Supreme Court on Tuesday 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, has appointed an oversight committee headed by Justice AK Sikri.
In this regard, bench comprising Justice DY Chandrachud, Justice Surya Kant and Justice Vikram Nath has observed as follws;
"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 on 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"
Other Highlights of Judgment
'No malafides in modification application of MOD; Impermissible to interrogate policy choice of establishment entrusted by law with defence of nation'
"The principle of sustainable development has found consistent application in matters of environmental law. Sustainable development is a multidimensional approach with the focus on development of economy, protection of individual rights and environmental concerns while ensuring both intra and intergenerational equity. This allows the principle to look beyond creating policy roles which necessarily seek specific objectives, towards creating policy approaches which provide for the frameworks. The principle has been explicitly recognised in multiple judgments of this court. The principle is deep-rooted in the Indian jurisprudence of environmental law. It is a multifaceted principle which does not prohibit development but structures it around what is sustainable. This development incorporates development which not only ensures equity between the present and the future generations but also development which ensures equity between different sections of the society at present. While the principle has deep roots, there is a lack of consensus as to how to ascertain whether a particular development project abides by this principle. Without a common benchmark or standard being applied on the impact of development projects, the principle of sustainable development may create arbitrariness. This creates uncertainty within the law also and makes application of the principle of sustainable development selective, taking away from its potential to drive sustained change", observes the bench, proceeding to canvass the "environmental rule of law"
"On a combined reading of the 2012, 2020 and 2018 MORTH circulars and 2015 and 2019 IRC guidelines, it emerges that Roads will be of double lane paved shoulder configuration in the following circumstances- 1. if it is a national highway other than in hilly or mountain terrain; 2. in hilly or mountainous terrain, national Highway can be double lanes if there are more than 10,000 passenger carrying units per day or that level will be reached in 3 to 5 years; 3. in hilly and mountainous terrain, a national highway can be DLPS configuration if the traffic is likely to increase by more than 10% per annum; 4. in hilly or mountainous terrain, any road including a national highway can be of DLPS configuration if it is a strategic or a border Road serving as a feeder Road to Indo China border or of strategic importance to national security", records the bench.
"At the outset, we find that there are no malafides in the MA filed by the Ministry of Defence. The allegation that the application filed by the MoD states to re-litigate matters or to subvert the previous order of this court are unfounded in as much as the MoD as a specialised body of the government of India is entitled to decide the operational requirements of the Armed Forces. These include infrastructural support for movement of troops, equipment and machinery. The Bonafides of the MoD are also evident that the issue of security concerns was raised during the discussions of the HPC and finds mention in its report. The MoD has maintained the need for double laned Road to meet security concerns before this court also", says the bench.
Other Highlights of the Judgment
'Security concerns change over time; Cannot hold armed forces to statement of Chief of Army Staff in media in 2019 regarding adequacy of infrastructure'
"The petitioners have indicated a statement of the Chief of Army staff (late Gen. Bipin Rawat) in a media interview in 2019 regarding the adequacy of infrastructure. We do not find it necessary to place reliance on the statement made in the media, in view of the consistent stand of the MOD made before HPC and this court. MOD security concerns may change over time. Recent past has thrown serious challenges to security. Armed forces cannot be held to a statement made in 2019 as if written in stone", states the bench. [During the hearing, Senior Advocate Colin Gonsalves indicated a conversation with late General Bipin Rawat, the chief of army staff- "He was asked if they want proper roads. He was sitting in the Himalayas which is his home and he said that 'in the army, we are happy with the roads as they are'. His words were, 'We must look after defence and we must look after the environment'. When he was asked about trucks going up these roads, he said 'we don't want these roads to be like that. We have very heavy artillery-lifting helicopters and they have done their jobs'. This was a candid conversation with him, who is a thorough army man and a thorough 'Pahari'"]
With regard to the challenge to the 2020 MORTH circular, the bench says, "This court in its exercise of judicial review cannot second-guess the needs of infrastructure of the armed forces. It is important to remember that MORTH issued the circular based on the recommendation of the MoD. The submission of the appellant 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"
"Neither the 2012 or the 2018 MORTH circulars specifically address the issue of strategic border roads. The considerations for development of national highways in plains and hilly and mountainous regions are not identified. The development of highways which are strategic Road from defence purposes cannot be the same as those for other roads in hilly and mountainous terrain. We must therefore arrive at a delicate balance of environmental considerations such that they do not hinder the infrastructural development especially in areas of strategic importance crucial to the security of the nation...majority of the members of the HPC recommended the adoption of the DLPS standard. This was reiterated in the HPC report II. We find ourselves to be in agreement with the findings of the HPC. Based on the above reasons, we modify the order of this Court of 8 September 2020 to extend the highways from Rishikesh to Mana, Rishikesh to Gangotri, Pithorgarh to Tanakpur according to the DLPS configuration as provided in the 2020 MORTH circular", held the bench.
[Environmental issues] 'Measures late in coming, limited in scope; Making project environmentally-compliant not merely a check-box'
The bench has Highlighted the environmental concerns raised by the HPC, noting that the analysis conducted by the HPC in this behalf forms the unanimous segment of the report and is based on empirical and scientific data. It notes that the HPC took time to visit all project sites and individually identified a variety of issues:
1. The HPC says that in many cases, MORTH has gone into the project based on assertions that it is compatible with environmental guidelines or that its development benefits are proportionate to the harm. To test the reality of the same, the HPC directed relevant studies by the State such as for creation of bypasses, protection of wildlife, disaster management preparedness etc
2. The HPC report also notes that best practices are not being followed in some areas of concerns such as hill cutting or Muck dumping. In other areas of concerns, the HPC has recommended remedial measures like protection of wildlife and maintenance of water resources etc. It is also suggested that future actions are such so as to reduce adverse effects on the protection of forest cover etc.
3. The HPC has recommended constant monitoring by the MORTH and necessary system should be set up for maintenance of environment and disaster management repairs
4. The HPC also noted the impact of the project on socio-cultural communities, suggesting a dialogue through which concerns can be dissolved
"AG K. K. Venugopal submitted the MORTH and MOD are taking measures to assuage concerns noted by the HPC. While we appreciate these measures, they are late in coming and limited in scope. The measures have only begun to scratch the surface and do not adequately address issues like Muck dumping. Even the remedial measures with regard to landslides and hill cutting would be tardy and limited only to the roads which are of strategic importance to India", notes the bench.
"However it is important to remember that the project consists of 53 projects, not all of which are on such roads. That does not mean that environmental effect on these roads and their surroundings will be any less important or that it does not need to be remedied. More than anything else, this requires a concerned shift in the approach which has been adopted today. Making this project environmentally compliant should not only be seen as a checkbox", asserts the bench.
Case Title : Citizens for Green Doon and others versus Union of India and othersCitation : LL 2021 SC 737
