The Supreme Court on Tuesday upheld the government’s mandate to broaden three Himalayan highways, considered crucial by the Ministry of Defence (MoD) for quick troop build-up along the Indo-China border.
The three national highways — Rishikesh to Mana, Rishikesh to Gangotri and Tanakpur to Pithoragarh — act as feeder roads to the northern border with China. They are part of the Char Dham project.
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These highways would now be developed in accordance with the Double Lane with Paved Shoulder (DLPS) system.
“This court in judicial review cannot second-guess the infrastructural needs of the armed forces,” a Bench led by Justice D.Y. Chandrachud said in a judgment.
The verdict is based on an application filed by the MoD to modify the court’s September 8, 2020 order, which directed that mountain roads for the Char Dham Highway project should be 5.5 m in width in compliance with a 2018 circular of the Roads and Highways Ministry.
Amendment to circular
The Ministry had gone on to amend its circular in December last, saying that “for roads in hilly and mountainous terrain which act as feeder roads to the Indo-China border are of strategic importance for national security, the carriageway width should be 7 m with 1.5 m paved shoulder on either side”.
Modifying the September order, the judgment on Tuesday said “we allow the Ministry of Defence’s application for DLPS configuration for three strategic highways… At the same time take note of the environmental concerns raised for the entirety of the project and the unanimous recommendation of the High Powered Committee (HPC) for taking remedial measures and direct that they have to be implemented by the Ministry of Road Transport and Highways and the Ministry of Defence going forward”.
The Bench formed an oversight committee chaired by former Supreme Court judge, justice A.K. Sikri, to ensure that the government implements the remedial measures recommended by the court’s HPC for the environment. The court clarified that the Justice Sikri Committee however is not to undertake “an environmental analysis of the project afresh” and should focus on the three highways in order to avoid overlapping into the HPC’s ambit. The Ministries of Road and Defence have to give monthly reports to the committee, which would in turn report to the court every four months.
Noting that while a majority of the HPC had recommended DLPS-standard road width for the highways, the court said the panel had also unanimously suggested “best practices” and remedial measures to protect the ecology from harm, especially in “areas of concern”.
The court questioned the government’s assertions that development benefits from the broadening of the highways were proportionate to the harms. “The reality tests these assertions. HPC had recommended carrying out relevant studies to ascertain the true reality, such as creation of bypasses, maintenance of environmental quality, protection of wildlife, disaster management preparedness…” it stated.
The court observed that some of the areas needed constant monitoring by the Roads Ministry. A system needsed to be set up. The court highlighted the HPC’s recommendation to study the effect on local communities and a dialogue with them to resolve their problems. It said the government had made efforts to resolve the issues, but they were “late in coming and did not address crucial issues”. The remedial measures, say against landslips, had been “tardy and limited”.
“Making the project environmentally compliant will not be seen as a check-box in the path of development,” Justice Chandrachud stressed.
Environmentalists had argued in court that broadening the highways using DLPS would prove fatal to the already fragile Himalayan ecology. The petitioner, an NGO called Citizens of Green Doon, had called the Himalayas the “best defence for our country”. It had challenged the Road Ministry's December 2020 circular, saying the government introduced DLPS without application of mind.
‘Specialised body’
But the court concluded that the Roads Ministry’s circular was based on recommendations from the MoD. The court said it cannot “interrogate” the defence requirements of the nation. The MoD was the “specialised body” which discerned the requirements of the armed forces. Security concerns, which changed over time, were assessed by it.
When the conservationists contended that smaller, disaster-proof roads served the needs of the armed forces, Justice Chandrachud responded in the judgment that “The submission of the petitioners requires the court to override the modalities decided upon by the Army and the Ministry of Defence to safeguard the security of the nation’s borders… The petitioners want the court to interrogate the policy choice of the establishment which was entrusted by law for the defence of the nation. This is impermissible”.
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To an argument that the Army Chief, in a media interview in 2019, commented on the adequacy of infrastructure requirements for troop movement, the court reminded that “the recent past has thrown up serious challenges to the national security”.
“The armed forces cannot be held down to a statement made during a media interaction in 2019 as if it was a decree written in stone,” Justice Chandrachud observed.
The court said different considerations come into play while constructing highways in mountainous terrains, which were strategic roads from a defence perspective.
‘Delicate balance’
The judgment said a “delicate balance” should be maintained between environmental considerations and infrastructural development so that the former did not impede the latter, specifically in areas of strategic importance crucial to the security of the nation.
The government had argued in court that the armed forces cannot surrender the defence of the nation to threats of landslips by the widening of Himalayan roads, for quickly moving military hardware to the “very vulnerable” Indo-China border, may cause.
Attorney General K.K. Venugopal had submitted that crucial defence equipment such as the BrahMos or Vajra missile launchers and Smerch rocket carriers need room to maneuver the tough terrain and reach the border.
“There is a Chinese build-up in the Tibetan region... Today we are facing a situation that the country has to be defended. All three wings of the armed forces have to combine to defend the nation. We have to ensure that every physical, technological and financial facility is made available to the armed forces. The Army has a stupendous task to reach the passes and the line of control. The defence forces cannot fold their hands and say ‘oh, landslide may happen, we will give up this road to the border’. If it is a landslide threat, we will have to deal with it,” he had submitted.
