The latest Supreme Court judgment on a plea filed by the NGO, Citizens for Green Doon, against the environmental clearance given by the National Green Tribunal (NGT) to widen the 889km Char Dham roads is by far a declarative for the biophilia around the country. The same set of roads is also crucial for the defence preparedness along the Sino-Indian border amidst heavy artillery movement across it.
A bench of Justices DY Chandrachud, Surya Kant and Vikram Nath modified its September 2020 order which had decided that the 2018 Ministry of Road, Transport, and Highways’ (MoRTH) circular should apply. The circular said that in hills and mountainous terrains, where the traffic volumes range from 3,000 to 8,000 passenger car units a day, the carriageway width should be of the intermediate two-lane structure of 5.5m width, as opposed to the 2012 MoRTH circular which had said that in all new projects of widening/bypass/realignment, the width of the carriageway will be at least two-lane with paved shoulder of 12m width, irrespective of the traffic.
The bench, led by Justice Nariman, had accepted the minority view of the High Powered Committee (HPC) unlike the present bench led by Justice Chandrachud which opted for the majority view of the HPC while allowing the construction of two-lane with paved shoulder road of 12 m width (DLPS), which was the primary prayer of the Ministry of Defence (MoD) to meet the needs of the Indian Army.
Earlier, the NGT had observed that
“one of the most pertinent observations to be made in connection with the designated route of Char Dham project is the occurrence, recurrence and kind of disaster it has witnessed in the recent past. While the 1900’s record the massive 1970 flash flood incident in Alaknanda valley, similarly severe flash flood incident of 1978 in Bhagirathi valley, earthquakes of Chamoli and Uttarkashi of 1998 and 1991, respectively; the new millennia, however in just 17 years has already documented several incidents of disaster in this area. Massive land sliding incidents like the Varunavat tragedy of 2005, Bhatwadi land sinking incident of 2010, Pithoragarh landslide tragedy of 2016, severe flash flood incidents of 2004, 2012, 2013. Even in the otherwise considered stable lower altitude areas like Narendra Nagar, Rishikesh, etc have witnessed massive landslides in 2014 and 2016…”
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With the recent modification of its order, alongside the ongoing concern of massive environmental impact, did the apex court refuse to question the defence policies of the central government? Did the top court seek what is called a “delicate balance” between environmental considerations and security needs?
The Court observed that there must be a significant alteration in the approach to this project by adopting sustainable measures. It directed that MoRTH and MoD can proceed with the project subject to the condition that it addressed all the concerns that have been raised by the HPC.
The report of HPC says that hill cutting is a major reason for landslides and rockfalls in the Himalayas which should be avoided by filling material on the valley side to construct roads, installation of breast walls to avoid erosion and construction of roadside drainage measures. Muck dumping is another issue of concern as most of these projects do not have dumping capacity and the waste is deposited in gorges and natural drains as no financial provision and guidelines for the safe disposal of muck have been provided by MoRTH. The HPC has recommended that dumping should be located downwind of habitation and protection measures must be constructed before muck dumping begins.
The report discusses the concerns over disaster management measures that must be undertaken to prevent any disasters that can occur as a result of the project. A comprehensive study must be carried out, vulnerable muck dumping sites must be identified, natural streams must be relocated and climate vulnerability risk assessment must be conducted to prevent such disasters. The HPC report also asserts the need for remedial measures, such as maintenance of wildlife and water resources, the constant monitoring of MoRTH, and dialogues on the projects’ effect on socio-cultural communities.
The Court further observed that the Union government is empowered to declare any road as a national highway and issue directions for its development and maintenance. Within the Union government, the specific responsibility lies with MoRTH.
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The 2018 MoRTH circular modifies its precursor of 2012 for hilly and mountainous terrains in the following ways: (i) Carriageway width cannot be of DLPS configuration but must be of Intermediate Width (IW standard) (i.e., 5m); (ii) adequate passing places with 2.5m width have to be included; (iii) for areas where the PCUs are more than 10,000 per day (or expected to reach that level within 3 to 5 years), the carriageway width could be of double lane configuration (i.e., 7m); and (iv) where the traffic is likely to increase by more than 10 percent per annum, the width could be of DLPS configuration.
The 2020 MoRTH circular amends the 2018 circular in as much as it modifies the standards prescribed for roads in hilly and mountainous terrain which act as feeder roads to the Indo-China border or are of strategic importance for national security, in view of the suggestions received from the MoD and subsequently issued 2019 IRC guidelines.
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The Court after reading the three MoRTH circulars and 2015 & 2019 IRC guidelines concluded that if a road is a strategic or a border road serving as a feeder road to the Indo-China border and is going to be used for “military/paramilitary/security forces operations/ movements for national security”, then it must be of DLPS configuration if it is a national highway, other than in hilly or mountainous terrain, the national highway can be of DLPS if there are more than 10,000 PCUs per day or that level will be reached in 3 to 5 years, in hilly and mountainous terrain, where the traffic is likely to increase over 10% per annum.
Though, the NGO argued that the three strategic border roads (from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh) are sufficient to meet the needs of the Army, and any further development made should be done taking into consideration the fragility of the Himalayas and the excessive damage done to the environment, the Court swung towards the Army’s infrastructural needs with better disaster-resistant roads.
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The Court observed that the competing interests that the HPC had to evaluate were environmental concerns against infrastructural development, the primary reason of which in this project was focused on increasing tourism, providing an impetus to the economy and ease of transportation for undertaking the Char Dham pilgrimage. Balancing the interests of defense against environmental considerations was outside the ambit of the HPC.
However, the Court did agree that the majority of the members of the HPC recommended the adoption of the DLPS standard as road-width for the project. The Court modified the 2020 order to the extent that the three feeder roads connecting LAC are permitted to be widened. It further granted liberty to the centre to pursue appropriate proceedings and seek relief in the event that it is necessary to implement the DLPS standard for the entire project—The Chardham Mahamarg Vikas Pariyojna.
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The Court dismissed the argument based on the minority report of its own HPC that a disaster-resilient, intermediate road width was much more critical than a wider road “prone to frequent blockages, landslides and recurring slope failures” for the country’s defense needs. It observed that in the exercise of judicial review, it could not “second-guess the infrastructural needs” of the armed forces. The challenge to the circular required the Court to interrogate the policy choice of the establishment which is entrusted by law with the defence of the nation. “This is impermissible”, the Court said.
The Court referred to various judgments, Essar Oil Ltd. vs Halar Utkarsh Samiti, referring to the Stockholm Declaration while elucidating on the principle of sustainable development. It noted that while socio-economic needs could be fulfilled through development, environmental concerns will always remain. In the Central Vista project, it was highlighted that development should be sustainable and not environmentally degrading; Hanuman Laxman Aroskar vs Union of India emphasised environmental governance within a rule of law paradigm in a challenge to the construction of Mopa airport wherein the MoEF&CC gave the project environmental clearance while the Court found a lack of information transparency in the disclosures filed by project proponents, and directed a fresh exercise for a rapid EC to be carried out.
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The Court found that concern for national security is the need of the hour. Such concerns may change from time to time. However, sustainable development should be the key to upholding the environmental rule of law. The challenge in deciding this case was reflected in the Court’s judgment of balancing the needs of defence and protection of the environment.
—By Akarsh Sharma and India Legal Bureau