In SC’s Chardham order: Defense’s sovereign, green compliance monitoring comes full circle

Tuesday’s core Supreme Court ruling that amended its September 2020 ruling on the optimal width for hilly highways is its refusal to question the defense policy of an elected government. In doing so, the Supreme Court sought what is called a “delicate balance” between environmental considerations and safety needs.

Rejection of the argument based on the minority report from its own High Powered Committee (HPC) that a disaster-resistant, intermediate road width was much more critical than a wider road “prone to frequent blockages, landslides and recurring slope failures” for the country’s defense needs, apex court ruled , that its judicial control could not “provisionally guess the infrastructural needs of the armed forces”.

“The appellants’ submissions require the court to hear the political choice of the establishment, which by law is entrusted to the defense of the nation. It is not allowed,” the verdict reads.

On the emphatic basis, the Supreme Court amended its September 2020 ruling, noting that the Chardham project “is fraught with environmental issues” and made the approval of wider roads conditional on implementing all the recommendations of the HPC, as it designated in August 2019.

It was HPC’s minority recommendation based on a March 2018 guideline issued by the Ministry of Road Transport and Motorways (MoRTH) for mountain motorways that gave the right to limit the road width under the Chardham project to 5.5 m carriageway (with 1.5 m raised footpath) in September 2020. In November, the Ministry joined the case and sought relief to expand the strategic food routes to 7 m roadway (with 2 × 1.5 m paved shoulders and 2×1 m ground shoulders).

With regard to strategic security needs, the ruling on Tuesday stressed that “balancing the interests of the defense in relation to environmental considerations was outside the scope of the HPC”, which “was not competent to address, assess or audit the nation’s security needs”.

Within the HPC’s mandate, however, the judgment highlighted the panel’s unanimous recommendations in significant detail, stating that the remedial measures adopted so far have “only begun to scratch the surface”.

In this spirit, the bench noted: “Making the project environmentally friendly should not be seen as a ‘checkpoint’ to be achieved on the path to development, but rather as the path to sustainable development itself. The measures adopted must therefore be well thought out and should actually meet the specific Concerns … Understandably, this can make the project more expensive, but it can not be a valid justification for not operating within the framework of the rule of law and sustainable development. “

More specifically, the judgment noted that “in many cases, MoRTH has proceeded with the project based on its claims that the project is compatible with environmental guidelines or that its developmental benefits are proportionate to the damage” and that “the state has sought to justify its effectiveness. of its current measures solely by noting their benefits directly to the Armed Forces “, which” is not the only thing at stake in a project of this scale “.

But since “the considerations that govern the construction of highways, which are strategic roads from a defense perspective and can be used by the nation’s armed forces, can not be the same as for other” hill roads, the verdict sought to “come to a fine balance. between environmental considerations so that they do not hamper infrastructural development, especially in areas of strategic importance that are crucial to the security of the nation ”.

To achieve this balance, the apex court made the approval of wider roads conditional on the implementation of all recommendations of the HPC on critical issues such as manure dumping, hill cutting, backfilling, stabilization, drainage, disaster management, etc.

However, the judgment also constituted a supervisory committee, under the retired judge AK Sikri, to assess the implementation of these recommendations along the 674 km long food routes. HPC would nevertheless “continue its work of overseeing the implementation of its recommendations” on the non-strategic paths under the Chardham project.

For the sake of good order, the HPC was set up in August 2019 to replace a supervisory committee when the Supreme Court amended an order of the National Green Tribunal that headed the composition of the supervisory panel under a former judge at Uttarakhand High Court. In that sense, monitoring environmental compliance has come full circle in this case.


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