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SC allows widening of 3 ‘strategic stretches’ in Char Dham road project, cites security concerns

SC bench led by Justice D.Y. Chandrachud modifies top court’s September 2020 order that had restricted road width on entire highway in fragile Himalayan region to 5.5 m.

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New Delhi: In view of security concerns, the Supreme Court Tuesday allowed the widening of three strategic stretches on the 900-km long Char Dham highway project. However, the widening will be subject to compliance of a top court-appointed panel’s recommendations on environmental concerns arising due to the project.

In doing so, a bench led by Justice D.Y. Chandrachud modified the top court’s 8 September 2020 order that had restricted the road width on the entire highway — in the ecologically fragile Himalayan region — to 5.5 metres.

The order came on a December 2020 plea by the Ministry of Defence (MoD) to widen three strategically important stretches — the national highways from Rishikesh to Mahana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh. The ministry said the roads serve as feeder roads to the India-China border. 

We must… arrive at the delicate balance of environmental considerations such that they do not impede infrastructural development specifically in areas of strategic importance, which is crucial to the security of nation,” the court ruled, after analysing the MoD’s argument and concerns raised by NGO Citizens of Green Doon, which opposed the plea.

The court took note of the High-Powered Committee (HPC) report submitted last year that acknowledged the three stretches formed feeder roads to the border districts in Uttarkashi. The HPC had been constituted on the top court’s directions. 

The HPC’s majority opinion had called for adoption of double-laned paved shoulder for the project, the court said in its order. In a second report, which came after the MoD’s modification plea, the panel reiterated its opinion, the court added.

The court said it was in agreement with the HPC’s findings and, hence, modified its September 2020 order to the extent that the three stretches be developed according to the double-lane carriageway width with paved shoulders.

However, the bench set up an oversight committee to ensure that the HPC’s observations on environmental concerns such as hill-cutting, muck disposal and preservation of water resources are taken care of and its suggestions on remedial measures are implemented.

SC judge Justice A.K. Sikri (Retd) will head the panel. It will not undertake an environmental analysis of the project afresh but will assess the implementation of HPC recommendations, the court said. It will submit a progress report to SC every four months.

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What the project is, and MoD’s plea

The Rs 12,000 crore Char Dham highway project aims to connect four Hindu shrines Gangotri, Yamunotri, Kedarnath and Badrinath in the Garhwal region of Uttarakhand. It is a flagship initiative of the Bharatiya Janata Party-led central government.

Once completed, the project is expected to not only improve road connectivity to the pilgrimage sites but also bolster border infrastructure at a time India and China are engaged in a tense standoff.

The three stretches where the defence ministry wants to widen the road connect the Army and Indo-Tibetan Border Police stations located in Joshimath, Uttarkashi, Roorkee, Rajwala, Dehradun, Tanakpur, Pithoragarh and other places to the International Border/Line of Actual Control with China.

In its plea, the MoD cited serious repercussions on India’s defence and its security interests, which “is in jeopardy, especially in the background of today’s sensitive situation existing at the Chinese border”.

It also noted the “face-off with Nepal on the Lipulekh side in 2020”, adding that “all these sectors are highly sensitive” and “critical for movement of security forces, deployment pattern, and mobilisation in case of emergency”.

The MoD plea added that the widening project was in accordance with the 2020 guidelines issued by the Union Ministry of Road Transport and Highways (MoRTH) for major roads built in mountainous terrain.

The 2018 guidelines had set the width of a two-lane road with paved shoulders at 5.5 metres. They had replaced the 2012 rules, which set the figure at 10 metres. However, the government amended the 2018 circular in December 2020 and approached the court through the MoD to allow widening of the road up to 10 metres.

The road ministry has already done hill cutting for constructing a 10-metre-wide road for a 537-km stretch. It has further finished building 365 km of the highway.

‘Impermissible’ for court to question circular

Touching upon the principle of sustainable development, the court said “it is deep-rooted in the jurisprudence of environmental law” and has found consistent application in such matters.

“It incorporates two ideas, development which not only ensures equity between present and future generations but also between different sections of society,” the court said.

Applying this concept, the court made a combined reading of the three MoRTH circulars issued in 2012, 2018 and 2020 as well as the Indian Road Congress guidelines of 2015 and 2019.

It concluded that none of these specifically addressed the issue of strategic border roads, adding that the considerations for such cannot be the same as those for other roads in hilly and mountainous regions.

The court rejected the opposition by NGO Citizens for Green Doon that the MoD application was filed with a malafide intention to litigate matters and subvert the September 2020 order, calling the accusations unfounded.

“The MoD as a specialised body is entitled to decide the operational requirement of the armed forces, which include infrastructural support for facilitating the movement of troops and machines,” the court said.

It declined to review the validity of the 2020 circular, observing that the court cannot second-guess the infrastructure needs of the armed forces or “override the modalities decided upon by the Army and the MoD to safeguard the security of the nation’s border”. 

Moreover, it was “impermissible” for the court to question the circular, as it would require “the court to interrogate the policy choice of the government which is entrusted by law with the defence of the nation”.

The bonafide of the ministry is also evident from the fact that the security concern was raised before the HPC and finds mention in its report, the court said, adding that this shows the MoD has maintained the need for double-laned roads to meet border security concerns.

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Court notes security challenges

The bench reflected on the tensions at the border areas and said they have thrown up serious challenges to national security. Therefore, it refused to weigh in on a 2019 statement given by the then Chief of Army Staff about the adequacy of infrastructure for troop movements.

“We do not find it necessary to place reliance on the statement made to the media, given the consistent stand of the MoD during the deliberations before the HPC. The security concerns assessed by MoD may change overtime,” the court said.

The court also accepted the HPC’s unanimous view on the potential adverse impact of the project on the environment, observing that its analysis is not only comprehensive but also based on scientific data.

Justice Sikri panel

While setting up the Justice Sikri panel, the bench ordered the CSIR-National Environmental Engineering Research Institute director and the Forest Research Institute, Dehradun, to nominate their respective representatives to provide technical assistance to the chairperson. 

The HPC will continue to supervise implementation of remedial measures. 

The court also directed the Uttarakhand government’s environment ministry to provide logistical support to the Justice Sikri panel and ordered the MoD and the Union environment and road ministries to render their assistance.

The three central ministries will have to file their monthly progress reports before Justice Sikri, who shall submit his report to the SC bench every four months.

(Edited by Amit Upadhyaya)

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