SC Very Rightly Accepts Concerns On Border Security

It is most gladdening to see that while agreeing with the security needs highlighted by the Ministry of Defence (MoD), the Apex Court in a learned, laudable, landmark and latest judgment titled Citizens for Green Doon & Ors vs Union of India in Miscellaneous Application No. 1925 of 2020 in Civil Appeal No. 10930 of 2018 delivered as recently as on December 14, 2021 with Miscellaneous Application No 2180 of 2020 in Civil Appeal No 10930 of 2018 has allowed widening of three hill stretches in Uttarakhand – Rishikesh to Mana, Rishikesh to Gangotri and Tanakpur to Pithoragarh forming part of the Chardham Mahamarg Vikas Pariyojna. This will be in the Double Line-Paved Shoulder (DL-PS) format with a width of 10 metres (7 metre double-line carriageway and 1.5 metre paved shoulders on either side) as prescribed by the December 5, 2020 circular of the Ministry of Road Transport and Highways(MoRTH). The Apex Court Bench was of the firm view that it cannot second-guess infrastructure needs of armed forces. Very rightly so!

It may be vividly recalled that the Bench of Justices DY Chandrachud, Surya Kant and Vikram Nath had modified the top court’s September 8, 2020 order which had asked the MoRTH to stick to its 2018 circular on the width of roads in hill terrain in the execution of the project. It may also be recalled that the 2018 guidelines had prescribed the width of 5.5m for the carriageway. The Bench also made it clear that the MoRTH and MoD can proceed with the project subject to the condition that it addresses all environmental concerns flagged by the High Powered Committee (HPC) that the court had appointed.

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Dr DY Chandrachud for himself, Justice Surya Kant and Justice Vikram Nath sets the ball rolling by first and foremost making it known in para 1 that, “The present case has a history fraught with litigation, with multiple proceedings before the National Green Tribunal (NGT) and this Court. Before going into the history of the litigation, it is important to provide context for the public project in question in the case.”

While dwelling on the background, the Bench then specifies in para 2 that, “The Chardham Mahamarg Vikas Pariyojna (“Project”) is a program of the Ministry of Road Transport and Highways (MoRTH), which was announced on 23 December 2016. The Project aims to widen the roads of approximately 900 kms of national highways, in order to ensure safer, smoother and faster traffic movement. As the name suggests, these highways connect the holy shrines which have been labelled as the “Chote Char Dham” in the State of Uttarakhand – Yamunotri (NH94/134 up to Janki Chatti), Gangotri (NH-108), Kedarnath (NH-109, up to Sonprayag), Badrinath (NH-58) and the Tanakpur-Pithoragarh stretch of the Kailash Mansarovar Yatra route (NH-125).”

While elaborating on it, the Bench then discloses in para 3 that, “These shrines represent different traditions of the Hindu religion – with Yamunotri and Gangotri being Shakti or goddess shrines, Kedarnath being a Shaiva temple, and Badrinath a Vaishnava site. They are located in an area called Kedarkhand (largely today’s Garhwal) in the Skanda Purana. The locations of these shrines were earlier considered to be occupied by glaciers (named Champasar, Gangotri, Chorabari and Satopanth) in their entirety, which have since started melting. Even today, they are stated to be located in paraglacial zones, which are considered to be ecologically sensitive.”

Practically speaking, the Bench then reveals in para 4 that, “Till the 1950s, access to these shrines was limited and they could only be accessed on foot. Hence, worshippers often undertook long and arduous journeys to reach the shrines. However, since the 1960s, road connectivity to the shrines has improved, where vehicles now ply up to the Badrinath and Gangotri temples while Yamunotri and Kedarnath are 6 to 14 kms away from the nearest motorable road. The improved connectivity has resulted in a greater influx of worshippers. The four shrines typically open for worship in and around late April or early May, and close in and around late October to early November.”

Briefly stated, the Bench then envisages in para 5 that, “The Project was conceptualized with the aim of improving accessibility to these shrines by widening the existing roads, making travel safer, smoother and faster. The Project seeks to widen the existing highways into a double lane with paved shoulder configuration (“DL-PS”) with 16 bypasses, realignments and tunnels, 15 flyovers, 101 small bridges and 3516 culverts. The MoRTH has divided the Project into 53 individual projects, the length of each project being less than 100 kms, traversing the following national highways:

(i) NH-58 – Rishikesh to Rudraprayag – 141 kms;

(ii) NH-58 – Rudraprayag to Mana Village (Badrinath) – 140 kms;

(iii) NH-94 – Rishikesh to Dharasu – 120 kms;

(iv) NH-94 – Dharasu to Yamunotri – 75 kms;

(v) NH-108 – Dharasu to Gangotri – 110 kms;

(vi) NH-109 – Rudraprayag to Gaurikund (Kedarnath) – 77 kms; and

(vii) NH-125 – Tanakpur to Pithoragarh – 161 kms.”

Needless to say, the Bench then points out in para 61 that, “Based on the above description, it is evident that the national highways provide vital connections to the establishments of the Armed Forces along the Nelong Axis, Mana Pass, Rimkhim Pass, Niti Pass and Lipulekh Pass. The importance of the requirement of double-laned highways has been emphasized as it is necessary for the movement of trucks, equipment and personnel of the Armed Forces.”

Quite rightly, the Bench observes in para 64 that, “The appellants have referred to a statement made by the Chief of the Army Staff in 2019 in a media interview regarding the adequacy of infrastructure for troop movement. We do not find it necessary to place reliance on a statement made to the media, given the consistent stand of the MoD during the deliberations of the HPC and before this Court. The security concerns as assessed by the MoD may change over time. The recent past has thrown up serious challenges to national security. The Armed Forces cannot be held down to a statement made during a media interaction in 2019 as if it were a decree writ in stone. Similarly, the appellants have also raised a challenge to the 2020 MoRTH Circular and have sought a direction that this circular be revoked, on the ground that it recommends the DL-PS standard without application of mind.”

Be it noted, the Bench minces no words to clearly state in para 65 that, “This Court, in its exercise of judicial review, cannot second-guess the infrastructural needs of the Armed Forces. The appellants would have this Court hold that the need of the Army will be sub-served better by disaster resistant roads of a smaller dimension. The submission of the appellants requires the Court to override the modalities decided upon by the Army and the MoD to safeguard the security of the nation’s borders (it is important to remember that the MoRTH issued the 2020 MoRTH Circular based upon the recommendations received from the MoD). The submission of the appellants requires the Court to interrogate the policy choice of the establishment which is entrusted by law with the defence of the nation. This is impermissible.”

It cannot be glossed over that the Bench acknowledges in para 70 that, “Neither the 2012 nor the 2018 MoRTH Circulars specifically addressed the issue of strategic border roads. The considerations for development of national highways in plains and in hilly and mountainous regions are not identical. Similarly, the considerations governing the construction of highways that are strategic roads from a defence perspective, and may be used by the Armed Forces of the nation, cannot be the same as those for other roads in hilly and mountainous regions. We must therefore arrive at a delicate balance of environmental considerations such that they do not impede infrastructural development, specifically in areas of strategic importance crucial to the security of the nation.”

Quite remarkably, the Bench then lays bare in para 92 that, “Chapter X of the HPC Report concerns the disaster management measures that must be taken to prevent any disasters owing to the infrastructure activity from the Project. These disasters include natural hazards such as slope failures, flash floods, avalanches, forest fires; engineering hazards when poor quality protection measures are taken; and mass tourist hazards. The significant disaster in the Project has been due to the vulnerability of slopes. One of the main reasons for this occurrence is muck-dumping which results in landslides, toe-erosions and other consequences. Further, no effort has been made to stabilize the slopes already cut. Additionally, in a number of locations, such as at Badrinath, the carrying capacity (that is the number of biological species that can survive in a particular environment) has been reached. In view of this, the HPC recommended the following measures:

(i) A comprehensive study regarding the carrying capacity at various locations in the Project must be conducted;

(ii) Given the large number of tourists, Char Dham Early Warning System Network, connecting all villages, should be developed such that timely action can be taken in case of a disaster;

(iii) A survey of vulnerable muck dumping sites must be undertaken, natural streams must be cleared, slope protection measures should be taken;

(iv) Climate vulnerability risk assessment must be conducted; and

(v) Protective measures such as well-constructed breast walls, retaining walls, soil nailing, geo-textiles sheathing, negative slopes and half-tunnels in hard rock areas should be observed.”

Quite significantly, the Bench then holds in para 99 that, “It is thus important that there must be a significant alteration in the approach to this Project by adopting sustainable measures. Piecemeal implementation of some mitigation measures for protection of the environment, without any concrete strategy in place, cannot pass muster. While we have granted our approval to the DL-PS configuration for the roads mentioned in MoD’s MA No 2180 of 2020, it is made conditional upon MoRTH and MoD implementing the recommendations made by the HPC, which have been outlined by this Court in Section F.2.1. These recommendations are unanimous. A majority of the members of the HPC comprised of government officials and experts. In line with the HPC’s recommendations, there has to be an assessment of the nature of the problem by obtaining actual data through relevant studies for all individual projects. Specific mitigation measures then should be implemented for all projects, keeping in mind their unique concerns. In doing so, the general recommendations issued by the HPC should form the baseline, i.e., they should be implemented at the very least, along with anything over and above that is deemed necessary based on the studies so conducted.”

In addition, the Bench then specifies in para 100 that, “More than anything else, this requires a concerned shift in the approach which has been adopted till date. Making the Project environmentally compliant should not be seen a “checkbox” to be obtained on the path to development, but rather as the path to sustained development itself. Thus, the measures adopted have to be well thought out and should actually address the specific concerns associated with the Project. Understandably, this may make the Project costlier, but that cannot be a valid justification to not operate within the framework of the environmental rule of law and sustainable development. In its bid to make the project more environmentally conscious, it is also imperative that the MoRTH and MoD be transparent in the measures they adopt, in order for them to be held publicly accountable by spirited citizens. Thus, we direct that the MoRTH and MoD can proceed with the Project subject to the condition that it addresses all the concerns which have been raised by the HPC and enumerated by this Court in Section F.2.1 of this judgment, through the recommendations mentioned accompanying these concerns (in paragraphs 82, 83, 85, 87, 88, 90, 91, 92 and 94 of this judgment).”

Conclusion

To be sure, the Bench then holds in para 101 that, “We thus allow MoD’s MA No 2180 of 2020 by permitting the DL-PS configuration for the three strategic highways in respect of which relief has been claimed. At the same time, we have also taken note of the environmental concerns which have been raised by the HPC for the entirety of the Project. We have noted the HPC’s unanimous recommendations for taking remedial measures and direct that they have to be implemented by the MoRTH and MoD, going forward. These specific recommendations have been mentioned in Section F.2.1 and are not being repeated here for the sake of brevity.”

Furthermore, the Bench then directed in para 102 stating that, “Further, in order to ensure implementation of these recommendations, we also set up an ‘Oversight Committee’, which shall report directly to this Court. This Committee shall be chaired by Shri Justice Arjan Kumar Sikri, former Judge of this Court. In order to enable the Chairperson to receive technical assistance, he shall be aided by:

(i) A representative of the National Environmental Engineering Research Institute (‘NEERI’) to be nominated by the Director; and

(ii) A representative of the Forest Research Institute, Deemed to be University, Dehradun to be nominated by its Director General.

The Oversight Committee shall receive all logistical and administrative assistance from the UOI, the Government of Uttarakhand, MoRTH, MoD and MoEF&CC. The Secretary of the Environment and Forest Department, Uttarakhand shall ensure that logistical assistance is provided to the Committee. MoRTH, MoD and MoEF&CC shall also nominate nodal officers for rendering assistance to the Committee, providing information and cooperating with the work of the Committee. The District Magistrates for the Districts forming a part of the Project shall also provide facilitation and assistance to the Committee.”

For clarity, the Bench then states in para 103 that, “The objective of this Oversight Committee is not to undertake an environmental analysis of the Project afresh but to assess the implementation of the recommendations already provided by the HPC (which we have noted in Section F.2.1). A formal notification in terms of these directions shall be issued by the UOI within two weeks. Within four weeks thereafter, MoRTH and MoD shall place before the Committee the steps taken by them to adhere to the HPC’s recommendations, along with a projected timeline for complying with the remaining recommendations. Monthly reports of this nature shall be placed before the Oversight Committee by MoRTH and MoD. The Oversight Committee shall then report on the progress undertaken to this Court every four months. In case of any issues with the implementation of the recommendations, the Chairperson of the Committee shall be at liberty to approach this Court. The honorarium for the Chairperson and members of the Oversight Committee shall be determined by the Chairperson and the payment shall be disbursed by MoRTH.”

What’s more, the Bench then enunciates in para 104 that, “We further note that by the order dated 8 August 2019 of this Court, the HPC was tasked with overseeing the implementation of its recommendations and to suggest any further measures which may be required. To avoid any overlap between the scope of work of the HPC and the Oversight Committee formed above in paragraph 102 and 103, we clarify that the HPC shall continue with its work on overseeing the implementation of its recommendations for the Project, except for the national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh, which shall now fall under the purview of the Oversight Committee.”

All said and done, the Apex Court noted that though there may have been disagreement between HPC members on the road width but they unanimously agreed on other environmental issues in the manner in which the project was being implemented by MoRTH. We thus see that the Apex Court very rightly allows Defence Ministry’s plea to allow double lane widening of Char Dham Highway Project. In the same vein, the Bench also conceded that while benefits to the armed forces is a crucial factor, “it is not the only thing at stake in a Project of this scale, which was conceived to provide a more efficient route for those undertaking the Char Dham pilgrimage. What is at stake…is also the health of the environment and its effects on all individuals who inhabit the area.” No denying it!