modi wants to impose on New Delhi the impress of his name just as he did on Ahmedabad. This is our 21st century Mohammed bin Tughlaq all over. Dwindling popularity at home and abroad have only strengthened his resolve, for time is fast running out.

Where is the opposition’s opposition to Modi’s project? Rahul Gandhi has an expensive secretariat of his own. Instead of spewing invective devoid of elegance but rich in coarseness, Modi can task his men to prepare a well-documented White Paper on the project.

Then, for that matter, why are the opposition leaders silent on this egregious waste of public money in times like these? Their silence reveals the true state of the opposition. Sonia Gandhi, the obvious unifying force, will not act unless Rahul Gandhi is anointed as the leader-to-be. This is the real obstacle to the revival of the Congress party.

Congress leaders, such as they are, cannot and will not agree on an alternative, and Sonia Gandhi will not apply the time-honoured practice of selecting her provisional leader to the centre. It has to be Rahul Gandhi and none else. The Central Vista Project reveals the true state of India’s politics. A fractious opposition, a decaying Congress, and a ruling party that is out to exploit this vacuum and make New Delhi Modi Nagar so that he will be remembered for all time despite the fact that his popularity has faded at home and, more painful to him, abroad.

This writer will not be alive to be able to read the forms of literature he likes best, archival records and memoirs. But some of my readers will be, inshallah—God willing. They will read with shocked amusement the acerbic comments of world leaders who have had to suffer Modi’s embraces. Donald Trump has already given his verdict—Howdy Modi? As well as the electorate’s verdict, the Central Vista Project is designed to perpetuate his fame. No Prime Minister was as concerned about his looks, attire and name as our Modi Ji. He does not care for history, only for the people of today. No Prime Minister has cared more for his attire, image and popularity, all in vain, alas.

Fall in standards

The opposition leaders sit cheerfully on their hands as impious hands are laid on India’s historic places. For a start, read Role of Central Legislature in the Freedom Struggle by Manoranjan Jha (National Book Trust; Indian Council of Historical Research, 1972). It covers the 1858-1947 span. It saddens one to note how low the standard of debate has fallen since those times. What Jha brings out very clearly is how the Central Legislative Assembly functioned.

Jha’s book has an apt title. In the Central Legislative Assembly of 1921 set up under the Government of India Act, 1919, Indian nationalists waged a relentless struggle for India’s freedom from British rule. This was done no less in the Council of States where Srinivasa Sastri led the fight.

Several leading figures of Indian politics and public life were there: Pandit Motilal Nehru, M.A. Jinnah, Pandit Madan Mohan Malaviya, Vithalbhai Patel, Lala Lajpat Rai (elected in 1926), Bipin Chandra Pal, Sir Sivaswami Aiyar, Sir Purshotamdas Thakurdas, Sir Chiman Lal Setalvad and Sir H.S. Gour. Young India was represented by such members as T.C. Goswami, Diwan Chaman Lal, Shanmukham Chetty and K.C. Neogy. N.M. Joshi represented the nascent labour movement in India.

Jinnah endorsed Motilal Nehru’s stand that the Nationalist Party was objecting to the demand not due to any “wrecking policy” attributed to the Swarajists but because it wanted to establish a principle by procedure which was completely constitutional.

He observed: “There is no idea in the mind of the Nationalist Party to resort to civil disobedience. There is no idea in the mind of the Nationalist Party that we want revolution... Sir, it is perfectly legitimate for us... that we condemn the Government of India, we condemn the Secretary of State for India. Why? Because you have not satisfied us, in regard to the resolution that we passed here by an overwhelming majority of 76, a resolution which was a demand for reforms.”

He attacked Muslim stooges of the British. He asked them: “Have you not learnt from your experience of the last 150 years that you have been befooled?”

Jinnah emphatically refused to accept any commission unless equal status and equal power were given to the Indian representatives for the purposes of investigation and inquiry. Jinnah and Motilal Nehru were good friends, as were Bhulabhai Desai and Jinnah and Liaquat Ali Khan.

V.P. Menon’s memoirs

V.P. Menon wrote his memoirs in Bhavan’s Journal (January 3, 1962) entitled “Personalities I have known”: “And of all the men I have known, none presented a greater contrast between the public and the private character than Mohammed Ali Jinnah.

“The second Central Assembly formed under the Montagu-Chelmsford Constitution was the most brilliant I ever saw, and none of its members was a more forceful debater than Jinnah. When he made a big speech, the galleries were always full. He was still a nationalist, without any communalism, and his criticisms of the government were slashing. To the officials he was often downright rude. I remember that one day he was walking up and down the verandah of the Assembly building when the Chief Whip informed him that the Home Member would like to speak to him. ‘Very well,’ he replied. ‘Tell him I am here.’ He was a man who never bowed to anybody.

“In 1921 the second Central Assembly was replaced by the much larger Central Assembly, which continued to be elected down to 1937 and remained in being till 1947. Of all the Central Assemblies, it was generally agreed, the one elected in 1924 was the ablest. That was the year when the Swarajists contested elections for the first time and entered the legislature both at the Centre and in the Provinces, in order to wreck the Constitution from within. Then came into the Central Assembly 45 strong members, headed by Pandit Motilal Nehru and S. Srinivasa Iyengar, while the other parties also contributed some fine speakers.

“In 1925, when Jinnah was a member of the Central Assembly, he was appointed a member of the Reforms Enquiry Committee, of which Sir Alexander Muddiman, the then Home Member, was the Chairman. I was at that time a humble Assistant in the Secretariat, helping the Secretary of the Committee.

“After the morning session one day, in the presence of the other members of the Committee, he came up to me and asked me where I was going for lunch. I said I should go to the office and have a snack there. ‘Why?’ said he. ‘Come with me’ and he carried me off to the Cecil Hotel. It was the first time I ever entered that favourite haunt of the Simla V.I.P.s, and many were the astonished stares, not to say glares, that greeted me. But Jinnah was quite unconcerned, and he continued to take me there for lunch for ten or twelve days until the Committee’s work was over. We remained on friendly terms for several years after that, and I had quite a large number of letters from him. Unfortunately, I did not realise what a great historical figure he was going to be, and once when I was clearing out old papers, I destroyed his letters. Needless to say, I much regret it now.”

History was made in the Chamber, where the Constitution of India was also enacted. Let no one pretend that it is overcrowded. Winston Churchill preferred a crowded House of Commons in his existing Chamber to a larger one. It gave the impression of the solemnity of the occasion. That history cannot be wiped out. That is where Jawaharlal Nehru and Vallabhbhai held forth.

Constitutional aspect

The constitutional aspect is not only important but decisive. In 1994 the Supreme Court held: “A Minister in the Central Government is in a position of trust in respect of public property under his charge and direction.”

H.M. Seervai’s views in this book are relevant ( Constitutional Law of India , fourth edition, volume 1, pages 933-940). Article 294 of the Constitution vests assets and properties of the Union and the State governments for the purpose of the Union or States respectively. In short, for a “public purpose”. Courts invalidate requisition or acquisition of a property if it is not for a public purpose. In 1994, the United Kingdom’s John Major government was rudely shaken by the Pergau Dam case. All major textbooks cite and discuss it. Indians revel in ignorance. They ignore this important case. ( R vs Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd. (1995) . 1 ALL E R 611.)

Pergau dam project

The World Development Movement Ltd., a respected non-governmental organisation, applied for judicial review of two decisions by the Foreign Secretary in regard to the aid to fund the Pergau Dam in Malaysia. Section I (1) of the Overseas Development and Co-operation Act, 1980 said: “The Secretary of State shall have power, for the purpose of promoting the development or maintaining the economy of a country or territory outside the United Kingdom, or the welfare of its people, to furnish any person or body with assistance, whether financial, technical or of any other nature.”

The British court said: “The subsection is ungrammatical in that it is unclear what verb is intended to govern ‘welfare’, and it appears that the word ‘of’ has been omitted after the word ‘development’. But that is presently immaterial. The argument before this court has centred on whether the grant in question was ‘for the purpose of promoting the development’ of Malaysia.”

The site in the Pergau river was identified by the Malaysian government. Two British companies indicated to the Department of Trade and Industry (DTI) their interest in the site and also that they would seek aid and trade (ATP).

On March 15, 1989, Prime Minister Margaret Thatcher met Malaysia’s Prime Minister, Dr Mahathir Mohammed, in London and made an oral offer of ATP support of up to GBP 68.25 million for the project conditional on a full economic appraisal.

Two appraisals of the project found it “uneconomic”. In February 1990, the OSDA concluded that the project was “a very bad buy”. Other appraisals confirmed this view. On February 5, 1991, the Permanent Secretary in the Overseas Development Authority, Sir Tim Lankester, minuted his Minister that “this project should not be implemented for the foreseeable future”.

To follow Sir Tim’s remarkable logic is to realise that Sir Humphrey Appleby was not pure fiction after all.

On February 26, 1991, the Foreign Secretary, ignoring the appraisals, gave his nod to Sir Tim. The contract was signed on July 12, 1991. A Divisional Bench of the Queen’s Bench Division struck down the decision as an abuse of power.

It is common ground that a power exercised outside the statutory power is unlawful. This may be the consequence of an error of law in misconstruing the limits of the exercise of the power, or because the exercise is ultra vires , or because irrelevant factors were taken into account.

In the Pergau Dam case, Pleming, counsel for the petitioner, submitted that the power to furnish assistance is not absolute or unfettered but could only be exercised to advance the purposes for which it was conferred. The principle is correctly summarised by H.W.R Wade in his classic Administrative Law (at page 413):

“... statutory powers, however permissive, must be used with scrupulous attention to their true purposes and for reasons which are relevant and proper.

“A political purpose can taint a decision with impropriety: see R v Inner London Education Authority, ex p Westminster City Council [1986] 1 All ER 19 per Glidewell jr, and R v Governor of Brixton Prison, ex p Soblen [1962] 3 All ER 641 at 661, [1963] 2 QB 243 at 302, where Lord Denning MR said, in relation to the decision to deport—‘If it was done for an authorised purpose, it was lawful. If it was done professedly for an authorised purpose, but in fact for a different purpose with an ulterior object, it was unlawful.’

“The crucial question, as it seems to me, is whether there was, indeed, a purpose within the 1980 Act. Mr Pleming drew attention to the rationale of ATP since its inception in 1977, which has apparently been to provide finance for sound development projects which are also of commercial and industrial importance to Britain. He submitted that it has not been suggested by the government, until this case, that financial aid can lawfully be given in support of a project which does not satisfy the test of being sound economic development. He drew attention to the statement by the Minister for Overseas Aid to Parliament of February 1988, which refers to ‘sound developmental projects’; to the Aid and Trade Provision Guidelines (applicable in 1991), which refer to sound investments which are financially viable and likely to bring economic benefits to the recipient country; and to the observations by the government in the Second Report from the Foreign Affairs Committee (HC paper (1986-1987) no 32) (bilateral aid: country programmes), where appears this in para 4:

‘There is one objective, which is the promotion of development. This is entirely compatible with also serving our political, industrial and commercial interests.’”

In paragraph 7 of the British court’s judgment appears:

“We support activities which are technically sound, financially viable and will bring economic benefits.’”

What “benefits” does the Central Vista Project bring to the people?

The British judge ruled:

“For my part, I am unable to accept Mr Richards, Counsel for the State’s submission that it is the Secretary of State’s thinking which is determinative of whether the purpose was within the statute and that therefore para 3 of his affidavit is conclusive.

“Whatever the Secretary of State’s intention or purpose may have been, it is, as it seems to me, a matter for the courts and not for the Secretary of State to determine whether, on the evidence before the court, the particular conduct was, or was not, within the statutory purpose. As to the absence of the word ‘sound’ from S 1(1), it seems to me that if Parliament had intended to confer a power to disburse money for unsound developmental purposes, it could have been expected to say so expressly.”

What holds good for Section 1 (1) of the British Act applies with even greater force to Article 294 of India’s Constitution. What is to be gained by the Central Vista Project? What by massive statues built on land or sea? The Pergau Dam case establishes that such action is not only bad in law but, given India’s Article 294, unconstitutional.