Citizens for Green Doon & Ors.Versus Union of India & Ors. Case: An Environmental Point of Order

Author: M.S.RaghuTeja.T, LLB student at Andhra University College of Law, Visakhapatnam

Introduction:

The Supreme Court has allowed The Chardham road construction with some modifications in its alignment with the duty of care towards the Environmental Safeguard Standards by maintaining checks and balances in the due process of the Environmental rule of Law.

Background :

In February 2018, a Dehradun-based environmental organisation(NGO) called Citizens for Green Doon filed a complaint with the National Green Tribunal (NGT) alleging that the Civil works comprising the improvement of five existing national highways from Tanakpur to Pithoragarh section of Kailas-Mansarovar yatra had not been approved by the Environment Impact Assessment (EIA) requirements of the Environment (Protection) Act, 1986. A separate application filed in the court sought direction for precautionary measures to ensure the stability of slopes and a compressive muck disposal plan. Petitioners not satisfied with the decision of the NGT in this case, filed an appeal in the Supreme Court which constituted a High Powered Committee (HPC) in pursuance to the direction of the Supreme Court’s final order of August 08, 2019, in this case. This appeal before the Supreme Court concerns the legality of diverting forest land for uses other than forests and the felling of trees to build an elevated corridor along NH 72A, which runs between Dehradun and Delhi.

According to a Geological Survey of India report in the wake of the Kedarnath disaster of 2013, road-building in the area has disturbed the natural slope of the mountains over the years, leading to their destabilisation and landslides.
As per reports, the widening of roads of approximately 900 km would cause green cover loss of 33,000-43,000 trees which is majorly visible leading to the diversion of about 508.66 hectares of forest land.

Alleged Violations of Law reported before the NGT:

An Original Application filed before the Principal Bench of the NGT on 27 February 2018 in the public interest has reported the following violations:

EIA Notification,2006
Wildlife Protection Act 1972
Forest (Conservation) Act
Environment (Protection) Act 1986
Articles 14, 21 and 48A of the Constitution of India,1950

Legal Principles Behind appeal:

The precautionary principle, as applied by the apex Court in the Vellore Citizens’ Welfare Forum v. Union of India, imposes an obligation on every developer, industry and governmental agency to anticipate, prevent and attack the causes of environmental degradation.
The doctrine of ‘public trust’ puts obligations on the state and holds it accountable for conservation. The reference to the ‘public trust’ doctrine comes from the M.C. Mehta v. Kamal Nath case in the Supreme Court. The doctrine extends to natural resources such as rivers, forests, sea shores, air etc., for the purpose of protecting the fragile ecosystem.
The environmental rule of law, which was first applied by this Court in Hanuman Laxman Aroskar v. Union of India extends to maintaining a fine balance of dealing with a righteous approach towards the Environment.

Abstract:

Facts:
The Char Dham Pariyojana(2016) is an ambitious highway project of the Ministry of Road, Transport and Highways(MoRTH), Government of India connecting four Dhams located in the middle and higher Himalayan range of Uttarakhand namely Yamunotri, Gangotri, Kedarnath and Badrinath. It also includes the widening of a stretch of the Kailash Mansarovar Yatra route from Tanakpur to Pithoragarh. It was communicated that completion of this project will ensure around the year, hassle-free travel to these shrines. The project aims to widen the current roadways into a double-lane with a paved shoulder layout (DL-PS), involving 3516 culverts, 101 minor bridges, 15 flyovers, realignments, and bypasses. Based on allegations that this project undermined several social, economic, cultural and ecological consequences, a writ petition was filed under Article 32 by the appellant, ‘Citizens for Green Doon’

The following are some of the timeline of facts from September 2018:

September 2018(NGT’s order):

The NGT observed that the building road stretches were a stand-alone project, divided into 53 independent parts, each having a length of less than 100 kilometres with distinct start and end points. Thus, the requirement of environmental clearance under the EIA Notification is bypassed.
Taking consideration of the Ecological sensitivity of the surrounding area, NGT directed the constitution of an ‘Oversight Committee’ to monitor the environmental safeguards for the execution of the Project.

August 2019:

The Supreme Court overturned the NGT’s ruling and established a High Powered Committee (HPC) to evaluate the independent and cumulative environmental effects of constructing highways across the belt. The Court directed MoRTH to implement its recommendations after its submission.

July,2020:

The report of the High Powered Committee(HPC) was submitted under the order of the apex court.

September 2020:

Three-judge Bench of the Court took cognizance of the Report and noted that the conclusions in the HPC Report were unanimous, except for the issue relating to the width of the road.

Issues:

The Project is fraught with issues concerning the Road Width and alleged Environmental violations caused by the construction. The Ministry of Road Transport and Highways had proposed a width of 5.5 metres for roads in hilly and mountainous terrain in a 2018 circular. According to the petition, the Char Dham project’s goal was to widen the roadways to make it simpler for religious pilgrims to travel there and to make it easier for buses to pass one another. The army wanted a road that was 10 metres wide, but the appellant Citizens for Green Doon maintained that it should only be 5.5 metres wide for the pilgrims. The road widening was opposed by the appellant as it was not mentioned about the army or the India-China border in the 2018 circular(MoRTH). In 2018, the road’s width was set at 5.5 metres under this project. Then, there was a request to widen the roads to ten metres, which would have an ecosystem and raise the possibility of landslides. Though the petitioner has not raised the request of a complete ban on the road construction in court they actually demanded that the width of these roads be reduced and they pleaded for suitability of the width just enough for the requirements of the Char Dham devotees. Finally, The MoRTH 2020 circular settles with the updated border road width of 7 metres.

Alleged Environmental Violations raised by the petitioner :

The carrying capacity of the Himalayan Ecosystem will be subjected to enormous strain owing to the indiscriminate Destruction of forests.
The possibility of massive landslides or avalanches will hinder not only troop or armament movement but also the massive effort that would be required to clear or reconstruct the damaged road which could happen at a most critical time.
Many species are in danger of going extinct due to forest degradation and loss, which also lessens the forests’ capacity to supply vital services like clean water and air, fertile soils for agriculture, and climate regulation.
Compensatory afforestation plans without compensation for tree-cutting can lead to climate change in the long run.

Contentions:

Petitioner’s Arguments:

The permission for the felling of trees has to be placed in the public domain, which according to the appellant is not done. so the aggrieved person has no right to challenge it.
The HPC committee lacked independence from the Union government to follow a scientific approach while inspecting and reporting on the deleterious effects of the project.
There was no plan of action for slope stabilisation, muck disposal and restoration of damaged slopes.
Massive hill-cutting and deforestation activities undertaken by the MoRTH, have caused irreversible damage to the Himalayan environment.
The Height Of The Underpass/Flyover, Compensatory Afforestation was not revealed
Owing to the fragility of the ecosystem, the Broad and spacious highways being constructed may cause excessive damage to the environment and are disaster-prone(l.e in seismic zones 4 and 5)

Court Observations on HPC:

Based on unanimous recommendations made by the HPC for implementing corrective measures, the apex court has made the following observations that:

The national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh be developed by the dual lane carriageway width with paved shoulder standard as provided in the 2020 MoRTH Circular.
From the standpoint of national security, the national highways connecting Tanakpur to Pithoragarh, Rishikesh to Gangotri, and Mana to Mana are essential feeder routes to border regions. The need for the requirement of double-laned highways has been emphasised as it is necessary for the movement of trucks, equipment and personnel of the Armed Forces.
For each project, the nature of the issue must be evaluated by gathering factual information from pertinent studies. Therefore, each project should have its own set of mitigation strategies, tailored to address its particular challenges.
The investigations carried out by the HPCs should serve as the baseline to suggest any additional measures if required.
Adopted measures must be carefully considered and truly address the particular issues related to the Project. Even if this would increase the cost of the project, the Court ruled that this cannot be a good reason to work outside of the bounds of sustainable development and the environmental rule of law.
Need for MoRTH and MoD to be transparent about the policies they implement. While the HPC was empowered to assess the environmental and social impact of the Project, it was not competent to address, assess or review the security needs of the nation.
HPC was empowered to assess the environmental and social impact of the Project but has no role in addressing, assessing or reviewing the security needs of the nation.
The HPC was confined to making suggestions on how to lessen the Project’s negative environmental effects and offer implementation plans for mitigation.

Oversight Committee:

An ‘Oversight Committee’, was constituted to ensure implementation of the recommendations of HPC
The objective of this Oversight Committee is to assess the implementation of the recommendations already provided by the HPC without any need for fresh environmental clearance.
The Oversight Committee was to receive all logistical and administrative assistance from the Union of India(UOI), the Government of Uttarakhand, the Ministry of Road, Transport and Highways(MoRTH), the Ministry of Defence(MoD) and the Ministry of Environment, Forest and Climate Change(MoEF&CC).
MoRTH and MoD shall place before the Committee Monthly reports and the steps taken by them to adhere to the HPC’s recommendations, along with a projected timeline for complying with the remaining recommendations.
Every four months, the Oversight Committee should send a progress report to the Supreme Court.
Finally, the oversight Committee should give suggestions as to ensure proper mitigation measures are employed without any dilution.

Respondent’s Submissions:

The motto behind these arguments of Respondent i.e. Union of India(UOI) is to allow for the cutting of trees for the construction of an elevated corridor for a part of NH 72A between Dehradun and Delhi.

The Armed Forces can deal with landslides on any of these highways and can make room for Army vehicles, equipment, tanks, and artillery by using enough manpower, machinery, and equipment;
The necessity of all-weather roads to connect border areas surrounding Chardham locations is recognised.
Several mitigation measures in association with The Geological Survey of India, Tehri Hydroelectric Development Corporation, and The Defence Geo-Informatics Research Establishment is being taken up to reduce environmental and ecological damage.

Ruling:

After carefully examination of pro-cons viability of the Road Construction project, from both sides, the Supreme Court held that:

The Court Cannot question the infrastructure requirement of armed forces while exercising its judicial review option.
It is not permissible to interrogate the policy choice of the establishment which is entrusted by law with the defence of the nation
The Bench also made it clear that the MoRTH and MoD can proceed with the project subject to the condition that it addresses all environmental concerns raised by the High Powered Committee (HPC) appointed by the court.

Conclusion:

Developmental activities happening at the cost of the Environment is a bane in disguise destroying ecological balance which will have serious repercussions. This consequent environmental deterioration to supplement uncontrolled Growth has turned out to be a menace afflicting a huge undercover population. With the rapid rise in population, we need to accommodate them with proper infrastructure facilities like roads, railways, bridges, tunnels, water supply, sewers, electrical grids, and telecommunications (including Internet connectivity and broadband access). Nurturing the idea of building resources has to ensure their reliability and retainability for generations to come. While taking enough care towards the protection of the Environment, the strategic and security interests of the Country cannot be put on the back burner. Thus, Strict adherence to the principles of sustainable development principles can maintain a balance between environmental preservation and developmental endeavours.

FAQs
1. Is there any provision in law restricting the de-reservation of forest land for non-forest purposes?
Yes, Section 2 of Forest (Conservation Act),1980
2. What is an Environmental Impact Assessment(EIA)?
It is a study to predict the effect of proposed activity on the Environment.
4. Are Growth and Development the same?
No, Growth is a quantitative change while Development is a qualitative measure.
5. What is sustainable development?
It is a developmental practice that meets the needs of the present without compromising that of the future. It is attainable by maintaining a balance between Environmental protection and Developmental activities.