Court Cannot Second Guess Infrastructural Needs Of Armed Forces: SC In 'Char Dham' Highway Case

While allowing the Ministry of Defence's plea to allow the double lane widening of the Char Dham highway due to strategic reasons, the Supreme Court said that it cannot second-guess the infrastructural needs of the Armed Forces.

This observation was made by the bench headed by Justice DY Chandrachud while allowing 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. The court said it is impermissible to interrogate the policy choice of the establishment which is entrusted by law with the defence of the nation.

The Ministry of Defence had approached the Court 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 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 above observation was made while considering the submission made by the parties that the need of the Army will be subserved better by disaster-resistant roads of a smaller dimension. The court said:

65. 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.

During the hearing, the appellants had 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. Regarding this, the bench noted that the MoD has maintained the need for double-laned roads to meet border security concerns. It was observed thus:

"64. 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."

The court added that the importance of the requirement of double-laned highways is necessary for the movement of trucks, equipment and personnel of the Armed Forces.

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