The apex court cites national security challenges
New Delhi, Dec 14 (PTI): The Supreme Court on Tuesday allowed double lane widening of the strategic Chardham highway project in Uttarakhand, observing that the country’s security concerns may change over time and the recent past has thrown serious national security challenges.
“The court in the exercise of judicial review cannot second guess the infrastructural needs of the armed forces, ” a bench headed by Justice D Y Chandrachud said while also setting up an oversight committee headed by former Justice A K Sikri to report to it directly on the ambitious 900-km project, which goes up to the border with China.
The judgment clearing the way for a double lane paved shoulder (DL-PS) configuration for the project assumes significance in the wake of the recent standoff between Indian and Chinese militaries in several areas along the LAC in Ladakh.
If the Army cannot move its missile launchers and heavy machinery up to the northern India-China border, how will it defend it and fight a war if it breaks out, the Centre had argued before the apex court.
The strategic Chardham project worth Rs 12,000 crore aims to provide all-weather connectivity to four holy towns – Yamunotri, Gangotri, Kedarnath and Badrinath.
In its 83-page judgment, the bench, also comprising Justices Surya Kant and Vikram Nath, clarified that the oversight committee, formed to allay environmental concerns relating to the project, will not undertake a fresh environment assessment.
The committee will receive all support from the ministries of Defence and Road Transport, the Uttarakhand Government and all district magistrates. The oversight committee will also have representatives from the National Environmental Research Institute and the Forest Research Institute, Dehradun. The final notification shall be issued by the Centre within two weeks.
The top court – which delivered its judgement on a plea from the ministry of Defence (MoD) to modify its earlier order and a plea by the NGO Citizens for Green Doon against the widening of the road said there are no malafides in the application filed by the Defence ministry.
The allegation that its application seeks to relitigate matters or to subvert previous orders of this court are unfounded, it said.
The NGO had said double laning of the road cannot go on as it is not in the welfare of the people or the Army and will risk the lives of people due to landslides.
By allowing the application filed by the MoD, the court said it has 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.
As a specialised body of the government, the Defence ministry is entitled to decide operational requirements of the armed forces, including infrastructural support needed for facilitating movement of troops, the three-judge bench said.
“The bonafides of MoD are also evident from the fact that the issue of security concerns was raised during the discussion of HPC and finds mention in HPC report. This MoD has maintained the need for double lane roads for border security concerns,” the court said.
Citizens for Green Doon, it pointed out, had referred to a statement made by chief of 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 statements made to the media given the consistent stand of MoD. The security concerns as assessed by MoD may change overtime. The recent past has thrown serious challenges to national security,” the bench said.
The armed forces, it added, cannot be held down to a statement made during a media interview in 2019 as if it was a decree written in stone.
“This Court, in its exercise of judicial review, cannot second-guess the infrastructural needs of the Armed Forces,” the court said, adding that the NGO would have the court hold that the need of the Army will be subserved better by disaster resistant roads of a smaller dimension.
The appellant’s submission requires the court to override the modalities decided upon by the Army and the MoD to safeguard the security of the nation’s borders and to “interrogate the policy choice of the establishment which is entrusted by law with the defence of the nation”, the bench said.
“This is impermissible,” it ruled.
The considerations for development of national highways in plains and in hilly and mountainous regions are not identical, it said.
“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,” the bench said.
The top court said 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, it said.
“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 double lane carriageway width with paved shoulder standard as provided in the 2020 MoRTH (Ministry of Road Transport and Highways) circular,” the bench said.
The apex court said making the project environmentally compliant should not be seen as a ‘checkbox’ 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,” it said.
Trying to allay the concerns of landslides in Himalayan regions due to the construction of the wider highway project, the government had said all necessary steps have been taken to mitigate the disaster. It added that landslides have happened in various parts of the country and not specifically due to road construction.
The court was hearing the Centre’s plea seeking modification of the September 8, 2020 order, which had asked the Ministry of Road Transport and Highways to follow the 2018 circular stipulating a carriageway width of 5.5 metre on the ambitious highway project which goes up to the border with China.