1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Miscellaneous Application No 1925 of 2020
In
Civil Appeal No 10930 of 2018
Citizens for Green Doon & Ors. …Appellants
Versus
Union of India & Ors. …Respondents
With
Miscellaneous Application No 2180 of 2020
In
Civil Appeal No 10930 of 2018
2
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
This judgment has been divided into sections to facilitate analysis. They are:
A The Project .....................................................................................................3
B Proceedings before the National Green Tribunal ...........................................5
C Proceedings before the Supreme Court .........................................................8
D Submissions .................................................................................................15
E Framework of Analysis .................................................................................23
E.1 Principles of Sustainable Development and Environmental Rule of Law....
................................................................................................................25
E.2 Circulars and Guidelines .........................................................................37
F Issues and Analysis......................................................................................45
F.1 Road-Width Issue....................................................................................45
F.1.1 HPC Report dated 13 July 2020 .......................................................45
F.1.2 HPC Report dated 31 December 2020.............................................51
F.1.3 Analysis on the width of road............................................................53
F.2 Environmental Issues..............................................................................67
F.2.1 HPC Report dated 13 July 2020 .......................................................67
F.2.2 Analysis of the Environmental Issues ...............................................76
G Conclusion....................................................................................................80
PART A
3
A The Project
1 The present case has a history fraught with litigation, with multiple
proceedings before the National Green Tribunal1 and this Court. Before going
into the history of the litigation, it is important to provide context for the public
project in question in the case.
2 The Chardham Mahamarg Vikas Pariyojna2 is a program of the Ministry of
Road Transport and Highways3
, which was announced on 23 December 2016.
The Project aims to widen the roads of approximately 900 kms of national
highways, in order to ensure safer, smoother and faster traffic movement. As the
name suggests, these highways connect the holy shrines which have been
labelled as the “Chote Char Dham” in the State of Uttarakhand – Yamunotri (NH94/134 up to Janki Chatti), Gangotri (NH-108), Kedarnath (NH-109, up to
Sonprayag), Badrinath (NH-58) and the Tanakpur-Pithoragarh stretch of the
Kailash Mansarovar Yatra route (NH-125).
3 These shrines represent different traditions of the Hindu religion – with
Yamunotri and Gangotri being Shakti or goddess shrines, Kedarnath being a
Shaiva temple, and Badrinath a Vaishnava site. They are located in an area
called Kedarkhand (largely today’s Garhwal) in the Skanda Purana. The locations
of these shrines were earlier considered to be occupied by glaciers (named
Champasar, Gangotri, Chorabari and Satopanth) in their entirety, which have
1 “NGT” 2 “Project” 3 “MoRTH”
PART A
4
since started melting. Even today, they are stated to be located in paraglacial
zones, which are considered to be ecologically sensitive.
4 Till the 1950s, access to these shrines was limited and they could only be
accessed on foot. Hence, worshippers often undertook long and arduous
journeys to reach the shrines. However, since the 1960s, road connectivity to the
shrines has improved, where vehicles now ply up to the Badrinath and Gangotri
temples while Yamunotri and Kedarnath are 6 to 14 kms away from the nearest
motorable road. The improved connectivity has resulted in a greater influx of
worshippers. The four shrines typically open for worship in and around late April
or early May, and close in and around late October to early November.
5 The Project was conceptualized with the aim of improving accessibility to
these shrines by widening the existing roads, making travel safer, smoother and
faster. The Project seeks to widen the existing highways into a double lane with
paved shoulder configuration4 with 16 bypasses, realignments and tunnels, 15
flyovers, 101 small bridges and 3516 culverts. The MoRTH has divided the
Project into 53 individual projects, the length of each project being less than 100
kms, traversing the following national highways:
(i) NH-58 - Rishikesh to Rudraprayag - 141 kms;
(ii) NH-58 - Rudraprayag to Mana Village (Badrinath) - 140 kms;
(iii) NH-94 - Rishikesh to Dharasu - 120 kms;
(iv) NH-94 - Dharasu to Yamunotri - 75 kms;
(v) NH-108 - Dharasu to Gangotri - 110 kms;
4 “DL-PS”
PART B
5
(vi) NH-109 - Rudraprayag to Gaurikund (Kedarnath) - 77 kms; and
(vii) NH-125 - Tanakpur to Pithoragarh - 161 kms.
A pictorial representation of the connecting routes of the Project is provided
below, as taken from the report of the High Powered Committee5 dated 13 July
20206
:
B Proceedings before the National Green Tribunal
6 An Original Application7 was filed before the Principal Bench of the NGT
on 27 February 2018 in public interest, challenging the construction under the
Project on the ground that the development activity has a negative impact on the
Himalayan ecosystem. The applicants argued that the Project will lead to
deforestation, excavation of hills and dumping of muck, which will lead to further
5 “HPC” 6 “HPC Report” 7 OA No 99/2018
PART B
6
landslides and soil erosion, in an already sensitive environment. It was also
alleged that an Environment Impact Assessment8 under the Environment Impact
Assessment Notification 20069 had not been conducted and that to obviate the
requirement of conducting an EIA, the Project had been divided into smaller
stretches. The application alleged violations of the EIA Notification, Forest
(Conservation) Act 1980, Wildlife Protection Act 1972, Environment (Protection)
Act 1986 and Articles 14, 21 and 48A of the Constitution. Another Original
Application10 was filed seeking directions to take precautions for muck disposal
and for ensuring the stability of slopes.
7 In its order dated 26 September 2018, the NGT observed that the
bypasses and realignments to be made to the national highways, which
cumulatively fall under the Project, have been considered as stand-alone
projects. The length of each of these projects is less than 100 kms and thus, the
NGT held that the projects did not require an EIA approval or Environment
Clearance11 under the EIA Notification. However, given the fragile ecosystem
within which the Project was to be developed, the NGT directed the constitution
of an ‘Oversight Committee’ to monitor the environmental safeguards for the
execution of the Project.
8 The Oversight Committee was to be headed by a former Judge of the
Uttarakhand High Court, and had representatives from the Wadia Institute of
Himalayan Geology; National Institute of Disaster Management; Central Soil
8 “EIA” 9 “EIA Notification” 10 OA No 431/2018 11 “EC”
PART B
7
Conservation Research Institute; GB Pant Institute of Himalayan Environment;
Forest Research Institute; the Secretary to the Forest Department, Uttarakhand;
and District Magistrates, who were to act as co-ordinators. The task of the
Oversight Committee, inter alia, was to oversee the implementation of the
Environment Management Plan to be prepared by an agency of the Ministry of
Environment, Forests and Climate Change12. The relevant portion of the order of
the NGT is produced below:
“54. Accordingly, we direct constitution of the following
Oversight Committee:—
1. Justice U.C. Dhyani, Former Judge, Uttarakhand High
Court, Chairman Public Service Tribunal, Dehradun.
2. Representative of Wadia Institute of Himalayan and
Geology.
3. Representative of National Institute of Disaster
Management.
4. Representative of Central Soil Conservation Research
Institute with expertise in Natural disasters, landslides, etc.
5. Representative of G.B. Pant Institute of Himalayan
Environment.
6. Representative of Forest Research Institute, Dehradun.
7. Secretary of Environment and Forest Department,
Uttarakhand, Dehradun to be Member
Secretary/convener/coordinator of the Committee.
8. Concerned District Magistrates of the Districts concerned
will act as co-coordinator and for arranging visits and
meetings at local level.”
12 “MoEF&CC”
PART C
8
C Proceedings before the Supreme Court
9 An appeal13 was filed to challenge the NGT’s order dated 26 September
2018 before this Court. By an order dated 8 August 2019, a two-judge Bench,
comprising of Justice Rohinton F Nariman and Justice Surya Kant, modified the
order of the NGT and instead constituted an HPC to be chaired by Professor Ravi
Chopra, who would replace Justice UC Dhyani, and also added representatives
from various other bodies. The HPC was directed to make its decisions on the
basis of majority vote. The relevant portion of the order of this Court is as follows:
“We constitute a High Powered Committee (HPC) consisting
of the persons who are mentioned in para 54 of the said
order. However, the Committee is to be headed by Prof. Ravi
Chopra, who will replace Justice U.C. Dhyani, and will be the
Chairman of the Committee. In addition to this, we add a
representative of the 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, not below the rank of Director. We direct
MoEF&CC to constitute the High Powered Committee within
two weeks from the date of this order. The HPC may co-opt
member(s) for effective discharge of its functions. The
MoEF&CC shall provide venue and secretarial assistance
to the HPC, who will make decisions by majority voting.”
(emphasis supplied)
The terms of reference of the HPC were also revised in the following terms:
“I. The Committee shall consider the cumulative and
independent impact of the Chardham [P]roject on the entire
Himalayan valleys and for that purpose, the HPC will give
directions to conduct EIA/rapid EIA by the Project
Proponent/MoRTH.
13 CA No 10930/2018, CA Nos 8518-8520/2018 and MA No 2678-2680/2018
PART C
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II. The HPC, with the help of the technical body and
engineers of implementation agency (MoRTH) should
consider whether revision of the full Chardham [P]roject
(about 900 Kms) should at all take place with a view to
minimize the adverse impact of the project on
environment and social life.
III. The HPC shall identify the sites in which work (i.e. hillcutting) has started and the stretches in which the work has
not yet started. As far as the sites in which work has started,
the High Powered Committee should recommend the
measures which are required for stabilizing the area where
hill-cutting has taken place, among others, the
environmentally safe disposal of muck which has been
generated so that it does not adversely affect the flora and
fauna of the catchment area of the river.
IV. As regards the stretches where work has not started, the
HPC will review the proposed project and recommend
measures which will minimize the adverse impact on
environment, social life and bring the project in conformity
with the steep valley terrain, carrying capacity, thus avoiding
any triggering of new landslides and ensuring conservation
and protection of sensitive Himalayan valleys.
V. The HPC will assess the environmental degradation in
terms of loss of forest land, trees, green cover, water
resources, dumping of muck and impacts on the wildlife and
will direct the mitigation measures. Specific attention will be
laid on protecting wildlife corridors, and rare and endangered
flora and fauna.
VI. The HPC will assess and quantify the impact on social
infrastructure/public-life due to triggering of fresh landslides,
air pollution, frequent road blocks etc. and will suggest
necessary measures for its redressal, including preparation of
disaster management plans prior to the monsoon season.
VII. In Bhagirathi Eco Sensitive Zone (Gangotri to Uttarkashi),
the HPC will 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.
VIII. The HPC will also suggest the areas in which
afforestation measures should be taken. It will also suggest
the kind of saplings which have to be planted in different
terrains of Himalayas. A separate Committee be constituted
by the Forest Department of Uttarakhand to continuously
monitor and report on the website that the saplings which
have been planted have survived and grown. In case of nonsurvival of any sapling, further plantation should be done.
PART C
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Compensatory afforestation should be ten times the number
of trees which have been cut. The HPC shall prepare an
effective afforestation plan ensuring its proper
implementation.
IX. The HPC will invite experts from different fields and
consult local people or hold public meeting in the local areas
to take recommendations and suggestions, as it deems fit.
X. The HPC shall consider giving specific directions to the
concerned agencies to put in the public domain the landslideprone areas, and their treatment by the Project Proponent,
the total muck generated, and the places where it has been
disposed of in an environmentally sound manner.”
(emphasis supplied)
The HPC was directed to submit its report of recommendations in four months.
Following the submission of the report, the Court directed MoRTH to implement
its recommendations. For this purpose, the Court observed:
“The reports prepared by the HPC with its recommendations
shall be given to the project Proponent i.e. MoRTH for
implementation. The HPC shall hold quarterly meetings
thereafter to ensure timely and proper compliance of its
recommendations. The HPC may suggest any further
measure which may be required, in the interest protection and
conservation of environment, after each quarterly review
meeting.”
10 Pursuant to the order of this Court, a report dated 13 July 2020 was
submitted by the HPC to this Court. By an order dated 8 September 2020, a
three-judge Bench of this Court comprising of Justice Rohinton F Nariman,
Justice Navin Sinha and Justice Indira Banerjee took cognizance of the Report,
and noted that the conclusions in the HPC Report were unanimous, except for
the issue relating to the width of the road. A majority comprising thirteen
members of the HPC was in favour of applying a Circular dated 5 October 2012
PART C
11
issued by MoRTH14, which stipulates that in all new projects of
widening/bypass/realignment, the width of the carriageway will be at least twolane with paved shoulder (DL-PS), irrespective of the traffic. According to the
2012 MoRTH Circular, the road-way width would be 12m comprising of 7m for
the double-lane carriageway, a 1.5m paved shoulder on either side of the
highway, and a 1m earthen shoulder on either side of the highway. A minority
comprising of 5 members, including the Chairperson, was of the view that a
subsequent Circular dated 23 March 2018 issued by the MoRTH15 should govern
the Project. The 2018 MoRTH Circular provides that in hills and mountainous
terrains, where the traffic volumes range from 3,000 to 8,000 Passenger Car
Units16 a day, the carriageway width should be of intermediate lane
configurations (Intermediate Width17 standard), i.e., of 5.5m width with two-lane
structures. The order of the Court accepted the view of the minority and
observed:
“We have perused the conclusions and recommendations of
the report, in particular, from pages 90-93 in Part I. We are of
the view that it is correct that the 2018 MORTH circular
should apply for the reasons given at page 93 of the
report. Consequently, the 2018 circular alone will apply.
The other directions that were issued by us on 08.08.2019
must be strictly complied with, including the holding of
quarterly meetings to ensure timely and proper compliance of
the recommendations.”
(emphasis supplied)
14 “2012 MoRTH Circular” - No. NH-14019/6/2012-P&M 15 “2018 MoRTH Circular” - No. NH-15017/ 28/ 2018 - P&M 16 “PCU” 17 “IW”
PART C
12
11 Following the above order, a letter dated 5 October 2020 was received by
the Registry of this Court from the Chairperson of the HPC. Professor Chopra
highlighted the steps he had taken to notify MoRTH of the order of this Court. He
stated that he had requested MoRTH to submit a plan to bring the Project in
conformity with the 2018 MoRTH Circular and suspend all fresh hill-cutting
activities. The letter also highlighted that Professor Chopra had received reports
of tree-felling and fresh hill-cutting on various stretches on NH-58, NH-94, et al,
which was being carried out on the basis of the old road-width standard, i.e., DLPS with a 10m tarred road. The Chairperson stated that on 27 September 2020,
he had read a news report indicating that MoRTH had informed the Government
of Uttarakhand that the 2018 MoRTH Circular would be applicable only to the
proposed 13 projects where work had not yet begun. Through this letter,
Professor Chopra urged that the directions in the order of this Court dated 8
September 2020 should be strictly followed. The letter dated 5 October 2020 was
converted into MA No 1925 of 2020, which is the subject-matter of this judgment.
Further, another letter dated 2 November 2020 was received from Professor
Chopra, where he highlighted the non-compliance of the order of this Court and
raised issues regarding the functioning of the HPC.
12 An affidavit was filed by the seventh appellant (Swami Samvidanand)
seeking, inter alia, directions to MoRTH to:
(i) stop hill-cutting, tree-felling and activities in violation of the 2018 MoRTH
Circular;
(ii) compensate for hill-cutting beyond the IW standard with tree plantations
and footpath; and
PART C
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(iii) render full secretarial assistance to the HPC.
13 An interlocutory application, IA No 6097 of 2021, was later filed by the sixth
appellant (Deepak Chand Ramola) seeking the following directions:
(i) that the amendment to the 2018 MoRTH Circular through the Circular
dated 15 December 202018, should be revoked;
(ii) that the IW standard be adhered to for the entire Project, both
prospectively and retrospectively, as mentioned in this Court’s order dated
8 September 2020;
(iii) that the Bhagirathi Eco Sensitive Zone19 be given special protection;
(iv) that the HPC be strengthened to ensure proper implementation of its
functions; and
(v) on the basis of the findings of the HPC, a committee be set up to direct an
inquiry against the persons responsible for wilful violations of the laws in
force.
14 Another miscellaneous application, MA No 2180 of 2020, was then filed by
the Union of India20, through the Ministry of Defence21, seeking modification of
this Court’s order dated 8 September 2020, which is also the subject matter of
this judgment. This application seeks permission for the widening of the national
highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to
Pithoragarh to a two-lane, DL-PS configuration. The application avers that a
minority of the members of the HPC, whose view was adopted by this Court in its
18 “2020 MoRTH Circular” – No. NH-15017/28/2018-P&M 19 “BESZ” 20 “UOI” 21 “MoD”
PART C
14
order dated 8 September 2020, relied on a statement of the then Chief of Army
Staff which confirmed that the requirements of the Indian Army are fulfilled by the
existing roads. However, according to the Union Government, 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 Indo-China
border. Thus, the application has urged that a double lane road having a
carriageway width of 7m (or 7.5m) is necessary to meet the Army’s requirement.
The relief which has been sought in the application, is extracted below:
“Modify the Order dated 08.09.2020 and direct that the
national highways from Rishikesh to Mana, from Rishikesh
to Gangotri and from Tanakpur to Pithoragarh may be
developed to 2 lane configuration in the interest of the
security of the nation and for the defence of its borders”.
(emphasis supplied)
15 By an order dated 2 December 2020, a three-judge Bench comprising of
Justice Rohinton F Nariman, Justice Navin Sinha and Justice KM Joseph
directed the HPC to consider the issues raised by its Chairperson in his letters
and applications, including the application by the MoD, and to submit a detailed
report. Pursuant to the order of this Court, the 11th meeting of the HPC was held
on 15 and 16 December 2020. The report22 of the deliberations and submissions
of the HPC was received by the Registry from the Secretary, Forest Department,
State of Uttarakhand through a letter dated 31 December 2020.
22 “HPC Report II”
PART D
15
16 This is where the matter stands presently. We shall consider the
submissions urged by the parties.
D Submissions
17 Mr Colin Gonsalves, Senior Counsel appearing on behalf of the appellants,
urged the following submissions:
(i) Issues concerning the functioning of the HPC: The HPC was not
allowed to function independently and was given inadequate assistance by
the UOI:
(a) The HPC consisted of 8 District Magistrates, 5 State Government
officials, 2 Union Government officials and 5 representatives from
institutions funded by the State and Union Governments. The
members of the HPC linked to the government voted en bloc and
toed the ‘official line’, rather than basing their judgment on a
scientific basis; and
(b) The Chairperson of the HPC faced opposition from the UOI, as they
were unwilling to cooperate with the work of the HPC. The
Chairperson had repeatedly written to MoRTH, regarding the plan of
action for slope stabilisation, muck disposal and restoration of
damaged slopes; to the State, pointing out that the original order of
the NGT did not stipulate District Magistrates to be members of the
HPC and that their role was limited to coordination with the local
population; to the UOI, to provide inventory of vulnerable slopes and
muck; and to the MoEF&CC, regarding the continuing hill-cutting
PART D
16
activities. However, no concrete action was taken by any of the
parties;
(ii) Violations committed by MoRTH: MoRTH has been constructing roads
and widening the highways in violation of the 2018 MoRTH Circular and
the order of this Court dated 8 September 2020:
(a) MoRTH started widening the highways according to the DL-PS
standard, in violation of the 2018 MoRTH Circular which provided
for adherence to the IW standard;
(b) During the deliberations of the HPC, massive hill-cutting and
deforestation activities were undertaken, which have caused
irreversible damage to the Himalayan environment;
(c) After the order of this Court dated 8 September 2020, MoRTH has
continued to undertake hill-cutting, tree-felling, tarring and unrelated
activities;
(d) Despite the order of this Court, MoRTH has taken a stand that the
order will only be implemented for the 13 projects where the work
has not yet started. However, the order of 8 September 2020 stated
that the 2018 MoRTH Circular alone has to be followed and will
apply retrospectively, i.e., it will be applicable to the entire Project,
even where the work had already been initiated;
(e) MoRTH, in a recent notification dated 10 September 2020 which
was advertised in the newspapers, proposed the acquisition of land
for a toll booth. The toll is only applicable on roads of DL-PS
standard;
PART D
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(iii) Road-width: The minority view, adopted by this Court in its order dated 8
September 2020, to construct the highways with an IW standard must be
upheld as:
(a) According to the Manual of Specifications and Standards for Two
Laning of Highways with Paved Shoulder23 published by the Indian
Roads Congress24 in June 2015, the vehicle size in India cannot
exceed a width of more than 2.4m. Thus, an intermediate lane of
5.5m on a linear profile and 7m on curves, is sufficient for two large
vehicles to cross each other;
(b) The fragile environment of the Himalayas will be severely damaged
if the DL-PS standard is adopted. As opposed to this, the IW
standard will ensure reduction of green cover loss, reduce
landslides, land loss, and tree loss by 80-90 per cent;
(c) The 2012 MoRTH Circular is inappropriate for mountain roads as it
can cause massive instability and environmental damage. As
opposed to this, the 2018 MoRTH Circular is specific to hilly and
mountainous areas, and should be adopted instead; and
(d) The amendments made by the 2020 MoRTH Circular are arbitrary
as they reinstate the 2012 MoRTH Circular without engaging with
the rationale of having an IW standard for mountainous areas;
(iv) Security concerns: The national security concerns regarding the
widening of the strategic roads are also met as:
23 “2015 IRC Guidelines” 24 “IRC”
PART D
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(a) The arguments raised by the MoD were considered by the HPC
Report. It was after consideration of these views that the Court had
passed the order dated 8 September 2020;
(b) To meet the defence requirements, it is essential that disasterresilient roads be built, instead of disaster-prone roads;
(c) The Project was not an initiative of the MoD, and was a project to
increase the tourist inflow to over 9,000 vehicles per day. The HPC
Report has noted that this projection is an exaggeration as
Badrinath, which has the maximum tourist inflow, has only 1000
vehicles per day and has already reached its carrying capacity; and
(d) The Chief of Army Staff in an interview had commented on the allweather road project and stated that the needs of the Army are
being met by the existing infrastructure.
18 In opposition to this, Mr KK Venugopal, Attorney General for India, made
submissions in support of the application filed by the UOI and the MoD. The
application seeks a modification of the order dated 8 September 2020 to allow
the national highways from Rishikesh to Mana, Rishikesh to Gangotri, and
Tanakpur to Pithoragarh to be developed with a DL-PS standard. The following
submissions were urged:
(i) Requirement of DL-PS standard for strategic border roads:
(a) The national highways from Rishikesh to Mana, Rishikesh to
Gangotri, and Tanakpur to Pithoragarh act as feeder roads to the
Indo-China border and have strategic importance;
PART D
19
(b) The minority opinion in the HPC Report relied on the statement of
the Chief of the Army Staff, according to which the present
infrastructure was adequate for the needs of the Army. However,
there has been a change in the circumstances since, and it is
necessary that personnel and equipment move swiftly to Army
stations at the Indo-China border points. The movement requires
that vehicles returning from the border are able to cross vehicles
going in the opposite direction without causing road-blocks or
coming to a dead halt. Thus, a carriageway with a width of 7m is
necessary to meet the security concerns of the country;
(c) These road-posts have been in use since the war with China in
1962. With the increase in defence capability; the nature of
weapons, tanks and machinery; and the conditions at the border,
wider roads with a DL-PS standard are required;
(d) Neither the 2012 MoRTH Circular nor the 2018 MoRTH Circular
deal with the security needs of the country. The 2018 MoRTH
Circular, which is general in nature, is based on PCU traffic and is
applicable to all the hilly areas. However, it did not consider the
strategic requirement for movement of military vehicles in the
Himalayan regions, closer to the border areas;
(e) The Armed Forces have sufficient human-power, machinery and
equipment to deal with landslides on any of these roads and can
clear the way for movement of Army vehicles, machinery, tanks and
artillery;
PART D
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(f) Prior to 2017, the development of these roads was under the Border
Roads Organization25. However, in 2017, to develop these roads in
a timebound manner, a portion was handed over to the Public
Works Department26 and the National Highways and Infrastructure
Development Corporation27. Before the commencement of the
Project, the road from Rishikesh-Mana already had a 7m wide
carriageway, except in some stretches where the width was 3.75-
5.5m;
(g) The Guidelines for the Alignment Survey and Geometric Design of
Hill Roads28 adopted by the IRC in 2019 also recommend a two lane
uniform design for strategic border roads; and
(h) This need is further highlighted, given that across the border in
China, Tibet, Nepal and in the China-Pakistan corridor, strategic
roads are built with the DL-PS standard;
(ii) The BESZ was notified by the Union Government through a notification
dated 18 December 2012. However, in 2018, the notification was amended
to state that work related to national security infrastructure can be
implemented without due study of environmental impacts;
(iii) All-weather roads are also necessary for connectivity of persons living in
remote border areas;
25 “BRO” 26 “PWD” 27 “NHIDCL” 28 “2019 IRC Guidelines”
PART D
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(iv) Mitigation measures: The following mitigation steps have been
undertaken to ensure that least environmental and ecological damage is
caused by the Project:
(a) The Geological Survey of India29 and MoRTH have signed a
Memorandum of Undertaking to conduct geological studies of
strategic roads near the Indo-China border;
(b) Tehri Hydroelectric Development Corporation30 is being engaged for
project management consultancy services for restoration of slopes;
(c) The Defence Geo-Informatics Research Establishment31 is providing
sustainable mitigation measures for snow avalanches and other
natural calamities; and
(d) Slope stabilisation works and protection measures and landslide
protection measures using soil nailing, ‘shotcreting’, secured
drapery, et al, are being undertaken;
(v) Compliance with the directions of this Court: No hill-cutting activities
for road-widening have been carried out by the executing agencies. In fact,
MoRTH took the following steps to comply with the order of this Court:
(a) Directions were issued to all executing agencies, such as BRO and
NHIDCL, to implement the order of this Court;
(b) A Draft Rapid EIA Report was submitted to the HPC on 16
September 2020;
29 “GSI” 30 “THDC” 31 “DGIRE”
PART D
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(c) Details of vulnerable slopes and muck disposal sites were submitted
to the HPC on 25 September 2020;
(d) A committee has been formulated to develop a permanent landslide
mitigation strategy;
(e) 12,75,813 plants have been planted in 797.28 hectares as
compensatory afforestation, and 5,45,268 plants are to be planted in
future;
(f) Secretarial assistance was provided to the HPC by the State of
Uttarakhand under an order dated 7 October 2020; and
(g) Out of the 40 sanctioned projects within the Project, 12m formation
cutting has already been carried out in 537 kms out of the total
sanctioned length of 662 kms, prior to the order of this Court dated 8
September 2020. In such a situation, where hill-cutting has already
been carried out for 12m formation and 10m tarred road has been
laid down, a substantial reduction of the width to 5.5m will result in
non-uniform carriageway in short stretches.
19 Having addressed the rival submissions, we shall now analyse them.
PART E
23
E Framework of Analysis
20 Before we analyse the specific issues raised in the context of the Project, it
is important to consider the framework within which this Court must consider
them. It is important for us to take note of the relevant judicial pronouncements
on the subject, as well as understand the requirements of the circulars and
guidelines which have been issued in regard to these issues. However, given the
specific setting of the Project in the heart of the Himalayas, our framework has to
take into account the unique ecology of the Himalayas. The appellants have
provided this Court with examples from the past and the recent history of the
Himalayas, which demonstrate that a lack of foresight in development has led to
significant environmental harm.
21 Speaking about the Himalayas, the obvious place to begin is their
majesty. The Himalayas are considered to be India’s border in the north, just as
the vast Indian ocean is in its south. In laypersons’ geographical terms, it is
difficult to imagine that these majestic mountains are nothing more than the
debris created during the collision of the Indian and Eurasian tectonic plates
several million years ago. While the debris has solidified into rock in many places,
it continues to be soil and rubble in others. In comparison to many others, the
Himalayas are actually very young (when the point of reference is a comparison
of ages in the millions). This lends to them a comparative fragility32. The HPC
Report notes that “the still evolving Himalayan ranges consist of thrusted, jointed
or sheared, fissured or twisted rock material interspersed with soil. Shorn of
32 Michael P Searle and Peter J Treloar, “Introduction to Himalayan tectonics: a modern synthesis” in Peter J
Treloar and Michael P Searle (eds), Himalayan tectonics: A Modern Synthesis (The Geological Society, 2019)
PART E
24
green cover, their slopes [are] even more fragile. When exposed to the monsoon
rains, weakened slopes often collapse”33.
22 The Himalayan range is in itself diverse and cannot be characterized
through one common idea or pattern. Broadly speaking, it is divided into three
categories: the Higher Himalayas (called “Himadri”), which contain some of the
highest mountain peaks, are often snowbound through the year and are sparsely
populated; the Lower Himalayas (called “Himachal”), which contains mediumsized mountains and highly populated regions; and the Sub-Himalayas (called
“Shivalik”), which are the southernmost ranges of the Himalayas. Each of these
have their own ecology, rainfall and snowfall distribution, flora and fauna. The
concerns associated with each of them are different and have to be accounted for
while adjudicating upon environmental issues raised with development projects.
23 In a 2018 report published by the NITI Aayog, these concerns were noted
with pointed reference to the effects of the tourism industry. The report noted34:
“Current forms of tourism in the [Indian Himalayan Region]
are unsustainable. They replace traditional and aesthetic
architecture with inappropriate, non-aesthetic and often
dangerous constructions, and compound other challenges
such as poorly designed roads and associated infrastructure,
inadequate solid waste management, air pollution,
degradation of watersheds and water sources, loss of natural
resources, biodiversity, and ecosystem services.”
Similarly, relying upon the NITI Aayog’s conclusions, the HPC Report also
notes35:
33 HPC Report, page 34 34 “Contributing to Sustainable Development in the Indian Himalayan Region” (August 2018, NITI Aayog)
available at <http://164.100.94.191/niti/writereaddata/files/document_publication/doc6.pdf> accessed on 6
December 2021
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25
“…the Himalaya call for a new development paradigm in
which development must be fully embedded in the
environmental, socio-cultural and sacred tenets of the IHR. It
has been observed that the present demand-driven,
uncontrolled economic growth has led to haphazard
urbanization, environmental degradation and increased risks
and vulnerabilities, seriously compromising the unique values
of Himalayan ecosystems.”
It is In the backdrop of these observations that we must consider the principles
applicable to the judicial review which this Court must undertake in the present
case.
E.1 Principles of Sustainable Development and Environmental Rule of
Law
24 Sustainable development is a common benchmark through which all
development projects are judged. Arguably finding its origin in global policy from
the Bruntland Report in 1987, it is often defined as “development that meets the
needs of the present without compromising the ability of future generations to
meet their own needs”36. Adopted globally as the standard for development by
nations, it is the bedrock upon which the Sustainable Development Goals37 have
been laid out. Their latest iteration, consisting of 17 SDGs, was adopted by all
United Nations member States in 2015. Titled as the “2030 Agenda for
Sustainable Development”38, these SDGs are broad, with their focus being on
overall development of society in a manner which comports with environmental
35 HPC Report, page 43 36 “Report of the World Commission on Environment and Development: Our Common Future” (1987) available at
<https://sustainabledevelopment.un.org/content/documents/5987our-common-future.pdf> accessed on 6
December 2021
37 “SDGs” 38 Available at <https://sdgs.un.org/2030agenda> accessed on 7 December 2021
PART E
26
preservation now and in trust for the future. SDG13 specifically focuses on
“Climate Action”, which is to be balanced with the other SDGs (such as SDG9,
which encourages “Industry, Innovation and Infrastructure”).
25 The principle of sustainable development has found consistent application
in matters of environmental law. Sustainable development has a multidimensional approach, with a focus on the development of the economy,
protection of individual rights and environmental concerns, while ensuring both
inter and intra-generational equity. This allows the principle of sustainable
development to look beyond creating policy goals (which necessarily seek
specific outcomes) towards creating policy approaches (which rather seek to
provide better frameworks)39. The principle of sustainable development has been
explicitly recognized in multiple judgments of this Court.
26 In Indian Council for Enviro-Legal Action v. Union of India40, a threejudge Bench of this Court described the principle of sustainable development in
the following terms:
“31…While economic development should not be allowed to
take place at the cost of ecology or by causing widespread
environment destruction and violation; at the same time, the
necessity to preserve ecology and environment should not
hamper economic and other developments. Both
development and environment must go hand in hand, in other
words, there should not be development at the cost of
environment and vice versa, but there should be development
while taking due care and ensuring the protection of
environment. This is sought to be achieved by issuing
notifications like the present, relating to developmental
activities being carried out in such a way so that unnecessary
39 J B Ruhl, ‘Sustainable Development: A Five-Dimensional Algorithm for Environmental Law’ (1999) 18 Stanford
Environmental Law Journal 31
40 (1996) 5 SCC 281
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27
environmental degradation does not take place. In other
words, in order to prevent ecological imbalance and
degradation that developmental activity is sought to be
regulated.”
27 In Essar Oil Ltd. v. Halar Utkarsh Samiti41, a two-judge Bench of this
Court referred to the Stockholm Declaration while elucidating on the principle of
sustainable development. It noted that while socio-economic needs could be
fulfilled through development, environmental concerns will always remain.
However, these concerns should not be seen as a deadlock between
development and the environment but as an opportunity to harmonize both,
through the principle of sustainable development. Speaking through Justice
Ruma Pal, this Court observed:
“27. This, therefore, is the aim, namely, to balance economic
and social needs on the one hand with environmental
considerations on the other. But in a sense all development is
an environmental threat. Indeed, the very existence of
humanity and the rapid increase in the population together
with consequential demands to sustain the population has
resulted in the concreting of open lands, cutting down of
forests, the filling up of lakes and pollution of water resources
and the very air which we breathe. However, there need not
necessarily be a deadlock between development on the one
hand and the environment on the other. The objective of all
laws on environment should be to create harmony between
the two since neither one can be sacrificed at the altar of the
other…”
28 In N.D. Jayal & Anr v. Union of India & Ors42, a three-judge Bench held
that a balance between developmental activities and environmental protection
could only be maintained through the principle of sustainable development. Doing
41 (2004) 2 SCC 392 42 (2004) 9 SCC 362
PART E
28
this was held to be necessary, without which the future generations could be in
jeopardy. Justice S Rajendra Babu (speaking for himself and Justice Mathur)
held:
“22. Before adverting to other issues, certain aspects
pertaining to the preservation of ecology and development
have to be noticed. In Vellore Citizen’' Welfare Forum v.
Union of India [(1996) 5 SCC 647] and in M.C. Mehta v.
Union of India [(2002) 4 SCC 356] it was observed that the
balance between environmental protection and
developmental activities could only be maintained by strictly
following the principle of “sustainable development”. This is a
development strategy that caters to the needs of the present
without negotiating the ability of upcoming generations to
satisfy their needs. The strict observance of sustainable
development will put us on a path that ensures development
while protecting the environment, a path that works for all
peoples and for all generations. It is a guarantee to the
present and a bequeath to the future. All environment-related
developmental activities should benefit more people while
maintaining the environmental balance. This could be
ensured only by strict adherence to sustainable development
without which life of the coming generations will be in
jeopardy.”
Justice Babu also noted that while the right to a clean environment is guaranteed
as an intrinsic part of the fundamental right to life and personal liberty, the right to
development can also be declared as a component of Article 21:
“24. The right to development cannot be treated as a mere
right to economic betterment or cannot be limited as a
misnomer to simple construction activities. The right to
development encompasses much more than economic wellbeing, and includes within its definition the guarantee of
fundamental human rights. The “development” is not related
only to the growth of GNP. In the classic work, Development
As Freedom, the Nobel prize winner Amartya Sen pointed out
that “the issue of development cannot be separated from the
conceptual framework of human right”. This idea is also part
of the UN Declaration on the Right to Development. The right
to development includes the whole spectrum of civil, cultural,
economic, political and social process, for the improvement of
people’' well-being and realization of their full potential. It is
PART E
29
an integral part of human rights. Of course, construction of a
dam or a mega project is definitely an attempt to achieve the
goal of wholesome development. Such works could very well
be treated as integral component for development.”
29 More recently, in Rajeev Suri v. Delhi43, a three judge Bench of this Court
had to decide on the permissibility of the Central Vista Project. In considering the
use of the principle of sustainable development, Justice A M Khanwilkar
observed that the principle of sustainable development necessarily incorporates
within it the principle of development – development which is sustainable and not
environmentally degrading. He holds thus:
“507. The principle of sustainable development and
precautionary principle need to be understood in a proper
context. The expression “sustainable development”
incorporates a wide meaning within its fold. It
contemplates that development ought to be sustainable
with the idea of preservation of natural environment for
present and future generations. It would not be without
significance to note that sustainable development is
indeed a principle of development–- it posits controlled
development. The primary requirement underlying this
principle is to ensure that every development work is
sustainable; and this requirement of sustainability
demands that the first attempt of every agency enforcing
environmental rule of law in the country ought to be to
alleviate environmental concerns by proper mitigating
measures. The future generations have an equal stake in
the environment and development. They are as much
entitled to a developed society as they are to an
environmentally secure society. By Declaration on the
Right to Development, 1986, the United Nations has given
express recognition to a right to development. Article 1 of the
Declaration defines this right as:
“1. The right to development is an inalienable human right by
virtue of which every human person and all peoples are
entitled to participate in, contribute to, and enjoy economic,
social, cultural and political development, in which all human
rights and fundamental freedoms can be fully realized.”
43 2021 SCC OnLine SC 7
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30
508. The right to development, thus, is intrinsically connected
to the preservance of a dignified life. It is not limited to the
idea of infrastructural development, rather, it entails human
development as the basis of all development. The
jurisprudence in environmental matters must
acknowledge that there is immense inter-dependence
between right to development and right to natural
environment. In International Law and Sustainable
Development, Arjun Sengupta in the chapter “Implementing
the Right to Development [International Law and Sustainable
Development–- Principles and Practice, Edn. 2004, pg. 354]”
notes thus:
“… Two rights are interdependent if the level of enjoyment of
one is dependent on the level of enjoyment of the other…””
(emphasis supplied)
30 Similarly, in Municipal Corporation of Greater Mumbai v. Ankita
Sinha44, another three judge Bench of this Court ruled on the powers of the NGT
under the National Green Tribunal Act 2010. This Court noted the significance of
environmental justice and environmental equity, and highlighted how
environmental harms cause disproportionate implications for the economically or
socially marginalized groups. Thus, it was considered important to ensure that
environmental equity was achieved, through the use of principles such as
sustainable development. In this regard, speaking through Justice Hrishikesh
Roy, the Court held:
“XI. ENVIRONMENTAL JUSTICE AND ENVIROMENTAL
EQUITY
82. The conceptual frameworks of environmental justice and
equity should merit consideration vis-à-vis the NG’'s domain
and how its functioning and decisions can have wide
implications in socio-economic dimensions of people at large.
The concept of environmental justice is a trifecta of
distributive justice, procedural justice and justice as
44 2021 SCC OnLine SC 897
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31
recognition.[Schlosberg D, Defining Environmental Justice :
Theories, Movements, and Nature (Oxford University Press
2009)] Environmental equity as a developing concept has
focused on the disproportionate implications of
environmental harms on the economically or socially
marginalized groups. The concerns of human rights and
environmental degradation overlap under this umbrella term,
to highlight the human element, apart from economic and
environmental ramifications. Environmental equity thus
stands to ensure a balanced distribution of
environmental risks as well as protections, including
application of sustainable development principles.
83. Voicing concerns about the disproportionate harm for the
poor segments, Lois J. Schiffer (then Assistant Attorney
General, Environment & Natural Resources Division (ENRD),
U.S. Department of Justice) and Timothy J. Dowling (then
Attorney at ENRD) in their Reflections on the Role of the
Courts in Environmental Law, wrote the following evocative
passage on the concept of environmental justice,
“Environmental Justice, which focuses on whether minorities
and low-income people bear a disproportionate burden of
exposure to environmental harms and any resulting health
effects. In the past ten to fifteen years, this issue has
crystallized a grass-roots movement that combines civil rights
issues with environmental issues, with a goal of achieving
“environmental justice” or “environmental equity”, which is
understood to mean the fair distribution of environmental risks
and protection from environmental harms.”[Schiffer, L. J., &
Dowling, T. J. (1997). Reflections On The Role Of The Courts
In Environmental Law. Environmental Law, 27(2), 327-342]”
(emphasis supplied)
31 The principle of sustainable development is deep-rooted in the
jurisprudence of Indian environmental law. It has emerged as a multi-faceted
principle, which does not prohibit development, but structures it around what is
sustainable. Sustainable development incorporates two related ideas –
development which not only ensures equity between the present and the future
generations but also development which ensures equity between different
sections of society at present. However, while the principle has deep roots, there
PART E
32
is a lack of consensus on how to ascertain whether a particular developmental
project abides by the principle of sustainable development. Without a common
benchmark or standard being applied by the Court in its analysis of the impact of
development projects, the principle of sustainable development may create
differing and arbitrary metrics (depending on the nature of individual projects).
This not only creates uncertainty within the law, but makes the application of the
principle of sustainable development selective, taking away from its potential to
drive sustained change.
32 A cogent remedy to this problem is to adopt the standard of the
‘environmental rule of law’ to test governance decisions under which
developmental projects are approved. In its 2015 Issue Brief titled “Environmental
Rule of Law: Critical to Sustainable Development”, the United Nations
Environment Programme45 has recommended the adoption of such an approach
in the following terms46:
“Environmental rule of law integrates the critical
environmental needs with the essential elements of the rule of
law, and provides the basis for reforming environmental
governance. It prioritizes environmental sustainability by
connecting it with fundamental rights and obligations. It
implicitly reflects universal moral values and ethical norms of
behaviour, and it provides a foundation for environmental
rights and obligations. Without environmental rule of law and
the enforcement of legal rights and obligations, environmental
governance may be arbitrary, that is, discretionary,
subjective, and unpredictable.”
45 “UNEP” 46 Available at <https://wedocs.unep.org/bitstream/handle/20.500.11822/10664/issue-brieferol.pdf?sequence=1&%3BisAllowed=> accessed on 7 December 2021
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33 UNEP has further reiterated the importance of the ‘environmental rule of
law’ in its 2019 report titled “Environmental Rule of Law: First Global Report”,
where it notes:
“Environmental rule of law is key to achieving the Sustainable
Development Goals. Indeed, it lies at the core of Sustainable
Development Goal 16, which commits to advancing “rule of
law at the national and international levels” in order to
“[p]romote peaceful and inclusive societies for sustainable
development, provide access to justice for all and build
effective, accountable and inclusive institutions at all levels.”
[…]
Environmental law and institutions have grown dramatically in
the last few decades, but they are still maturing.
Environmental laws have taken root around the globe as
countries increasingly understand the vital linkages between
environment, economic growth, public health, social
cohesion, and security. Countries have adopted many
implementing regulations and have started to enforce the
laws. Too often, though, there remains an implementation
gap.
Environmental rule of law seeks to address this gap and align
actual practice with the environmental goals and laws on the
books. To ensure that environmental law is effective in
providing an enabling environment for sustainable
development, environmental rule of law needs to be nurtured
in a manner that builds strong institutions that engage the
public, ensures access to information and justice, protects
human rights, and advances true accountability for all
environmental actors and decision makers…”
34 Within the Indian context, environmental rule of law was first applied by
this Court in Hanuman Laxman Aroskar v. Union of India47. In that case, the
Government of Goa had mooted a new international airport at Mopa in Goa in
1997. While the MoEF&CC gave it an EC, it ultimately came to be challenged
before this Court. In its decision, a two-judge Bench of this Court found a lack of
47 (2019) 15 SCC 401
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34
information transparency in the disclosures filed by project proponents, and
directed a fresh exercise for a rapid EC to be carried out. In emphasizing on
environmental governance within a rule of law paradigm, Justice DY
Chandrachud observed:
“J. Environmental Rule of Law
[…]
144. The environmental rule of law provides an essential
platform underpinning the four pillars of sustainable
development — economic, social, environmental and
peace [United Nations Environment Programme, First
Environmental Rule of Law Report. Available at <https :
//wedocs.unep.org/bitstream/handle/20.500.11822/27279/Env
ironmental _rule_of_law.pdf?sequence=1&isAllowe d=y>] . It
imbues environmental objectives with the essentials of
rule of law and underpins the reform of environmental
law and governance [ United Nations Environment
Programme, First Environmental Rule of Law Report.
Available at <https :
//wedocs.unep.org/bitstream/handle/20.500.11822/27279/Env
ironmental _rule_of_law.pdf?sequence=1&isAllowe d=y>] .
The environmental rule of law becomes a priority particularly
when we acknowledge that the benefits of environmental rule
of law extend far beyond the environmental sector. While the
most direct effects are on protection of the environment, it
also strengthens rule of law more broadly, supports
sustainable economic and social development, protects public
health, contributes to peace and security by avoiding and
defusing conflict, and protects human and constitutional rights
[ United Nations Environment Programme, First
Environmental Rule of Law Report. Available at <https :
//wedocs.unep.org/bitstream/handle/20.500.11822/27279/Env
ironmental _rule_of_law.pdf?sequence=1&isAllowe d=y>] .
Similarly, the rule of law in environmental matters is
indispensable “for equity in terms of the advancement of
the Sustainable Development Goals (SDGs), the
provision of fair access by assuring a rights-based
approach, and the promotion and protection of
environmental and other socioeconomic rights [ “UN
Environment, Environmental Rule of Law”. Available at <https
: //www.unenvironment.org/explore-topics/environmentalrights-and-governance/what-we-do/promoting-environmentalrule-law-0>] .”
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145. […] Thus35pprox.35terizedd, it encompasses the
preservation, and when possible even the expansion of
the substantive freedoms and capabilities of people
today without compromising the capability of future
generations to have similar — or more — freedoms. The
intertwined concepts of environmental rule of law thus
further intragenerational as well as intergenerational
equity.
(emphasis supplied)
Thus, the Court acknowledged that consistent decision-making on its behalf was
a crucial factor in upholding the environmental rule of law.
35 In Bengaluru Development Authority v. Sudhakar Hegde48, a two-judge
Bench of this Court observed that there was no winner in environmental litigation,
since both – development and protection of environment – are necessary. The
Court clarified that a framework created by environmental rule of law has to
balance both these considerations by creating transparent and accountable
institutions, while allowing for participatory democracy. Justice DY Chandrachud,
speaking for the Court, held:
“94. The adversarial system is, by its nature, rights based. In
the quest for justice, it is not uncommon to postulate a
winning side and a losing side. In matters of the
environment and development however, there is no
trade-off between the two. The protection of the
environment is an inherent component of development
and growth.
95. The protection of the environment is premised not only on
the active role of courts, but also on robust institutional
frameworks within which every stakeholder complies with its
duty to ensure sustainable development. A framework of
environmental governance committed to the rule of law
requires a regime which has effective, accountable and
transparent institutions. Equally important is responsive,
48 (2020) 15 SCC 63
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36
inclusive, participatory and representative decisionmaking. Environmental governance is founded on the
rule of law and emerges from the values of our
Constitution. Where the health of the environment is key
to preserving the right to life as a constitutionally
recognised value under Article 21 of the Constitution,
proper structures for environmental decision-making find
expression in the guarantee against arbitrary action and
the affirmative duty of fair treatment under Article 14 of
the Constitution. Sustainable development is premised
not merely on the redressal of the failure of democratic
institutions in the protection of the environment, but
ensuring that such failures do not take place.”
(emphasis supplied)
36 In H.P. Bus-Stand Management & Development Authority v. Central
Empowered Committee49, a three-judge Bench held that environmental rule of
law was no panacea which allowed for a clear set of solutions in every case,
since every case was unique and with differing levels of actual evidence.
However, it did provide a framework within which any case could be adjudicated
in a predictable manner, keeping in mind the principles of sustainable
development at its core. Justice DY Chandrachud, speaking for the Court, held:
“52. The need to adjudicate disputes over environmental
harm within a rule of law framework is rooted in a
principled commitment to ensure fidelity to the legal
framework regulating environmental protection in a
manner that transcends a case-by-case adjudication.
Before this mode of analysis gained acceptance, we
faced a situation in which, despite the existence of
environmental legislation on the statute books, there was
an absence of a set of overarching judicially recognised
principles that could inform environmental adjudication
in a manner that was stable, certain and predictable.
53. However, even while using the framework of an
environmental rule of law, the difficulty we face is this —
when adjudicating bodies are called on to adjudicate on
49 (2021) 4 SCC 309
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37
environmental infractions, the precise harm that has taken
place is often not susceptible to concrete quantification. While
the framework provides valuable guidance in relation to the
principles to be kept in mind while adjudicating upon
environmental disputes, it does not provide clear pathways to
determine the harm caused in multifarious factual situations
that fall for judicial consideration. The determination of such
harm requires access to scientific data which is often times
difficult to come by in individual situations.
54…the environmental rule of law calls on us, as Judges,
to marshal the knowledge emerging from the record,
limited though it may sometimes be, to respond in a
stern and decisive fashion to violations of environmental
law. We cannot be stupefied into inaction by not having
access to complete details about the manner in which an
environmental law violation has occurred or its full
implications. Instead, the framework, acknowledging the
imperfect world that we inhabit, provides a roadmap to
deal with environmental law violations, an absence of
clear evidence of consequences notwithstanding.”
(emphasis supplied)
37 Having now established the framework of judicial principles necessary for
this Court to adjudicate the present matter, it is important to consider the specific
set of circulars and guidelines which are applicable.
E.2 Circulars and Guidelines
38 A combined reading of Article 246 along with Entry 2350 of List I of
Schedule VII of the Constitution of India indicates that national highways fall
entirely within the ambit of the Parliamentary domain. The executive power of the
Union is co-extensive with the power of Parliament. In accordance with Section
2(2) of the National Highways Act 1956, the Union Government is empowered to
50 “23. Highways declared by or under law made by Parliament to be national highways.”
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38
declare any road as a national highway and issue directions for its development
and maintenance51. Within the Union Government, the specific responsibility lies
with MoRTH. Hence, we must first begin by analyzing the relevant circulars which
have been issued by MoRTH.
39 The first of these is the 2012 MoRTH Circular, which was titled “Capacity
building and lane width of National Highways”. It stated:
“I am directed to inform that Ministry intends to take up
development of such National Highways having
carriageway width less than the two lane width. These
roads are to be developed to a minimum level.
2. Generally, the carriageway width is dictated by the
expected traffic. National Highways which are the primary
route have higher expectation from the consideration of level
of service as well as from safety consideration. This aspect
was deliberated in the Ministry, and observed that the NHs
are serving the mixed traffic. Besides, India has the dubious
distinction in terms of fatalities on roads and there is need to
segregate slow moving traffic from fast moving traffic. ·
3. In the above back ground to ensure safe and smooth traffic
on NHs, it has been decided that efforts be made to
convert all the NHs to a minimum level of two lane with
paved shoulders. Towards implementation of this,
henceforth whenever new projects of
widening/bypass/realignment are taken up, the width of
the carriageway shall be at least two lane with paved
shoulders irrespective of the traffic thereon.”
(emphasis supplied)
The 2012 MoRTH Circular provides that every national highway, if it was
presently less than of a two-lane width (i.e., less than 7m) or if it was under
development, had to henceforth meet the requirement of the DL-PS standard in
51 Project Implementation Unit v. P.V. Krishnamoorthy, (2021) 3 SCC 572
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39
order to ensure safety and the smooth flow of traffic. Accompanying this circular,
was the following pictorial representation of the new national highway width:
As we can note from the above depiction, the highway would be of a two-lane
width (i.e., 7m) with each of its sides being flanked by 1.5m of paved shoulders,
which would be followed by 1m of earth/granular shoulders.
40 Following the 2012 MoRTH Circular, the IRC (an apex body of engineers
in relation to road development) issued its 2015 IRC Guidelines in relation to the
standards to be followed while developing highways with the DL-PS specification.
Section 13 of the Guidelines dealt with the special requirements for hilly roads.
While it is not necessary for us to explain the specific requirements, the 2015 IRC
Guidelines highlight that highways with the DL-PS standard could be constructed
for hilly roads.
41 The 2012 MoRTH Circular was modified by the 2018 MoRTH Circular,
which was titled “Standards for Lane width of National Highways and roads
developed under Central Sector Schemes in Hilly and Mountainous terrains”. As
the name suggests, the 2018 MoRTH Circular modified the 2012 MoRTH Circular
to the extent that it applied to national highways in hilly and mountainous terrains.
The relevant portions of the Circular read as follows:
“On the subject of “Capacity building and lane width of
National Highways”, it has been stipulated vide this Ministry’s
letter No. NH-14019/6/2012-P&M dated 05.10.2012 [2012
MoRTH Circular] that width of carriageway shall be at least
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40
two lane with paved shoulders irrespective of the traffic
thereon in new projects undertaken for widening of
carriageway/ bypasses/realignments.
2. However, challenges have come to the fore in adhering to
these standards in the context of National Highways and
roads in hilly and mountainous terrains. These challenges
arise on account of destabilization of hill slopes and
progressive damaging effects on road alignments and
structures in higher contours on hills due to excavation works,
requirement for large-scale felling of precious trees,
associated environmental damages. Resultantly, there arises
need to provide largescale protection works, acquisition of
additional land for Right of Way (ROW), etc.
[…]
4. The provisions of Ministry’s letter No. NH-14019/6/2012-
P&M dated 05.10.2012 [2012 MoRTH Circular], have,
accordingly, been reviewed and it has been decided with the
approval of the Competent Authority that the following
provisions shall be applicable henceforth for National
Highways and roads under Central Sector Schemes in hilly
and mountainous terrains until further orders:
[…]
4.4 Following specific provisions shall be made for traffic
volumes ranging from 3,000 PCUs/day to about
8,000/day:-
(i) The carriageway width shall be of intermediate lane
configurations, i.e. of 5.5 m width (18 ft), with two-lane
structures (23 ft.).
(ii) The passing places may have widths of 2.5 m and 12
m length and these may be provided on alternate sides of
the road. The length of the tapered section may be 6 m
on either side of their approaches. Accordingly, the
length of the passing places may be 24 m inclusive of the
tapered length.
[…]
(vii) The Roadway width for Hilly and Mountainous
Terrain as per IRC: SP-2015 (Manual of Specifications
and Standards for Two laning of Highways with paved
shoulder) [2015 IRC Guidelines] would stand amended
accordingly.
4.5 For traffic volume of more than 10,000 PCUs/day or
the existing traffic volumes likely to witness a fast growth
to reach this level within a period of 3 to 5 years, the
PART E
41
carriageway width shall be of two lane NH configurations,
i.e. of 7 m width. The carriageway widths shall be of two
lane NH configurations with paved shoulders only in
cases where the traffic is likely to increase at about more
than 10 % per annum.
5. The provisions of Ministry’s letter No. NH-14019/6/2012-
P&M dated 05.10.2012 [2012 MoRTH Circular] shall continue
to be applicable in all other cases.”
(emphasis supplied)
The 2018 MoRTH Circular modifies its precursor of 2012 for hilly and
mountainous terrains in the following ways: (i) for areas where the PCUs are in
the range of 4,000-8,000 PCUs per day, the carriageway width cannot be of DLPS configuration but has to be of IW standard (i.e., 5m); (ii) along with this,
adequate passing places with 2.5m width have to be included; (iii) the 2015 IRC
Guidelines stood amended; (iv) for areas where the PCUs are more than 10,000
per day (or expected to reach that level within 3 to 5 years), the carriage way
width could be of double lane configuration (i.e., 7m); and (v) where the traffic is
likely to increase by more than 10 per cent per annum, the width could be of DLPS configuration.
42 Subsequently, the IRC issued its 2019 IRC Guidelines in relation to hilly
roads. Of particular importance is Clause 6.2.2, which reads as follows:
“6.2.2 Width of carriageway, shoulders and roadway for
various categories of roads are given in Table 6.2.
Table 6.2 Widths of Carriageway, Shoulder and Roadway
[…]
PART E
42
In Mountainous and Steep Terrain (in Hilly Area)
Highway
Classification
Type of Section Shoulder Width (m) Roadway
Width
(Carriageway
+ Shoulders)
excluding
extra width on
horizontal
curves, side
parapet and
drain &
median (m)
Paved
(m)
Earthen
(m)
Total
width of
shoulders
on one
side (m)
Total
width of
shoulders
on both
sides (m)
National
Highways and
State
Highways
MDRs/ODRs
i. Double
Lane (7.00 m)
Open
country with
isolated
built up
area
Hill
Side
1.5 m - 1.5 m 4.00 m 11.00
Valley
Side
1.5 m 1.00 m 2.50 m
Built up
area and
approaches
to grade
separated
structures
bridges
Hill
Side
0.25 m +
1.5 m
(Raised)
- 1.75 m 3.5 m 10.50
Valley
Side
0.25 m +
1.5 m
(Raised)
- 1.75 m
Notes:
[…]
6. On roads subject to heavy snow fall, where snow clearance
is done over long periods, roadway width may be increased
by 1.5 m. However, the requirement of such widening may be
examined with reference to ground conditions in each case
considering terrain traffic and other influencing conditions and
factors.
[…]
8. Strategic and border roads for military/paramilitary/security
forces operations/movements shall be constructed for not
less than two lane carriageway alongwith paved shoulder on
hill side + paved and earthen shoulder on valley side on same
lines of national highway.”
PART E
43
Clause (8) of the Notes attached to Clause 6.2.2 provides that if a road is a
strategic or a border road and is going to be used for
“military/paramilitary/security forces operations/movements”, then it must be of
DL-PS configuration (along with earthen shoulders), “on the same lines” as other
national highways.
43 Finally, the 2020 MoRTH Circular modifies the 2018 MoRTH Circular, in
view of the suggestions received from the MoD. The circular, titled “Standards for
Lane width of National Highways and roads developed under Central Sector
Schemes in Hilly and Mountainous terrains”, provides as follows, in so far as is
material:
“MoRT&H had issued circular on “Standards for Lane width of
National Highways and roads developed under Central Sector
Schemes in Hilly and Mountainous terrains” vide this
Ministry’s letter of even number dated 23rd March, 2018 [2018
MoRTH Circular]. The standards prescribed therein have
been further reviewed in the Ministry in light of the issues
raised by Ministry of Defence. A committee of Chief
Engineers considered the suggestions received in this regard
and have recommended modifications to the standards
prescribed in the circular referred above.
2. It is observed that the standards prescribed in the circular
referred above does not address the issues concerning
strategic roads as stipulated in clause 6.2.2 of IRC: 52-2019
(Guidelines for the Alignment Survey & Geometric Design of
Hill Roads) [2019 IRC Guidelines].
3. Accordingly, in partial modification of the circular cited
above, the following additional guidelines are notified with
immediate effect.
“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 7m with 1.5m paved shoulder on either side.””
(emphasis supplied)
PART E
44
The 2020 MoRTH Circular amends the earlier circular of 2018 since its directions
were incompatible with the recommendations under Clause (8) of the Notes
attached to Clause 6.2.2 of the 2019 IRC Guidelines, according to which every
strategic and border road has to be of DL-PS configuration along with earthen
shoulders. Hence, the 2020 MoRTH Circular provides that roads which may be
located in hilly and mountainous regions but serve as feeder roads to the IndoChina border or are of strategic importance for national security should also be of
DL-PS configuration.
44 On a combined reading of the 2012, 2018 and 2020 MoRTH Circulars and
2015 and 2019 IRC Guidelines, it emerges that a road shall be of a DL-PS
configuration in the following circumstances: (i) if it is a national highway, other
than in hilly or mountainous terrain; (ii) in hilly or mountainous terrain, a national
highway can be double-laned if there are more than 10,000 PCUs per day or that
level will be reached in 3 to 5 years; (iii) in hilly or mountainous terrain, a national
highway can be of DL-PS configuration if the traffic is likely to increase more than
about 10 per cent per annum; and (iv) in hilly or mountainous terrain, any road
(including a national highway) can be of DL-PS configuration if it is strategic or a
border road serving as a feeder road to the Indo-China border or if it is of
strategic importance to national security.
PART F
45
F Issues and Analysis
F.1 Road-Width Issue
45 The issue that arises for consideration is regarding the road-width to be
adopted for the three strategic border roads, as indicated in MA No 2180 of 2020
filed by the MoD, namely: Rishikesh to Gangotri (NH-94 and NH-108), Rishikesh
to Mana (NH-58), and Tanakpur to Pithoragarh (NH-125). Broadly speaking, the
appellants have argued that the present road infrastructure is sufficient to meet
the needs of the Indian Army. Any further development, it has been urged, must
be balanced keeping in mind the fragility of the Himalayas, the excessive damage
caused to the environment and the need to ensure disaster-resilient roads. On
the other hand, the UOI has stressed on the necessity of developing these feeder
roads, for the security of the nation. Given the proximity of the roads to the IndoChina border, and the necessity of free movement for transport of trucks,
machines, equipment and personnel of the Indian Army, double lane
configuration must be allowed, according to the UOI. To analyse the issue, we
shall first advert to the findings of the HPC.
F.1.1 HPC Report dated 13 July 2020
46 The HPC report was finalized by its members functioning under Professor
Ravi Chopra as its Chairperson. For the preparation of the HPC Report, the
members conducted site-visits, held meetings, interacted with the officers of
MoRTH, district officials and the local communities. The Report is divided into
PART F
46
twelve chapters, each of which touches upon various aspects of the Project such
as road-widening; hill cutting; bypasses; muck dumping; environment quality; loss
of forests and green cover; impact on wildlife; managing water courses; disaster
management and socio-cultural perspectives. For the purpose of the issue for
consideration, i.e., the width of roads on the national highways, Chapter II is of
utmost relevance. The remaining chapters have been briefly summarized in
Section F.2.1 of this judgment.
47 Chapter II of the HPC Report titled ‘Road Widening’ deals with the
construction of highways and the width of roads. For determining the width of the
road, the HPC highlighted the following factors are to be borne in mind:
ecological concerns, social concerns, traffic surveys, capacity of roads, geometric
design, terrain classification, design speed, sight distance or visibility, right of way
and setback distance at horizontal curves.
48 According to the Indian Roads Congress Hill Roads Manual 199852, the
following type of roads have been indicated, based on traffic volumes:
Sl.
No.
Type of Road Design service volume in PCU/day
Carriageway
Width (CW)
For low curvature (0-
200 degrees per km)
For high curvature
(above 200 degrees
per km)
1 Single lane 3.75 m 1,600 1,400
2 Intermediate
lane
5.5 m 5,200 4,500
3 Two lane 7 m 7,000 5,000
4 Two lanes with
paved shoulder
(NHDL with PS)
7 m 9,000 -
52 “IRC Manual”
PART F
47
49 The 2012 MoRTH Circular, however, provided that for new projects of
widening/bypass/realignment, the width of the carriageway will be at least two
lane with paved shoulders, irrespective of the traffic.
50 During the field visit, the HPC observed that though the routes for the
Project are designed for the DL-PS standard, in certain stretches the formation
width varies from 12m to 20m depending on the geometric requirements. Further,
many of the existing stretches, which were already developed to an IW standard,
are being widened. Due to the uniform standard, in some areas large hill-cutting
has been undertaken resulting in vertical slopes without adequate slope
protection measures. This has led to landslides and reflects inadequate
assessment of slope vulnerability.
51 The discussion of the HPC revolved around the road-width that should be
adopted for the highways comprising of the Project. Factors such as the road
geometrics, traffic volume, ecological considerations (such as steep terrain, loss
of forest cover, et al) guided the discussion of the HPC. At present, the project
requirement envisages a DL-PS standard as given below:
Type of
Section
Carriageway
(m)
Paved Shoulder Earthen Shoulder Roadway
Hill Side Width (m)
(m)
Valley
Side (m)
Hill Side
(m)
Valley Side
(m)
Open
Locations
7.0 1.5 1.5-1.9 1.0 (drain
+ utility
duct)
0.6-1.0
(including
parapets)
12.0
Built-up Area 7.0-10.0 (with
paved
shoulder)
1.0–- 1.75
(foot path
cum drain
raised)
1.0–-
1.75
(foot
path cum
drain
raised)
- - 9.0-12.0
PART F
48
Thus, all the highways were to be widened to reflect a width between 9 – 12m.
52 A majority consisting of thirteen members of the HPC was of the opinion
that the DL-PS standard must be applied uniformly throughout the Project for the
following reasons:
(i) The IRC Manual recommends a uniform application of design standards
and any adjustments that need to be made to factor in the variability in
slopes, must be intended for short distances;
(ii) The roads of the hills require protective works such as retaining walls,
breast walls, catch drains, et al, which form a substantial part of the
construction cost. Once the roads have been constructed, the widening of
roads in the future is expensive, and at times impossible. Thus, the
highways must be widened bearing in mind the traffic volumes for the next
20-25 years;
(iii) Some of the highways of the Project are important feeder roads leading
towards border areas. The BRO has highlighted that the terrain in border
areas is in a snow bound region and feeder routes such as Helong-Mana
and Barethi-Gangotri must be double-laned. Further, the roads beyond
Joshimath and Uttarkashi are operationally sensitive and fall within 100
kms of the Line of Actual Control. Single-lane roads are closed during the
winter season due to accumulation of snow and hinder the movement of
logistics and medical aid to the Indian Army;
(iv) The 2019 IRC Guidelines also suggest that strategic border roads for
military and paramilitary forces be not less than two lanes with paved
shoulders; and
PART F
49
(v) Suitable adjustments can be made to the standard design after considering
vulnerability of slopes, identification of stretches vulnerable to floods,
mapping wildlife corridors and providing adequate safeguards.
53 A minority consisting of five members of the HPC, including the
Chairperson, was in favour of adopting the IW standard for the Project. Their
opinion was based on the following reasons:
(i) The type of road must be determined based on traffic surveys, capacity of
roads, and ecological considerations. The 2012 MoRTH Circular, however,
recommended only an operational standard;
(ii) The detailed project reports for the Project have based the choice of roadwidth on traffic survey data. However, the data is insufficient as the traffic
volume count of only April-May, which is a non-peak period, was taken into
account. Additionally, no traffic surveys were conducted for the Higher
Himalayas, which suggest that the DL-PS standard is extremely wide;
(iii) The current standard ignores the overall environmental considerations
such as geological fragility, slope de-stabilization and recurring landslides,
climate change and soil organic carbon loss. MoRTH has not conducted
an EIA for the Project which would suggest site-specific mitigation
measures;
(iv) Although border security concerns are a relevant factor, not all routes lead
to the international borders. To ensure that national security concerns are
addressed, more disaster-resilient highways are needed which would not
be achieved by cutting fragile slopes. Further, the Chief of Army Staff on
PART F
50
20 September 2019 had made a statement that the current roads
adequately fulfilled the needs of the Army; and
(v) The 2018 MoRTH Circular acknowledges that the DL-PS standard has led
to issues in the mountainous terrains and recommended that road design
be based on traffic volume. The 2018 MoRTH Circular was not brought to
the notice of the members of the HPC during the discussion and was
received later, after the voting had taken place. It was circulated by the
Chairperson, after which two voting members and the Chairperson
recommended the adoption of the IW standard in all stretches where
widening remains to be done.
54 Since the 2018 MoRTH Circular, which was central to the discussion on
road-width, was inadequately considered by the HPC, it was suggested by the
Chairperson that a final decision on this issue must be taken by the Supreme
Court. Apart from the issue of road-width, the majority of members also
recommended that:
(i) To avoid the possibility of slope failures, valley side filling must be given
importance;
(ii) A footpath for walking along the highways of the Project must be made for
the pilgrims; and
(iii) In built-up areas where road side facilities and establishments exist, the
width of the roads should be kept at 10.5m (7m carriageway and 1.75m
paved shoulder on either side).
PART F
51
55 With regard to the BESZ, the HPC noted that the Project has five
unsanctioned projects which run through it. MoRTH plans to upgrade 100.5 kms
from Uttarkashi to Gangotri to conform to the DL-PS standard. The following
recommendations were made:
(i) BRO, which is the implementing agency, must obtain all requisite
clearances under the relevant notifications of the MoEF&CC;
(ii) Road widening activities should only be undertaken after detailed EIAs and
mitigation measures;
(iii) The felling of deodar trees should be avoided;
(iv) Feasibility studies should be conducted in the short tunnels proposed
within the highways, and
(v) Vulnerability evaluations and terrain assessments must be conducted.
F.1.2 HPC Report dated 31 December 2020
56 Following the filing of MA No 1925 of 2020 and MA No 2180 of 2020, this
Court by an order dated 2 December 2020 directed the HPC to consider the
issues raised by Professor Ravi Chopra and the MoD, and submit a detailed
report. The HPC Report-II was thereafter submitted. In relation to MA No 2180 of
2020 filed by the MoD, a majority of 21 members recommended that further work
to be undertaken by the MoRTH should be according to the 2020 MoRTH
Circular, as it is necessary for the security of the nation. A minority of three
members was not persuaded that the order of this Court dated 8 September 2020
should be modified. One member recommended that the work on the national
PART F
52
highways from Rishikesh to Gangotri, Rishikesh to Mana, and Tanakpur to
Pithoragarh may be carried out according to the 2020 MoRTH Circular. However,
a flexible approach should be adopted where necessary, to minimize damage to
the forests and wildlife habitats. On the letters filed by the Chairperson, a majority
of members recommended that the letters be withdrawn.
57 The majority report indicates that:
(i) The concerns raised by the MoD had been deliberated by the HPC and the
majority view in the HPC Report indicated the adoption of the DL-PS
standard. However, the majority report was overridden by the views of 4
members;
(ii) The HPC Report discussed the strategic importance of the three national
highways: NH-34 (previously NH-94 +NH-108), NH-07 (previously NH-58)
and NH-125;
(iii) The District Magistrates of Uttarkashi, Chamoli and Champawat District
expressed concern that the local people wanted an all-weather reliable
road along with the requirement of the MoD; and
(iv) The Rapid EIA reports of the Rishikesh-Rudraprayag stretch indicated that
the impact of the Project is 32.25 per cent, which falls in the medium
impact category. Thus, from an EIA perspective, the widening of the
highways should be permitted.
PART F
53
58 The minority of members stated in their report that:
(i) On the three feeder highways mentioned by the MoD in their application,
161 landslides/vulnerable zones were created. Due to the new landslides,
the entire project would be counter-productive for defence-preparedness;
(ii) The requirement of the MoD for the feeder roads should be considered in
the context of the need for disaster resilient roads, capacity of roads to
ensure swift movement of Army vehicles, minimizing environmental and
social impact and long-term feasibility of the roads; and
(iii) The difference between the recommendation of the minority and the MA
filed by the MoD is in regard to the reduction of carriageway by 1.5m, with
due regard to the requirement of a footpath of 1.5m for the local population
and pilgrims.
F.1.3 Analysis on the width of road
59 Pursuant to the order of this Court of 8 September 2020, the issue of the
width of the national highways that are a part of the Project has been raised in
MA No 2180 of 2020 filed by the MoD, which seeks modification of the order
itself. The grounds listed in the MA indicate that the national highways from
Rishikesh to Mana, Rishikesh to Gangotri and Tanakpur to Pithoragarh are
feeder roads to border areas and are vital from the perspective of national
security. Thus, it has been urged that development of these highways should be
according to the two-lane configuration.
PART F
54
60 The details of these roads and their proximity to the international border
has been provided in the MA by the MoD, and is reproduced below:
“Table A
Feeder Road Distance from the
Chinese border
Details of Connecting Border Road (Not
part of Char Dham Project)
Rishikesh to
Gangotri (NH-94
and NH-108)
231 kms
• Bhaironghati (close to
Gangotri) to Muling
La Pass is 54 kms
(i) Bhaironghati to Nilapani (enroute
to Muling La Pass on Chinese
Border) 42 kms:
Bhaironghati to Naga- 32 kms (Being
developed to double lan[e]
specifications. Tarring is yet to be
completed for 11 kms and only hill
cutting has been completed in 1 km)
Naga to Nilapani- 10 kms (Already
developed to double lane
specifications)
Nilapani to Muling La Pass –
54pprox.x. 34 kms (no road at
present, only a track)
• Bhaironghati (close to
Gangotri) to Thagla
Pass is 78 kms
(ii) Bhaironghati to Sumla (enroute to
Thangla Pass on Chinese Border)
64 Kms: [Under construction]
Bhaironghati to Sonam- 44 kms
(Being developed to double lane
specifications- 32 kms tarring done,
11 kms formation cutting completed,
1 km under progress)
Sonam to Sumla- 23 kms (Single lane
completed)
Sumla to Thangla Pass- 11 kms (foot
track)
Rishikesh to Mana
(NH-58)
281 kms
• Distance from Mana
to Mana Pass is 54
kms.
(i) Mana to Mana Pass:
Mana-Ghastoli: 21 Kms (Already
Double Laned)
Ghastoli – Rattakona: 18 Kms
(Existing Single Lane, planned for
double laning under Bharatmala)
Rattakona-Mana Pass: 16 Kms (Hill
PART F
55
Cutting completed for 12m wide
formation for double laning, tarring
yet to be done)
• Distance from
Joshimath to Niti
Pass is 82 kms.
(ii) Joshimath to Niti Pass:
Joshimath-Malari: 62 Kms (Already
Double Laned)
Malari-Niti Pass: 56 Kms (Existing
single lane is being upgraded to
Double Lane upto Niti village, i.e., for
20 kms. Ahead of Niti village, single
lane road under development upto
Geldung).
• Distance from
Joshimath to Tunjun
La Pass is 103 kms.
(iii) Joshimath to Tunjun La Pass:
Joshimath-Malari: 62 kms (Already
double [laned])
Malari-Girthidobala: 19 Kms (First 9
kms is already double laned; and 10
Km thereafter is a single lane)
Girthidobala – Rimkhim: 22 Kms
(Existing single lane road)
Rimkim-Tunjun La Pass55pprox.x. 5
kms (no road)
Tanakpur to
Pithoragarh (NH125)
162 kms
• Distance from
Pithoragarh to Lipulek
pass is55pprox.x. 209
kms
(i) Pithoragarh to Lipulekh Pass:
Pithorgarh to Tawaghat- 108 Kms
(Under development to double lane
specifications, of which 51 Kms
completed)
Tawaghat to Ghatiabgarh- 20 Km
(Under development to double lane
specifications)
Ghatiabgarh to Lipulekh- 79 Km
(Formation cutting to 10 to 12 m
width is under progress)
61 Based on the above description, 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. The
PART F
56
importance of the requirement of double-laned highways has been emphasized
as it is necessary for the movement of trucks, equipment and personnel of the
Armed Forces.
62 The above table also indicates that the MoD does not seek to widen only
the three national highways which act as feeder roads. Instead, the roads
connecting the national highways from Gangotri, Mana and Pithoragarh to the
Army establishments across the border are also in various stages of development
and attempts have been made to ensure double-laned highways as far as
possible. The MoD has also highlighted that these feeder roads from Rishikesh to
Gangotri and Joshimath to Mana were initially included in the Long-Term Roll on
Works Plan 2018-19 to 2022-23 of the BRO. This plan seeks to upgrade the
national highways to double lane specifications to meet the operational
requirements of the Indian Army. Prior to 2016, these roads were under the
purview of the BRO, which is an arm of the MoD. It is only after 2017 that
portions of these roads were handed over to PWD and NHIDCL for speedier
development, given the expansive works to be undertaken for the Project.
63 At the outset, therefore, we find that there are no mala fides in MA No
2180 of 2020 filed by the MoD. The allegation that the application filed by the
MoD 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 bona fides of the MoD are
also evident from the fact that the issue of security concerns was raised during
PART F
57
the discussions of the HPC and finds mention in the HPC Report. Thus, the MoD
has maintained the need for double-laned roads to meet border security
concerns.
64 The appellants have referred to a statement made by the Chief of the
Army Staff in 2019 in a media interview regarding the adequacy of infrastructure
for troop movement. 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. Similarly, the appellants have also raised a challenge to the 2020
MoRTH Circular and have sought a direction that this circular be revoked, on the
ground that it recommends the DL-PS standard without application of mind.
65 This Court, in its exercise of judicial review, cannot second-guess the
infrastructural needs of the Armed Forces. The appellants would have this Court
hold that the need of the Army will be subserved better by disaster resistant
roads of a smaller dimension. The submission of the appellants requires the
Court to override the modalities decided upon by the Army and the MoD to
safeguard the security of the nation’s borders (it is important to remember that
the MoRTH issued the 2020 MoRTH Circular based upon the recommendations
received from the MoD). The submission of the appellants requires the Court to
interrogate the policy choice of the establishment which is entrusted by law with
the defence of the nation. This is impermissible.
PART F
58
66 We shall now advert to the position of law regarding the construction of
double-laned roads. The 2012 MoRTH Circular stipulated that all national
highways were to have a carriageway width of two lanes. While this circular
acknowledged that, generally, the carriageway width is dictated by the traffic
volume, but in an attempt to ensure smooth flow of traffic, all highways were
henceforth to be converted to two lanes with paved shoulders. Thus, according to
the 2012 MoRTH Circular, all highways were to conform to the DL-PS standard.
67 The 2018 MoRTH Circular modified the 2012 version. The Circular of
2018 stipulated that:
(i) In hills and mountainous terrains, for areas where the PCUs are in the
range of 4,000-8,000 PCUs per day, the carriageway width cannot be of
double lane configuration but has to be of intermediate configuration (i.e.,
5m); along with this, adequate passing places with 2.5m width have to be
included;
(ii) For areas where the PCUs are more than 10,000 per day (or expected to
reach that level within 3 to 5 years), the carriageway width could be of
double lane configuration (i.e., 7m); and
(iii) Where the traffic is likely to increase “at about more than” 10 per cent per
annum, the width could be of DL-PS configuration.
Thus, the 2018 MoRTH Circular did not entirely bar the construction of doublelaned highways in hilly and mountainous terrains. It only made the DL-PS
standard contingent on the current and projected traffic volume for the road.
PART F
59
68 The 2019 IRC Guidelines, in relation to the width of carriageway for
national highways, provided that that DL-PS standard should be adopted. More
specifically, the 2019 IRC Guidelines dealt with national highways in hills and
mountainous terrain that serve as strategic roads and border roads for military
and paramilitary operations. It provided that such roads should be constructed
with not less than a two lane carriageway with a paved shoulder on the hill side
and an earthen shoulder on the valley side. The relevant clause is reproduced
below:
“6.2.2 Width of carriageway, shoulders and roadway for
various categories of roads are given in Table 6.2.
Table 6.2 Widths of Carriageway, Shoulder and Roadway
[…]
Notes:
[…]
6. On roads subject to heavy snow fall, where snow clearance
is done over long periods, roadway width may be increased
by 1.5 m. However, the requirement of such widening may be
examined with reference to ground conditions in each case
considering terrain traffic and other influencing conditions and
factors.
[…]
8. Strategic and border roads for
military/paramilitary/security forces
operations/movements shall be constructed for not less
than two lane carriageway alongwith paved shoulder on
hill side + paved and earthen shoulder on valley side on
same lines of national highway.”
(emphasis supplied)
69 Given the lack of clarity on this issue in the MoRTH circulars, the 2020
MoRTH Circular was brought in. The Circular of 2020 reiterates the 2019 IRC
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60
Guidelines and states that roads in hilly and mountainous terrain, which act as
feeder roads to the Indo-China border should be of DL-PS standard, with a 7m
carriageway and 1.5m paved shoulder.
70 Neither the 2012 nor the 2018 MoRTH Circulars specifically addressed
the issue of strategic border roads. The considerations for development of
national highways in plains and in hilly and mountainous regions are not identical.
Similarly, 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. We must therefore arrive at a 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.
71 Based on the above analysis, 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. This is reinforced by
the fact that the roads beyond the highways in the Project, beyond Gangotri,
Mana and Pithoragarh are being developed by the MoD as double laned
highways.
72 Additionally, the current status of works for the three highways in question
is as follows:
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Road Distance of Road Hill Cutting for 12m formation
completed
Double Laning/ black
topping completed
Rishikesh to
Gangotri
(NH-94 & NH108)
231 kms 119 kms (51.50%) 75 kms (32%)
Rishikesh to
Mana
(NH-58)
281 kms 215 kms (76.50%) 151 kms (54%)
Tanakpur to
Pithoragarh
(NH-125)
162 kms 127 kms (78%) 123 kms (76%)
From the above tabulated statement which has been provided by the MoD, it
appears that more than 50 per cent of the hill cutting has already been completed
in each of these national highways, and over 50 per cent of double-laning has
been completed on NH-58 and NH-125. In view of this, partial development of the
highway compliant with the IW standard and the remaining in conformity with the
DL-PS standard would not be suitable for the needs of the Armed Forces and
will, in fact, prolong the movement of troops and equipment.
73 We shall now turn to the findings and recommendations of the HPC
regarding the issue of road-width. As reflected by this Court’s order dated 8
August 2019, the HPC comprised of representatives from governmental bodies,
including the MoD who could highlight the requirements of border roads. The
broad terms of reference of the HPC were as follows:
(i) To consider the cumulative and independent impact of the Project on the
entire Himalayan valleys;
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62
(ii) To consider whether revision of the full Project (about 900 kms) should at
all take place with a view to minimize the adverse impact of the Project on
the environment and social life;
(iii) To identify the sites in which work (i.e., hill-cutting) has started and the
stretches in which the work has not yet started. As far as the sites in which
work has started, the HPC was to recommend the measures which are
required for stabilizing the area where hill-cutting has taken place,
including the environmentally safe disposal of muck which has been
generated so that it does not adversely affect the flora and fauna of the
catchment area of the river;
(iv) As regards the stretches where work has not started, the HPC was to
review the proposed project and recommend measures which would
minimize the adverse impact on the environment and social life; bring the
project in conformity with the steep valley terrain and carrying capacity and
avoid triggering new landslides; and ensuring conservation and protection
of sensitive Himalayan valleys;
(v) To assess environmental degradation in terms of loss of forest land, trees,
green cover, water resources, dumping of muck and impacts on the wildlife
and direct mitigation measures; and
(vi) To asses and quantify the impact on social infrastructure/public-life due to
triggering of fresh landslides, air pollution, frequent road blocks, et al, and
suggest measures for redressal, including preparation of disaster
management plans prior to the onset of the monsoon.
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63
74 While the HPC was empowered to assess the environmental and social
impact of the Project, it was not competent to address, assess or review the
security needs of the nation. The work of the HPC was limited to giving
recommendations to improve the Project in terms of its environmental impact and
to suggest mitigation strategies to implement the Project. The competing interests
that the HPC had to evaluate were environmental concerns as against
infrastructural development, the primary reason of which in this Project was
focused on increasing tourism, providing an impetus to the economy, and ease of
transportation for undertaking the Char Dham pilgrimage. Balancing the interests
of defence as against environmental considerations was outside the ambit of the
HPC.
75 Be that as it may, the HPC Report does highlight that certain highways
(NH-94, 108, 58 and 125) form the feeder roads to border locations in the districts
of Uttarkashi, Chamoli and Pithoragarh. An extract of the relevant portion of the
HPC Report is reproduced below53:
“Roads beyond Joshimath and Uttarkashi are operationally
very sensitive as they fall within 100 Km of the LAC. The
border terrain lies in high altitude, snow bound regions. Indian
Army and ITBP units maintain continuous vigil on the borders
and important passes. To ensure better national security, the
Government of India has given impetus for the development
of double lane roads towards the border. Roads beyond
Bhaironghati and Mana are already double-laned but the
important feeder roads Helong-Mana and Barethi-Gangotri
are generally single lane (except some intermittent stretches
which are improved to two lane) with steep gradients, sharp
curves, narrow hairpin bends, avalanche prone locations and
weak bridges which pose major challenges to vehicle
movements in these areas. The single lane roads get closed
due to snow accumulation and hinder the movement of
53 HPC Report, pages 82-83
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64
soldiers even by foot for provisions of logistic and medical
aid.”
Bearing the above observations in mind, a majority of the members of the HPC
recommended the adoption of the DL-PS standard as road-width for the Project.
This opinion was reiterated in HPC Report II, which considered the MA No 2180
of 2020 filed by the MoD.
76 We find ourselves to be in agreement with this finding of the HPC. Based
on the above reasons, we modify the order of this Court dated 8 September 2020
to the extent that the national highways from Rishikesh to Mana, Rishikesh to
Gangotri, and Tanakpur to Pithoragarh be developed according to the doublelane carriageway width with paved shoulder standard as provided in the 2020
MoRTH Circular.
77 An ancillary issue regarding the width of the roads of the Project, apart
from the above highways which are strategic feeder roads to border areas, is
regarding the interpretation of the order dated 8 September 2020. This Court in
its order held that:
“We have perused the conclusion and recommendations of
the report, in particular, from pages 90-93 in Part I. We are of
the view that it is correct that the 2018 MORTH circular
should apply for the reasons given at page 93 of the
report. Consequently, the 2018 circular alone will apply.
The other directions that were issued by us on 08.08.2019
must be strictly complied with, including the holding of
quarterly meetings to ensure timely and proper compliance of
the recommendations.
Shri Tushar Mehta, learned Solicitor General, persisted with
his arguments that the 2018 circular is only prospective in
nature. We are well aware of the distinction between
something which is retrospective in the sense that it applies
for the first time to projects which are already completed as
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65
opposed to ongoing projects, where it is necessary to take
stock of the current situation and then move forward. Having
taken stock of the current situation and of the fragility
generally of the eco system in mountain terrain, we are of the
view that this argument has no legs to stand on.”
(emphasis supplied)
78 One of the arguments raised by the appellants in their MA 1925 of 2020 is
that pursuant to this order, MoRTH has stated that the order will only be
implemented for the 13 projects which have not been sanctioned and where work
has not been initiated. In its affidavit dated 15 February 2021, MoRTH has stated:
“3. […] showing the status of road construction work in the
Chardham Pariyojna which would show that in almost every
sanctioned project of the Chardham Pariyojna, hill cutting has
been carried out at various stretches as the old formation
width of 12 mts, leaving unfinished stretches in between. It is
submitted that in a particular sanctioned project, due to
operational difficulties, hill cutting and laying down of a tarred
road is often not carried out simultaneously and/or in linear
form. Thus, reducing the width of the road to 5.5 mts in the
those unfinished stretches at this stage would cause a
serious road safety hazard. The details of the same is also
reproduced hereinbelow:
SNO. PARTICULARS LENGTH
1. Total Length of The Chardham
Pariyojna
825 KMS
2. Total Sanctioned Length 662 KMS
3. Hill Cutting (Keeping 12 Mts in Mind)
Completed As On 08.09.2020
537 KMS
4. Tarred Road With 10 Mtr. Width
Completed As On 09.09.2020
365 KMS
5. The Length For Which Hill Is Already
Cut Prior to 08.09.2020 But Tarred
Road With 10 Mts Width is Yet To Be
Laid
172 KMS
6. The Length For Which Hill Cutting Is
Yet Be Commenced (Which Stopped
On 08.09.2020)
125 KMS
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66
4. It is further stated that out of the total length of 825 kms of
the Chardham pariyojna, only 151 Kms consist of nonstrategic roads, whereas the rest of the pariyojna having a
length of 674 Kms have immense strategic importance being
feeder roads to the Indo-china border roads under the control
of Ministry of [D]efence. The details of the same are also
reproduced hereinbelow:
1. Total Length of The Chardham
Pariyojna
825 Kms
2. Total Length Of Roads With Strategic
Importance/Defence Roads
674 Kms
3. Total Length Of Non-Defence Roads 151 Kms
Dharasu To
Janaki Chatti
75 Kms 36 Kms
(Hill
Cutting
Done)
Rudraprayag
To Gauri
Kund
76 Kms 53 Kms
(Hill
Cutting
Done)
79 The order of this Court dated 8 September 2020 clarified that the 2018
MoRTH Circular will hold the field, regardless of whether works on a highway had
been completed or were ongoing. By allowing the MA filed by the MoD for
modification of this order, we have permitted the widening of the national
highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to
Pithoragarh, which are strategic feeder roads to border areas. To this extent, the
order dated 8 September 2020 will stand modified. However, we grant liberty to
the respondents to pursue appropriate legal proceedings and seek reliefs in the
event that it is necessary to implement the DL-PS standard for the entire Project.
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67
F.2 Environmental Issues
80 While we have permitted the UOI and MoD to apply a DL-PS configuration
to the highways mentioned in MA No 2180 of 2020, it is not the end of this matter.
There may have been a disagreement between the members of the HPC in
relation to the road-width issue but they unanimously agreed on other
environmental issues in the manner in which the Project was being implemented
by MoRTH. Some of these issues have also been pointed out by the appellants in
MA No 1925 of 2020 and their affidavits thereafter, often based upon news
reports in relation to the Project. We shall first note these issues as flagged by
the HPC, consider their recommendations and based on that, we will issue
directions to MoRTH and MoD.
F.2.1 HPC Report dated 13 July 2020
81 The environmental and social concerns arising from the Project have been
dealt with in Chapter III-XI of the HPC Report, along with the recommendations
and conclusions in Chapter XII. Apart from Chapter II on the issue of road-width
as provided in Section F.1.1 above, the findings of the HPC on all other issues
have been unanimous.
82 Chapter III of the HPC Report deals with hill cutting and highlights that
slope instability is one of the most frequent disasters in mountains. Hill cutting in
the Himalayas is also a major reason for landslides and rockfalls. During field
visits, the HPC observed that there were large stretches of hill-cutting with steep
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68
slopes and no protection measures, no slope drainage measures had been
taken, the debris was falling downhill, further destabilizing the slope. The HPC
recommended the following measures which could be adopted to mitigate the
damage and prevent landslides:
(i) In many locations, hill-cutting can be avoided by filling material on the
valley side to widen the road;
(ii) Sufficient vulnerability analysis must be conducted before further hillcutting and plans for maintenance of slopes must be made;
(iii) Roadside drainage measures and protection against toe-erosion must be
undertaken;
(iv) In case of near vertical to vertical cutting, a breast wall may be erected to
avoid landslides; and
(v) Damaged gabion structures must be repaired through back-filling, et al.
83 Chapter IV of the HPC Report concerns the 20 bypasses, realignments
and tunnel projects that have been proposed for some segments of the national
highways as they are geologically unstable or in congested passages. The HPC
observed that geological infirmities and the felling of deodar and oak trees are a
critical issue in these bypasses. It recommended that feasibility studies may be
conducted for some of the bypasses, along with their impact on local area
residents.
84 Chapter V of the HPC Reports concerns a critical area of the Project –
muck dumping. Muck-dumping or muck management requires safe disposal of
the muck generated due to the material excavated, tunneled, and dislodged.
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Within the Project, 435 muck-dumping sites have been identified for the 53
projects. However, the following issues were identified by the HPC in relation to
muck-disposal:
(i) Most of these projects do not have adequate muck dumping capacity. In 5
out of the 7 packages, the authorized muck dumping capacity is below the
muck volumes anticipated. In one-third of the projects, the expected
generation of muck is more than the carrying capacity of the sites;
(ii) Most of the muck dumping sites are located in gorges or natural drains,
along the concave sections of rivers, in or adjacent to forests, near
agricultural fields or habitations which may not have been authorized;
(iii) There are many large and tall sites, with high slope angles but attempts to
stabilize them have not been made; and
(iv) There is no financial provision for environmentally safe disposal of muck
and no guidelines have been provided by MoRTH to the EPC Contractors
regarding its proper management, leading to variations in selection of sites
and adoption of environmentally safe disposal practices by contractors,
who also dump it on private land on request.
85 For adequate disposal of muck, the HPC recommended the following
measures to be taken:
(i) Muck dumping should generally be located downwind of habitation;
(ii) Topsoil should be kept separately in a proper manner for later use in
rehabilitating muck disposal;
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(iii) A large quantity of boulders (locally available) should be checked for their
mechanical properties and used appropriately;
(iv) Before muck is dumped at identified locations and construction of
protection measures, it should be ensured that the substratum has enough
shear strength to sustain the load without creating a slip hazard. The
gabion/protection walls should preferably be constructed along the
contours for better stability and above the highest flood level at a safe
distance;
(v) Muck dumping sites should not be located on the concave side of river
meanders. Gorges and natural drainage also need to be avoided;
(vi) Plantation of locally available plant species should be preferred for
rehabilitation of dump sites along with help from local people and forest
department;
(vii) MoRTH and the implementing agencies must immediately coordinate with
district authorities to acquire additional muck dumping sites and necessary
clearances to ensure that muck generation equals carrying capacities of
muck dumping sites;
(viii) Capacities of sites fully utilized must be stabilized at the earliest, preferably
before the onset of the rainy season;
(ix) Muck which has fallen on roads after landslides must not be pushed down
slope; and
(x) All natural drains/streams blocked with dumped muck should be cleared
before the monsoons.
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86 Chapter VI of the HPC Report deals with the environment quality of the
Project, which can be divided into short-term and long-term impacts. Short-term
impacts occur due to road construction activities like land clearing, ground
excavation and cut and fill operations, and are visible in the vicinity of the
construction activity. Meanwhile, long-term impacts include climate warming due
to soil organic carbon loss as a result of road construction and traffic problems.
During their field visits, the HPC were unable to assess the impact of the project
on the environmental quality due to stoppage of work prior to the visit. However, it
observed dust pollution where debris had not been cleared from the road. The
HPC also identified long-term impacts such as vehicular pollution, black soot
emission, soil erosion from hill-cutting and muck-dumping and soil organic carbon
loss, due to the Project.
87 On the basis of its observations, the HPC made the following
recommendations:
(i) Reliable data should be obtained to formulate strategies to control pollution
during the construction phase effectively;
(ii) Continuous air quality monitoring stations must be placed at each of the
Char Dham locations;
(iii) A reduction in diesel and petrol vehicles is warranted in view of the
ecological sensitivity of the Higher Himalayas; and
(iv) Robust stabilization measures are needed in the Lesser Himalayas and
the Shivaliks to conserve their vast forests and SOC, as they are major
carbon sinks.
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88 Chapter VII of the HPC Report deals with the loss of forests, trees and
green cover. Cutting of mountain slopes to widen roads leads to a reduction in
the green cover in the State. A total area of 689.23 hectares has been diverted
from forest land for the Project. This loss of green cover leads to a loss of riverine
vegetation, top soil, wildlife habitats, ecosystem services, et al. To redress the
loss of forest cover, the Uttarakhand Forest Department raised a plantation as
part of the Compensatory Afforestation program. In addition to this, a Draft Action
Plan focusing on afforestation on degraded waste land and forest land along the
national highways, restoration of muck disposal, soil conservation works,
rejuvenation of existing water resources, and landscaping has also been
proposed. The HPC has also recommended the following measures to be taken:
(i) Felling of deodar trees should be avoided;
(ii) Road-width in dense forest patches may be reduced;
(iii) In stretches that are yet to be widened, the top soil must be separately
stored from the remaining muck to facilitate regeneration;
(iv) Regeneration of riverine vegetation should be included in the Draft Action
Plan; and
(v) The Net Present Value rates of forests needs to be revised.
89 Chapter VIII of the HPC Report discusses the impact of the Project on
wildlife habitats. The Project lies close to the wildlife protected areas of Gangotri
National Park, Kedarnath Wildlife Sanctuary, Govind National Park and Wildlife
Sanctuary and Rajaji National Park. These protected areas have four highly
endangered species – snow leopard, Tibetan Argali, Eurasian lynx, Himalayan
brown bear and Western Tragopan. Other threatened species include the Asiatic
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73
black bear, Tibetan wolf, Himalayan musk deer, pheasant and Cheer pheasant.
The Alaknanda and Bhagirathi river basins also host a wide range of habitats.
90 During the field visits, the HPC observed that improper muck management
resulted in destruction of vegetation cover, which has threatened aquatic
habitats. Accordingly, it recommended the following measures:
(i) Safe wildlife passage should be maintained and included in road building;
(ii) Gentle slopes shoulders on either side of the road, particularly around
sharp bends/blind curves should be avoided. Box-type pre-fabricated
culverts could be used by wildlife;
(iii) A comprehensive study of the carrying capacities of the uppermost
stretches of the Project and the wildlife movement should be conducted;
(iv) Opening of Char Dham locations in the winter season should be
considered only after a thorough wildlife impact study;
(v) Road widening work on NH-109, NH-94, NH-94/134 and NH-07/58, which
are located in the eco-sensitive zones, should be conducted after due
approvals; and
(vi) Deterrent action must be taken against unauthorized muck dumps and
compensatory afforestation should be carried out.
91 Chapter IX of the HPC Report, titled ‘Managing Mountain Water Courses’
pertains to the management of springs, streams and surface drainage. The HPC
observed that there was poor management of subsurface flows at many locations
due to improper structures. In places where perennial flow of water is there, toe
drains had not been constructed. Further, due to the huge quantity of muck
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74
generated because of the cut and dump method and disposal into water courses,
the water has been deemed unfit for human consumption. Accordingly, the HPC
recommended that:
(i) Culvert design should be based on hydrological investigation in order to
avoid under designing or over designing of the structure;
(ii) Immediate action be taken to clear all natural drains/streams blocked with
muck dumping;
(iii) The perennial streams should be managed properly by constructing
adequate structures;
(iv) A diversion drain should be provided above the head of the hill cut area to
safely drain out the water away from the unstable or landslide prone areas;
(v) Toe drains or catch-drains must be provided on the uphill side of a road
and connected to a culvert or a main drain to dispose of the water into a
natural valley. Additionally, a breast wall or a toe wall should be provided
to prevent blockage of toe drains by accumulation of fallen over burden
soil/boulders from the uphill slope; and
(vi) There must be safe disposal of heavy runoff and debris through discharge
channels/gullies.
92 Chapter X of the HPC Report concerns the disaster management
measures that must be taken to prevent any disasters owing to the infrastructure
activity from the Project. These disasters include natural hazards such as slope
failures, flash floods, avalanches, forest fires; engineering hazards when poor
quality protection measures are taken; and mass tourist hazards. The significant
disaster in the Project has been due to the vulnerability of slopes. One of the
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main reasons for this occurrence is muck-dumping which results in landslides,
toe-erosions and other consequences. Further, no effort has been made to
stabilize the slopes already cut. Additionally, in a number of locations, such as at
Badrinath, the carrying capacity (that is the number of biological species that can
survive in a particular environment) has been reached. In view of this, the HPC
recommended the following measures:
(i) A comprehensive study regarding the carrying capacity at various locations
in the Project must be conducted;
(ii) Given the large number of tourists, Char Dham Early Warning System
Network, connecting all villages, should be developed such that timely
action can be taken in case of a disaster;
(iii) A survey of vulnerable muck dumping sites must be undertaken, natural
streams must be cleared, slope protection measures should be taken;
(iv) Climate vulnerability risk assessment must be conducted; and
(v) Protective measures such as well-constructed breast walls, retaining walls,
soil nailing, geotextiles sheathing, negative slopes and half-tunnels in hard
rock areas should be observed.
93 Chapter XI of the HPC Report focusses on socio-cultural perspectives.
During the field visits, the HPC members observed that there was broad support
for the Project as it would economically benefit the people of the State. However,
some of the issues that have not been addressed are the lack of footpaths for the
traditional padyatra or pilgrimage, impact on traditional forest conservation
methods, loss of livelihoods due to hill-cutting without adequate safeguards,
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increase in threat to lives and agriculture in case of heavy rainfall or cloud burst,
and damage to schools and infrastructure due to slope failures.
94 Based on these concerns, the HPC, inter alia, recommended the following:
(i) Project authorities should initiate formal mechanisms to facilitate dialogue
and receive feedback and grievances from the local community;
(ii) A comfortable pathway for the pilgrims must be constructed; and
(iii) Conservation of traditions should be encouraged.
95 In Chapter XII of the HPC Report, the HPC summarized the conclusions
and recommendations made in each of the preceding chapters.
F.2.2 Analysis of the Environmental Issues
96 The analysis conducted by the HPC in the unanimous segment of its report
is not only comprehensive, but it is based upon empirical and scientific data. The
HPC took time to visit all project sites, and individually identified a variety of
issues with them. While these have been divided into chapters in the HPC Report
(as noted in Section F.2.1), the underlying themes of all them are evident:
(i) In many instances, MoRTH has gone ahead with the Project based on its
assertions that the Project is compatible with environmental guidelines or
that its developmental benefits are proportionate to the harm. However, to
reality-test these assertions, the HPC has recommended that the State
carry out relevant studies to ascertain the true reality (such as for creation
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of bypasses, maintenance of environmental quality, protection of wildlife
habitats and disaster management preparedness);
(ii) The HPC Report also notes that best-practices are not being followed in
some areas of concern (such as hill cutting or muck dumping). It has thus
recommended best practices for the MoRTH to implement;
(iii) In other areas of concern, the HPC has noted the harms which have
already been caused due to the Project, has recommended remedial
measures (such as protection of wildlife habitats (especially in context of
ecologically-sensitive zones) and maintenance of water resources) and
has also suggested future action to reduce its effects (such as for hill
cutting, muck dumping and protection of forest cover);
(iv) For some areas, the HPC has highlighted that constant monitoring by the
MoRTH would be required and necessary systems should be set up (such
as for maintenance of environmental quality and for disaster management
preparedness); and
(v) The HPC has also noted the Project’s effect on socio-cultural communities,
and has mandated MoRTH to create avenues for dialogue through which
concerns can be understood and resolved.
97 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 back seat.
However, that cannot be the case, going forward.
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98 The Attorney General has informed the Court that MoRTH and MoD are
presently undertaking measures to address the concerns raised by the HPC,
which have been noted in paragraphs 18(iv) and (v) of our judgment. While we
appreciate the measures which have been initiated, they are limited in scope and
have been late in coming. In comparison to the issues which have been raised by
the HPC in its Report, the measures adopted have only begun to scratch the
surface. Indeed, they 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 hillcutting and landslides have been tardy and limited and, from the submissions,
seem to have been limited only to the roads which are the subject matter of the
MoD’s MA No 2180 of 2020, which only concerns the roads which are of strategic
importance to India’s national security. However, it is important to remember that
the Project consists of 53 individual projects, not all of which are such roads.
However, that does not mean that the environmental effect on these roads and
their surroundings will be any less important and does not need to be remedied.
The State has tried to justify the efficacy of its current measures solely by noting
their benefits directly to the Armed Forces. Indeed, while that is a crucial factor
(as this judgment acknowledges in Section F.1.3), 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 in this Project
is also the health of the environment, and its effects on all individuals who inhabit
the area.
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99 It is thus important that there must be a significant alteration in the
approach to this Project by adopting sustainable measures. Piecemeal
implementation of some mitigation measures for protection of the environment,
without any concrete strategy in place, cannot pass muster. While we have
granted our approval to the DL-PS configuration for the roads mentioned in
MoD’s MA No 2180 of 2020, it is made conditional upon MoRTH and MoD
implementing the recommendations made by the HPC, which have been outlined
by this Court in Section F.2.1. These recommendations are unanimous. A
majority of the members of the HPC comprised of government officials and
experts. In line with the HPC’s recommendations, there has to be an assessment
of the nature of the problem by obtaining actual data through relevant studies for
all individual projects. Specific mitigation measures then should be implemented
for all projects, keeping in mind their unique concerns. In doing so, the general
recommendations issued by the HPC should form the baseline, i.e., they should
be implemented at the very least, along with anything over and above that is
deemed necessary based on the studies so conducted.
100 More than anything else, this requires a concerned shift in the approach
which has been adopted till date. Making the Project environmentally compliant
should not be seen a “checkbox” to be obtained on the path to development, but
rather as the path to sustained development itself. Thus, the measures adopted
have to be well thought out and should actually address the specific concerns
associated with the Project. Understandably, this may make the Project costlier,
but that cannot be a valid justification to not operate within the framework of the
environmental rule of law and sustainable development. In its bid to make the
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80
project more environmentally conscious, it is also imperative that the MoRTH and
MoD be transparent in the measures they adopt, in order for them to be held
publicly accountable by spirited citizens. Thus, we direct that the MoRTH and
MoD can proceed with the Project subject to the condition that it addresses all the
concerns which have been raised by the HPC and enumerated by this Court in
Section F.2.1 of this judgment, through the recommendations mentioned
accompanying these concerns (in paragraphs 82, 83, 85, 87, 88, 90, 91, 92 and
94 of this judgment).
G Conclusion
101 We thus allow MoD’s MA No 2180 of 2020 by permitting the DL-PS
configuration for the three strategic highways in respect of which relief has been
claimed. At the same time, we have also taken note of the environmental
concerns which have been raised by the HPC for the entirety of the Project. We
have noted the HPC’s unanimous recommendations for taking remedial
measures and direct that they have to be implemented by the MoRTH and MoD,
going forward. These specific recommendations have been mentioned in Section
F.2.1 and are not being repeated here for the sake of brevity.
102 Further, in order to ensure implementation of these recommendations, we
also set up an ‘Oversight Committee’, which shall report directly to this Court.
This Committee shall be chaired by Shri Justice Arjan Kumar Sikri, former Judge
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of this Court. In order to enable the Chairperson to receive technical assistance,
he shall be aided by:
(i) A representative of the National Environmental Engineering Research
Institute (‘NEERI’) to be nominated by the Director; and
(ii) A representative of the Forest Research Institute, Deemed to be
University, Dehradun to be nominated by its Director General.
The Oversight Committee shall receive all logistical and administrative assistance
from the UOI, the Government of Uttarakhand, MoRTH, MoD and MoEF&CC.
The Secretary of the Environment and Forest Department, Uttarakhand shall
ensure that logistical assistance is provided to the Committee. MoRTH, MoD and
MoEF&CC shall also nominate nodal officers for rendering assistance to the
Committee, providing information and co-operating with the work of the
Committee. The District Magistrates for the Districts forming a part of the Project
shall also provide facilitation and assistance to the Committee.
103 The objective of this Oversight Committee is not to undertake an
environmental analysis of the Project afresh but to assess the implementation of
the recommendations already provided by the HPC (which we have noted in
Section F.2.1). A formal notification in terms of these directions shall be issued by
the UOI within two weeks. Within four weeks thereafter, MoRTH and MoD shall
place before the Committee the steps taken by them to adhere to the HPC’s
recommendations, along with a projected timeline for complying with the
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remaining recommendations. Monthly reports of this nature shall be placed
before the Oversight Committee by MoRTH and MoD. The Oversight Committee
shall then report on the progress undertaken to this Court every four months. In
case of any issues with the implementation of the recommendations, the
Chairperson of the Committee shall be at liberty to approach this Court. The
honorarium for the Chairperson and members of the Oversight Committee shall
be determined by the Chairperson and the payment shall be disbursed by
MoRTH.
104 We further note that by the order dated 8 August 2019 of this Court, the
HPC was tasked with overseeing the implementation of its recommendations and
to suggest any further measures which may be required. To avoid any overlap
between the scope of work of the HPC and the Oversight Committee formed
above in paragraph 102 and 103, we clarify that the HPC shall continue with its
work on overseeing the implementation of its recommendations for the Project,
except for the national highways from Rishikesh to Mana, Rishikesh to Gangotri,
and Tanakpur to Pithoragarh, which shall now fall under the purview of the
Oversight Committee.
105 With these directions, we allow MoD’s MA No 2180 of 2020, conditional
upon the fulfillment of the conditions outlined above in our judgment and
accordingly, MA No 1925 of 2020 is disposed of.
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106 Pending application(s), if any, shall stand disposed of.
……….….....................................................J.
[Dr Dhananjaya Y Chandrachud]
.…..….….....................................................J.
[Surya Kant]
.…..….….....................................................J.
[Vikram Nath]
New Delhi;
December 14, 2021
