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Tuesday, January 25, 2022

Char Dham Roads: SC accepts border security concerns, allows widening of 3 hill stretches

Noting that the "Project is riddled with environmental issues", the bench also set up an Oversight Committee, headed by its former judge Justice (retired) A K Sikri, to oversee implementation of the HPC's recommendations.

Written by Ananthakrishnan G | New Delhi |
Updated: December 15, 2021 3:43:06 am
The court was hearing the Centre's plea seeking modification of the September 8, 2020 order, which had asked the MoRTH to follow the 2018 circular stipulating carriageway width of 5.5 metre on the ambitious Char Dham highway project, which goes up to the border with China. (Representative image)

Agreeing with security needs highlighted by the Ministry of Defence (MoD), the Supreme Court Tuesday allowed widening of three hill stretches in Uttarakhand — Rishikesh to Mana, Rishikesh to Gangotri and Tanakpur to Pithoragarh – forming part of the Chardham Mahamarg Vikas Pariyojna.

This will be in the Double Line-Paved Shoulder (DL-PS) format with a width of 10 metres (7 metre doubleline carriageway and 1.5 metre paved shoulders on either side) as prescribed by the December 5, 2020 circular of the Ministry of Road Transport and Highways (MoRTH).

The bench of Justices D Y Chandrchud, Surya Kant and Vikram Nath modified the top court’s September 8, 2020 order which had asked the MoRTH to stick to its 2018 circular on the width of roads in hill terrain in the execution of the project. The 2018 guidelines prescribed a width of 5.5 m for the carriageway.

The bench said MoRTH and MoD can proceed with the project subject to the condition that it addresses all environmental concerns flagged by the High Powered Committee (HPC) that the court had appointed.

Noting that the “Project is riddled with environmental issues”, the bench also set up an Oversight Committee, headed by its former judge Justice (retired) A K Sikri, to oversee implementation of the HPC’s recommendations.

Allowing an application filed by MoD seeking modification of the September 2020 order, the bench said “at the outset… we find that there are no mala fides” in the plea.

It said “the allegation that the application… seeks to re-litigate the matter or subvert the previous order of this Court are unfounded inasmuch as MoD, as the specialized body of the Government of India, is entitled to decide on the operational requirements of the Armed Forces. These requirements include infrastructural support needed for facilitating the movement of troops, equipment and machines”.

The bench pointed out that “bona fides of the MoD are also evident from the fact that the issue of security concerns was raised during the discussions of the… HPC (High Powered Committee) and finds mention in the HPC Report. Thus, the MoD has maintained the need for double-laned roads to meet border security concerns”.

Writing for the bench, Justice Chandrchud said “this Court, in its exercise of judicial review, cannot second-guess the infrastructural needs of the Armed Forces”. The bench rejected the argument by those against further widening that the need of the Army will be subserved better by disaster-resistant roads of smaller dimension.

Pointing out that the 2020 circular was issued by MoRTH based upon the recommendations received from the MoD, it said “the submission… requires the Court to override the modalities decided upon by the Army and the MoD to safeguard the security of the nation’s borders” and to “interrogate the policy choice of the establishment which is entrusted by law with the defence of the nation”. It said “this is impermissible”.

The bench noted that those opposed to widening work had referred to a statement by the then Chief of Army Staff on September 20, 2019 in a media interview that current roads adequately fulfil the needs of the Army. It said “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”.

The bench said “it is evident that the national highways provide vital connections to the establishments of the Armed Forces along the Nelong Axis, Mana Pass, Rimkhim Pass, Niti Pass and Lipulekh Pass” and “we find that the need for the development of national highways of a DL-PS standard is proportionate to the object of fulfilling the security concerns of the nation as assessed by the MoD”.

Pursuant to the September 8, 2020 order, the Centre had moved court again, stating that “there has been a material change in circumstances, necessitating an improvement of roads to enable movement of troops and equipment to Army stations” on the India-China border.

The court found that the MoRTH circulars of 2012 and 2018 did not specifically address the issue of strategic border roads. It said “the considerations governing the construction of highways that are strategic roads from a defence perspective, and may be used by the Armed Forces of the nation, cannot be the same as those for other roads in hilly and mountainous regions” and there has to be “delicate balance of environmental considerations such that they do not impede infrastructural development, specifically in areas of strategic importance crucial to the security of the nation”.

The judgment noted that though there may have been disagreement between HPC members on the road-width, they unanimously agreed on other environmental issues in the manner in which the project was being implemented by MoRTH.

“The verdict of the HPC in its report indicates that the Project is riddled with environmental issues, which need to be resolved in order to make it environmentally sustainable. Unfortunately, due to the ongoing litigation in relation to the road-width issue, these concerns seem to have taken a backseat. However, that cannot be the case, going forward,” the bench said.

It said measures adopted to address HPC’s concerns “are limited in scope and have been late in coming” and “do not address crucial issues such as muck disposal, which not only affects the environment directly but also causes issues for wildlife and availability of water resources”.

“Even the remedial measures in relation to hill-cutting and landslides have been tardy and limited and… seem to have been limited only to the roads… of strategic importance to India’s national security,” it said, adding “it is important to remember that the Project consists of 53 individual projects, not all of which are such roads”.

While benefits to the armed forces is a crucial factor, “it is not the only thing at stake in a Project of this scale, which was conceived to provide a more efficient route for those undertaking the Char Dham pilgrimage. What is at stake… is also the health of the environment, and its effects on all individuals who inhabit the area,” the bench said.

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