Army Cannot Throw Up Hands On Grounds Of Road Width; If Landslides Occur Despite Precaution & Mitigation, We Have To Tackle It: AG To Supreme Court In Char-Dham Case
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"Will the army throw up its hands and say that a landslide will take place and therefore, we will give up this Mountain Road leading to the Line of Actual Control? No army can be heard to say that! That cannot be done at all! We have to live with it!", AG K. K. Venugopal told the Supreme Court on Thursday."Landslides are happening all over the country. We have to deal with them. And if we have...
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"Will the army throw up its hands and say that a landslide will take place and therefore, we will give up this Mountain Road leading to the Line of Actual Control? No army can be heard to say that! That cannot be done at all! We have to live with it!", AG K. K. Venugopal told the Supreme Court on Thursday.
"Landslides are happening all over the country. We have to deal with them. And if we have to live with that, we have to use all our technology for the purpose of mitigation!", he continued.
The bench of Justices D. Y. Chandrachud, Surya Kant and Vikram Nath was hearing the plea challenging the Char-Dham Highway expansion project.
On Tuesday, the AG 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.
On Thursday, the AG indicated that there is critical military equipment including, inter alia, the BrahMos missile carrier and the Smerch rocket launcher smirch which, given their length, need the wide roads to be carried to the Indo-China border quickly in the event of an affrontation- "The Smerch rocket launcher has a turning radius on a curve of 35 m. The BrahMos missile carrier is 42 feet long. All these are articulate equipment. It is a stupendous task which the Army has to undertake for the purpose of bringing the equipment to the passes, to the Chinese border, the Line of Actual Control. This has to be done come what may and in whatever situation- be it landslides, or heavy snowfall, or heavy rains! We have to fight! And to fight, this is necessary!"
"We are vulnerable. We have to do the best that we can. But we are told that no, no, no, there will be a risk of landslides, there have been terrible landslides, so please don't do this? Then what happens if we can't Take the vehicles up? The HPC report was in a totally different environment which cannot possibly be projected to deny the army what it really wants in its situation today!", pressed the AG.
"They have to take BrahMos missile launchers, which are 42 feet long and articulate! When it takes a curve, it requires a larger width! If it results in landslides, the army will have to tackle it. You have to take all the necessary precautions, but even after that, even if a landslide takes place, it cannot be that you cannot take the vehicles up on the road! Where would the BrahMos missile carriers go and how would we fight the war if it becomes inevitable? God forbid, nothing may happen. But we can't say anything. That is why the defence minister, presiding over the Naval conference, recently said vocally that we have to be careful, we have to be on our guard. It came in the newspaper. Therefore, my submission is that this petition was only with regard to Char Dham, it had nothing to do with the borders, taking of the troops etc!"
The AG indicated the deliberations and notifications of the Indian Road Congress from 1998 to 2011 and so on to advance that the IRC had too agreed on a 7m wide 2-lane carriageway with 1.5 m paved shoulders for the military, para-military, security forces movement- "The IRC is a very high-powered committee. There was an elaborate discussion and examination by this competent body on this issue. And it was not meant for this case! A Truncated portion of its report was shown yesterday by which a certain amount of suspicion was sought to be thrown on the ground for expansion that the army needs this road! But please look at the constitution of this body, its composition, the beginning- meetings have been held from 1998 to 2011 and so on for the purpose of review! A truncated version was shown yesterday to claim that the IRC relates only to this case!"
'2018 circular is a far-cry from what the Army wants'- AG
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.
The AG submitted that the 2018 circular titled 'Standards for Lane width of National Highways and roads developed under Central Sector Schemes in Hilly and Mountainous terrains - Reg' was for national highways all over the country- "This did not take note of the special requirement of the road which goes upto 17,000 feet from the plains. Therefore, it does not account for the purpose of transport of heavy machinery, artillery, tanks etc to the Chinese border and the problem which we were facing from across the border. This is general in character, not focused on anything in relation to the military's needs of taking their machinery, troops, supplies, long line of trucks, clothes, equipment, food, water to inhospitable terrains for the purpose of defending the country!"
"The 2018 circular is a far-cry from what the army wants…the Army will not take 7000 curves to reach the top of the Chinese border. When a confrontation arises, it becomes very serious! At that stage, vehicles should move continuously one behind the other. 2018 is irrelevant in view of what we are facing today and the needs of the army today", he continued.
'HPC Report only in connection with Char-Dham and not the needs of army and hence, completely irrelevant'- AG
The AG advanced that the report of the court-constituted HPC (the majority of which is in favour of wider roads in terms of the 2020 MORTH circular while the minority, headed by the Chairperson, sticks with the stipulated width of 5.5m as per the 2018 circular; however, both reports acknowledged the risk of further weakening the Himalayas) is "a far-cry from the buildup on the opposite side (of the border by China)". It was his case that the analysis by the HPC was against the backdrop when what was under challenge was the road expansion supposedly sought for the Char-Dham pilgrimage, and that the needs of the armed forces in view of the recent events of the stand-off between the India and China were not underlined. He submitted that the expansion of the feeder roads to the border is not the subject of any writ petition and that the army has been going on with the construction with all permissions.
"What the court should keep in mind is that so far as the petition is concerned, they have dealt with Char Dham. Char Dham were the roads for religious tourism which are connecting the four temples of great significance to the Hindus and therefore, the present petition was only in relation to the expansion of roads for that", he submitted.
The AG submitted that when the court had on September 8, 2020 decided that the 2018 notification restricting the width to intermediate width of 5.5, it was only with regard to chardham Pariyojana- "It had nothing to do with the situation we are facing today. Although my learned friend (Mr. Gonsalves) spent considerable amount of time taking Your Lordships through the HPC report, both majority and minority, the whole of it was de hors any appreciation of the Chinese buildup on the other side of the Himalayas. Therefore my submission is that the concentration by the HPC on the roads connecting the four religious centres was in a totally different situation which cannot comply with the problems we are facing today."
"I won't be reading any part of the HPC report because it is not relevant at all. Today, we are facing a situation that the country has to be defended if the occasion arises. The minister said we are in a very vulnerable situation. Therefore all the three wings of the defence forces would have to combine for the purpose of defending the country. Now faced with this situation, my submission will be that what fell from your lordships would be the most appropriate approach. That we have to defend the country and ensure that the entire facilities which can be physically and financially and technologically be available to the Armed Forces should be made available to them. And the single most important aspect of the defence of this country is the roads in the himalayan terrain. We cannot throw up hands and say that the width is restricted to 5.5 so the 42 feet long BrahMos missile carrier cannot possibly taken up!", urged the AG.
It may be noted that on Tuesday, 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.
'Have undertaken several mitigation measures, willing to carry out further suggestions from the Court and everywhere else'- AG
The AG indicated a compilation of all the landslides which have taken place over the years all over the country, including Tamil Nadu, Karnataka, Kerala, Goa. He conceded that the larger number is concentrated in northern hills in the states of Uttarakhand, Jammu and Kashmir and Himachal Pradesh- "Landslides have not spared anybody. But I would agree that the northern area has been more prone. In the northeast, West Bengal and all states other than Assam are highly affected. But landslides may even occur where there is no road construction activity."
"But we have undertaken several measures for mitigation. And we are willing to carry out further suggestions from the court and from everywhere…My learned friend (Mr. Gonsalves) has not come up with any suggestions till date as to what mitigation measures he would want the army to take, as he feels that if he does so, it will amount to conceding that the widening of the roads has been accepted by the court", submitted the AG.
Indicating some of the measures taken, the AG advanced that existing chronic landslide locations were taken up for mitigation as standalone projects and 36 sites treated; that an MOU has been entered into with the Geological Survey of India for undertaking geological studies of these highways; an MOU with the Defence Geo Informatics Research Establishment has been entered into for collaboration in the areas of Detailed investigation of the existing critical geo-hazards such as landslides, slope instability, sinking etc; the Delhi Hydroelectric Development Corporation has been engaged for the sustainable restoration of slopes, authorised muck dumping; etc.
Justice Chandrachud asked the AG, "Who is incharge of the work of hill cutting, slopes etc? Does the BRO (Border Roads Organisation) appoint private agencies to do the work? How does it work out in actual practice? Because it appears from the HPC report that inadequate attention was paid on certain issues in certain areas where the road construction was taking place- on muck disposal which resulted in slopes being affected and triggering landslides, strengthening of the slopes, identifying the landslide prone areas. And the HPC report is unanimous on this aspect."
"That is the presentation which has been made. They have selected certain roads. We have another document…", the AG sought to submit.
The AG told the bench that it is the BRO, the National Highways Infrastructure Development Corporation, the state PWDs which supervise, are in-charge and responsible, but they engage private contractors employing local labour.
Justice Chandrachud continued to observed, "The MOUs are of January, 2021. But the work started much earlier. Now that the government is doing that work, you must identify those parts, carry out that study before you proceed into that area so that you know which are the vulnerable spots."
The AG replied that the investigation has been done and the areas identified, and the same has been brought to the attention of the bench in a note circulated on Wednesday.
Justice Chandrachud finally indicated to Mr. Gonsalves that he has not given any suggestions on "the alternative line we suggested yesterday"- "Give us written note, encompassing your suggestions also. If we are inclined to accede to the prayer of the AG, we will need it. If we are not, we will have to disregard it. But it would still be of relevance for the work already undertaken."