Courts Cannot Second-Guess Infrastructural Needs Of Armed Forces- Supreme Court In Char Dham Highways Case [Read Judgment]
A three-Judge Bench of the Supreme Court comprising of Justice D.Y. Chandrachud, Justice Surya Kant, and Justice Vikram Nath allowed the miscellaneous application filed by the Ministry of Defence and modified the earlier order of the Apex Court dated 08th September 2020 to the extent that 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 Circular issued by Ministry of Road Transport and Highways (read report).
Mr. Colin Gonsalves, Senior Advocate appeared on behalf of the Appellants while Mr. KK Venugopal, Attorney General for India advanced submissions on behalf of the UOI.
The Court considered the principles of sustainable development and environmental rule of law. The Court noted that the principle of sustainable development has a multi-dimensional approach focusing on the economy, its development and protection of individual rights; the objective being to ensure inter and intra-generational equity. The Court noticed that this principle had been explicitly recognised by various judgements of the apex Court including Indian Council forEnviro-Legal Action v. Union of India, (1996) 5 SCC 281 and Essar Oil Ltd. v. Halar Utkarsh Samiti, (2004) 2 SCC 392. The Court noted that the principle of substantiable development found itself deep-rooted in the environmental law jurisprudence in India.
Having taken note of the width and amplitude of the principle, the Court expressed the concern of there being a lack of consensus on how to ascertain whether a particular developmental project would abide by the principle. The Court, then, proceeded to adopt the standard of the 'environmental rule of law' to test the decisions via which the developmental projects are approved. The Court placed its reliance on Hanuman Laxman Aroskar v. Union of India, (2019) 15 SCC 401 wherein it was held that consistent decision making on behalf of the Court was a crucial factor in upholding the environmental rule of law.
The Court, while discussing the road-width issue and the infrastructural needs of the army, made the following critical observations:
"This Court, in its exercise of judicial review, cannot second-guess the infrastructural needs of the Armed Forces. The appellants would have this Court hold that the need of the Army will be subserved better by disaster resistant roads of a smaller dimension. The submission of the appellants requires the Court to override the modalities decided upon by the Army and the MoD to safeguard the security of the nation's borders (it is important to remember that the MoRTH issued the 2020 MoRTH Circular based upon the recommendations received from the MoD). 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."
The Court, then, proceeded to deal with the position of law concerning the construction of double-laned roads. The Court, after interpreting various circulars issued by MoRTH, noted that the need for the development of national highways of a DL-PS standard was proportionate to the object of fulfilling security concerns of the nation which were assessed by the MoD. The Court noted that while the HPC so appointed was empowered to assess the environmental and social impact of the subject project; it was not competent to deal with the security needs of the nation. As noted at the outset, the Court proceeded to modify the earlier order and directed development of highways as per 2020 MoRTH Circular.
The Court observed that while it was permitting the UOI and MOD to apply a DL-PS configuration to the highways, the matter had not, yet reached its culmination. The Court observed that there may have been disagreement between the members of HPC regarding road-width issue but they unanimously agreed on the other environmental issues.
The Court analysed various recommendations of the HPC and proceeded to deal with the environmental issues at hand. The Court held that the analysis by the HPC was comprehensive and based on empirical and scientific data. The Court noted that the health of the environment and the effects on individuals who inhabit the area was also at stage in the subject project. The Court held that piecemeal implementation of some of the mitigation measures for the protection of the environment would not pass muster. Certain observations of the Court, being apposite, are extracted hereafter:-
"More than anything else, this requires a concerned shift in the approach which has been adopted till date. 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. Thus, the measures adopted have to be well thought out and should actually address the specific concerns associated with the Project. Understandably, this may make the Project costlier, but that cannot be a valid justification to not operate within the framework of the environmental rule of law and sustainable development. In its bid to make theproject more environmentally conscious, it is also imperative that the MoRTH and MoD be transparent in the measures they adopt, in order for them to be held publicly accountable by spirited citizens. Thus, we direct that the MoRTH and MoD can proceed with the Project subject to the condition that it addresses all the concerns which have been raised by the HPC and enumerated by this Court in Section F.2.1 of this judgment, through the recommendations mentioned accompanying these concerns (in paragraphs 82, 83, 85, 87, 88, 90, 91, 92 and 94 of this judgment)."
The Court permitted the DLPS configuration for the three strategic highways qua which the relief was claimed. Importantly, the Court, in order to ensure implementation of the recommendations, directed setting up of an 'Oversight Committee' that would report to the apex Court directly.
The Court appointed Justice AK Sikri as the Chairperson, aided by a representative of National Environmental Engineering Research Institute and a representative of Forest Research Institute Deemed to Be University, Dehradun.
The Court clarified that the objective of the oversight committee was to assess the implementation of the recommendation of the HPC. The Court also clarified that implementation of recommendations qua national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh, shall now fall under the purview of the Oversight Committee.
Accordingly, the MA filed by the MoD was allowed, which was made conditional on fulfilment of the conditions outlined the judgement of the Apex Court.