By Akarsh Sharma
“A nation that destroys its soils destroys itself. Forests are the lungs of our land, purifying the air and giving fresh strength to our people.”
—Franklin D. Roosevelt
A plea filed by the NGO, Citizens for Green Doon, against the environmental clearance given by the National Green Tribunal (NGT) to widen the 889km Char Dham roads which are also crucial for the defence preparation along the Sino-Indian border (LAC) reached the apex court recently. Although the Supreme Court reserved its order on the matter, the bench led by Justice DY Chandrachud observed:
“We cannot deny the fact that at such a height, the security of the nation is at stake. Can the highest constitutional court say that we will override defence needs particularly in the face of recent events? Can we say that environment will triumph over the defence of the nation? Or we say that defence concerns be taken care of so that environmental degradation does not take place?”
When the NGO had moved the PIL before the NGT, the tribunal had rather a different perspective of the matter. “The idea is to strike the right balance between the conservation of limited environmental resources and development intended in the larger interest of the public,” it said. However, by the time the case reached the apex court, the Ministry of Defence expressed its demand for a wider road in order to aid the Army posted at LAC after China’s troops and artillery movement near the border.
The NGO had challenged 13 Stage-I approvals and 2 Stage-I & II approvals of forest clearances pertaining to various segments of the Char Dham project totalling to diversion of 373.1485 hectares of forest land and involving cutting of about 25,303 trees spread over a stretch of 356.368 km. The PIL further stated that according to guidelines in “Hill Road Manual” issued by the Indian Road Congress, the width of national or state highways for double-lane is set to 8.8 m, and thus, 15-20 m widening of road is in violation of the guidelines.
The NGT while allowing the construction of highway project in view of the larger public interest, however, observed that “the designated route of Chardham project is the occurrence, recurrence and kind of disaster it has witnessed in the recent past. While the 1900’s record the massive 1970 flash flood incident in Alaknanda valley, similarly severe flash flood incident of 1978 in Bhagirathi valley, earthquakes of Chamoli and Uttarkashi of 1998 and 1991 respectively; the new millennia, however in just 17 years has already documented several incidents of disaster in this area. Massive land sliding incidents like Varunavat tragedy of 2005, Bhatwadi land sinking incident of 2010, disaster of September, 2012 in Okhimath and Asi Ganga valley, Pithoragarh landslide tragedy of 2016, severe flash flood incidents of 2004, 2012, 2013. Even in the otherwise considered stable lower altitude areas like Narendra Nagar, Rishikesh, etc. have witnessed massive landslides in 2014 and 2016.”
The NGT had directed the formation of a committee headed by Justice UC Dhyani to oversee the implementation of Environment Management Plan (EMP) and further took account of
“Unscientific development and land use pattern, poor socio-economic conditions, forest degradation and deforestation, increasing population and tourism pressure, etc. Development of hydropower projects, construction of roads and river bed mining are the main developmental activities, which directly or indirectly enhance the vulnerability of the region to natural hazards.”
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In the September 2006 notification issued by the central government under Section 3 of the Environment (Protection) Act, 1986, “highways” was one of the items wherein a prior mandatory Environmental Impact Assessment (EIA) and environmental clearance from the regulatory authority of the central government was required. The notification stood amended when a high level committee constituted by the Ministry of Environment and Forests in December, 2012, reviewed its provisions relating to grant of environmental clearance for roads, buildings and Special Economic Zone projects. The committee recommended that expansion of national highway projects which are linear projects up to 100 km, involving additional right of way up to 40 m on existing alignment and 60 m on re-alignments or bypasses may be exempted from the preview of the notification.
The NGT though considered that the 889-km Char Dham road project comprises 16 separate linear projects observing that these projects did not require EIA approval/environment clearance in terms of the September 2006 notification of the Ministry of Environment, Forests and Climate Change.
When this observation was challenged in the apex court, a bench of Justice RF Nariman and Justice Vineet Saran on January, 2019, gave a nod to the on-going projects. However, the bench stayed the aforementioned observation, thereby rejecting the centre’s stand that bypasses/realignments have been considered as 16 standalone projects in the programme/part of the road projects and thus negating any requirement of EIA.
On August 2019, a bench of Justices RF Nariman and Surya Kant modified the NGT’s order directing to constitute a High Powered Committee (HPC) headed by Prof Ravi Chopra replacing Justice UC Dhyani. Along with this, the Court added a representative of Physical Research Laboratory, Department of Space, Government of India, Ahmedabad; a representative of the Wildlife Institute of India, Dehradun; a representative of MoEF&CC, Regional Office, Dehradun; and a representative of the Ministry of Defence dealing with border roads and not below the rank of director.
The HPC was directed to consider the cumulative and independent impact of the Char Dham project on the entire Himalayan valleys and whether the revision of the full Char Dham project should at all take place with a view to minimise the adverse impact of the project on environment and social life. It was tasked with recommending measures required for stabilising the area where hill-cutting has taken place; assess the environmental degradation in terms of loss of forest land, trees, green cover, water resources, dumping of waste and impacts on the wildlife. The HPC was to make special provisions in its report keeping in mind the guidelines given under the notification of the Bhagirathi Eco Sensitive Zone so as to avoid violations and any environmental damage, and suggest areas in which afforestation measures should be taken up.
Between September and November 2020, the Ministry of Road Transport and Highways and the Ministry of Defence maintained that “a double-lane road having a carriageway width of 7 m with 8-10 m formation width would “meet the requirement of the Army”. The majority view of 21 out of 26 members within the committee had suggested a width of 10 m for the project, favouring the necessity of broadening the Himalayan feeder roads to the China border in order to facilitate troop movement. The Ministry of Road Transport and Highways on December 15, 2020, amended the specifications of its 2018 circular to a 10m tarred surface in its December 2020 circular. Subsequently, the Ministry of Defence also changed its position in its affidavit on January 15, seeking a 10-m carriageway with 12-14 m formation width in view of the need to carry heavy military load like armed forces vehicles, rocket launchers etc., to the LAC.
On, May 18, 2021, when the matter was again taken up, the Attorney General KK Venu gopal submitted that there is an urgency in the matter as the country needs strategic roads and apprised the Court that the roads have to be constructed at a width of 7 m or so. The centre in its affidavit was thus confused over the requirement of either 7m double lane or 10m (7 m+ 3m) double lane with paved shoulder road. Four HPC members, including Chairman Prof Ravi Chopra opposed the demand to increase the carriageway width from 5.5 m to 7 m.
The centre on November 9 apprised the bench of Justices DY Chandrachud, Surya Kant and Vikram Nath that there are seven projects that lead to international borders which are needed for Army movements and were not taken into account earlier. Senior Advocate Colin Gonsalves appearing on behalf of the NGO argued that the Indian Army is only following the whims of the political establishment and was really happy with the existing roads that connect the pilgrimage to the Char Dham and it was after the Ministry of Road Transport and Highways’ 2020 circular that the demand of the Ministry of Defence changed. He further submitted that the Himalayas have physical restrictions and one cannot do something that causes it to crash. “The Army needs can only be met if the roads you build are safe for army,” he contended.
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He further submitted that the government had decided for realignment stating that it was the only option left. Going into technicalities, Gonsalves stated that,
“when you do hill cutting of 12 m length, the drilling needs to be done 24 m into the mountain, as this process is going on, we are cutting down the earth resulting in falling of trees and avalanches, underscoring on the adverse impact of road widening in hilly regions. MoD’s requirement is of Double Lane and not Double Lane with Paved Shoulder, which simply means that if the same is not stopped, the affected land due to hill cutting and protection works would be 18-24 m into the mountain instead of the normal 11-13 m.”
Gonsalves further argued that the intermediate roads (5.5m) too are double lane roads and focus should be on controlling the number of visitors and restricting the use of roads so that the Army can travel freely and transport its equipment. He stated that border roads were double lane roads, and fairly resistant. But the same was blocked for 60 days due to landslides and other calamities. He stressed on the minutes of the meetings of the HPC, when it comes to justifying 2020 circular, which did not have a word on scientific reasons.
Gonsalves reiterated his point that water sources in Himalayas are being dried to 60% out of the total and in addition, the wildlife is also endangered. “The mountain and road is the same, it is what cutting you do. I want safety for the troops, and if there is a guarantee that no stone will fall on trucks of troops. But no one can guarantee that,” said Gonsalves.
However, the attorney general was adamant about the defence and submitted that,
“today country is in deep trouble and for the purpose of defending our country, we need to ensure that entire facility be financially and technically be made available to them (army)…. What happens if we don’t take these equipments up…there are landslides in J&K, Himachal Pradesh, Kerala, Karnataka, etc…. Landslides are not just a problem in North…. Artillery Gun system is 20.6 m, it is a stupendous task which army has to undertake… If anyone has some better suggestions we will look into it.”
Earlier in 2013, the Supreme Court in Alaknanda Hydropower Co. Ltd. vs Anuj Joshi expressed concern over the mushrooming of a large number of hydroelectric projects in Uttarakhand and its impact on Alaknanda and Bhagirathi river basins after the Kedarnath tragedy. The bench led by Justice Radhakrishnan noted the cumulative impact of construction, such as dams, muck disposal, roads, tunnels, mining and blasting around the natural habitat of the region and put a stay on 24 hydropower projects in Uttarakhand.
The dilemma before the apex court is distinctive. A study done by the Geological Survey of India (GSI) after June 2013 recorded hundreds of landslide incidences along the Char Dham route. All the three studies conducted by the GSI after the June 2013 disaster in Uttarakhand have raised serious concerns over road construction activities and held them responsible for landslides and disasters. The Disaster Mitigation & Management Centre recommended complete stoppage of blasting in the hills, in order to prevent them from weakening any further.
So the big question remains: what would be the decision of apex court? Can the Himalayas sustain such extensive construction? Does the need for defence obliterate the need for a sustainable environment for future generations?
—The writer is Advocate, Supreme Court of India