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A Supreme Court bench of bench of Justices DY Chandrachud, Surya Kant and Vikram Nath asked the counsel appearing for parties to assist the court on balancing development and sustainability from the perspective of the Union’s application seeking expansion of roads in the Char Dham project highway.

The Central Government had filed an application for modification of order of the Supreme Court in the matter dated 8th September 2020. The government sough the widening of road  due to the ongoing problems at the northern border with China.

Colin Gonsalves, Senior Advocate, continued his submissions today. Speaking for the bench, Justice  DY Chandrachud informed Gonsalves that they would like to be assisted on the safeguard on what a constitutional courts will have to impose to balance the needs of the environment and needs of the defence. Accepting this, Gonsalves continued taking the court through the report of the High Powered Committee.

He argued that the report and the landslides demonstrate that things in the Himalayas have moved beyond mitigation and that all the measures undertaken to mitigate the environmental catastrophe have failed. Justice Chandrachud questioned him as to whether the logical consequence to Gonselves’ submission is that there should be a complete status quo on any construction in the region. Denying this, Gonsalves submitted that they were not against any construction.

Justice Chandrachud then questioned the AG and Gonsalves to assist them as to how a balance can be struck between development and sustainability. Gonsalves argued that the NGO has stood for upgradation the same way the 2018 circular did and they are not against upgradation.

Gonsalves submitted that they were perturbed by the narrative of defence versus environment and army versus environment.

At this juncture, Justice Chandrachud clarified that it was not the case and that in remote areas of the country, the lives of civilians and army men are interdependent. 

He further told the bench that it is the army that helps the civilian with their essential supplies during harsh winters.

Gonsalves however argued that  what has been proposed today is not in favour of the people living in the mountains and it will damage their lives irreversibly. He submitted that the court in its earlier order laid down specifically as to what was to be done to prevent any potential catastrophe. He argued that the Hrishikesh-Mana road was double laned because of Char Dham Pariyojana despite the warnings of the minority of HPC. However the government went ahead and now there are have been landslides.

It was argued that the people of this country have immense respect for the army, however there is a question as to how effectively can the country be defended through these unsafe roads. Gonsalves then told the court that the TV channels in Uttarakhand is full of news on landslides and collapses and people in Delhi are far removed from the reality of the mountains. He argued that afforestation in this country is a myth and that the government should look into what is weakening the mountains to cause the landslide.

Gonsalves argued that the carrying capacity on the roads that lead up to shrines located in Char Dham is 2500 persons per day and laying wider roads would lead to an increase in the number of people going to these shrines which will disturb the ecological balance of the area. He questioned the government’s intention in filing the application through the defence ministry.

It was argued that the HPC report, which came up with scientific explanations in the first few chapters changes completely towards completion because of the government diktat. He argued that the people of Uttarakhand and the experts who have studied the measures of the government know that the measures to protect the Himalayas is an eye wash and that the the physical capacity of the mountains to take any further construction passed long ago.

Gonsalves argued that what has gotten mixed up with all this logic and science is the tourist’s concern and army’s concern. Government has shown nothing to prove that double lane pave system has been successful in Himalayas.  He argued that the government built walls and wires to mitigate the damage these are gone because of the landslide.  He said “we just want the mountains to be left alone. You have to live with it, the people have come to terms with it. We cant have anymore damage to be caused to the mountains.”

While concluding the arguments, Gonsalve said “The troops will be safe only when the mountain does not topple on them. No safety can be guaranteed unless the the mountains are not cut across.”

Attorney General of India, K.K.Venugopal will argue in rejoinder to Colin Gonsalves’ arguments tomorrow.

History of the litigation:

The government of India in 2016 announced a project called Char Dham Pariyojna which will upgrade and develop the road which connects all four 'Dhams' i.e Gangotri, Yamunotri, Kedarnath and Badrinath and seeks to make the Hindu pilgrimage accessible vide a 900-km road.

An NGO called Citizens for Green Dhoon approached the National Green Tribunal challenging that the project will adversely impact the environment as the project entails the widening of existing Char Dham project roads of 900 kms that passes through 4 districts. It was contended that the entire Char Dham project falls in the catchment are and cutting of thousands of trees, excavation of hills and dumping of muck will impact the Himalayas adversely.

The NGT while dismissing the application held that a statutory Environment Impact Assessment (EIA) was not required and that a rapid EIA and a preparation of Environment Management Plan was necessary. The NGT also formulated a committee with Justice U Dayani as its head to monitor the environmental safeguard and execution of the project.

Aggrieved by this order, the NGO filed an appeal against the order in the Supreme Court. A Supreme Court bench of Justices Rohinton Nariman (now retired) and Surya Kant vide an order dated 8th August 2019 appointed a High Powered Committee (HPC) headed by Prof.Ravi Chopra to replace the committee appointed by NGT. The following are the functions of the committee as per order of the court

1. To consider the cumulative and independent impact of the Chardham project on the entire Himalayan valleys. The HPC was give directions to conduct EIA/rapid EIA by the Project Proponent/MoRTH.
2. The HPC, with the help of the technical body and engineers of implementation agency (MoRTH) was to consider whether revision of the full Chardham project (about 900 Kms) should at all take place with a view to minimize the adverse impact of the project on environment and social life.
3. The HPC was directed 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 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 3 of muck which has been generated so that it does not adversely affect the flora and fauna of the catchment area of the river.
4. As regards the stretches where work has not started, the HPC was directed to review the proposed project and recommend measures which will minimise 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.
5. The HPC was directed 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 laid on protecting wildlife corridors, and rare and endangered flora and fauna.
6. The HPC was directed to 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.
7. VII. In Bhagirathi Eco Sensitive Zone (Gangotri to Uttarkashi), the HPC was directed to make special provisions in its report keeping in mind the guidelines given under 4 the Notification of the Bhagirathi Eco Sensitive Zone so as to avoid violations and any environmental damage.
8. VIII.The HPC was also required to 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 non-survival of any sapling, further plantation should be done. 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.
9. The HPC was directed to 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.
10. The HPC was directed consider giving specific directions to the concerned agencies to put in the public domain the landslide-prone 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

Despite the HPC being formed to be the eyes and ears of the Supreme Court on the project. However, it had not been unanimous in its views and had filed a final report with the views of both the minority and majority.

The Supreme Court on 8th September 2020, however directed the government to follow the 2018 circular by Ministry of Road Transport and Highway (MoRTH) which provided for a specifications to construct roads in mountainous terrain. The government has filed the present application to modify this order of the Supreme Court and to permit them to construct roads as per the subsequent circular which was passed in December 2020.

Case title : Citizens for Green Doon Vs Union of India