INTRODUCTION
On 14th December 2021, Hon’ble Judges of Supreme Court has delivered judgment in the case of Citizens for Green Doon and others v. Union of India and others, by the bench comprising of Justice DY Chandrachud, Justice Surya Kant, and Justice Vikram Nath. In this, their lordships have allowed application of Ministry of Defence for widening of roads to 10m double-laned paved shoulder (DL-PS) from 5.5m as ordered by the court in September 2020.
In the order dated 8th Sept 2020, Hon’ble Apex Court has considered case earlier and delivered pro-environmental judgment by restricting width of roads to 5.5m and then Ministry of Defence realized security importance of roads thus, demanding wider roads for smooth movement of troops towards China border.
The Char Dham Mahamarg Vikas Pariyojana, which has suddenly been considered as a project of strategic importance, was originally an ambitious religious-tourist project of Rs. 12,000 crores to widen 900 km of national highways connecting four Hindu shrines of Kedarnath, Badrinath, Gangotri, and Yamunotri, on the route of Kailash Mansarovar Yatra in state of Uttarakhand, to ensure faster and smoother traffic movement. The National Highways have been important but their pressing security needs have been realized in this time only.
ISSUE
The issue placed before the Hon’ble court has been for the widening of road for three strategic borders: Rishikesh to Gangotri (NH-94 and NH-108), Rishikesh to Mana (NH-58), and Tanakpur to Pithoragarh (NH-125). Union of India has purported for more feeder roads to border areas, which are important from the perspective of national security.
Whereas, petitioner NGO challenged December 2020 circular and sought direction to revoke, which allows for widening of carriage roads in strategic areas to 7m.
This has been argued from an environmental perspective that the project would have irreversible damages to mountains when Army has sufficient infrastructure to ensure logistical movement. A much wider road implies to have an additional cutting of trees, sloping, dumping, which will destabilize young Himalayan mountains and make them prone to landslides, floods, etc. consequences of which are hard to fade off by havoc created in 2013 Kedarnath landslides.
LEGAL BATTLE
In 2018, Citizens for Green Doon filed an application before National Green Tribunal (NGT) on environmental clearances required for the project, Hon’ble tribunal held that there is no need for environmental clearance as each project are of a length less than 100 km and just directed for an oversight-committee to monitor environmental safeguards. This order was challenged before Hon’ble Supreme Court. In August 2019, the Hon’ble court constituted the High Power Committee (HPC) to consider the impact of the project on Himalayan Valley.
On the basis of the HPC report, Hon’ble Court, in September 2020, directed govt. to be in compliance with circular March 2018, allowing for 5.5m of width two-lane structures. In December 2020, the circular was amended by the government to enable a 7m width of roads with 1.5 meters paved shoulders on either side. After this, government through the Ministry of Defence (MoD) approached court for reconsidering the widening of roads citing security and defense of border issues.
In response to December 2020 circular and MoD appeal of national security, Hon’ble Court has allowed the widening of the road to enable 7m width of roads with 1.5 meters paved shoulders on either side.
ANALYSIS
The judgment was well within the ambit of the December 2020 circular, but the way the circular was amended in response to the judgment of September 2020 and appealing for wider roads in tourism projects solely on national security demands attention. What further raises eyebrows that judgment provides for liberty to go for legal proceedings and seek relief if want to implement DL-PS standard for the entire project. This is not in the line of reasoning of national security which has been the sole basis of delivering judgment. Thus, it is clear that judgment is more on governmental than on an environmental and legal basis.
Hill-cutting in the Himalayas is one of the major reasons for landslides and rockfalls. HPC also attempted to identify long-term impact of the project considering pollution, muck-dumping, soil erosion but was unable to access due to the stoppage of work prior to the visit. Recent studies have provided that 2/3rd of Himalayan glaciers could be melted by 2100. It is an undeniable fact that roads are lifelines for the interior region of country and hold strategic importance particularly on the India-China border but there is a need to access properly what the demand is.
As HPC has itself recommended that disaster-resilient roads are more required than wider roads, otherwise it would defeat the very purpose of road widening which is clear from the tragic two-month blockage of valley, due to lack of all-weather roads, in Pithoragarh, near China border. Even the three feeder highways provided by the Ministry of Defence have 161 landslides/vulnerable zones. Further, HPC dated 13th July 2020 provides that traffic-related surveys were not conducted in Higher Himalayas and improper slope protection due to uniform application of the standard.
EIA has not been conducted by the Ministry of Road Transport and Highways, ignoring overall environmental factors which would have helped in providing site-specific mitigation techniques. Legally speaking, NGT found that there is no need for EIA. For this, 900-km of the project has been divided into small projects, each less than 100kms so to be exempted from EIA. This is contrary to the mission document released for the sustenance of the Himalayan Eco-system which provides that EIA be mandatory for construction of roads more than 5kms in length. It has been correctly put by C.P. Rajendra that refusal of NGT and even by Hon’ble Court, for EIA, is a classic case of fence eating the crop itself.
In my limited opinion, there is no need to have an oversight committee as appointed by Hon’ble Court to ensure environmental compliances as not much would be followed. The judgment fails to satisfy stakeholders the use of environmentally favorable words such as “sustainable”, “balance”, “assessment” and reasoning provided, thus the battle has been lost by the Himalayas!
This case comment has been authored by Shreya Maloo, a second - year student at Rajiv Gandhi National University of Law, Punjab.
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