Supreme Court's Chardham Pariyojana judgment - An analysis

The Char Dham verdict by Supreme Court raises many questions on the future of the region. An update.

Supreme Court's Chardham Pariyojana judgment - An analysis

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Read more on - Polity | Economy | Schemes | S&T | Environment

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• The story: The Himalayas lost an important battle December 14, 2021, when the Supreme court ruled in favour of a massively wide, 10-meters tarred surface, double-lane paved shoulder (DL-PS), road width design for the Chardham Pariyojna (CDP). The route, which connects the four ancient Himalayan pilgrimages, runs through fragile valleys of Bhagirathi: The Ganga, Alaknanda, Mandakini and Yamuna.
• Details: This Rs 12,000 crore project envisages improvement as well as development of 889-km-long national highways. Petitioners and experts of the high-powered committee (HPC) tasked with reviewing this project had pleaded for a narrower intermediate width (IW), 5.5-metres tarred surface. The Supreme Court had also validated this IW width in September 2020.

1. The Union defence ministry (MoD) intervened in November 2020, asking for a double lane (DL) configuration (7m tarred surface), instead of DL-PS, for three strategic stretches of National Highway (NH)-94, NH-125, NH-58.
2. These national highways comprise 700 km of the total project.

• Logic of the judgment: The judgment dwells at length on the concept of ‘sustainable development’. Quoting from several previous judgments, it stresses the need to balance social and economic needs with environmental considerations; that development cannot be separated from human rights, where development means the right to the realisation of one’s full potential.

1. It quotes sustainability as implying preservation for the present and future generations. It emphasises that sustainable development is not merely for redressal, but also to prevent failures in protecting the environment. There is nothing to disagree with here.
2. Then it arrives at the heart of its argument. It states: This court in its exercise of judicial review cannot second guess the infrastructural needs of the Armed forces… This is impermissible.’
3. It then specifies: Balancing the interests of defence as against environmental considerations was outside the ambit of the HPC. The Court ignored that a director-level officer of the Union defence ministry was always part of the HPC. And such a ‘balancing’ was never quite the intention.

• The Himalayas disagree with the Ministry: The chairman-led minority experts and petitioners have repeatedly pointed out that the requirement of the Army was not the issue of contention. The Army may require DL-PS or a six-lane highway, but on the ground, the Himalayas cannot support such a width without collapse and slope failures, of which the HPC report has detailed observations.

1. That such a collapse has led to serious impediment of all mobility has been seen in the last two years: Landslides, roadblocks and numerous tragic deaths have been reported. But the Ministry is determined to ignore all of that.
2. The Union Ministry of Road Transport and Highways (MoRTH) reported over 200 landslides in 2021. NH-58 and NH-94 of the CDP, both of strategic importance for the MoD, were closed indefinitely by the district magistrate, “as it was unsafe for commuters due to falling debris, boulders and collapsing ‘protection’ walls.”
3. On NH-58, 18 slope failures / debris fall were reported in a single day. A landslide occurred at Totaghati, a site that was completely stable before CDP hill-cutting began. The slope failures were continuous and uncontainable this monsoon.

• Ground reality: Despite paper assurances, not only were all our agencies unable to cope with the extent of slope failures, clear them, or prevent them, India's defence mobility was also seriously compromised. This fundamental concern, however, remains unanswered in the judgment.

1. The judgment goes into various government circulars, clearly made in haste, to justify the DL-PS standard.
2. The MoRTH 2020 circular that amended the MoRTH 2018 circular, which specifically recommended IW for hilly terrain, was done on December 15, 2020, the day HPC met to consider the affidavit of the MoD.
3. It recommended DL-PS, and was presented to the HPC right in the middle of deliberations, where the government-constituted majority immediately opinionated accordingly.
4. Next quoted are the error-ridden IRC 2019 guidelines, hurriedly revised in August 2019: They actually stipulate DL-PS for all roads from highways to small district and village roads, without bothering to alter the legal ‘right of way’.

• A mistake in the judgment: It also sanctions DL-PS within the fragile Bhagirathi eco-sensitive zone (BESZ), and makes a mistake when it relies on the Attorney General’s statement regarding amendment of the BESZ notification, which he misquoted as “permitting work for national security infrastructure without the due study of environmental impacts”. The amendment read the opposite: Works related to re-construction, disaster mitigation, lift irrigation, hospitals, schools, food godowns and other social and national security infrastructures shall be carried out with due study of environmental impacts and complying with their mitigation options.
• From protection to abandonment: Ten years ago, India united to preserve the last stretch of the pristine Ganga in the valley of her origin (Uttarkashi-Gangotri). At least three hydroelectric projects were cancelled. The valley was declared an eco-sensitive zone to ensure permanent protection of the catchment area of the Ganga.
• No consistency: The judgment states that the MoD has had a “consistent stand” in this matter but in November 2020, the MoD filed its first application and pleaded for double lane configuration (7m tarred surface) for defence mobility. The judgment has now sanctioned DL-PS, but the MoD had only asked for DL until all government circulars were amended to DL-PS. At the point in January 2021, however, the MoD also changed its stand in court accordingly. The judgment accepts on face value the breaking up of this single project into 53 ‘packages’ on grounds of its several stand-alone tunnels and bypasses, though the partition was done to evade the environmental impact assessment. An aerial view showed the entire project wound up within a limited radius of 50km. The intermediate width was rejected, when it would have allowed for smooth flow of bilateral traffic with minimum slope failures and ecological devastation. The DL-PS width also leaves no room for walking.
• Summary: Experts say that this judgment rewards violations instead of establishing accountability. The monumental crisis of climate change has not been factored in.
• EXAM QUESTIONS: (1) Explain the controversy surrounding the widening of the Char Dham highway project. (2) The Dec 2021 judgment of Supreme Court pertaining to the Char Dham project has been analysed by experts, who pointed out some inconsistencies. Explain. (3) Experts warn that the Himalayas are geologically active even today, and large infra projects are best avoided. Comment.

Read more on - Polity | Economy | Schemes | S&T | Environment

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