Dehradun: Driven primarily by the argument of national security, the Supreme Court last week dismissed environmental concerns over the contentious 825-km Char Dham highway expansion project in Uttarakhand and allowed a 10-metre-wide double lane with paved shoulder (DL-PS) configuration for 674 km of roads leading to the Indo-China border.
However, a close reading of the judgment in view of the court-appointed high powered committee’s (HPC) reports, the court’s earlier orders, and the government’s own affidavits and applications filed in court makes it clear that the judgment properly addresses neither environmental concerns or defence needs and is actually counterproductive to both.
In another setback to the environmental concerns, the judgment also misinterpreted the 2012 Bhagirathi eco-sensitive zone (BESZ) notification’s 2018 amendment by stating that the study of environmental impacts is not required to build defence infrastructure in the area demarcated for the zone.
The December 14, 2021 judgment by Justices D.Y. Chandrachud, Surya Kant and Vikram Nath also said that the “Court, in its exercise of judicial review, cannot second-guess the infrastructural needs of the Armed Forces”.
Yet, ironically, that is precisely what the bench has done.
This is because the defence ministry’s own submission, originally made in November 2020, did not ask for an additional 1.5 metre x 2 paved shoulder which would widen the 7-metre tarred road it wanted to 10 metres.
Despite this, the final judgment modified the Supreme Court’s interim order of September 8, 2020, which had restricted the carriageway width to 5.5 m along with 1.5 m raised footpath to minimise environmental impacts.
A study of the separate submissions in court by the Ministry of Defence and the Ministry of Road Transport and Highways (MoRTH), along with MoRTH’s circulars from 2012, 2018, and 2020, makes it clear that the apex court’s final order on the width of the road serves MoRTH’s agenda more than it does defence requirements – as does the decision to pave the way for 151 km non-strategic roads to be widened to DL-PS configuration as well.
Judgment cites defence needs, aligns with MoRTH requirements
The Supreme Court of India. Photo: Pinakpani/Wikimedia Commons, CC BY-SA 4.0
In its November 27, 2020 application, the defence ministry requested the Supreme Court to allow a double-lane road with a 7 m tarred surface for a length of 674 km:
- 231 km Rishikesh-Gangotri (NH-94 and NH-108)
- 281 km Rishikesh-Mana (NH-58)
- 162 km Tanakpur-Pithoragarh (NH-125)
However, the judgment went beyond the ministry’s requirements, allowing the DL-PS configuration, which has a 10 m tarred surface.
“We thus allow MoD’s (application) … by permitting the DL-PS configuration for the three strategic highways,” the judgment said.
Environmentalists have said that despite the consequences of hill-cutting, including landslides, it was MoRTH’s agenda to get the project built based on DL-PS standards – i.e. with 7 m carriageway plus 1.5 m paved shoulders on both sides.
Mallika Bhanot, who is a member of Ganga Ahvaan, a conservation-related forum, and is actively involved with the issue, said, “The defence ministry’s application had requested for 7 m roads, not 10 m. The judgment fulfills MoRTH’s agenda while citing defence requirements.”
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The Char Dham Mahamarg Vikas Pariyojna, which the government is now floating as a project of strategic importance, is primarily a Rs 12,000 crore tourism project under MoRTH. It aims to widen roads to improve connectivity for the Char Dham, or ‘four shrines’, of Kedarnath, Badrinath, Gangotri and Yamunotri, along with the Tanakpur-Pithoragarh stretch on the Kailash Mansarovar Yatra route. Its status as a tourism project was made clear by Prime Minister Narendra Modi in his December 27, 2016, speech at an election rally in Dehradun, where he said the project will address issues such as landslides by providing disaster-resilient roads to pilgrims.
While the project’s strategic importance is known, it never assumed centre stage until the September 8, 2020, Supreme Court order that restricted the carriageway width of the project’s roads to 5.5 m. In doing so, the order favoured a minority of five HPC members while rejecting the views of 13 others who wanted the DL-PS configuration for the roads, and believed that slope stabilisation measures could address environmental losses from cutting hills.
Soon after the order, on November 27, 2020, the defence ministry filed an application in the Supreme Court in which it cited a “sensitive situation” along the China border, and based on which it asked for a modification of the September 2020 order for “a double-lane road having a carriageway width of 7 m (or 7.5 m in case of a raised kerb)”. It said it was advancing this request for the movement of “heavy vehicles carrying troops, self-propelled artillery and various machinery required by the Army” along the 674 km of feeder roads that lead to the Indo-China border.
Just over two weeks later, MoRTH modified its March 23, 2018, circular, which had restricted hill roads’ width to 5.5 m considering ecological issues. The partially amended circular, published on December 15, 2020, specified a DL-PS configuration for roads leading to the border – the same configuration mentioned in MoRTH’s October 5, 2012 circular, that had been amended for hilly roads in its March 2018 circular.
The December 2020 circular stated:
“For roads in hilly and mountainous terrain which act as feeder roads to the Indo-China border or are of strategic importance for national security, the carriageway width should be 7 m with 1.5 m paved shoulder on either side.”
In its January 15, 2021 affidavit, the defence ministry supported MoRTH’s stance of DL-PS roads for strategically important stretches, even when its November 2020 application, on which the December 14 judgment is based, had requested double-lane roads.
Lt. Gen. D.S. Hooda (retd.), who has served as the General Officer Commanding-in-Chief of the army’s northern command, told The Wire Science that more than road width, the road design, especially the turns, must serve defence needs, since army vehicles can usually move on straight roads but that the turns are problematic.
The Char Dham project is only a road expansion project and hasn’t been designed to specifically serve defence needs, environmentalist Hemant Dhyani, a member of the HPC, said.
“When everything else fails, then national security and defence is the last refuge,” defence and strategic affairs analyst Ajai Shukla, who is a former colonel in the army, said. “If the [green] clearances have been taken for a tourism road, then it simultaneously can’t be made into a defence road as well. … In defence roads, the turns, the bridges and culverts, and their weight classification are more important things other than just the road width.”
The Wire Science contacted defence ministry spokesperson A. Bharat Bhushan Babu seeking clarity on how roads under the project will cater to defence requirements. He refused to comment.
Judgment paves way to widen non-strategic roads
In addition to the strategic roads, the judgment also granted “liberty” to the Centre “to pursue appropriate legal proceedings” to implement DL-PS standards on the 151 km of non-strategic roads under the project.
- Dharasu to Janaki Chatti, 75 km
- Rudraprayag to Gaurikund, 76 km
Work had been stalled on the 151 km stretch despite the September 2020 Supreme Court order directing road width to be 5.5 m.
A highly placed MoRTH official who is also associated with the project said on condition of anonymity: “Work on the stretch was stalled since we [MoRTH] wanted DL-PS configuration for the entire project.”
“It is an unfortunate judgment that opens gates to widen even the non-strategic roads,” Bhanot said. “This further proves that the defence argument was used to serve MoRTH’s agenda.”
A trail of environmental violations, disasters and deaths
Prime Minister Narendra Modi in Badrinath, 2019. Photo: PTI
After laying the project’s foundation stone on December 27, 2016, Prime Minister Modi declared the project to be a “shraddhanjali” – or tribute – to the people who had died in the June 2013 Kedarnath disaster.
But over the years, several people have died due to the Char Dham project.
The Supreme Court’s order of August 8, 2019, mandated the HPC to assess the project’s environmental impact. Subsequently, the HPC mentioned in a July 2020 report that between April 2018 and April 2020, at least 21 people had died and four had gone missing in accidents to do with landslides along the project. Uma Joshi, one of the petitioners in the matter (filed in court in 2018), was also among the people killed.
In a note filed in the Supreme Court on November 10 this year, MoRTH admitted that 125 landslides had been triggered along the project’s routes due to ongoing work.
Behind the landslides’ triggers are several environmental violations committed to propel the project, which HPC chairman Ravi Chopra documented in an August 13, 2020, letter to the Ministry of Environment, Forest and Climate Change (MoEFCC).
Former Uttarakhand Chief Minister Harish Rawat said, “The DPR [detailed project report] for the project was prepared by my [Congress] government and was approved by the Central [BJP] government. Our motto was to undertake minimum hill-cutting for maximum road width. But not only did the BJP publicise the project as its own, it also didn’t follow the DPR and violated environmental norms, which is why the matter reached the Supreme Court.”
To evade an environmental impact assessment (EIA), the project was also divided into 53 patches of less than 100 km each.
There were also violations pertaining to tree-felling. For example, the Public Works Department and the Border Roads Organisation (BRO) cut thousands of trees over 323 km on NH-94, NH-58 and NH-109. This action violated the Forest (Conservation) Act 1980 and the MoEFCC guidelines of August 28, 2015.
A February 8, 2018, letter from the Uttarakhand forest department to the project authorities, which The Wire Science has seen, is proof that state authorities allowed illegal tree-felling. “Since Char Dham project is related to the ambitious plan of Hon’ble PM, … tree-felling in above listed … matters is completed without having any compliance report,” the letter stated.
In a violation of the August 8, 2019, Supreme Court order, tree-felling and hill-cutting works based on DL-PS standards were undertaken on at least 48 km, where work had to be reviewed by the HPC before initiation.
On 228 km, project work was initiated based on old forest clearances granted to the BRO between 2002 and 2012, instead of obtaining new ones for the Char Dham project.
Moreover, while applying for forest clearance, project authorities didn’t disclose information about several patches lying partly or completely in eco-sensitive zones of protected areas, including Kedarnath Wildlife Sanctuary, Rajaji National Park and Valley of Flowers National Park.
The Wire Science emailed MoRTH secretary Giridhar Aramane for the ministry’s response on the issue of environmental violations. This article will be updated if and when Aramane responds.
The apex court judgment last week mentioned that environmental concerns had been “taken note of”. However, it wrongly interpreted information related to a key notification – the 2012 Bhagirathi eco-sensitive zone (BESZ) notification.
The judgment stated that “in 2018, the notification was amended to state that work related to national security infrastructure can be implemented without due study of environmental impacts”. But the 2018 amendment requires “prior approval of state government with due study of environmental impacts” for projects, including ones related to national security, that fall inside the BESZ.
The judgment also noted environmental impacts such as slope destabilisation from hill-cutting, improper muck disposal, climate change impacts, loss of forests, and impacts on springs, as mentioned in the HPC report, and required the MoRTH and the defence ministry to implement the HPC’s recommendations. The bench also created an ‘oversight committee’ – to be chaired by Justice (retd.) A.K. Sikri, formerly of the Supreme Court – to “assess” implementation of the HPC’s recommendations in the 674-km strategic patch.
HPC member Hemant Dhyani, who believes that hill-cutting for wider roads will result in slope failures that will be challenging to contain, said, “Road width is the key factor in determining the extent of environmental damage. Making the judgment conditional on the implementation of HPC recommendations will not fully address the massive scale of landslides that will be generated, or forests that will be destroyed to construct DL-PS roads.”
While the Supreme Court order of August 8, 2019, had already directed the HPC to oversee implementation of its recommendations, the recent judgment directed the HPC to operate only in the 151 km of the non-strategic highways.
“There were differences between HPC members regarding road width, but all HPC members unanimously agreed to the project’s negative environmental impacts,” Bhanot said. “The oversight committee replacing the HPC [for the] majority of the project will ensure smooth implementation of DL-PS standards without the HPC’s interference, which will be a setback for the ecological issues the project raises.”
She added that the biggest disaster mitigation measure was to restrict road width to 5.5 m, and that the bench’s decision to allow a DL-PS configuration for the majority portion was proof that the court had sidelined the project’s environmental impact.
Need for disaster-resilient roads
Rescue team members work near a tunnel after a part of a glacier broke away and flooded Tapovan, Uttarakhand, February 8, 2021. Photo: Reuters/Stringer
Uttarakhand is a hazard-prone state where the first impact of landslides and floods manifest in deaths and damage to infrastructure like roads and bridges. The 2013 Kedarnath disaster is a case in point: vast stretches of the roads, including national highways, most of which had been built along rivers, had either caved in at several places along the Char Dham routes or were severely damaged by landslides that the rains had set off, posing challenges for evacuation and rescue. The concerned agencies had to make ad hoc arrangements to evacuate pilgrims and locals.
In recent years, Uttarakhand has reported a rise in the number of such hazardous events. Data from the Uttarakhand Disaster Mitigation and Management Centre shows that between 2015 and mid-2021, Uttarakhand had 1,961 landslides in which 161 people died. In the same period, 7,750 instances of heavy rains and cloudbursts were reported, associated with 233 deaths. Many of these instances involved damage to infrastructure, including roads, bridges and buildings.
Experts have warned of increased extreme rainfall events and consequent landslides in the Himalayan region due to climate change – as did the new Intergovernmental Panel on Climate Change report released on August 7. The ‘Uttarakhand Action Plan on Climate Change’, developed by the Uttarakhand government in 2014, also acknowledges that roads are vulnerable to climate change impacts.
Geologist C.P. Rajendran, from the National Institute of Advanced Studies, Bengaluru, is an expert in Himalayan tectonics. He said, “Cutting hills for wider roads will only destabilise them further, and dumping the muck generated from road cutting into rivers will only increase the possibilities of flood.”
Hill-cutting for wider roads renders the roads more vulnerable – a point that the HPC’s interim report of February 13, 2020, also makes. Additionally, concluding that wider, disaster-prone roads cannot serve defence needs, a few HPC members, including the chairman, said in the committee’s July 2020 report that for “defence preparedness, a disaster-resilient road is much more critical than a DL+PS road that is prone to frequent blockages, landslides and recurring slope failures.”
Chopra, the HPC chairman, said that the country’s defence was “above all”. “But defence requires wisdom and care for our nature and our soldiers, so that the environment is protected, our soldiers are safe and the military effort is not hampered by road blocks and failed slopes.”
Kavita Upadhyay is an independent journalist and researcher from Uttarakhand, who writes on the environmental issues in the Indian Himalayan Region. She tweets at @Upadhyay_Cavita.