Char Dham Project: How Govt Bypassed Environmental Clearance

The Supreme Court judgment in the case of Citizens for Green Doon versus Union of India allowing for the construction of the Char Dham road project with an expanded configuration did not come as a surprise for those who have been following judicial decisions related to large projects in the country. The judgment follows the same approach adopted by courts and tribunals – the Supreme Court, High Courts and the National Green Tribunal – in cases concerning challenges to environmental and forest clearances given to large projects.

The Application Filed by MoD

In the present case, the project involved is the ‘Char Dham Mahamarg Vikas Pariyojna’. As stated in the judgment, the project aims to widen the roads of approximately 900-km of national highways, in order to ensure safer, smoother and faster traffic movement. These highways connect the holy shrines that have been labelled as the “Chote Char Dham” in the State of Uttarakhand – Yamunotri, Gangotri, Kedarnath, Badrinath (NH-58) – and the Tanakpur-Pithoragarh stretch of the Kailash Mansarovar Yatra route. The project seeks to widen the existing highways into a double-lane highway with a paved shoulder configuration with 16 bypasses, realignments and tunnels, 15 flyovers, 101 small bridges and 3,516 culverts.

This judgment was not about the legality of the project itself, since the court had earlier upheld the approval given to the project. The judgment dealt with the application filed by the Ministry of Defence (MoD) seeking a modification of the earlier order of 8 September 2020, which limited the width of the highway. According to the Union Government, there has been a material change in circumstances, necessitating an improvement of roads to enable the movement of troops and equipment to Army stations on the Indo-China border. Thus, the application has urged that a double-lane road having a carriageway width of 7 metres (or 7.5 metres) is necessary to meet the Army’s requirement since the 2020 judgment limited it to a maximum of 7 metres, as per the 2018 Ministry of Road Transport and Highways.

Though the judgment is quite detailed, the conclusion is concise and clear:

“This Court, in its exercise of judicial review, cannot second guess the infrastructural needs of the Armed Forces ... The submission of the appellants requires the Court to interrogate the policy choice of the establishment which is entrusted by law with the defence of the nation. This is impermissible.”

While it may be true that the court, in the exercise of its power of judicial review, can only focus on the ‘decision-making process’ and not the ‘decision’ itself, the legality of the decision is still within the domain of the court. An executive decision still needs to be tested on grounds of arbitrariness, fair play and justice. There are two issues that deserve consideration while analysing the decision.

Splitting Up of Projects to Avoid EIA

India’s environmental law, the Environment Impact Assessment Notification, 2006, requires that the expansion of all highway projects of a length of 100 km and above and construction of projects over 20,000 sq metres be undertaken after an Environmental Impact Assessment (EIA). This involves the study of the flora and fauna and the likely impact of the project, followed by public consultation, and finally, a decision by the government as to whether the project should be allowed or not.

Though the project involves the expansion of 900 km of road, it did not undergo an EIA process since the expansion project was split into segments of less than 100 km to avoid undertaking an EIA.

Though an EIA was conducted based on the direction of the Supreme Court-constituted High Power Committee, it cannot be termed as an EIA for the simple reason that an assessment conducted after the decision has been taken to approve a project is not an EIA. An EIA is part of the precautionary principle, which has to be done prior to the project.

The Char Dham decision, in this way, undermines the Supreme Court decision in Deepak Kumar versus Union of India, which was a landmark and precedent-setting judgment holding that mining entities cannot split up projects to escape from the requirement of conducting an EIA.

The Judiciary's 'Hands-Off' Approach

In Char Dham, the Supreme Court clearly held that it cannot ‘second guess’ the infrastructural needs of the army. There can be two opinions on this issue, since courts do not have the capacity to evaluate the security needs.

However, this should not act as a carte blanche to escape from both the requirement of environmental law compliance and a judicial review.

It is also pertinent to point out that the ‘hands-off’ approach of the higher judiciary is not limited to just issues of security concerns. Courts have repeatedly held that they will not interfere in matters that concern ‘policy decisions’ or even ‘economic matters’. This leaves a very small window open for courts’ powers of judicial review.

There is also a critical need to consider environment and ecology as a ‘security’ issue – our forests, mountains and rivers ensure ecological security and our line of defence against climate change.

Nothing 'Sustainable' About Earlier Orders

The Bench dealt at length with the principle of sustainable development. The judgment specifically refers to many of the decisions of the court with respect to sustainable development. It notes:

• “In Essar Oil Ltd. v. Halar Utkarsh Samiti, a two-judge Bench of this Court referred to the Stockholm Declaration while elucidating on the principle of sustainable development. It noted that while socio-economic needs could be fulfilled through development, environmental concerns will always remain. However, these concerns should not be seen as a deadlock between development and the environment but as an opportunity to harmonize both, through the principle of sustainable development”;

• “In N.D. Jayal & Anr v. Union of India & Ors, a three-judge Bench held that a balance between developmental activities and environmental protection could only be maintained through the principle of sustainable development”;

• “In Rajeev Suri v. Delhi, a three-judge Bench of this Court had to decide on the permissibility of the Central Vista Project. In considering the use of the principle of sustainable development, Justice AM Khanwilkar observed that the principle of sustainable development necessarily incorporates within it the principle of development – development which is sustainable and not environmentally degrading.”

A Bad Year For Environmental Law

While the judgments have a common thread – the principle of sustainable development – they miss the impact the principle had on the outcome of the litigation. In the Essar Oil case, the Supreme Court allowed the laying of an oil pipeline in a marine wildlife sanctuary on the grounds that any damage due to leakage is not irreversible; in the N.D Jayal case, the Supreme Court allowed the construction of the Tehri Dam in the Himalayas, and in Rajeev Suri, the Supreme Court allowed the government’s decision to construct the Central Vista.

In all the three judgments, where the court extensively dealt with the principle of sustainable development, they, in fact, refused to interfere with the government’s decisions involving large projects. There is nothing in the judgments that could show how the court could regard these projects as ‘sustainable’.

A day before the Char Dham judgment was delivered, the NGT dismissed the legal challenge to the Ganeshpur-Dehradun Highway, which involved the felling of 11,000 trees on the ground that this highway is part of the 210 km-long Delhi-Dehradun Economic Corridor and that it will help in moving troops to the India-China border. Needless to say, the NGT held that no EIA was required since the 210-km highway is split into smaller segments. A week earlier, the National Green Tribunal dismissed the legal challenge to the International Airport at Vishakapatnam.

2021 clearly has not been a good year so far as environmental rule of law is concerned.

(Ritwick Dutta is an environmental lawyer and founder of LIFE, an Indian non-profit organisation. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)