The Supreme Court on Monday, 16 January, directed the petitioners seeking intervention in the Joshimath sinking crisis, to approach the Uttarakhand High Court.
The top court reasoned that since the High Court is currently dealing with petitions related to land subsidence in Joshimath, “they should allow the High Court to deal with this.”
But, this is not the first time that a case like this has come up before the Uttarakhand High Court.
While this time around the High Court has asked for an independent investigation committee to be formed; in 2021, the petitions were dismissed with costs.
“When the residents filed a PIL in 2021 in the High Court, noticing the warning signs of the impending crisis and asking for the construction work of hydropower projects to be stopped, the judiciary remained asleep,” Senior Supreme Court Advocate Colin Gonsalves told The Quint.
What Happened At The Uttarakhand High Court in 2021?
In the aftermath of the Rishiganga floods in February 2021, activists and residents from Joshimath appealed (Sangram Singh & Others Vs Union of India) to the Uttarakhand High Court seeking the cancellation of the state-run NTPC Tapovan-Vishnugad and Rishi Ganga Hydro Projects.
These projects, according to them, had not only caused the floods but had the potential to wreak havoc in the future too.
The petition sought a direction for "cancellation of the Tapovan-Vishnugad and Rishi Ganga Hydro Projects in view of future safety and stability of the terrain."
The court, however, did not only dismiss the petition but it also imposed a Rs 10,000 fine on each of the petitioners. Further, the bench of Justices Raghvendra Singh Chauhan and Alok Verma said:
“The petition seems to be a highly motivated petition which has been filed at the behest of an unknown person or entity. The unknown person or entity is merely using the petitioners as a front."
Were the Petitioners Right in Being Concerned About the Hydropower Projects? And Is It Linked To The Current Crisis?
Yes, and we explain how.
The Crisis: Joshimath is sinking. Residents woke up to widening cracks in their buildings, roads and agricultural fields on 3 January. Local authorities subsequently began evacuating residents.
Experts have said this is not an isolated incident and has long been coming.
"Water coming from underground is dangerous as it's creating a vacuum, causing sinking,” Uttarakhand Disaster Management Board Secretary Ranjit Sinha told news agency ANI on 6 January.
And where is this underground water coming from?
According to environmentalist Vimlendu Jha:
> The Tapovan Vishnugad hydroelectric power project punctured many aquifers in the region
(An aquifer is an underground layer of water-bearing, permeable rock, rock fractures, or unconsolidated materials.)
> The underground blasting caused by the project, disturbed the water bearing strata and caused the ground to become hollow
Reports envisaging the destructive potential of unregulated construction, in fact, date back to 1976.
More recently, after a 2013 flash flood in the region, which claimed 5,000 lives, the Supreme Court initiated suo motu action and appointed a committee to investigate the effect of the “mushrooming of hydropower projects.”
The committee, chaired by environmentalist Ravi Chopra, submitted a report in 2014 saying:
“The present approach to hydropower development in the state is driven by a perceived national demand, the developers’ goal of maximising profits, the state ignoring environmental imperatives to generate maximum revenues, lucrative contracts for a number of local players and by other vested interests.”
“It is short-sighted, destructive of the environment and neglectful of the security and livelihoods of mountain communities. Projects have been sanctioned to companies that have no experience in the hydropower sector, let alone working in the fragile Himalayan region,” the report added.
The hydroelectric projects (HEPs), however, are not the only cause for destruction in the region.
“Then came the hugely destructive Chardham road-widening project requiring 900 kms of the already ravaged Himalayas to be subjected to blasting, cutting, and soil dumping," Environmentalist Mallika Bhanot, who is a member of a citizen forum working on conserving the Ganga, explained to The Quint.
"So while the HEPs were undermining the earth below the surface, the Chardham project weakened the Himalayan slopes,” Bhanot added.
The Ravi Chopra report too, pointed to river sand-bed mining, poor governance, and ill-planned tourism, among other causes for what’s happening today.
'Chilling Effect': Why The High Court Order is Worrying
The High Court order in 2021 was concerning on multiple counts.
Delhi-based lawyer Harshit Anand told The Quint that the court, instead of going into the merits of the petition, questioned the merits of the petitioner.
"There is no piece of evidence produced by these petitioners to establish the fact that they are social activists," the court had said, adding: "Therefore, the petitioners are merely puppets at the hand of an unknown puppeteer."
"So the seriousness of the issue was never considered before the high court," Anand pointed out.
And why is this wrong?
"If on a serious environmental issue like this, the High Court not only dismisses this but also dismisses it with exemplary costs it will have a chilling effect,” he said.
“People will fear approaching the courts, when they have an adverse order like this in front of them,” Anand added.
By questioning the intent of the petitioners in this manner, the High Court appears to have also acted in contradiction to the principles of “sobriety, moderation and reserve” — spelled out by the Supreme Court in 1963 in The State Of Uttar Pradesh vs Mohammad Naim. These principles have long governed judicial pronouncements across the country. In this 1963 judgment, the apex court had also said:
“In expressing their opinions judges and magistrates must be guided by considerations of justice, fair-play and restraint.”
What Should the HC's Approach Be Now?
Now that the case is once again before the High Court, they should revisit their previous stance and take the ongoing environmental crises into consideration, according to Advocate Anand.
Besides, can the courts really afford to miss out on another opportunity to address the pressing environmental concerns in the region?
Between 2014 and 2020 alone, 600 people lost their lives to environmental disasters and nearly 500 went missing, according to the Uttarakhand Disaster Mitigation and Management Centre. Further, around 2050 hectares of agricultural land went for a toss in the same period.
Noting that "we continue hurtling towards disaster," Senior Advocate Colin Gonsalves added:
"In the recent past the judiciary has indicated a retreat from environmental concerns. But can one even imagine the immeasurable loss caused to the nation by the destruction of the Himalayas and the Ganga?”
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)