Supreme Court permits double lane highways for strategic border roads, mandates environmental compliance: Citizens for Green Doon vs. Union of India (2021) INSC 719 (14 December 2021)

LEGAL ISSUE: Balancing national security needs with environmental protection in infrastructure projects.

CASE TYPE: Environmental Law, Infrastructure Development

Case Name: Citizens for Green Doon & Ors. vs. Union of India & Ors.

Judgment Date: 14 December 2021

Date of the Judgment: 14 December 2021

Citation: (2021) INSC 719

Judges: Dr Dhananjaya Y Chandrachud, J, Surya Kant, J, Vikram Nath, J

Can national security concerns justify the widening of highways in ecologically sensitive areas? The Supreme Court of India addressed this crucial question in a case concerning the Chardham highway project. This judgment balances the need for strategic infrastructure with the imperative to protect the fragile Himalayan ecosystem. The bench comprised of Justice Dr. Dhananjaya Y Chandrachud, Justice Surya Kant, and Justice Vikram Nath.

Case Background

The Chardham Mahamarg Vikas Pariyojna, initiated by the Ministry of Road Transport and Highways (MoRTH) on 23 December 2016, aimed to widen approximately 900 km of national highways connecting the holy shrines of Yamunotri, Gangotri, Kedarnath, and Badrinath in Uttarakhand. These shrines, located in ecologically sensitive paraglacial zones, have seen increased accessibility since the 1960s due to improved road connectivity. The project was conceptualized to enhance travel safety, speed, and smoothness by widening existing highways into a double lane with paved shoulder configuration, including bypasses, realignments, tunnels, flyovers, and bridges. The MoRTH divided the project into 53 individual projects, each less than 100 km long.

Timeline

Course of Proceedings

An Original Application was filed before the Principal Bench of the NGT on 27 February 2018, challenging the construction under the Project, citing negative impacts on the Himalayan ecosystem, deforestation, and violations of environmental laws. The NGT, on 26 September 2018, noted that the project was divided into smaller stretches to avoid the requirement of an Environmental Impact Assessment (EIA). It directed the constitution of an ‘Oversight Committee’ to monitor environmental safeguards. An appeal was filed before the Supreme Court, which modified the NGT’s order on 8 August 2019, constituting an HPC chaired by Professor Ravi Chopra. The HPC was tasked to assess the cumulative impact of the project. Following the submission of the HPC report, the Court on 8 September 2020 accepted the minority view of the HPC, directing the application of the 2018 MoRTH Circular for intermediate width standards. Subsequently, the HPC Chairperson raised concerns regarding non-compliance, and the MoD filed an application seeking modification for double lane configuration on strategic roads.

Legal Framework

The judgment refers to several legal provisions and guidelines, including:

• National Highways Act 1956: Section 2(2) empowers the Union Government to declare any road as a national highway and issue directions for its development and maintenance.
• Environment Impact Assessment Notification 2006: Mandates an EIA for certain projects to assess their environmental impact.
• Forest (Conservation) Act 1980: Regulates the diversion of forest land for non-forest purposes.
• Wildlife Protection Act 1972: Provides for the protection of wild animals, birds, and plants.
• Environment (Protection) Act 1986: Provides for the protection and improvement of the environment.
• Constitution of India: Articles 14, 21, and 48A, which pertain to equality before the law, protection of life and personal liberty, and the state’s duty to protect the environment.
• 2012 MoRTH Circular: Stipulates a minimum of two lanes with paved shoulders for all new highway projects.
• 2018 MoRTH Circular: Specifies intermediate lane configurations for hilly and mountainous terrains with traffic volumes between 3,000 to 8,000 Passenger Car Units (PCUs) per day.
• 2020 MoRTH Circular: Modifies the 2018 circular to mandate double lane with paved shoulder configuration for roads acting as feeder roads to the Indo-China border.
• 2015 IRC Guidelines: Manual of Specifications and Standards for Two Laning of Highways with Paved Shoulder.
• 2019 IRC Guidelines: Guidelines for the Alignment Survey and Geometric Design of Hill Roads, recommending a two-lane uniform design for strategic border roads.

Arguments

The arguments presented before the Supreme Court were diverse, reflecting the complexities of balancing development with environmental protection.

• Appellants (Citizens for Green Doon & Ors.):
  • The HPC was not allowed to function independently and was given inadequate assistance by the UOI.
  • MoRTH violated the 2018 MoRTH Circular by constructing roads with double lane standards.
  • The minority view of the HPC, which recommended intermediate lane standards, should be upheld.
  • National security concerns could be met with disaster-resilient roads, rather than wide, environmentally damaging roads.
• Respondents (Union of India & Ors.):
  • The national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh are strategically vital for border security.
  • The 2018 MoRTH Circular does not address the specific security needs of the country.
  • Wider roads with double lane standards are necessary for the movement of troops and equipment.
  • The Armed Forces have sufficient resources to manage landslides and clear roads.
  • Mitigation measures are being undertaken to minimize environmental damage.

Issues Framed by the Supreme Court

The Supreme Court addressed the following key issues:

1. Whether the national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh should be developed with a double lane configuration, considering national security concerns.
2. Whether the 2018 MoRTH Circular should be applied retrospectively to the entire project.
3. What measures should be taken to address the environmental concerns raised by the HPC?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered various authorities, including:

Judgment

The Supreme Court allowed the MoD’s application, modifying its previous order to permit double-lane configuration for the strategic highways. However, this permission was conditional, requiring MoRTH and MoD to implement all the unanimous recommendations of the HPC. The court emphasized the need for a balanced approach, recognizing both national security concerns and environmental imperatives.

How each authority was viewed by the Court?

• The Court relied on Indian Council for Enviro-Legal Action v. Union of India [(1996) 5 SCC 281]* to emphasize the need for a balance between development and environmental protection.
• The Court cited Essar Oil Ltd. v. Halar Utkarsh Samiti [(2004) 2 SCC 392]* to highlight the need to harmonize economic and social needs with environmental concerns.
• The Court referred to N.D. Jayal & Anr v. Union of India & Ors [(2004) 9 SCC 362]* to underscore the importance of sustainable development for present and future generations.
• The Court used Rajeev Suri v. Delhi [2021 SCC OnLine SC 7]* to explain that sustainable development includes controlled development and mitigation measures.
• The Court invoked Municipal Corporation of Greater Mumbai v. Ankita Sinha [2021 SCC OnLine SC 897]* to highlight the need for environmental justice and equity.
• The Court used Hanuman Laxman Aroskar v. Union of India [(2019) 15 SCC 401]* to emphasize the need for transparency and accountability in environmental governance.
• The Court cited Bengaluru Development Authority v. Sudhakar Hegde [(2020) 15 SCC 63]* to emphasize the need for effective, accountable, and transparent institutions in environmental governance.
• The Court referred to H.P. Bus-Stand Management & Development Authority v. Central Empowered Committee [(2021) 4 SCC 309]* to underscore that environmental rule of law provides a framework for adjudicating environmental disputes predictably.
• The Court cited Project Implementation Unit v. P.V. Krishnamoorthy [(2021) 3 SCC 572]* to affirm the Union Government’s power to issue directions for the development and maintenance of national highways.

What weighed in the mind of the Court?

The Supreme Court’s decision was influenced by a combination of factors. The primary consideration was the national security imperative, which necessitated the construction of double-lane highways for the swift movement of troops and equipment. However, the Court also recognized the critical importance of environmental protection and sustainable development, emphasizing that infrastructure projects should not come at the cost of ecological degradation. The Court’s reasoning reflects a commitment to balancing these competing interests, with a focus on ensuring that development is both strategic and environmentally responsible.

The Court’s reasoning was based on a thorough analysis of the facts presented, including the strategic importance of the highways, the existing road conditions, and the potential environmental impact. The Court also considered the legal framework, including relevant statutes, circulars, and guidelines. The Court’s decision reflects a careful balancing of these factors, with a focus on ensuring that the infrastructure project is both strategically sound and environmentally responsible.

Logical Reasoning

The Court considered alternative interpretations, such as adhering to the 2018 MoRTH Circular for intermediate width standards. However, it rejected this interpretation for the strategic roads, citing the overriding need for national security. The Court also considered the environmental concerns raised by the HPC, but it did not allow these concerns to override the strategic imperative. Instead, it mandated that MoRTH and MoD implement all the recommendations of the HPC to mitigate the environmental impact of the project.

The Court’s decision was based on the following reasons:

• The strategic importance of the highways for national security.
• The need for efficient movement of troops and equipment.
• The unanimous recommendations of the HPC regarding environmental protection.
• The principle of sustainable development and the environmental rule of law.

The Court, while allowing the double lane configuration for the strategic highways, emphasized the need for a holistic approach to development, stating that:

• “We must therefore arrive at a delicate balance of environmental considerations such that they do not impede infrastructural development, specifically in areas of strategic importance crucial to the security of the nation.”
• “Making the Project environmentally compliant should not be seen a “checkbox” to be obtained on the path to development, but rather as the path to sustained development itself.”
• “The security concerns as assessed by the MoD may change over time. The recent past has thrown up serious challenges to national security. The Armed Forces cannot be held down to a statement made during a media interaction in 2019 as if it were a decree writ in stone.”

There were no dissenting opinions in this case. The bench was unanimous in its decision to allow the double-lane configuration for the strategic highways, subject to environmental compliance.

The Court’s decision has significant implications for future cases involving infrastructure development in ecologically sensitive areas. It establishes that national security concerns can justify certain deviations from environmental norms, but only if adequate mitigation measures are taken. The judgment also underscores the importance of expert opinions and the need for transparency and accountability in environmental governance.

The Court did not introduce any new doctrines or legal principles. Instead, it applied existing principles of sustainable development and the environmental rule of law to the specific facts of the case. The Court emphasized that these principles require a balanced approach, recognizing both the need for development and the imperative to protect the environment.

Key Takeaways

• National security concerns can justify the widening of highways in ecologically sensitive areas, but only if adequate mitigation measures are taken.
• The environmental rule of law requires a balanced approach, recognizing both the need for development and the imperative to protect the environment.
• Expert opinions, such as those provided by the HPC, are crucial for assessing the environmental impact of infrastructure projects.
• Transparency and accountability are essential for ensuring that infrastructure projects are environmentally responsible.
• Sustainable development should not be seen as a “checkbox” but rather as the path to sustained development.

Directions

The Supreme Court issued the following directions:

• The national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh be developed according to the double-lane carriageway width with paved shoulder standard as provided in the 2020 MoRTH Circular.
• MoRTH and MoD must implement all the unanimous recommendations of the HPC.
• An Oversight Committee, chaired by Justice Arjan Kumar Sikri, was constituted to monitor the implementation of the HPC recommendations.
• The HPC shall continue its work on overseeing the implementation of its recommendations for the Project, except for the national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh, which shall now fall under the purview of the Oversight Committee.

Development of Law

The ratio decidendi of this case is that national security concerns can justify certain deviations from environmental norms, provided that adequate mitigation measures are implemented. This judgment clarifies the application of the principles of sustainable development and the environmental rule of law in the context of strategic infrastructure projects. It also emphasizes the importance of expert opinions and the need for transparency and accountability in environmental governance. There is no change in the previous position of law, but the judgment provides a practical framework for balancing competing interests in such cases.

Conclusion

The Supreme Court’s judgment in Citizens for Green Doon vs. Union of India is a landmark decision that balances the need for strategic infrastructure development with the imperative to protect the fragile Himalayan ecosystem. By allowing double-lane highways for strategic border roads while mandating the implementation of environmental safeguards, the Court has set a precedent for future infrastructure projects in ecologically sensitive areas. The judgment underscores the importance of sustainable development, the environmental rule of law, and the need for transparency and accountability in environmental governance.

Category:

• Environmental Law
  • Sustainable Development
  • Environmental Rule of Law
  • Environmental Impact Assessment
  • National Green Tribunal
• Infrastructure Development
  • National Highways
  • Road Construction
  • Strategic Infrastructure
• National Highways Act 1956
  • Section 2(2), National Highways Act 1956
• Constitution of India
  • Article 14, Constitution of India
  • Article 21, Constitution of India
  • Article 48A, Constitution of India

FAQ

Q: What is the Chardham Mahamarg Vikas Pariyojna?

A: It’s a project by the Ministry of Road Transport and Highways to widen about 900 km of national highways connecting the holy shrines of Yamunotri, Gangotri, Kedarnath, and Badrinath in Uttarakhand.

Q: Why did the Supreme Court get involved in this project?

A: The project was challenged for its potential negative impact on the fragile Himalayan ecosystem, leading to litigation and the formation of a High Powered Committee (HPC).

Q: What was the main issue before the Supreme Court?

A: The main issue was whether to allow the widening of highways to a double-lane configuration, considering both national security concerns and environmental protection.

Q: What is the difference between DL-PS and IW standards?

A: DL-PS (Double Lane with Paved Shoulder) refers to a road with a 7-meter carriageway and paved shoulders. IW (Intermediate Width) refers to a road with a 5.5-meter carriageway.

Q: What did the Supreme Court decide about the road width?

A: The Court allowed double-lane configuration for strategic border roads (Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh), recognizing national security needs.

Q: What are the environmental concerns related to the project?

A: The concerns include deforestation, hill-cutting, muck dumping, soil erosion, loss of wildlife habitats, and the impact on water resources.

Q: What steps did the Supreme Court mandate to address the environmental concerns?

A: The Court directed MoRTH and MoD to implement all the unanimous recommendations of the HPC and formed an Oversight Committee to monitor compliance.

Q: What is the significance of this judgment?

A: The judgment balances national security with environmental protection, emphasizing that infrastructure projects should be both strategic and environmentally responsible.