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Char Dham Highway Expansion-There Is No Defence Needs Versus Civilian or Environmental Concerns, Have To Balance Both: Supreme Court
Mehal Jain
10 Nov 2021 3:02 PM GMT
"There is no defence versus environment at all. What you do for the defence is not contrary to the civilian needs or environmental needs", observed Justice D. Y. Chandrachud on Wednesday.The bench, also comprising Justices Surya Kant and Vikram Nath, was hearing the plea challenging the Char-Dham Highway expansion project.Senior Advocate Colin Gonsalves, for the petitioner-NGO Citizens for...
"There is no defence versus environment at all. What you do for the defence is not contrary to the civilian needs or environmental needs", observed Justice D. Y. Chandrachud on Wednesday.
The bench, also comprising Justices Surya Kant and Vikram Nath, was hearing the plea challenging the Char-Dham Highway expansion project.
Senior Advocate Colin Gonsalves, for the petitioner-NGO Citizens for Green Doon, expressed that he is "very perturbed by this narrative of Army versus the people, of Defence versus environment".
On hearing Justice Chandrachud, Mr. Gonsalves said, "I just thought that a standard has been set which will affect the lives of the people in the mountains irreversibly. It will cause landslides, it will dry up the water streams. The standard would have been not pro-people".
On Tuesday, AG K. K. Venugopal had told the Supreme Court that in view of China's new land border law passed in October, and its huge build-up of infrastructure on the other side of the border, the Char-Dham Highway expansion project now assumed strategic importance for national security, to avoid consequences akin to the 1962 Indo-China war. In his turn, Mr. Gonsalves said that the proposed widening of the roads is only to advance the Centre's "ambitious" Char-Dham Pariyojana. Mr. Gonsalves told the bench that the justification offered by the Centre that the expansion of these roads, which are being described as feeder roads leading to the border roads at the Indo-China border, is of strategic importance for national security, is only a ruse and that the Armed Forces has stated that it does not need the same. He had emphasised that any further widening of the roads would aggravate the weakness and the destabilisation of the Himalayan range and produce drastic consequences in terms of landslides and other natural calamities.
The bench had asked Mr. Gonsalves if the Supreme Court, as the highest constitutional court in the country, can override concerns of the defence, "particularly in view of contemporary events which have taken place in the recent past" (the 17-odd month long stand-off on the Indo-China border), saying that the Char-Dham Highway expansion project does not comport with environmental protection. "Or should the Court follow the more nuanced approach of stating that defence of the nation is a very important priority for any elected government of the day, but at the same time, require the government to act in a manner consistent with the environment?", the bench had put to Mr. Gonsalves.Justice Chandrachud on Wednesday clarified that what the Court expresses during the course of the hearings are only tentative views in order to elicit responses from the parties. "The matter is always open till the last word", said the judge.
He repeated that the bench has noted that the majority report of the court-appointed HPC, which is in favour of the double-lane paved shoulder roads of 10 m width in terms of the 2020 MORTH circular, has also noticed serious environmental violations.
"Now we are confronted with a situation where a large part of the work is already done (on the feeder roads; black-topping, hill-cutting etc). Leaving the work in a haphazard manner is not going to work. Should we be of the view that some work should proceed having regard to the repercussions on the defence of the country, what are the stringent measures for the safeguard of the environment, balancing the need for defence and the need for access to the border areas?", asked Justice Chandrachud from Mr. Gonsalves.
The judge also asked the AG to reflect on this aspect of mitigation measures for sustainable development- "We want to know if this work is being done entirely by the state PWD, or which portions are being done by the Border Roads Organisation? We also want to know which are the agencies that will ensure that the environmental safeguards, including those which are being introduced in the report, are fully complied with and the situation which has occurred will not occur in the future. To the extent it is humanly possible, we will preclude the possibility of an environmental accident or landslides in this area. What are the modalities by which you will ensure the concerns highlighted even in the majority report?", the judge put to the AG.
"Secondly, the report seems to suggest that within this area, there are certain points and pockets which are landslide prone zones. The majority report also says that there may be certain regions within the track which are extraordinarily landslide prone, so before you go ahead with the work, you must identify those sectors. How would you ensure that such an exercise is done so that in this hurry to widen, hurry to provide a completely developed road, these wider concerns are not ignored by the implementing agencies?", Justice Chandrachud further asked.
"We have already dealt with it in my compilation of relevant documents on behalf of the Union of India. The agencies which are going to oversee have already been set out. There is the Geological Survey of India for geological studies...yes, there has to be a balancing. We have to ensure that all precautions are taken. We will tell you about what all has been done and what will be done", replied the AG.
"One way is for the court to say you will take all the precautions. The next one is to tighten it up and ensure it is put into place and record the kind of mechanism that you will put into place to ensure that it is taken care of", observed Justice Chandrachud.
Mr. Gonsalves, however, asserted that mitigation is not an option- "Once you get into the mountains at that level, you have done something irreversible and the mountains have collapsed and there are landslides. The mitigation has failed. The landslides that we are talking about are where the mountains have been weakened, there is a trigger which causes landslides"
At this, Justice Chandrachud remarked, "The logical corollary of your argument is, therefore, that consistent with all the degradation which has happened in the past, we should hold status quo on development throughout these areas? For an ideal pro-environment situation, you have a complete status quo, no further development, because any further development poses a risk of aggravating the damage to the environment? Because that is the logical consequence of your submission. The moment you conceive that you can't stop development, you can't stop attending to the needs of the society, then the question arises how do you balance the two?"
Justice Surya Kant also added to Mr. Gonsalves, "Won't it be better that you concentrate on the balancing part? The problem, we know. It is not that we are not aware. You have already enlightened us by giving us a lot of material. You must have done a deep study. You can come out straight up with the recommendations and suggestions on how development and sustainability both can be there"
Mr. Gonsalves replied, "I am not taking a stand that we are anti-development. The intermediate width (as per the 2018 circular) is an upgradation of the earlier structure, in fact. I am saying that the double lane paved system, if it continues and if it is permitted to continue, we will see in the years to come, starting quickly when the rains come in the next year and even before that, the destruction of the Himalayas. I don't want to be melodramatic, or overstate the point, or emphasise things out of proportion".
Justice Vikram Nath asked, "The construction of roads with a maximum width of 8.1 m is alright? Which you call the intermediate width and which was there in the 2018 circular? But when we increase it to 10 m, there is a lot of problem?"
Mr. Gonsalves replied, "Yes, If you go to the double lane paved system, all the evidence is there that it causes irreversible damage."
Justice Vikram Nath further asked, "It is not your case that no roads should be constructed. You say that development should be made and it should be to a maximum width of 8.1 m and not 10 m? So the only problem is that extra 1 m or 2 m?"
Mr. Gonsalves responded, "Yes, and I will show how it is a huge problem throughout the mountains. The double lane paved system is 12 m. And when you come to the curves etc, it increases"
"One way is for the court to say you will take all the precautions. The next one is to tighten it up and ensure it is put into place and record the kind of mechanism that you will put into place to ensure that it is taken care of", observed Justice Chandrachud.
Mr. Gonsalves, however, asserted that mitigation is not an option- "Once you get into the mountains at that level, you have done something irreversible and the mountains have collapsed and there are landslides. The mitigation has failed. The landslides that we are talking about are where the mountains have been weakened, there is a trigger which causes landslides"
At this, Justice Chandrachud remarked, "The logical corollary of your argument is, therefore, that consistent with all the degradation which has happened in the past, we should hold status quo on development throughout these areas? For an ideal pro-environment situation, you have a complete status quo, no further development, because any further development poses a risk of aggravating the damage to the environment? Because that is the logical consequence of your submission. The moment you conceive that you can't stop development, you can't stop attending to the needs of the society, then the question arises how do you balance the two?"
Justice Surya Kant also added to Mr. Gonsalves, "Won't it be better that you concentrate on the balancing part? The problem, we know. It is not that we are not aware. You have already enlightened us by giving us a lot of material. You must have done a deep study. You can come out straight up with the recommendations and suggestions on how development and sustainability both can be there"
Mr. Gonsalves replied, "I am not taking a stand that we are anti-development. The intermediate width (as per the 2018 circular) is an upgradation of the earlier structure, in fact. I am saying that the double lane paved system, if it continues and if it is permitted to continue, we will see in the years to come, starting quickly when the rains come in the next year and even before that, the destruction of the Himalayas. I don't want to be melodramatic, or overstate the point, or emphasise things out of proportion".
Justice Vikram Nath asked, "The construction of roads with a maximum width of 8.1 m is alright? Which you call the intermediate width and which was there in the 2018 circular? But when we increase it to 10 m, there is a lot of problem?"
Mr. Gonsalves replied, "Yes, If you go to the double lane paved system, all the evidence is there that it causes irreversible damage."
Justice Vikram Nath further asked, "It is not your case that no roads should be constructed. You say that development should be made and it should be to a maximum width of 8.1 m and not 10 m? So the only problem is that extra 1 m or 2 m?"
Mr. Gonsalves responded, "Yes, and I will show how it is a huge problem throughout the mountains. The double lane paved system is 12 m. And when you come to the curves etc, it increases"
Justice Chandrachud noted, "It is not 12 m throughout...even if it is 5.5 m, in the hills it will never be 5.5 as a straight road. There will always be a paved shoulder, whether in the Western Ghats or elsewhere."
It may be noted that last year, the Centre had moved an application for the modification of the order dated September 8, 2020 which was passed by a three Judge Bench headed by Justice Rohinton Nariman, in order to permit the Union of India to make roads with 10 mtrs tarred surface as opposed to the 5.5 mtrs as ordered by the Court. The September 8, 2020 order directed that the roads in hilly and mountainous terrains for the Char Dham Highway project are to be constructed in accordance with the 2018 circular of the MoRTH and hence, the width of the road would remain at 5.5 metres. On December 2, 2020, before the Supreme Court, the Defence Ministry had sought wider roads for national security, arguing that the three national highways- Rishikesh to Mana, Rishikesh to Gangotri and Tanakpur to Pithoragarh- lead up to the northern border with China and act as feeder roads. During that hearing, Justice Nariman had noted that the road and the defence ministries "are not working in tandem with each other". The bench had asked the court-appointed High-Powered Committee to meet and look into the applications filed before the Court by the Ministry of Defence, against reducing the road width, in two weeks. Liberty was also given to the Ministry of Roads to amend its circular. The MoRTH on December 15, 2020 amended its 2018 circular that formed the basis of the ongoing legal case. The 5.5 m maximum width limit for roads in hilly and mountainous areas is now effectively 10 m. "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, the carriageway width should be 7 m with 1.5 m paved shoulder on either side", the circular says. Referring to the 2018 circular 'Standards for lane width of national highways and roads developed under central sector schemes in hilly and mountainous terrain'- which the new circular now supersedes- the 2020 circular adds, "The standards have been further reviewed in the light of the issues raised by the Ministry of Defence. A committee of chief engineers considered the suggestions received and have recommended modifications to the standards". Reportedly, the HPC also submitted its report in two parts – the majority report and minority report, dated December 31, 2020. In its report to the SC, the high-powered committee presented a divided opinion with the majority in favour of the wider roads on the Char Dham route, considering the strategic requirement and snow removal needs. The minority group comprised high-powered committee chairman Ravi Chopra, who is a noted environmentalist, and two other members, however, expressed their dissent and maintained that the road width should be restricted to 5.5 m.
'2018 circular also speaks of a Double-Lane Paved Shoulder system, with carriageway width of 7 m if traffic volume increases; A. 19(1)(b) also has some meaning'- SC
Perusing the 2018 circular, Justice Chandrachud remarked, "We are a court of law as much as a court of justice. We must get into the heart of the law as well as in this matter."
One thing is clear- 2018 also speaks of a double lane shoulder system. The width may be either 5.5 or 7 m, depending upon the PCUs (traffic). This shows that even if today, your PCU is less than 10,000 but you are likely to achieve 10,000 in the next 3 to 5 years, you can go up to 7 m. If the growth is more than 10% per annum, you can have paved shoulders"
"You cannot have a plan where everybody in the country is coming to your Chardham", pressed Mr. Gonsalves.
Justice Chandrachud noted, "Article 19(1)(b) also has a meaning, right?"
Mr. Gonsalves urged, "You can't just come and go in large numbers even in any national park or sanctuary! No, you get a quota and you get your passes according to the quota. If the carrying capacity of this shrine is 2400, why would planning be done for four times or five times that carrying capacity?"
Mr. Gonsalves urged, "You can't just come and go in large numbers even in any national park or sanctuary! No, you get a quota and you get your passes according to the quota. If the carrying capacity of this shrine is 2400, why would planning be done for four times or five times that carrying capacity?"
It was his argument that by the 2020 circular, the circular of 2012 has been essentially re-introduced, despite the fact that the diktat of the 2012 circular was reviewed by experts by way of the 2018 circular.
Justice Chandrachud observed, "2012 was completely open ended. It said you will have a double lane with paved shoulders. No dimensions were mentioned. What 2020 does is that it utilises the 2018 yard stick, namely 7 m with the paved shoulders. 2018 tied it with an estimated increase in the passenger carrying units over the next 3 to 5 years. 2020 brings us certainty by saying that we will hold it down to 7 m with paved shoulders, and do away with the anticipated increase in the next three years or five years. And they also tighten up 2012 by introducing the quantitative requirements which were absent in 2012."
Mr. Gonsalves persisted, "Can a legal standard be seen de hors the carrying capacity? Your exponential curve is meaningless in the Chardham context. 'People flooding in the char Dham, racing up, we will accommodate as many as we want, please come'? It is meaningless in view of the Physical restrictions of the Himalayas! It is not possible to have that interpretation of the 2020 circular. You can't have this explosion of population in the Chardham"
Mr. Gonsalves persisted, "Can a legal standard be seen de hors the carrying capacity? Your exponential curve is meaningless in the Chardham context. 'People flooding in the char Dham, racing up, we will accommodate as many as we want, please come'? It is meaningless in view of the Physical restrictions of the Himalayas! It is not possible to have that interpretation of the 2020 circular. You can't have this explosion of population in the Chardham"
When Mr. Gonsalves was taking the bench through the minutes of the HPC meeting, highlighting Chairman Dr. Ravi Chopra's questioning of the considerations behind the 2020 circular, Justice Chandrachud remarked, "When there is a collective body which is meeting and deliberating, what is the importance of these views being expressed by A or B? We don't have to look at what Dr Chopra said as a part of his comments in a meeting. Just show us the recommendations of the engineer on the basis of which they have revised the circular."
Justice Surya Kant also observed that even in these proceedings, the only representative of the Ministry of Defence is the superintending engineer, who says that he has nothing to do with the Ministry of Road Transport, Chardham etc. "He says I am only concerned with what is the requirement of the Ministry of defence. He says MoD's requirements should not be constrained. He said we need something more, the army wants 2-Lane as the requirements of the Army are something more", pointed out Justice Surya Kant
Justice Chandrachud also noted, "He says intermediate width will not serve the purpose of the army because intermediate Lane is only a singular Lane in the sense."
Mr. Gonsalves proceeded to indicate how many landslides have transpired on these routes after the expansion of the roads. "Will you be able to defend the country fearlessly when your roads have been developed in this reckless fashion?", he asked
He pointed out a recent speech of the Prime Minister, where the PM acknowledged that climate change is a major challenge before the world- "The PM said you recently saw what happened in Uttarakhand. The 2021 avalanche! He said we should focus on improving disaster-resilient infrastructure that can withstand natural disasters!"
Mr. Gonsalves further urged, "The majority report says the road construction is a high-risk approach, that the road widening under Chardham Pariyojana has focused mostly on hill cutting and measures to protect the hill slopes have received low priority. Even if the AG gives us some ideas as to what they plan to do, the people of Uttarakhand and everybody who has studied it knows that this is an eye-wash. It is too late now. You cut the vertical hill slopes, you cut the mountains mercilessly, now you put wire meshing as high as you want, you make retaining walls as high as you want, but the physical capacity of the area has been burst long back! No longer can the humans do anything to reconstruct these mountains again. Ravi Chopra said this is beyond mitigation. All these promises, like all the promises of afforestation made hundreds of times in so many matters before this court, are empty. This is only to somehow present a cosmetically presentable picture! The country wll not believe these promises! The proof is in the result that in the year 2022, all those crashes will take place again!"
Mr. Gonsalves proceeded to indicate how many landslides have transpired on these routes after the expansion of the roads. "Will you be able to defend the country fearlessly when your roads have been developed in this reckless fashion?", he asked
He pointed out a recent speech of the Prime Minister, where the PM acknowledged that climate change is a major challenge before the world- "The PM said you recently saw what happened in Uttarakhand. The 2021 avalanche! He said we should focus on improving disaster-resilient infrastructure that can withstand natural disasters!"
Mr. Gonsalves further urged, "The majority report says the road construction is a high-risk approach, that the road widening under Chardham Pariyojana has focused mostly on hill cutting and measures to protect the hill slopes have received low priority. Even if the AG gives us some ideas as to what they plan to do, the people of Uttarakhand and everybody who has studied it knows that this is an eye-wash. It is too late now. You cut the vertical hill slopes, you cut the mountains mercilessly, now you put wire meshing as high as you want, you make retaining walls as high as you want, but the physical capacity of the area has been burst long back! No longer can the humans do anything to reconstruct these mountains again. Ravi Chopra said this is beyond mitigation. All these promises, like all the promises of afforestation made hundreds of times in so many matters before this court, are empty. This is only to somehow present a cosmetically presentable picture! The country wll not believe these promises! The proof is in the result that in the year 2022, all those crashes will take place again!"
"A Road is not a road by itself. The mountain, the slope and the road form one package. And you will not find any consideration of that in the government's response. You want safety for the troops, I want safety for the troops. Safety will be there if one guarantees that the mountain will not topple onto the troops and they die. No guarantee is possible. So how can we have the security for the troops that all of us desire unless we stop this cutting into the mountains? A stable environment is the best defence!", he concluded.
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