Supreme Court Allows Defence Ministry's Plea To Allow Double Lane Widening Of Char Dham Highway Project

The Supreme Court on Tuesday allowed an application filed by the Ministry of Defence for the double-lane widening of roads that are part of the 899-km Char Dham project in Uttarakhand.

A bench comprising Justice DY Chandrachud, Justice Surya Kant and Justice Vikram Nath pronounced orders in the application filed by the Ministry of Defence seeking 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 Meters tarred surface as opposed to the 5.5 meters as ordered by the Court.

The Court today modified the order dated September 8, 2020, and allowed the Defence Ministry to widen the road as sought. At the same time, the Court took note of the environmental concerns raised by the High Powered Committee and directed the Ministry of Defence and the Ministry of Road Transport and Highway to implement the recommendations made by the HPC.

The Court also appointed former Supreme Court judge Justice AK Sikri as the head of the oversight committee to oversee the implementation of the HPC recommendations.

The Court noted that the MoRTH circulars do not forbid the double-laning of roads in hilly and mountainous terrains if the roads are of strategic and border importance. The Court also noted that there cannot be judicial review over defence requirements.

The Court rejected the arguments raised by the applicant NGO "Citizens for Green Doon" that the Defence Ministry's application was based out of "mala-fides" and was an attempt to re-litigate issues already decided by the earlier bench.

"The bona fides of the MoD are also evident from the fact that the issue of security concerns was raised during the discussions of the HPC and finds mention in the HPC Report. Thus, the MoD has maintained the need for double-laned roads to meet border security concerns", the Court noted.

The bench also refused to accept the reliance placed by the applicants on a media statement reportedly made by the Army Chief in 2019 that the Chardham roads have sufficient width for security requirements.

"Armed forces cannot be put down to a statement made to media in 2019 as if it is a decree written in stone", the judgment authored by Justice Chandarchud observed.

The judgment extensively referred to the principle of sustainable development and the limited scope of judicial review over national security requirements.

"...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", the Court noted.

Court cannot second guess infrastructural needs of the Armed Forces

"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 subserved 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".

Operative portion of the order

The operative portion of the order reads as follows :

"We allow the ministry of defence's miscellaneous application of 2020 by permitting the double lane paved shoulder configuration for the three strategic highways. At the same time we have also taken note of the environmental concerns raised by the HPC on its unanimous consideration of the project and the remedial measures recommended. We direct that they have to be implemented by the MORTH and Ministry of defence. In order to ensure implementation of these recommendations, we also set up an oversight committee which will directly report to this court. This committee shall be chaired by Justice AK Sikri. In order to enable the chairperson to receive technical assistance, he shall be aided by a representation of the national environment engineering research Institute, to be nominated by the director and a representative of the Forest research Institute, University of Dehradun. The oversight committee shall receive all logistical and administrative convenience from the union of India, MORTH, MOD, state of Uttarakhand. The MORTH and MOD shall also nominate nodal officers for rendering assistance, providing information and cooperating with the work of the committee. The district magistrates for the districts forming part of the project will also provide assistance to the committee

The objective of the oversight committee is not to undertake an environmental analysis of the project afresh but to assess the implementation of the recommendations of the HPC. A formal notification in this behalf shall be issued by the Union of India within two weeks. Within four weeks, the MoD and MORTH shall place before the committee the steps taken by them in pursuance of the HPC recommendations along with projected timelines for complying with the same. Monthly Reports of this nature shall be placed before the committee. The committee shall report to this court every four months. In case of any issue with regard to implementation, the chairperson shall be open to approach this court at anytime.

In terms of the 8 August 2019 order of this court, the HPC is directed to oversee implementation of its measures and suggest further measures. To avoid overlap , we clarify that the HPC shall continue with its work of overseeing the implementation of its recommendations, except the national highways from Rishikesh to Mana, Rishikesh to Gangotri, Tanakpur to Pithoragarh, which are now within the purview of the oversight committee. We allow the MA of the Ministry of defence, conditioned upon fulfilment of the conditions outlined".

Background

Attorney General KK Venugopal, appearing for the Union Ministry, argued that wider roads was important in the region for security purposes, especially in the wake of Chinese build-up at the border. The bench had reserved orders on November 11. During the hearing, the bench had