CITIZENS FOR GREEN DOON & ORS. versus UNION OF INDIA & ORS. on 14 December 2021

CITIZENS FOR GREEN DOON & ORS.

v.

UNION OF INDIA & ORS.

Miscellaneous Application No. 1925 of 2020

In

(Civil Appeal No. 10930 of 2018)

DECEMBER 14, 2021

[DR. DHANANJAYA Y CHANDRACHUD,SURYA KANT AND VIKRAM NATH, JJ.]

Environmental law: National highways – Double lanecarriageway width with paved shoulder standard – Road-width forthe three strategic border roads, Rishikesh to Gangotri (NH-94 andNH-108), Rishikesh to Mana (NH-58), and Tanakpur to Pithoragarh(NH-125) – A program “The Chardham Mahamarg Vikas Pariyojna”of the Ministry of Road Transport and Highways (MoRTH) wasannounced which aimed to widen the roads of national highwaysin order to ensure safer and faster traffic movement – An applicationwas filed before NGT, challenging the construction under the projecton the ground that the development activity has a negative impacton the Himalayan ecosystem – NGT held that the project did notrequire any environment clearance, however, directed theconstitution of an oversight committee to monitor the environmentalsafeguards – Appeal filed before Supreme Court challenging theNGT’s order, in which order was modified and High PoweredCommittee (HPC) constituted – Conclusions in the HPC Report wereunanimous except for the issue relating to the width of the road –Court took the cognizance of report and accepted the view of theminority – Miscellaneous applications were filed by appellants andUnion of India seeking their respective reliefs in regard to roadwidth – Court directed HPC to consider the issues in applicationsand to submit a detailed report – Held: National highways providevital connections to the establishments of the Armed Forces –Importance of the requirement of double-laned highways has beenemphasized for the movement of trucks, equipment and personnelof the Armed forces – 2020 MoRTH circular states that roads inhilly and mountainous terrain which act as feeder roads to the Indo-

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AChina border should be of Double lane with paved shoulderconfiguration (DL-PS) standard – Considerations for constructionof highways which are of strategic importance and used by armedForces cannot be same as those for other roads in hilly andmountainous regions – Need for development of national highwaysof a DL-PS standard is proportionate to the object of fulfilling theBsecurity concerns of the nation as assessed by the Ministry ofDefence (MoD) – Moreover, majority of the members of the HPCrecommended the adoption of the DL-PS standard as road-widthfor the project – However, more than 50 per cent of the hill cuttingand double-laning has been completed on national highways –CTherefore, partial development of the highway compliant with theIW standard and the remaining in conformity with the DL-PSstandard would not be suitable for the needs of the Armed Forces –Order of this court was modified to this extent – Hence, UOI andMoD were permitted to apply a DL-PS configuration to the highways– With respect to the environmental issues – Sustainable measuresDmust be adopted – Obligation imposed upon MoRTH and MoD toimplement recommendations made by HPC – There has to be anassessment of the nature of the problem by obtaining actual datafor all individual projects – Mitigation measures should beimplemented for all projects.

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Doctrines/principles: Principle of Sustainable development– Environment Rule of Law - Multi-faceted principle, which doesnot prohibit development, but structures it around what is sustainable– It not only ensures equity between the present and the futuregenerations but also development which ensures equity betweenFdifferent sections of society at present – There is lack of consensuson how to ascertain whether a particular developmental projectabides by the principle – It not only creates uncertainty within thelaw, but makes the application of the principle selective –Environmental law.

Conclusion

GNational Highways: A combined reading of Art.246 alongwith Entry 23 of List I of Schedule VII of the Constitution of Indiaindicates that national highways fall entirely within the ambit of theParliamentary domain – The executive power of the Union is co-extensive with the power of Parliament – In accordance with s.2(2)of the National Highways Act 1956, the Union Government isH

empowered to declare any road as a national highway and issuedirections for its development and maintenance – Within the UnionGovernment, the specific responsibility lies with MoRTH –Constitution of India – Art.246; Schedule VII, List I , Entry 23.

Disposing of the Miscellaneous application, the Court HELD: 1. The principle of sustainable development isdeep-rooted in the jurisprudence of Indian environmental law. Ithas emerged as a multi-faceted principle, which does not prohibitdevelopment, but structures it around what is sustainable.Sustainable development incorporates two related ideas –development which not only ensures equity between the presentand the future generations but also development which ensuresequity between different sections of society at present. However,while the principle has deep roots, there is a lack of consensuson how to ascertain whether a particular developmental projectabides by the principle of sustainable development. Without acommon benchmark or standard being applied by the Court inits analysis of the impact of development projects, the principleof sustainable development may create differing and arbitrarymetrics (depending on the nature of individual projects). Thisnot only creates uncertainty within the law, but makes theapplication of the principle of sustainable development selective,taking away from its potential to drive sustained change. [Para31][532-D-F]

Indian Council for Enviro-Legal Action v. Union of India(1996) 5 SCC 281 : [1996] 1 Suppl. SCR 507; EssarOil Ltd. v. Halar Utkarsh Samiti (2004) 2 SCC 392 :[2004] 1 SCR 808 ; N.D. Jayal & Anr v. Union of India& Ors. (2004) 9 SCC 362 : [2003] 3 Suppl. SCR 152;Rajeev Suri v. Delhi (2021) SCC OnLine SC 7;Municipal Corporation of Greater Mumbai v. AnkitaSinha (2021) SCC OnLine SC 897; Hanuman LaxmanAroskar v. Union of India (2019) 15 SCC 401 : [2019]5 SCR 916; Bengaluru Development Authority v.Sudhakar Hegde (2020) 15 SCC 63; H.P. Bus-StandManagement & Development Authority v. CentralEmpowered Committee (2021) 4 SCC 309 – relied on.

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A2. The Circular of 2020 states that roads in hilly andmountainous terrain, which act as feeder roads to the Indo-Chinaborder should be of DL-PS standard, with a 7m carriageway and1.5m paved shoulder. Neither the 2012 nor the 2018 MoRTHCirculars specifically addressed the issue of strategic borderroads. The considerations for development of national highwaysBin plains and in hilly and mountainous regions are not identical.Similarly, the considerations governing the construction ofhighways that are strategic roads from a defence perspective,and may be used by the Armed Forces of the nation, cannot bethe same as those for other roads in hilly and mountainous regions.CThis Court must arrived at a delicate balance of environmentalconsiderations such that they do not impede infrastructuraldevelopment, specifically in areas of strategic importance crucialto the security of the nation. This Court found that the need forthe development of national highways of a DL-PS standard isproportionate to the object of fulfilling the security concerns ofDthe nation as assessed by the MoD. [Paras 69-71][555-A-E]

3. A majority of the members of the HPC recommendedthe adoption of the DL-PS standard as road-width for the Project.This opinion was reiterated in HPC Report II, which consideredthe MA No 2180 of 2020 filed by the MoD. This Court agreedEwith the finding of the HPC. The court modified the order of thisCourt dated 8 September 2020 to the extent that the nationalhighways from Rishikesh to Mana, Rishikesh to Gangotri, andTanakpur to Pithoragarh be developed according to the double-lane carriageway width with paved shoulder standard as provided Fin the 2020 MoRTH Circular. However, liberty is granted to therespondents to pursue appropriate legal proceedings and seekreliefs in the event that it is necessary to implement the DL-PSstandard for the entire Project. [paras 75,76,79][558-B-C; 560-C-E]

G4. It is important that there must be a significant alterationin the approach to this Project by adopting sustainable measures.Piecemeal implementation of some mitigation measures forprotection of the environment, without any concrete strategy inplace, cannot pass muster. The Court made conditional uponMoRTH and MoD implementing the recommendations made byH

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the HPC which are unanimous. There has to be an assessment ofthe nature of the problem by obtaining actual data through relevantstudies for all individual projects. Specific mitigation measuresthen should be implemented for all projects, keeping in mindtheir unique concerns. This requires a concerned shift in theapproach which has been adopted till date. Making the Projectenvironmentally compliant should not be seen a “checkbox” tobe obtained on the path to development, but rather as the path tosustained development itself. Thus, the measures adopted haveto be well thought out and should actually address the specificconcerns associated with the Project. Understandably, this maymake the Project costlier, but that cannot be a valid justificationto not operate within the framework of the environmental rule oflaw and sustainable development. Thus, this court directed thatthe MoRTH and MoD can proceed with the Project subject tothe condition that it addresses all the concerns which have beenraised by the HPC and enumerated by this Court. [Paras 99, 100][569-E-H; 570-A-D]

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Project Implementation Unit v. P.V. Krishnamoorthy,(2021) 3 SCC 572 - relied on.

CIVIL APPELLATE JURISDICTION: Miscellaneous ApplicationNo. 1925 of 2020 in Civil Appeal No. 10930 of 2018.

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From the Judgment and Order dated 26.09.2018 of the NationalGreen Tribunal, Principal Bench, New Delhi in O.A. No. 99 of 2018.

With

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AMiscellaneous Application No. 2180 of 2020 in Civil Appeal No.10930 of 2018.

Colin Gonsalves, Sr. Adv. Siddharth Seem, Satya Mitra,Pukhrambam Ramesh Kumar, Ms. Tanima Kishore, Advs. for theAppellants.

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K. K. Venugopal, AG, Ms. Aishwarya Bhati, ASG, Gurmeet SinghMakker, Ms. Swati Ghildiyal, Ankur Talwar, Anmol Chandan,Ms. Chinmayee Chandra, Rajesh Ranjan, Ms. Vanshaja Shukla, SajalSinghai, Advs. for the Respondents.

By Courts Motion

CThe Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J.

This judgment has been divided into sections* to facilitate analysis.They are:

DAThe Project ....................................................................... 3BProceedings before the National Green Tribunal ............. 5CProceedings before the Supreme Court ........................... 8DSubmissions .................................................................... 15EFramework of Analysis .................................................. 23EE.1 Principles of Sustainable Development andEnvironmental Rule of Law ........................................... 25E.2 Circulars and Guidelines ................................................. 37FIssues and Analysis ........................................................ 45F.1 Road-Width Issue ........................................................... 45FF.1.1 HPC Report dated 13 July 2020.................................. 45F.1.2 HPC Report dated 31 December 2020 ....................... 51F.1.3 Analysis on the width of road ...................................... 53F.2 Environmental Issues ..................................................... 67GF.2.1 HPC Report dated 13 July 2020.................................. 67F.2.2 Analysis of the Environmental Issues.......................... 76GConclusion ...................................................................... 80

*Ed. Note : The Page Nos. mentioned alongside the respective sections are as per theHOriginal Judgment.

A The Project

1. The present case has a history fraught with litigation, with multipleproceedings before the National Green Tribunal[1] and this Court. Beforegoing into the history of the litigation, it is important to provide contextfor the public project in question in the case.

2. The Chardham Mahamarg Vikas Pariyojna[2] is a program ofthe Ministry of Road Transport and Highways[3], which was announcedon 23 December 2016. The Project aims to widen the roads ofapproximately 900 kms of national highways, in order to ensure safer,smoother and faster traffic movement. As the name suggests, thesehighways connect the holy shrines which have been labelled as the “ChoteChar Dham” in the State of Uttarakhand – Yamunotri (NH-94/134 up toJanki Chatti), Gangotri (NH-108), Kedarnath (NH-109, up to Sonprayag),Badrinath (NH-58) and the Tanakpur-Pithoragarh stretch of the KailashMansarovar Yatra route (NH-125).

3. These shrines represent different traditions of the Hindu religion– with Yamunotri and Gangotri being Shakti or goddess shrines, Kedarnathbeing a Shaiva temple, and Badrinath a Vaishnava site. They are locatedin an area called Kedarkhand (largely today’s Garhwal) in the SkandaPurana. The locations of these shrines were earlier considered to beoccupied by glaciers (named Champasar, Gangotri, Chorabari andSatopanth) in their entirety, which have since started melting. Even today,they are stated to be located in paraglacial zones, which are consideredto be ecologically sensitive.

4. Till the 1950s, access to these shrines was limited and theycould only be accessed on foot. Hence, worshippers often undertooklong and arduous journeys to reach the shrines. However, since the 1960s,road connectivity to the shrines has improved, where vehicles now plyup to the Badrinath and Gangotri temples while Yamunotri and Kedarnathare 6 to 14 kms away from the nearest motorable road. The improvedconnectivity has resulted in a greater influx of worshippers. The fourshrines typically open for worship in and around late April or early May,and close in and around late October to early November.

5. The Project was conceptualized with the aim of improvingaccessibility to these shrines by widening the existing roads, making travel 1 “NGT”

2 “Project”

3 “MoRTH”

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Asafer, smoother and faster. The Project seeks to widen the existinghighways into a double lane with paved shoulder configuration[4] with 16bypasses, realignments and tunnels, 15 flyovers, 101 small bridges and3516 culverts. The MoRTH has divided the Project into 53 individualprojects, the length of each project being less than 100 kms, traversingthe following national highways:B

(i) NH-58 - Rishikesh to Rudraprayag - 141 kms;

(ii) NH-58 - Rudraprayag to Mana Village (Badrinath) - 140 kms;

(iii) NH-94 - Rishikesh to Dharasu - 120 kms; C(iv) NH-94 - Dharasu to Yamunotri - 75 kms;

(v) NH-108 - Dharasu to Gangotri - 110 kms;

(vi) NH-109 - Rudraprayag to Gaurikund (Kedarnath) - 77 kms;

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(vii) NH-125 - Tanakpur to Pithoragarh - 161 kms.D

A pictorial representation of the connecting routes of the Projectis provided below, as taken from the report of the High PoweredCommittee[5] dated 13 July 2020[6]:

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4 “DL-PS”5 “HPC”H6 “HPC Report”

B Proceedings before the National Green Tribunal

6. An Original Application[7] was filed before the Principal Benchof the NGT on 27 February 2018 in public interest, challenging theconstruction under the Project on the ground that the development activityhas a negative impact on the Himalayan ecosystem. The applicants arguedthat the Project will lead to deforestation, excavation of hills and dumpingof muck, which will lead to further landslides and soil erosion, in analready sensitive environment. It was also alleged that an EnvironmentImpact Assessment[8] under the Environment Impact AssessmentNotification 2006[9] had not been conducted and that to obviate therequirement of conducting an EIA, the Project had been divided intosmaller stretches. The application alleged violations of the EIANotification, Forest (Conservation) Act 1980, Wildlife Protection Act1972, Environment (Protection) Act 1986 and Articles 14, 21 and 48A ofthe Constitution. Another Original Application[10] was filed seekingdirections to take precautions for muck disposal and for ensuring thestability of slopes.

7. In its order dated 26 September 2018, the NGT observed thatthe bypasses and realignments to be made to the national highways,which cumulatively fall under the Project, have been considered as stand-alone projects. The length of each of these projects is less than 100 kmsand thus, the NGT held that the projects did not require an EIA approvalor Environment Clearance[11] under the EIA Notification. However, giventhe fragile ecosystem within which the Project was to be developed, theNGT directed the constitution of an ‘Oversight Committee’ to monitorthe environmental safeguards for the execution of the Project.

8. The Oversight Committee was to be headed by a former Judgeof the Uttarakhand High Court, and had representatives from the WadiaInstitute of Himalayan Geology; National Institute of DisasterManagement; Central Soil Conservation Research Institute; GB PantInstitute of Himalayan Environment; Forest Research Institute; theSecretary to the Forest Department, Uttarakhand; and DistrictMagistrates, who were to act as co-ordinators. The task of the Oversight 7 OA No 99/2018

8 “EIA”

9 “EIA Notification”

10 OA No 431/2018

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ACommittee, inter alia, was to oversee the implementation of theEnvironment Management Plan to be prepared by an agency of theMinistry of Environment, Forests and Climate Change[12]. The relevantportion of the order of the NGT is produced below:

“54. Accordingly, we direct constitution of the following OversightBCommittee:—1. Justice U.C. Dhyani, Former Judge, Uttarakhand High Court,Chairman Public Service Tribunal, Dehradun.

2. Representative of Wadia Institute of Himalayan and Geology.

C3. Representative of National Institute of Disaster Management.4. Representative of Central Soil Conservation Research Institutewith expertise in Natural disasters, landslides, etc.

5. Representative of G.B. Pant Institute of HimalayanEnvironment.D

6. Representative of Forest Research Institute, Dehradun.

7. Secretary of Environment and Forest Department, Uttarakhand,Dehradun to be Member Secretary/convener/coordinator of theCommittee.

E8. Concerned District Magistrates of the Districts concerned willact as co-coordinator and for arranging visits and meetings atlocal level.”

C Proceedings before the Supreme Court

9. An appeal[13] was filed to challenge the NGT’s order dated 26FSeptember 2018 before this Court. By an order dated 8 August 2019, atwo-judge Bench, comprising of Justice Rohinton F Nariman and JusticeSurya Kant, modified the order of the NGT and instead constituted anHPC to be chaired by Professor Ravi Chopra, who would replace JusticeUC Dhyani, and also added representatives from various other bodies.GThe HPC was directed to make its decisions on the basis of majorityvote. The relevant portion of the order of this Court is as follows:

“We constitute a High Powered Committee (HPC) consisting ofthe persons who are mentioned in para 54 of the said order.

12 “MoEF&CC”H13 CA No 10930/2018, CA Nos 8518-8520/2018 and MA No 2678-2680/2018

However, the Committee is to be headed by Prof. Ravi Chopra,who will replace Justice U.C. Dhyani, and will be the Chairmanof the Committee. In addition to this, we add a representative ofthe Physical Research Laboratory, Department of Space,Government of India, Ahmedabad; a representative of the WildlifeInstitute of India, Dehradun; a representative of MoEF&CC,Regional Office, Dehradun; and a representative of the Ministryof Defence dealing with Border roads, not below the rank ofDirector. We direct MoEF&CC to constitute the High PoweredCommittee within two weeks from the date of this order. TheHPC may co-opt member(s) for effective discharge of itsfunctions. The MoEF&CC shall provide venue andsecretarial assistance to the HPC, who will make decisionsby majority voting.”

The terms of reference of the HPC were also revised in thefollowing terms:

“I. The Committee shall consider the cumulative and independentimpact of the Chardham [P]roject on the entire Himalayan valleysand for that purpose, the HPC will give directions to conduct EIA/rapid EIA by the Project Proponent/MoRTH.

II. The HPC, with the help of the technical body andengineers of implementation agency (MoRTH) shouldconsider whether revision of the full Chardham [P]roject(about 900 Kms) should at all take place with a view tominimize the adverse impact of the project on environmentand social life.

III. The HPC shall identify the sites in which work (i.e. hill-cutting)has started and the stretches in which the work has not yet started.As far as the sites in which work has started, the High PoweredCommittee should recommend the measures which are requiredfor stabilizing the area where hill-cutting has taken place, amongothers, the environmentally safe disposal of muck which has beengenerated so that it does not adversely affect the flora and faunaof the catchment area of the river.

IV. As regards the stretches where work has not started, theHPC will review the proposed project and recommend measures AB

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which will minimize the adverse impact on environment, sociallife and bring the project in conformity with the steep valley terrain,carrying capacity, thus avoiding any triggering of new landslidesand ensuring conservation and protection of sensitive Himalayanvalleys.

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V. The HPC will assess the environmental degradation in termsof loss of forest land, trees, green cover, water resources, dumpingof muck and impacts on the wildlife and will direct the mitigationmeasures. Specific attention will be laid on protecting wildlifecorridors, and rare and endangered flora and fauna.

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VI. The HPC will assess and quantify the impact on socialinfrastructure/public-life due to triggering of fresh landslides, airpollution, frequent road blocks etc. and will suggest necessarymeasures for its redressal, including preparation of disastermanagement plans prior to the monsoon season.

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VII. In Bhagirathi Eco Sensitive Zone (Gangotri to Uttarkashi),the HPC will make special provisions in its report keeping in mindthe guidelines given under the Notification of the Bhagirathi EcoSensitive Zone so as to avoid violations and any environmentaldamage.

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VIII. The HPC will also suggest the areas in which afforestationmeasures should be taken. It will also suggest the kind of saplingswhich have to be planted in different terrains of Himalayas. Aseparate Committee be constituted by the Forest Department ofUttarakhand to continuously monitor and report on the websitethat the saplings which have been planted have survived and grown.In case of non-survival of any sapling, further plantation shouldbe done. Compensatory afforestation should be ten times thenumber of trees which have been cut. The HPC shall prepare aneffective afforestation plan ensuring its proper implementation.

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IX. The HPC will invite experts from different fields and consultGlocal people or hold public meeting in the local areas to takerecommendations and suggestions, as it deems fit.

X. The HPC shall consider giving specific directions to theconcerned agencies to put in the public domain the landslide-proneareas, and their treatment by the Project Proponent, the total muck H

generated, and the places where it has been disposed of in anenvironmentally sound manner.”

The HPC was directed to submit its report of recommendationsin four months. Following the submission of the report, the Court directedMoRTH to implement its recommendations. For this purpose, the Courtobserved:

“The reports prepared by the HPC with its recommendations shallbe given to the project Proponent i.e. MoRTH for implementation.The HPC shall hold quarterly meetings thereafter to ensure timelyand proper compliance of its recommendations. The HPC maysuggest any further measure which may be required, in the interestprotection and conservation of environment, after each quarterlyreview meeting.”

10. Pursuant to the order of this Court, a report dated 13 July2020 was submitted by the HPC to this Court. By an order dated 8September 2020, a three-judge Bench of this Court comprising of JusticeRohinton F Nariman, Justice Navin Sinha and Justice Indira Banerjeetook cognizance of the Report, and noted that the conclusions in theHPC Report were unanimous, except for the issue relating to the widthof the road. A majority comprising thirteen members of the HPC was infavour of applying a Circular dated 5 October 2012 issued by MoRTH[14],which stipulates that in all new projects of widening/bypass/realignment,the width of the carriageway will be at least two-lane with paved shoulder(DL-PS), irrespective of the traffic. According to the 2012 MoRTHCircular, the road-way width would be 12m comprising of 7m for thedouble-lane carriageway, a 1.5m paved shoulder on either side of thehighway, and a 1m earthen shoulder on either side of the highway. Aminority comprising of 5 members, including the Chairperson, was ofthe view that a subsequent Circular dated 23 March 2018 issued by theMoRTH[15] should govern the Project. The 2018 MoRTH Circular providesthat in hills and mountainous terrains, where the traffic volumes rangefrom 3,000 to 8,000 Passenger Car Units[16] a day, the carriageway widthshould be of intermediate lane configurations (Intermediate Width[17]

14 “2012 MoRTH Circular” - No. NH-14019/6/2012-P&M

15 “2018 MoRTH Circular” - No. NH-15017/ 28/ 2018 - P&M

16 “PCU”

17 “IW”

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Astandard), i.e., of 5.5m width with two-lane structures. The order of theCourt accepted the view of the minority and observed:

“We have perused the conclusions and recommendations of thereport, in particular, from pages 90-93 in Part I. We are of theview that it is correct that the 2018 MORTH circular shouldBapply for the reasons given at page 93 of the report.Consequently, the 2018 circular alone will apply. The otherdirections that were issued by us on 08.08.2019 must be strictlycomplied with, including the holding of quarterly meetings to ensuretimely and proper compliance of the recommendations.”

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11. Following the above order, a letter dated 5 October 2020 wasreceived by the Registry of this Court from the Chairperson of the HPC.Professor Chopra highlighted the steps he had taken to notify MoRTHof the order of this Court. He stated that he had requested MoRTH tosubmit a plan to bring the Project in conformity with the 2018 MoRTHDCircular and suspend all fresh hill-cutting activities. The letter alsohighlighted that Professor Chopra had received reports of tree-fellingand fresh hill-cutting on various stretches on NH-58, NH-94, et al, whichwas being carried out on the basis of the old road-width standard, i.e.,DL-PS with a 10m tarred road. The Chairperson stated that on 27ESeptember 2020, he had read a news report indicating that MoRTH hadinformed the Government of Uttarakhand that the 2018 MoRTH Circularwould be applicable only to the proposed 13 projects where work hadnot yet begun. Through this letter, Professor Chopra urged that thedirections in the order of this Court dated 8 September 2020 should bestrictly followed. The letter dated 5 October 2020 was converted intoFMA No 1925 of 2020, which is the subject-matter of this judgment.Further, another letter dated 2 November 2020 was received fromProfessor Chopra, where he highlighted the non-compliance of the orderof this Court and raised issues regarding the functioning of the HPC.12. An affidavit was filed by the seventh appellant (SwamiGSamvidanand) seeking, inter alia, directions to MoRTH to:

(i) stop hill-cutting, tree-felling and activities in violation of the2018 MoRTH Circular;

(ii) compensate for hill-cutting beyond the IW standard with treeplantations and footpath; andH(iii) render full secretarial assistance to the HPC.

13. An interlocutory application, IA No 6097 of 2021, was laterfiled by the sixth appellant (Deepak Chand Ramola) seeking the followingdirections:

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(i) that the amendment to the 2018 MoRTH Circular through theCircular dated 15 December 2020[18], should be revoked; B

(ii) that the IW standard be adhered to for the entire Project,both prospectively and retrospectively, as mentioned in thisCourt’s order dated 8 September 2020;

(iii) that the Bhagirathi Eco Sensitive Zone[19] be given specialprotection; C

(iv) that the HPC be strengthened to ensure proper implementationof its functions; and

(v) on the basis of the findings of the HPC, a committee be setup to direct an inquiry against the persons responsible forwilful violations of the laws in force.

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14. Another miscellaneous application, MA No 2180 of 2020, wasthen filed by the Union of India[20], through the Ministry of Defence[21],seeking modification of this Court’s order dated 8 September 2020, whichis also the subject matter of this judgment. This application seekspermission for the widening of the national highways from Rishikesh toEMana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh to a two-lane, DL-PS configuration. The application avers that a minority of themembers of the HPC, whose view was adopted by this Court in itsorder dated 8 September 2020, relied on a statement of the then Chief ofArmy Staff which confirmed that the requirements of the Indian Armyare fulfilled by the existing roads. However, according to the UnionFGovernment, there has been a material change in circumstances,necessitating an improvement of roads to enable movement of troopsand equipment to Army stations on the Indo-China border. Thus, theapplication has urged that a double lane road having a carriageway widthof 7m (or 7.5m) is necessary to meet the Army’s requirement. TheGrelief which has been sought in the application, is extracted below:

18 “2020 MoRTH Circular” – No. NH-15017/28/2018-P&M

19 “BESZ”

20 “UOI”

21 “MoD”

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518SUPREME COURT REPORTS

A“Modify the Order dated 08.09.2020 and direct that the nationalhighways from Rishikesh to Mana, from Rishikesh toGangotri and from Tanakpur to Pithoragarh may be developedto 2 lane configuration in the interest of the security of the nationand for the defence of its borders”.

B

15. By an order dated 2 December 2020, a three-judge Benchcomprising of Justice Rohinton F Nariman, Justice Navin Sinha and JusticeKM Joseph directed the HPC to consider the issues raised by itsChairperson in his letters and applications, including the application byCthe MoD, and to submit a detailed report. Pursuant to the order of thisCourt, the 11[th] meeting of the HPC was held on 15 and 16 December2020. The report[22] of the deliberations and submissions of the HPC wasreceived by the Registry from the Secretary, Forest Department, Stateof Uttarakhand through a letter dated 31 December 2020.

D16. This is where the matter stands presently. We shall considerthe submissions urged by the parties.

D Submissions

17. Mr Colin Gonsalves, Senior Counsel appearing on behalf ofthe appellants, urged the following submissions:

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(i) Issues concerning the functioning of the HPC: The HPCwas not allowed to function independently and was giveninadequate assistance by the UOI:

(a) The HPC consisted of 8 District Magistrates, 5 StateGovernment officials, 2 Union Government officials andF5 representatives from institutions funded by the Stateand Union Governments. The members of the HPClinked to the government voted en bloc and toed the‘official line’, rather than basing their judgment on ascientific basis; and G

(b) The Chairperson of the HPC faced opposition from theUOI, as they were unwilling to cooperate with the workof the HPC. The Chairperson had repeatedly written toMoRTH, regarding the plan of action for slope H22 “HPC Report II”

stabilisation, muck disposal and restoration of damagedslopes; to the State, pointing out that the original orderof the NGT did not stipulate District Magistrates to bemembers of the HPC and that their role was limited tocoordination with the local population; to the UOI, toprovide inventory of vulnerable slopes and muck; andto the MoEF&CC, regarding the continuing hill-cuttingactivities. However, no concrete action was taken byany of the parties;

(ii) Violations committed by MoRTH: MoRTH has beenconstructing roads and widening the highways in violation ofthe 2018 MoRTH Circular and the order of this Court dated8 September 2020:

(a) MoRTH started widening the highways according tothe DL-PS standard, in violation of the 2018 MoRTHCircular which provided for adherence to the IWstandard; (b)During the deliberations of the HPC, massive hill-cuttingand deforestation activities were undertaken, which havecaused irreversible damage to the Himalayanenvironment;

(c) After the order of this Court dated 8 September 2020,MoRTH has continued to undertake hill-cutting, tree-felling, tarring and unrelated activities; (d)Despite the order of this Court, MoRTH has taken astand that the order will only be implemented for the 13projects where the work has not yet started. However,the order of 8 September 2020 stated that the 2018MoRTH Circular alone has to be followed and will applyretrospectively, i.e., it will be applicable to the entireProject, even where the work had already been initiated; (e)MoRTH, in a recent notification dated 10 September2020 which was advertised in the newspapers, proposedthe acquisition of land for a toll booth. The toll is onlyapplicable on roads of DL-PS standard; A

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A(iii) Road-width: The minority view, adopted by this Court in itsorder dated 8 September 2020, to construct the highwayswith an IW standard must be upheld as:

(a) According to the Manual of Specifications and Standardsfor Two Laning of Highways with Paved Shoulder[23]Bpublished by the Indian Roads Congress[24] in June 2015,the vehicle size in India cannot exceed a width of morethan 2.4m. Thus, an intermediate lane of 5.5m on a linearprofile and 7m on curves, is sufficient for two largevehicles to cross each other; C(b)The fragile environment of the Himalayas will beseverely damaged if the DL-PS standard is adopted.As opposed to this, the IW standard will ensure reductionof green cover loss, reduce landslides, land loss, andtree loss by 80-90 per cent; D(c)The 2012 MoRTH Circular is inappropriate for mountainroads as it can cause massive instability andenvironmental damage. As opposed to this, the 2018MoRTH Circular is specific to hilly and mountainousareas, and should be adopted instead; and E(d)The amendments made by the 2020 MoRTH Circularare arbitrary as they reinstate the 2012 MoRTH Circularwithout engaging with the rationale of having an IWstandard for mountainous areas;

(iv) Security concerns: The national security concerns regardingFthe widening of the strategic roads are also met as:

(a) The arguments raised by the MoD were considered bythe HPC Report. It was after consideration of theseviews that the Court had passed the order dated 8September 2020;

(b) To meet the defence requirements, it is essential thatdisaster-resilient roads be built, instead of disaster-proneroads; G

23 “2015 IRC Guidelines”H24 “IRC”

(c) The Project was not an initiative of the MoD, and wasAa project to increase the tourist inflow to over 9,000vehicles per day. The HPC Report has noted that thisprojection is an exaggeration as Badrinath, which hasthe maximum tourist inflow, has only 1000 vehicles perday and has already reached its carrying capacity; and B

(d) The Chief of Army Staff in an interview had commentedon the all-weather road project and stated that the needsof the Army are being met by the existing infrastructure.

18. In opposition to this, Mr KK Venugopal, Attorney General forIndia, made submissions in support of the application filed by the UOIand the MoD. The application seeks a modification of the order dated 8September 2020 to allow the national highways from Rishikesh to Mana,Rishikesh to Gangotri, and Tanakpur to Pithoragarh to be developedwith a DL-PS standard. The following submissions were urged:

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(i) Requirement of DL-PS standard for strategic borderroads:

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(a) The national highways from Rishikesh to Mana,Rishikesh to Gangotri, and Tanakpur to Pithoragarh actas feeder roads to the Indo-China border and havestrategic importance; E

(b) The minority opinion in the HPC Report relied on thestatement of the Chief of the Army Staff, according towhich the present infrastructure was adequate for theneeds of the Army. However, there has been a changein the circumstances since, and it is necessary thatFpersonnel and equipment move swiftly to Army stationsat the Indo-China border points. The movement requiresthat vehicles returning from the border are able to crossvehicles going in the opposite direction without causingroad-blocks or coming to a dead halt. Thus, acarriageway with a width of 7m is necessary to meetGthe security concerns of the country;

(c) These road-posts have been in use since the war withChina in 1962. With the increase in defence capability;the nature of weapons, tanks and machinery; and the H

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Aconditions at the border, wider roads with a DL-PSstandard are required; (d)Neither the 2012 MoRTH Circular nor the 2018 MoRTHCircular deal with the security needs of the country.The 2018 MoRTH Circular, which is general in nature,Bis based on PCU traffic and is applicable to all the hillyareas. However, it did not consider the strategicrequirement for movement of military vehicles in theHimalayan regions, closer to the border areas; (e)The Armed Forces have sufficient human-power,Cmachinery and equipment to deal with landslides on anyof these roads and can clear the way for movement ofArmy vehicles, machinery, tanks and artillery; (f)Prior to 2017, the development of these roads was underthe Border Roads Organization[25]. However, in 2017, toDdevelop these roads in a timebound manner, a portionwas handed over to the Public Works Department[26] andthe National Highways and Infrastructure DevelopmentCorporation[27]. Before the commencement of theProject, the road from Rishikesh-Mana already had a7m wide carriageway, except in some stretches whereEthe width was 3.75-5.5m; (g)The Guidelines for the Alignment Survey and GeometricDesign of Hill Roads[28] adopted by the IRC in 2019 alsorecommend a two lane uniform design for strategicborder roads; and F

(h) This need is further highlighted, given that across theborder in China, Tibet, Nepal and in the China-Pakistancorridor, strategic roads are built with the DL-PSstandard;

(ii) The BESZ was notified by the Union Government through aGnotification dated 18 December 2012. However, in 2018, thenotification was amended to state that work related to national 25 “BRO”26 “PWD”27 “NHIDCL”H28 “2019 IRC Guidelines”

security infrastructure can be implemented without due studyof environmental impacts; A

(iii) All-weather roads are also necessary for connectivity ofpersons living in remote border areas;

(iv) Mitigation measures: The following mitigation steps haveBbeen undertaken to ensure that least environmental andecological damage is caused by the Project:

(a) The Geological Survey of India[29] and MoRTH havesigned a Memorandum of Undertaking to conductgeological studies of strategic roads near the Indo-ChinaCborder; (b)Tehri Hydroelectric Development Corporation[30] is beingengaged for project management consultancy servicesfor restoration of slopes;

(c) The Defence Geo-Informatics ResearchDEstablishment[31] is providing sustainable mitigationmeasures for snow avalanches and other naturalcalamities; and (d)Slope stabilisation works and protection measures andlandslide protection measures using soil nailing,E‘shotcreting’, secured drapery, et al, are beingundertaken;

(v) Compliance with the directions of this Court: No hill-cutting activities for road-widening have been carried out bythe executing agencies. In fact, MoRTH took the followingsteps to comply with the order of this Court:

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(a) Directions were issued to all executing agencies, suchas BRO and NHIDCL, to implement the order of thisCourt; (b)A Draft Rapid EIA Report was submitted to the HPCon 16 September 2020; G

29 “GSI”

A(c)Details of vulnerable slopes and muck disposal siteswere submitted to the HPC on 25 September 2020; (d)A committee has been formulated to develop apermanent landslide mitigation strategy; (e)12,75,813 plants have been planted in 797.28 hectaresBas compensatory afforestation, and 5,45,268 plants areto be planted in future; (f)Secretarial assistance was provided to the HPC by theState of Uttarakhand under an order dated 7 October2020; and C

(g) Out of the 40 sanctioned projects within the Project,12m formation cutting has already been carried out in537 kms out of the total sanctioned length of 662 kms,prior to the order of this Court dated 8 September 2020.In such a situation, where hill-cutting has already beenDcarried out for 12m formation and 10m tarred road hasbeen laid down, a substantial reduction of the width to5.5m will result in non-uniform carriageway in shortstretches.

19. Having addressed the rival submissions, we shall now analyse Ethem.

E Framework of Analysis

20. Before we analyse the specific issues raised in the context ofthe Project, it is important to consider the framework within which thisCourt must consider them. It is important for us to take note of theFrelevant judicial pronouncements on the subject, as well as understandthe requirements of the circulars and guidelines which have been issuedin regard to these issues. However, given the specific setting of theProject in the heart of the Himalayas, our framework has to take intoaccount the unique ecology of the Himalayas. The appellants haveGprovided this Court with examples from the past and the recent historyof the Himalayas, which demonstrate that a lack of foresight indevelopment has led to significant environmental harm.

21. Speaking about the Himalayas, the obvious place to begin istheir majesty. The Himalayas are considered to be India’s border in theHnorth, just as the vast Indian ocean is in its south. In laypersons’

geographical terms, it is difficult to imagine that these majestic mountainsare nothing more than the debris created during the collision of the Indianand Eurasian tectonic plates several million years ago. While the debrishas solidified into rock in many places, it continues to be soil and rubblein others. In comparison to many others, the Himalayas are actuallyvery young (when the point of reference is a comparison of ages in themillions). This lends to them a comparative fragility[32]. The HPC Reportnotes that “the still evolving Himalayan ranges consist of thrusted, jointedor sheared, fissured or twisted rock material interspersed with soil. Shornof green cover, their slopes [are] even more fragile. When exposed tothe monsoon rains, weakened slopes often collapse”[33].

22. The Himalayan range is in itself diverse and cannot becharacterized through one common idea or pattern. Broadly speaking, itis divided into three categories: the Higher Himalayas (called “Himadri”),which contain some of the highest mountain peaks, are often snowboundthrough the year and are sparsely populated; the Lower Himalayas (called“Himachal”), which contains medium-sized mountains and highlypopulated regions; and the Sub-Himalayas (called “Shivalik”), which arethe southernmost ranges of the Himalayas. Each of these have theirown ecology, rainfall and snowfall distribution, flora and fauna. Theconcerns associated with each of them are different and have to beaccounted for while adjudicating upon environmental issues raised withdevelopment projects.

23. In a 2018 report published by the NITI Aayog, these concernswere noted with pointed reference to the effects of the tourism industry.The report noted[34]:

“Current forms of tourism in the [Indian Himalayan Region] areunsustainable. They replace traditional and aesthetic architecturewith inappropriate, non-aesthetic and often dangerousconstructions, and compound other challenges such as poorlydesigned roads and associated infrastructure, inadequate solid 32 Michael P Searle and Peter J Treloar, “Introduction to Himalayan tectonics: a modernsynthesis” in Peter J Treloar and Michael P Searle (eds), Himalayan tectonics: AModern Synthesis (The Geological Society, 2019)

33 HPC Report, page 34

34 “Contributing to Sustainable Development in the Indian Himalayan Region” (August2018, NITI Aayog) available at <http://164.100.94.191/niti/writereaddata/files/document_publication/doc6.pdf> accessed on 6 December 2021

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Awaste management, air pollution, degradation of watersheds andwater sources, loss of natural resources, biodiversity, andecosystem services.”

Similarly, relying upon the NITI Aayog’s conclusions, the HPCReport also notes[35]:B

“…the Himalaya call for a new development paradigm in whichdevelopment must be fully embedded in the environmental, socio-cultural and sacred tenets of the IHR. It has been observed thatthe present demand-driven, uncontrolled economic growth hasled to haphazard urbanization, environmental degradation andCincreased risks and vulnerabilities, seriously compromising theunique values of Himalayan ecosystems.”

It is In the backdrop of these observations that we must considerthe principles applicable to the judicial review which this Court mustundertake in the present case.

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E.1 Principles of Sustainable Development andEnvironmental Rule of Law

24. Sustainable development is a common benchmark throughwhich all development projects are judged. Arguably finding its origin inglobal policy from the Bruntland Report in 1987, it is often defined asE“development that meets the needs of the present without compromisingthe ability of future generations to meet their own needs”[36]. Adoptedglobally as the standard for development by nations, it is the bedrockupon which the Sustainable Development Goals[37] have been laid out.Their latest iteration, consisting of 17 SDGs, was adopted by all UnitedFNations member States in 2015. Titled as the “2030 Agenda forSustainable Development”[38], these SDGs are broad, with their focusbeing on overall development of society in a manner which comportswith environmental preservation now and in trust for the future. SDG13specifically focuses on “Climate Action”, which is to be balanced withthe other SDGs (such as SDG9, which encourages “Industry, InnovationGand Infrastructure”).

35 HPC Report, page 4336 “Report of the World Commission on Environment and Development: Our CommonFuture” (1987) available at <https://sustainabledevelopment.un.org/content/documents/5987our-common-future.pdf> accessed on 6 December 2021

37 “SDGs”

H38 Available at <https://sdgs.un.org/2030agenda> accessed on 7 December 2021

25. The principle of sustainable development has found consistentapplication in matters of environmental law. Sustainable developmenthas a multi-dimensional approach, with a focus on the development ofthe economy, protection of individual rights and environmental concerns,while ensuring both inter and intra-generational equity. This allows theprinciple of sustainable development to look beyond creating policy goals(which necessarily seek specific outcomes) towards creating policyapproaches (which rather seek to provide better frameworks)[39]. Theprinciple of sustainable development has been explicitly recognized inmultiple judgments of this Court.

26. In Indian Council for Enviro-Legal Action v. Union ofIndia[40], a three-judge Bench of this Court described the principle ofsustainable development in the following terms:

“31…While economic development should not be allowed to takeplace at the cost of ecology or by causing widespread environmentdestruction and violation; at the same time, the necessity to preserveecology and environment should not hamper economic and otherdevelopments. Both development and environment must go handin hand, in other words, there should not be development at thecost of environment and vice versa, but there should bedevelopment while taking due care and ensuring the protection ofenvironment. This is sought to be achieved by issuing notificationslike the present, relating to developmental activities being carriedout in such a way so that unnecessary environmental degradationdoes not take place. In other words, in order to prevent ecologicalimbalance and degradation that developmental activity is soughtto be regulated.”

27. In Essar Oil Ltd. v. Halar Utkarsh Samiti[41], a two-judgeBench of this Court referred to the Stockholm Declaration whileelucidating on the principle of sustainable development. It noted thatwhile socio-economic needs could be fulfilled through development,environmental concerns will always remain. However, these concernsshould not be seen as a deadlock between development and theenvironment but as an opportunity to harmonize both, through the principle 39 J B Ruhl, ‘Sustainable Development: A Five-Dimensional Algorithm for EnvironmentalLaw’ (1999) 18 Stanford Environmental Law Journal 31

40 (1996) 5 SCC 281

41 (2004) 2 SCC 392

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Aof sustainable development. Speaking through Justice Ruma Pal, thisCourt observed:

“27. This, therefore, is the aim, namely, to balance economic andsocial needs on the one hand with environmental considerationson the other. But in a sense all development is an environmentalBthreat. Indeed, the very existence of humanity and the rapidincrease in the population together with consequential demandsto sustain the population has resulted in the concreting of openlands, cutting down of forests, the filling up of lakes and pollutionof water resources and the very air which we breathe. However,there need not necessarily be a deadlock between developmentCon the one hand and the environment on the other. The objectiveof all laws on environment should be to create harmony betweenthe two since neither one can be sacrificed at the altar of theother…”

28. In N.D. Jayal & Anr v. Union of India & Ors[42], a three-Djudge Bench held that a balance between developmental activities andenvironmental protection could only be maintained through the principleof sustainable development. Doing this was held to be necessary, withoutwhich the future generations could be in jeopardy. Justice S RajendraBabu (speaking for himself and Justice Mathur) held:

E“22. Before adverting to other issues, certain aspects pertainingto the preservation of ecology and development have to be noticed.In Vellore Citizen’’ Welfare Forum v. Union of India [(1996) 5SCC 647] and in M.C. Mehta v. Union of India [(2002) 4 SCC356] it was observed that the balance between environmentalFprotection and developmental activities could only be maintainedby strictly following the principle of “sustainable development”.This is a development strategy that caters to the needs of thepresent without negotiating the ability of upcoming generations tosatisfy their needs. The strict observance of sustainabledevelopment will put us on a path that ensures development whileGprotecting the environment, a path that works for all peoples andfor all generations. It is a guarantee to the present and a bequeathto the future. All environment-related developmental activitiesshould benefit more people while maintaining the environmental balance. This could be ensured only by strict adherence tosustainable development without which life of the cominggenerations will be in jeopardy.”

Justice Babu also noted that while the right to a clean environmentis guaranteed as an intrinsic part of the fundamental right to life andpersonal liberty, the right to development can also be declared as acomponent of Article 21:

“24. The right to development cannot be treated as a mere rightto economic betterment or cannot be limited as a misnomer tosimple construction activities. The right to developmentencompasses much more than economic well-being, and includeswithin its definition the guarantee of fundamental human rights.The “development” is not related only to the growth of GNP. Inthe classic work, Development As Freedom, the Nobel prizewinner Amartya Sen pointed out that “the issue of developmentcannot be separated from the conceptual framework of humanright”. This idea is also part of the UN Declaration on the Right toDevelopment. The right to development includes the wholespectrum of civil, cultural, economic, political and social process,for the improvement of people’’ well-being and realization of theirfull potential. It is an integral part of human rights. Of course,construction of a dam or a mega project is definitely an attempt toachieve the goal of wholesome development. Such works couldvery well be treated as integral component for development.”

29. More recently, in Rajeev Suri v. Delhi[43], a three judge Benchof this Court had to decide on the permissibility of the Central VistaProject. In considering the use of the principle of sustainable development,Justice A M Khanwilkar observed that the principle of sustainabledevelopment necessarily incorporates within it the principle of development– development which is sustainable and not environmentally degrading.He holds thus:

“507. The principle of sustainable development and precautionaryprinciple need to be understood in a proper context. Theexpression “sustainable development” incorporates a widemeaning within its fold. It contemplates that developmentought to be sustainable with the idea of preservation of A

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natural environment for present and future generations. Itwould not be without significance to note that sustainabledevelopment is indeed a principle of development—it positscontrolled development. The primary requirementunderlying this principle is to ensure that everydevelopment work is sustainable; and this requirement ofsustainability demands that the first attempt of every agencyenforcing environmental rule of law in the country ought tobe to alleviate environmental concerns by proper mitigatingmeasures. The future generations have an equal stake inthe environment and development. They are as muchentitled to a developed society as they are to anenvironmentally secure society. By Declaration on the Rightto Development, 1986, the United Nations has given expressrecognition to a right to development. Article 1 of the Declarationdefines this right as:

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“1. The right to development is an inalienable human right by virtueof which every human person and all peoples are entitled toparticipate in, contribute to, and enjoy economic, social, culturaland political development, in which all human rights andfundamental freedoms can be fully realized.”

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E508. The right to development, thus, is intrinsically connected tothe preservance of a dignified life. It is not limited to the idea ofinfrastructural development, rather, it entails human developmentas the basis of all development. The jurisprudence inenvironmental matters must acknowledge that there isimmense inter-dependence between right to developmentFand right to natural environment. In International Law andSustainable Development, Arjun Sengupta in the chapter“Implementing the Right to Development [International Law andSustainable Development–- Principles and Practice, Edn. 2004,pg. 354]” notes thus:

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“… Two rights are interdependent if the level of enjoyment ofone is dependent on the level of enjoyment of the other…””

30. Similarly, in Municipal Corporation of Greater Mumbaiv. Ankita Sinha[44], another three judge Bench of this Court ruled on thepowers of the NGT under the National Green Tribunal Act 2010. ThisCourt noted the significance of environmental justice and environmentalequity, and highlighted how environmental harms cause disproportionateimplications for the economically or socially marginalized groups. Thus,it was considered important to ensure that environmental equity wasachieved, through the use of principles such as sustainable development.In this regard, speaking through Justice Hrishikesh Roy, the Court held:

“XI. ENVIRONMENTAL JUSTICE AND ENVIROMENTALEQUITY

“XI. ENVIRONMENTAL JUSTICE AND ENVIROMENTALEQUITY

82. The conceptual frameworks of environmental justice and equityshould merit consideration vis-à-vis the NG’’s domain and how itsfunctioning and decisions can have wide implications in socio-economic dimensions of people at large. The concept ofenvironmental justice is a trifecta of distributive justice, proceduraljustice and justice as recognition.[Schlosberg D, DefiningEnvironmental Justice : Theories, Movements, and Nature (OxfordUniversity Press 2009)] Environmental equity as a developingconcept has focused on the disproportionate implicationsof environmental harms on the economically or sociallymarginalized groups. The concerns of human rights andenvironmental degradation overlap under this umbrella term, tohighlight the human element, apart from economic andenvironmental ramifications. Environmental equity thus standsto ensure a balanced distribution of environmental risks aswell as protections, including application of sustainabledevelopment principles.

83. Voicing concerns about the disproportionate harm for the poorsegments, Lois J. Schiffer (then Assistant Attorney General,Environment & Natural Resources Division (ENRD), U.S.Department of Justice) and Timothy J. Dowling (then Attorney atENRD) in their Reflections on the Role of the Courts inEnvironmental Law, wrote the following evocative passage onthe concept of environmental justice, A

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A“Environmental Justice, which focuses on whether minorities andlow-income people bear a disproportionate burden of exposure toenvironmental harms and any resulting health effects. In the pastten to fifteen years, this issue has crystallized a grass-rootsmovement that combines civil rights issues with environmentalissues, with a goal of achieving “environmental justice” orB“environmental equity”, which is understood to mean the fairdistribution of environmental risks and protection fromenvironmental harms.”[Schiffer, L. J., & Dowling, T. J. (1997).Reflections On The Role Of The Courts In Environmental Law.Environmental Law, 27(2), 327-342]”

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31. The principle of sustainable development is deep-rooted in thejurisprudence of Indian environmental law. It has emerged as a multi-faceted principle, which does not prohibit development, but structures itaround what is sustainable. Sustainable development incorporates twoDrelated ideas – development which not only ensures equity between thepresent and the future generations but also development which ensuresequity between different sections of society at present. However, whilethe principle has deep roots, there is a lack of consensus on how toascertain whether a particular developmental project abides by theEprinciple of sustainable development. Without a common benchmark orstandard being applied by the Court in its analysis of the impact ofdevelopment projects, the principle of sustainable development may creatediffering and arbitrary metrics (depending on the nature of individualprojects). This not only creates uncertainty within the law, but makesthe application of the principle of sustainable development selective, takingFaway from its potential to drive sustained change.

32. A cogent remedy to this problem is to adopt the standard ofthe ‘environmental rule of law’ to test governance decisions under whichdevelopmental projects are approved. In its 2015 Issue Brief titled“Environmental Rule of Law: Critical to Sustainable Development”, theGUnited Nations Environment Programme[45] has recommended theadoption of such an approach in the following terms[46]:

45 “UNEP”

46 Available at <https://wedocs.unep.org/bitstream/handle/20.500.11822/10664/issue-Hbrief-erol.pdf?sequence=1&amp%3BisAllowed=> accessed on 7 December 2021

“Environmental rule of law integrates the critical environmentalneeds with the essential elements of the rule of law, and providesthe basis for reforming environmental governance. It prioritizesenvironmental sustainability by connecting it with fundamentalrights and obligations. It implicitly reflects universal moral valuesand ethical norms of behaviour, and it provides a foundation forenvironmental rights and obligations. Without environmental ruleof law and the enforcement of legal rights and obligations,environmental governance may be arbitrary, that is, discretionary,subjective, and unpredictable.”

33. UNEP has further reiterated the importance of the‘environmental rule of law’ in its 2019 report titled “Environmental Ruleof Law: First Global Report”, where it notes:

“Environmental rule of law is key to achieving the SustainableDevelopment Goals. Indeed, it lies at the core of SustainableDevelopment Goal 16, which commits to advancing “rule of lawat the national and international levels” in order to “[p]romotepeaceful and inclusive societies for sustainable development,provide access to justice for all and build effective, accountableand inclusive institutions at all levels.”

[…]

Environmental law and institutions have grown dramatically inthe last few decades, but they are still maturing. Environmentallaws have taken root around the globe as countries increasinglyunderstand the vital linkages between environment, economicgrowth, public health, social cohesion, and security. Countries haveadopted many implementing regulations and have started toenforce the laws. Too often, though, there remains animplementation gap.

Environmental rule of law seeks to address this gap and alignactual practice with the environmental goals and laws on the books.To ensure that environmental law is effective in providing anenabling environment for sustainable development, environmentalrule of law needs to be nurtured in a manner that builds stronginstitutions that engage the public, ensures access to informationand justice, protects human rights, and advances true accountabilityfor all environmental actors and decision makers…”

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A34. Within the Indian context, environmental rule of law was firstapplied by this Court in Hanuman Laxman Aroskar v. Union ofIndia[47]. In that case, the Government of Goa had mooted a newinternational airport at Mopa in Goa in 1997. While the MoEF&CC gaveit an EC, it ultimately came to be challenged before this Court. In itsdecision, a two-judge Bench of this Court found a lack of informationBtransparency in the disclosures filed by project proponents, and directeda fresh exercise for a rapid EC to be carried out. In emphasizing onenvironmental governance within a rule of law paradigm, Justice DYChandrachud observed:

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144. The environmental rule of law provides an essentialplatform underpinning the four pillars of sustainabledevelopment — economic, social, environmental and peace[United Nations Environment Programme, First EnvironmentalRule of Law Report. Available at <https : //wedocs.unep.org/bitstream/handle/20.500.11822/27279/Environmental_rule_of_law.pdf?sequence=1&isAllowe d=y>]. It imbuesenvironmental objectives with the essentials of rule of lawand underpins the reform of environmental law andgovernance [ United Nations Environment Programme, FirstEnvironmental Rule of Law Report. Available at <https : //wedocs.unep.org/bitstream/handle/20.500.11822/27279/Environmental _rule_of_law.pdf?sequence=1&isAllowe d=y>] .The environmental rule of law becomes a priority particularly whenwe acknowledge that the benefits of environmental rule of lawextend far beyond the environmental sector. While the most directeffects are on protection of the environment, it also strengthensrule of law more broadly, supports sustainable economic and socialdevelopment, protects public health, contributes to peace andsecurity by avoiding and defusing conflict, and protects humanand constitutional rights [ United Nations Environment Programme,First Environmental Rule of Law Report. Available at <https : //wedocs.unep.org/bitstream/handle/20.500.11822/27279/Environmental _rule_of_law.pdf?sequence=1&isAllowe d=y>] .Similarly, the rule of law in environmental matters is D

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indispensable “for equity in terms of the advancement ofthe Sustainable Development Goals (SDGs), the provisionof fair access by assuring a rights-based approach, and thepromotion and protection of environmental and othersocioeconomic rights [ “UN Environment, Environmental Ruleof Law”. Available at <https : //www.unenvironment.org/explore-topics/environmental-rights-and-governance/what-we-do/promoting-environmental-rule-law-0>] .”

145. […] Thuspprox.terizedd, it encompasses thepreservation, and when possible even the expansion of thesubstantive freedoms and capabilities of people todaywithout compromising the capability of future generationsto have similar — or more — freedoms. The intertwinedconcepts of environmental rule of law thus furtherintragenerational as well as intergenerational equity.

Thus, the Court acknowledged that consistent decision-makingon its behalf was a crucial factor in upholding the environmental rule oflaw.

35. In Bengaluru Development Authority v. SudhakarHegde[48], a two-judge Bench of this Court observed that there was nowinner in environmental litigation, since both – development and protectionof environment – are necessary. The Court clarified that a frameworkcreated by environmental rule of law has to balance both theseconsiderations by creating transparent and accountable institutions, whileallowing for participatory democracy. Justice DY Chandrachud, speakingfor the Court, held:

“94. The adversarial system is, by its nature, rights based. In thequest for justice, it is not uncommon to postulate a winning sideand a losing side. In matters of the environment anddevelopment however, there is no trade-off between thetwo. The protection of the environment is an inherentcomponent of development and growth.

95. The protection of the environment is premised not only on theactive role of courts, but also on robust institutional frameworks A

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Awithin which every stakeholder complies with its duty to ensuresustainable development. A framework of environmentalgovernance committed to the rule of law requires a regimewhich has effective, accountable and transparentinstitutions. Equally important is responsive, inclusive,participatory and representative decision-making.BEnvironmental governance is founded on the rule of lawand emerges from the values of our Constitution. Wherethe health of the environment is key to preserving the rightto life as a constitutionally recognised value under Article21 of the Constitution, proper structures for environmentalCdecision-making find expression in the guarantee againstarbitrary action and the affirmative duty of fair treatmentunder Article 14 of the Constitution. Sustainabledevelopment is premised not merely on the redressal ofthe failure of democratic institutions in the protection ofthe environment, but ensuring that such failures do not takeDplace.”

36. In H.P. Bus-Stand Management & DevelopmentAuthority v. Central Empowered Committee[49], a three-judge BenchEheld that environmental rule of law was no panacea which allowed for aclear set of solutions in every case, since every case was unique andwith differing levels of actual evidence. However, it did provide aframework within which any case could be adjudicated in a predictablemanner, keeping in mind the principles of sustainable development at itscore. Justice DY Chandrachud, speaking for the Court, held:F

“52. The need to adjudicate disputes over environmentalharm within a rule of law framework is rooted in a principledcommitment to ensure fidelity to the legal frameworkregulating environmental protection in a manner thattranscends a case-by-case adjudication. Before this modeGof analysis gained acceptance, we faced a situation in which,despite the existence of environmental legislation on thestatute books, there was an absence of a set of overarchingjudicially recognised principles that could inform environmental adjudication in a manner that was stable,certain and predictable.

53. However, even while using the framework of an environmentalrule of law, the difficulty we face is this — when adjudicatingbodies are called on to adjudicate on environmental infractions,the precise harm that has taken place is often not susceptible toconcrete quantification. While the framework provides valuableguidance in relation to the principles to be kept in mind whileadjudicating upon environmental disputes, it does not provide clearpathways to determine the harm caused in multifarious factualsituations that fall for judicial consideration. The determination ofsuch harm requires access to scientific data which is often timesdifficult to come by in individual situations.

54…the environmental rule of law calls on us, as Judges, tomarshal the knowledge emerging from the record, limitedthough it may sometimes be, to respond in a stern anddecisive fashion to violations of environmental law. We cannotbe stupefied into inaction by not having access to complete detailsabout the manner in which an environmental law violation hasoccurred or its full implications. Instead, the framework,acknowledging the imperfect world that we inhabit, providesa roadmap to deal with environmental law violations, anabsence of clear evidence of consequencesnotwithstanding.”

37. Having now established the framework of judicial principlesnecessary for this Court to adjudicate the present matter, it is importantto consider the specific set of circulars and guidelines which areapplicable.

E.2 Circulars and Guidelines

38. A combined reading of Article 246 along with Entry 23[50] ofList I of Schedule VII of the Constitution of India indicates that nationalhighways fall entirely within the ambit of the Parliamentary domain. Theexecutive power of the Union is co-extensive with the power ofParliament. In accordance with Section 2(2) of the National Highways 50 “23. Highways declared by or under law made by Parliament to be national highways.”

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AAct 1956, the Union Government is empowered to declare any road asa national highway and issue directions for its development andmaintenance[51]. Within the Union Government, the specific responsibilitylies with MoRTH. Hence, we must first begin by analyzing the relevantcirculars which have been issued by MoRTH.B39. The first of these is the 2012 MoRTH Circular, which wastitled “Capacity building and lane width of National Highways”. It stated:

“I am directed to inform that Ministry intends to take updevelopment of such National Highways having carriagewaywidth less than the two lane width. These roads are to beCdeveloped to a minimum level.

2. Generally, the carriageway width is dictated by the expectedtraffic. National Highways which are the primary route have higherexpectation from the consideration of level of service as well asfrom safety consideration. This aspect was deliberated in theDMinistry, and observed that the NHs are serving the mixed traffic.Besides, India has the dubious distinction in terms of fatalities onroads and there is need to segregate slow moving traffic fromfast moving traffic.

3. In the above back ground to ensure safe and smooth traffic onENHs, it has been decided that efforts be made to convert allthe NHs to a minimum level of two lane with pavedshoulders. Towards implementation of this, henceforthwhenever new projects of widening/bypass/realignment aretaken up, the width of the carriageway shall be at least twolane with paved shoulders irrespective of the trafficFthereon.”

The 2012 MoRTH Circular provides that every national highway,if it was presently less than of a two-lane width (i.e., less than 7m) or ifit was under development, had to henceforth meet the requirement ofGthe DL-PS standard in order to ensure safety and the smooth flow oftraffic. Accompanying this circular, was the following pictorialrepresentation of the new national highway width:

H51 Project Implementation Unit v. P.V. Krishnamoorthy, (2021) 3 SCC 572

As we can note from the above depiction, the highway would beof a two-lane width (i.e., 7m) with each of its sides being flanked by1.5m of paved shoulders, which would be followed by 1m of earth/granular shoulders.

40. Following the 2012 MoRTH Circular, the IRC (an apex bodyof engineers in relation to road development) issued its 2015 IRCGuidelines in relation to the standards to be followed while developinghighways with the DL-PS specification. Section 13 of the Guidelinesdealt with the special requirements for hilly roads. While it is not necessaryfor us to explain the specific requirements, the 2015 IRC Guidelineshighlight that highways with the DL-PS standard could be constructedfor hilly roads.

41. The 2012 MoRTH Circular was modified by the 2018 MoRTHCircular, which was titled “Standards for Lane width of NationalHighways and roads developed under Central Sector Schemes in Hillyand Mountainous terrains”. As the name suggests, the 2018 MoRTHCircular modified the 2012 MoRTH Circular to the extent that it appliedto national highways in hilly and mountainous terrains. The relevantportions of the Circular read as follows:

“On the subject of “Capacity building and lane width of NationalHighways”, it has been stipulated vide this Ministry’s letter No.NH-14019/6/2012-P&M dated 05.10.2012 [2012 MoRTHCircular] that width of carriageway shall be at least two lane withpaved shoulders irrespective of the traffic thereon in new projectsundertaken for widening of carriageway/ bypasses/realignments.

2. However, challenges have come to the fore in adhering to thesestandards in the context of National Highways and roads in hillyand mountainous terrains. These challenges arise on account ofdestabilization of hill slopes and progressive damaging effects onroad alignments and structures in higher contours on hills due toexcavation works, requirement for large-scale felling of precioustrees, associated environmental damages. Resultantly, there arisesneed to provide largescale protection works, acquisition ofadditional land for Right of Way (ROW), etc.

A

B

C

DE

F

G

H

A[…]

4. The provisions of Ministry’s letter No. NH-14019/6/2012-P&Mdated 05.10.2012 [2012 MoRTH Circular], have, accordingly, beenreviewed and it has been decided with the approval of theCompetent Authority that the following provisions shall be applicableBhenceforth for National Highways and roads under Central SectorSchemes in hilly and mountainous terrains until further orders:

[…]

4.4 Following specific provisions shall be made for trafficvolumes ranging from 3,000 PCUs/day to about 8,000/day:- C

(i) The carriageway width shall be of intermediate laneconfigurations, i.e. of 5.5 m width (18 ft), with two-lanestructures (23 ft.).

(ii) The passing places may have widths of 2.5 m and 12 mDlength and these may be provided on alternate sides of theroad. The length of the tapered section may be 6 m on eitherside of their approaches. Accordingly, the length of thepassing places may be 24 m inclusive of the tapered length.

[…]

(vii) The Roadway width for Hilly and Mountainous Terrainas per IRC: SP-2015 (Manual of Specifications andStandards for Two laning of Highways with paved shoulder)[2015 IRC Guidelines] would stand amended accordingly.

E

4.5 For traffic volume of more than 10,000 PCUs/day orFthe existing traffic volumes likely to witness a fast growthto reach this level within a period of 3 to 5 years, thecarriageway width shall be of two lane NH configurations,i.e. of 7 m width. The carriageway widths shall be of twolane NH configurations with paved shoulders only in caseswhere the traffic is likely to increase at about more than 10G% per annum.

5. The provisions of Ministry’s letter No. NH-14019/6/2012-P&Mdated 05.10.2012 [2012 MoRTH Circular] shall continue to beapplicable in all other cases.”

H

CITIZENS FOR GREEN DOON v. UNION OF INDIA[DR DHANANJAYA Y CHANDRACHUD, J.]

The 2018 MoRTH Circular modifies its precursor of 2012 forhilly and mountainous terrains in the following ways: (i) for areas wherethe PCUs are in the range of 4,000-8,000 PCUs per day, the carriagewaywidth cannot be of DL-PS configuration but has to be of IW standard(i.e., 5m); (ii) along with this, adequate passing places with 2.5m widthhave to be included; (iii) the 2015 IRC Guidelines stood amended; (iv)for areas where the PCUs are more than 10,000 per day (or expected toreach that level within 3 to 5 years), the carriage way width could be ofdouble lane configuration (i.e., 7m); and (v) where the traffic is likely toincrease by more than 10 per cent per annum, the width could be of DL-PS configuration.

42. Subsequently, the IRC issued its 2019 IRC Guidelines in relationto hilly roads. Of particular importance is Clause 6.2.2, which reads asfollows:

“6.2.2 Width of carriageway, shoulders and roadway for variouscategories of roads are given in Table 6.2.

Table 6.2 Widths of Carriageway, Shoulder and Roadway […]

Notes:[…]

A

B

C

D

E

F

G

H

A

B

C

D

E

F

G

H

6. On roads subject to heavy snow fall, where snow clearance isdone over long periods, roadway width may be increased by 1.5m. However, the requirement of such widening may be examinedwith reference to ground conditions in each case considering terraintraffic and other influencing conditions and factors.

[…]

8. Strategic and border roads for military/paramilitary/securityforces operations/movements shall be constructed for not lessthan two lane carriageway alongwith paved shoulder on hill side+ paved and earthen shoulder on valley side on same lines ofnational highway.”

Clause (8) of the Notes attached to Clause 6.2.2 provides that ifa road is a strategic or a border road and is going to be used for“military/paramilitary/security forces operations/movements”, thenit must be of DL-PS configuration (along with earthen shoulders),“on the same lines” as other national highways.

43. Finally, the 2020 MoRTH Circular modifies the 2018 MoRTHCircular, in view of the suggestions received from the MoD. The circular,titled “Standards for Lane width of National Highways and roadsdeveloped under Central Sector Schemes in Hilly and Mountainousterrains”, provides as follows, in so far as is material:

“MoRT&H had issued circular on “Standards for Lane width ofNational Highways and roads developed under Central SectorSchemes in Hilly and Mountainous terrains” vide this Ministry’sletter of even number dated 23[rd] March, 2018 [2018 MoRTHCircular]. The standards prescribed therein have beenfurther reviewed in the Ministry in light of the issues raisedby Ministry of Defence. A committee of Chief Engineersconsidered the suggestions received in this regard and haverecommended modifications to the standards prescribed in thecircular referred above.

2. It is observed that the standards prescribed in the circularreferred above does not address the issues concerning strategicroads as stipulated in clause 6.2.2 of IRC: 52-2019 (Guidelinesfor the Alignment Survey & Geometric Design of Hill Roads)[2019 IRC Guidelines].

3. Accordingly, in partial modification of the circular cited above,the following additional guidelines are notified with immediate effect.

“For roads in hilly and mountainous terrain which act asfeeder roads to the Indo-China border or are of strategicimportance for national security, the carriageway width shouldbe 7m with 1.5m paved shoulder on either side.””

The 2020 MoRTH Circular amends the earlier circular of 2018since its directions were incompatible with the recommendations underClause (8) of the Notes attached to Clause 6.2.2 of the 2019 IRCGuidelines, according to which every strategic and border road has to beof DL-PS configuration along with earthen shoulders. Hence, the 2020MoRTH Circular provides that roads which may be located in hilly andmountainous regions but serve as feeder roads to the Indo-China borderor are of strategic importance for national security should also be ofDL-PS configuration.

44. On a combined reading of the 2012, 2018 and 2020 MoRTHCirculars and 2015 and 2019 IRC Guidelines, it emerges that a roadshall be of a DL-PS configuration in the following circumstances: (i) if itis a national highway, other than in hilly or mountainous terrain; (ii) inhilly or mountainous terrain, a national highway can be double-laned ifthere are more than 10,000 PCUs per day or that level will be reached in3 to 5 years; (iii) in hilly or mountainous terrain, a national highway canbe of DL-PS configuration if the traffic is likely to increase more thanabout 10 per cent per annum; and (iv) in hilly or mountainous terrain,any road (including a national highway) can be of DL-PS configurationif it is strategic or a border road serving as a feeder road to the Indo-China border or if it is of strategic importance to national security.

FIssues and Analysis

F.1 Road-Width Issue

45. The issue that arises for consideration is regarding the road-width to be adopted for the three strategic border roads, as indicated inMA No 2180 of 2020 filed by the MoD, namely: Rishikesh to Gangotri(NH-94 and NH-108), Rishikesh to Mana (NH-58), and Tanakpur toPithoragarh (NH-125). Broadly speaking, the appellants have arguedthat the present road infrastructure is sufficient to meet the needs of the A

B

C

D

E

F

G

H

AIndian Army. Any further development, it has been urged, must bebalanced keeping in mind the fragility of the Himalayas, the excessivedamage caused to the environment and the need to ensure disaster-resilient roads. On the other hand, the UOI has stressed on the necessityof developing these feeder roads, for the security of the nation. Giventhe proximity of the roads to the Indo-China border, and the necessity ofBfree movement for transport of trucks, machines, equipment and personnelof the Indian Army, double lane configuration must be allowed, accordingto the UOI. To analyse the issue, we shall first advert to the findings ofthe HPC.

F.1.1 HPC Report dated 13 July 2020C

46. The HPC report was finalized by its members functioningunder Professor Ravi Chopra as its Chairperson. For the preparation ofthe HPC Report, the members conducted site-visits, held meetings,interacted with the officers of MoRTH, district officials and the localcommunities. The Report is divided into twelve chapters, each of whichDtouches upon various aspects of the Project such as road-widening; hillcutting; bypasses; muck dumping; environment quality; loss of forestsand green cover; impact on wildlife; managing water courses; disastermanagement and socio-cultural perspectives. For the purpose of theissue for consideration, i.e., the width of roads on the national highways,EChapter II is of utmost relevance. The remaining chapters have beenbriefly summarized in Section F.2.1 of this judgment.

47. Chapter II of the HPC Report titled ‘Road Widening’ dealswith the construction of highways and the width of roads. For determiningthe width of the road, the HPC highlighted the following factors are toFbe borne in mind: ecological concerns, social concerns, traffic surveys,capacity of roads, geometric design, terrain classification, design speed,sight distance or visibility, right of way and setback distance at horizontalcurves.

48. According to the Indian Roads Congress Hill Roads ManualG1998[52], the following type of roads have been indicated, based on trafficvolumes:

49. The 2012 MoRTH Circular, however, provided that for newprojects of widening/bypass/realignment, the width of the carriagewaywill be at least two lane with paved shoulders, irrespective of the traffic.

50. During the field visit, the HPC observed that though the routesfor the Project are designed for the DL-PS standard, in certain stretchesthe formation width varies from 12m to 20m depending on the geometricrequirements. Further, many of the existing stretches, which were alreadydeveloped to an IW standard, are being widened. Due to the uniformstandard, in some areas large hill-cutting has been undertaken resultingin vertical slopes without adequate slope protection measures. This hasled to landslides and reflects inadequate assessment of slope vulnerability.

51. The discussion of the HPC revolved around the road-widththat should be adopted for the highways comprising of the Project. Factorssuch as the road geometrics, traffic volume, ecological considerations(such as steep terrain, loss of forest cover, et al) guided the discussionof the HPC. At present, the project requirement envisages a DL-PSstandard as given below:

Thus, all the highways were to be widened to reflect a widthbetween 9 – 12m.

52. A majority consisting of thirteen members of the HPC was ofthe opinion that the DL-PS standard must be applied uniformly throughoutthe Project for the following reasons:

A

B

C

D

E

F

G

H

A(i)The IRC Manual recommends a uniform application of designstandards and any adjustments that need to be made to factorin the variability in slopes, must be intended for short distances;

(ii) The roads of the hills require protective works such asretaining walls, breast walls, catch drains, et al, which form aBsubstantial part of the construction cost. Once the roads havebeen constructed, the widening of roads in the future isexpensive, and at times impossible. Thus, the highways mustbe widened bearing in mind the traffic volumes for the next20-25 years; C(iii) Some of the highways of the Project are important feederroads leading towards border areas. The BRO has highlightedthat the terrain in border areas is in a snow bound region andfeeder routes such as Helong-Mana and Barethi-Gangotri mustbe double-laned. Further, the roads beyond Joshimath andUttarkashi are operationally sensitive and fall within 100 kmsDof the Line of Actual Control. Single-lane roads are closedduring the winter season due to accumulation of snow andhinder the movement of logistics and medical aid to the IndianArmy;

(iv) The 2019 IRC Guidelines also suggest that strategic borderEroads for military and paramilitary forces be not less than twolanes with paved shoulders; and

(v) Suitable adjustments can be made to the standard design afterconsidering vulnerability of slopes, identification of stretchesvulnerable to floods, mapping wildlife corridors and providingFadequate safeguards.

53. A minority consisting of five members of the HPC, includingthe Chairperson, was in favour of adopting the IW standard for theProject. Their opinion was based on the following reasons:

(i) The type of road must be determined based on traffic surveys,Gcapacity of roads, and ecological considerations. The 2012MoRTH Circular, however, recommended only an operationalstandard;

(ii) The detailed project reports for the Project have based thechoice of road-width on traffic survey data. However, theH

data is insufficient as the traffic volume count of only April-May, which is a non-peak period, was taken into account.Additionally, no traffic surveys were conducted for the HigherHimalayas, which suggest that the DL-PS standard isextremely wide; A

(iii) The current standard ignores the overall environmentalconsiderations such as geological fragility, slope de-stabilizationand recurring landslides, climate change and soil organic carbonloss. MoRTH has not conducted an EIA for the Project whichwould suggest site-specific mitigation measures; B

(iv) Although border security concerns are a relevant factor, notCall routes lead to the international borders. To ensure thatnational security concerns are addressed, more disaster-resilient highways are needed which would not be achievedby cutting fragile slopes. Further, the Chief of Army Staff on20 September 2019 had made a statement that the currentDroads adequately fulfilled the needs of the Army; and

(v) The 2018 MoRTH Circular acknowledges that the DL-PSstandard has led to issues in the mountainous terrains andrecommended that road design be based on traffic volume.The 2018 MoRTH Circular was not brought to the notice ofthe members of the HPC during the discussion and wasreceived later, after the voting had taken place. It wascirculated by the Chairperson, after which two voting membersand the Chairperson recommended the adoption of the IWstandard in all stretches where widening remains to be done.

E

F

54. Since the 2018 MoRTH Circular, which was central to thediscussion on road-width, was inadequately considered by the HPC, itwas suggested by the Chairperson that a final decision on this issuemust be taken by the Supreme Court. Apart from the issue of road-width, the majority of members also recommended that:

G

(i) To avoid the possibility of slope failures, valley side filling mustbe given importance;

(ii) A footpath for walking along the highways of the Project mustbe made for the pilgrims; and A(iii) In built-up areas where road side facilities and establishmentsexist, the width of the roads should be kept at 10.5m (7mcarriageway and 1.75m paved shoulder on either side).

55. With regard to the BESZ, the HPC noted that the Project hasfive unsanctioned projects which run through it. MoRTH plans to upgradeB100.5 kms from Uttarkashi to Gangotri to conform to the DL-PS standard.The following recommendations were made:

(i) BRO, which is the implementing agency, must obtain allrequisite clearances under the relevant notifications of theMoEF&CC; C

(ii) Road widening activities should only be undertaken afterdetailed EIAs and mitigation measures;

(iii) The felling of deodar trees should be avoided;

(iv) Feasibility studies should be conducted in the short tunnelsDproposed within the highways, and

(v) Vulnerability evaluations and terrain assessments must beconducted.

F.1.2 HPC Report dated 31 December 2020

56. Following the filing of MA No 1925 of 2020 and MA No 2180Eof 2020, this Court by an order dated 2 December 2020 directed theHPC to consider the issues raised by Professor Ravi Chopra and theMoD, and submit a detailed report. The HPC Report-II was thereaftersubmitted. In relation to MA No 2180 of 2020 filed by the MoD, a majorityof 21 members recommended that further work to be undertaken by theFMoRTH should be according to the 2020 MoRTH Circular, as it isnecessary for the security of the nation. A minority of three memberswas not persuaded that the order of this Court dated 8 September 2020should be modified. One member recommended that the work on thenational highways from Rishikesh to Gangotri, Rishikesh to Mana, andTanakpur to Pithoragarh may be carried out according to the 2020GMoRTH Circular. However, a flexible approach should be adopted wherenecessary, to minimize damage to the forests and wildlife habitats. Onthe letters filed by the Chairperson, a majority of members recommendedthat the letters be withdrawn.

57. The majority report indicates that:H

(i) The concerns raised by the MoD had been deliberated by theHPC and the majority view in the HPC Report indicated theadoption of the DL-PS standard. However, the majority reportwas overridden by the views of 4 members;

(ii) The HPC Report discussed the strategic importance of thethree national highways: NH-34 (previously NH-94 +NH-108),NH-07 (previously NH-58) and NH-125;

(iii) The District Magistrates of Uttarkashi, Chamoli andChampawat District expressed concern that the local peoplewanted an all-weather reliable road along with the requirementof the MoD; and

(iv) The Rapid EIA reports of the Rishikesh-Rudraprayag stretchindicated that the impact of the Project is 32.25 per cent, whichfalls in the medium impact category. Thus, from an EIAperspective, the widening of the highways should be permitted.

58. The minority of members stated in their report that:

(i) On the three feeder highways mentioned by the MoD in theirapplication, 161 landslides/vulnerable zones were created. Dueto the new landslides, the entire project would be counter-productive for defence-preparedness;

(ii) The requirement of the MoD for the feeder roads should beconsidered in the context of the need for disaster resilientroads, capacity of roads to ensure swift movement of Armyvehicles, minimizing environmental and social impact and long-term feasibility of the roads; and

(iii) The difference between the recommendation of the minorityand the MA filed by the MoD is in regard to the reduction ofcarriageway by 1.5m, with due regard to the requirement ofa footpath of 1.5m for the local population and pilgrims.

F.1.3 Analysis on the width of road

59. Pursuant to the order of this Court of 8 September 2020, theissue of the width of the national highways that are a part of the Projecthas been raised in MA No 2180 of 2020 filed by the MoD, which seeksmodification of the order itself. The grounds listed in the MA indicatethat the national highways from Rishikesh to Mana, Rishikesh to Gangotri A

B

C

D

E

F

G

H

Aand Tanakpur to Pithoragarh are feeder roads to border areas and arevital from the perspective of national security. Thus, it has been urgedthat development of these highways should be according to the two-laneconfiguration.

60. The details of these roads and their proximity to the internationalBborder has been provided in the MA by the MoD, and is reproducedbelow:

‘‘Table ACDEFGH

ABCDEFGH

A61. Based on the above description, it is evident that the nationalhighways provide vital connections to the establishments of the ArmedForces along the Nelong Axis, Mana Pass, Rimkhim Pass, Niti Pass andLipulekh Pass. The importance of the requirement of double-lanedhighways has been emphasized as it is necessary for the movement oftrucks, equipment and personnel of the Armed Forces.B

A

62. The above table also indicates that the MoD does not seek towiden only the three national highways which act as feeder roads. Instead,the roads connecting the national highways from Gangotri, Mana andPithoragarh to the Army establishments across the border are also invarious stages of development and attempts have been made to ensureCdouble-laned highways as far as possible. The MoD has also highlightedthat these feeder roads from Rishikesh to Gangotri and Joshimath toMana were initially included in the Long-Term Roll on Works Plan 2018-19 to 2022-23 of the BRO. This plan seeks to upgrade the nationalhighways to double lane specifications to meet the operationalDrequirements of the Indian Army. Prior to 2016, these roads were underthe purview of the BRO, which is an arm of the MoD. It is only after2017 that portions of these roads were handed over to PWD and NHIDCLfor speedier development, given the expansive works to be undertakenfor the Project.

E63. At the outset, therefore, we find that there are no mala fidesin MA No 2180 of 2020 filed by the MoD. The allegation that theapplication filed by the MoD seeks to re-litigate the matter or subvertthe previous order of this Court are unfounded inasmuch as MoD, as thespecialized body of the Government of India, is entitled to decide on theoperational requirements of the Armed Forces. These requirementsFinclude infrastructural support needed for facilitating the movement oftroops, equipment and machines. The bona fides of the MoD are alsoevident from the fact that the issue of security concerns was raisedduring the discussions of the HPC and finds mention in the HPC Report.Thus, the MoD has maintained the need for double-laned roads to meetGborder security concerns.

64. The appellants have referred to a statement made by theChief of the Army Staff in 2019 in a media interview regarding theadequacy of infrastructure for troop movement. We do not find itnecessary to place reliance on a statement made to the media, given theHconsistent stand of the MoD during the deliberations of the HPC and before this Court. The security concerns as assessed by the MoD maychange over time. The recent past has thrown up serious challenges tonational security. The Armed Forces cannot be held down to a statementmade during a media interaction in 2019 as if it were a decree writ instone. Similarly, the appellants have also raised a challenge to the 2020MoRTH Circular and have sought a direction that this circular be revoked,on the ground that it recommends the DL-PS standard without applicationof mind.

A

B

65. This Court, in its exercise of judicial review, cannot second-guess the infrastructural needs of the Armed Forces. The appellantswould have this Court hold that the need of the Army will be subservedbetter by disaster resistant roads of a smaller dimension. The submissionof the appellants requires the Court to override the modalities decidedupon by the Army and the MoD to safeguard the security of the nation’sborders (it is important to remember that the MoRTH issued the 2020MoRTH Circular based upon the recommendations received from theMoD). The submission of the appellants requires the Court to interrogatethe policy choice of the establishment which is entrusted by law with thedefence of the nation. This is impermissible.

C

D

66. We shall now advert to the position of law regarding theconstruction of double-laned roads. The 2012 MoRTH Circular stipulatedthat all national highways were to have a carriageway width of twolanes. While this circular acknowledged that, generally, the carriagewaywidth is dictated by the traffic volume, but in an attempt to ensure smoothflow of traffic, all highways were henceforth to be converted to twolanes with paved shoulders. Thus, according to the 2012 MoRTH Circular,all highways were to conform to the DL-PS standard.

E

F

67. The 2018 MoRTH Circular modified the 2012 version. TheCircular of 2018 stipulated that:

(i) In hills and mountainous terrains, for areas where the PCUsare in the range of 4,000-8,000 PCUs per day, the carriagewaywidth cannot be of double lane configuration but has to be ofGintermediate configuration (i.e., 5m); along with this, adequatepassing places with 2.5m width have to be included;

(ii) For areas where the PCUs are more than 10,000 per day (orexpected to reach that level within 3 to 5 years), the H

Acarriageway width could be of double lane configuration (i.e.,7m); and

(iii) Where the traffic is likely to increase “at about more than”10 per cent per annum, the width could be of DL-PSconfiguration.

B

Thus, the 2018 MoRTH Circular did not entirely bar theconstruction of double-laned highways in hilly and mountainous terrains.It only made the DL-PS standard contingent on the current and projectedtraffic volume for the road.

68. The 2019 IRC Guidelines, in relation to the width of carriagewayCfor national highways, provided that that DL-PS standard should beadopted. More specifically, the 2019 IRC Guidelines dealt with nationalhighways in hills and mountainous terrain that serve as strategic roadsand border roads for military and paramilitary operations. It providedthat such roads should be constructed with not less than a two laneDcarriageway with a paved shoulder on the hill side and an earthen shoulderon the valley side. The relevant clause is reproduced below:

“6.2.2 Width of carriageway, shoulders and roadway for variouscategories of roads are given in Table 6.2.

Table 6.2 Widths of Carriageway, Shoulder and Roadway E[…]

Notes:

[…]

6. On roads subject to heavy snow fall, where snow clearance isFdone over long periods, roadway width may be increased by 1.5m. However, the requirement of such widening may be examinedwith reference to ground conditions in each case considering terraintraffic and other influencing conditions and factors.

[…]G

8. Strategic and border roads for military/paramilitary/security forces operations/movements shall be constructedfor not less than two lane carriageway alongwith pavedshoulder on hill side + paved and earthen shoulder on valleyside on same lines of national highway.”

H

69. Given the lack of clarity on this issue in the MoRTH circulars,the 2020 MoRTH Circular was brought in. The Circular of 2020 reiteratesthe 2019 IRC Guidelines and states that roads in hilly and mountainousterrain, which act as feeder roads to the Indo-China border should be ofDL-PS standard, with a 7m carriageway and 1.5m paved shoulder.

70. Neither the 2012 nor the 2018 MoRTH Circulars specificallyaddressed the issue of strategic border roads. The considerations fordevelopment of national highways in plains and in hilly and mountainousregions are not identical. Similarly, the considerations governing theconstruction of highways that are strategic roads from a defenceperspective, and may be used by the Armed Forces of the nation, cannotbe the same as those for other roads in hilly and mountainous regions.We must therefore arrive at a delicate balance of environmentalconsiderations such that they do not impede infrastructural development,specifically in areas of strategic importance crucial to the security of thenation.

71. Based on the above analysis, we find that the need for thedevelopment of national highways of a DL-PS standard is proportionateto the object of fulfilling the security concerns of the nation as assessedby the MoD. This is reinforced by the fact that the roads beyond thehighways in the Project, beyond Gangotri, Mana and Pithoragarh arebeing developed by the MoD as double laned highways.

72. Additionally, the current status of works for the three highwaysin question is as follows:

A

B

C

D

E

F

G

H

AFrom the above tabulated statement which has been provided bythe MoD, it appears that more than 50 per cent of the hill cutting hasalready been completed in each of these national highways, and over 50per cent of double-laning has been completed on NH-58 and NH-125.In view of this, partial development of the highway compliant with theIW standard and the remaining in conformity with the DL-PS standardBwould not be suitable for the needs of the Armed Forces and will, in fact,prolong the movement of troops and equipment.

73. We shall now turn to the findings and recommendations of theHPC regarding the issue of road-width. As reflected by this Court’sorder dated 8 August 2019, the HPC comprised of representatives fromCgovernmental bodies, including the MoD who could highlight therequirements of border roads. The broad terms of reference of the HPCwere as follows:

(i) To consider the cumulative and independent impact of theProject on the entire Himalayan valleys; D

(ii) To consider whether revision of the full Project (about 900kms) should at all take place with a view to minimize theadverse impact of the Project on the environment and sociallife; E(iii) To identify the sites in which work (i.e., hill-cutting) hasstarted and the stretches in which the work has not yet started.As far as the sites in which work has started, the HPC wasto recommend the measures which are required for stabilizingthe area where hill-cutting has taken place, including theenvironmentally safe disposal of muck which has beenFgenerated so that it does not adversely affect the flora andfauna of the catchment area of the river;

(iv) As regards the stretches where work has not started, theHPC was to review the proposed project and recommendmeasures which would minimize the adverse impact on theGenvironment and social life; bring the project in conformitywith the steep valley terrain and carrying capacity and avoidtriggering new landslides; and ensuring conservation andprotection of sensitive Himalayan valleys;

(v) To assess environmental degradation in terms of loss of forestHland, trees, green cover, water resources, dumping of muck

and impacts on the wildlife and direct mitigation measures;and

(vi) To asses and quantify the impact on social infrastructure/public-life due to triggering of fresh landslides, air pollution,frequent road blocks, et al, and suggest measures forredressal, including preparation of disaster management plansprior to the onset of the monsoon.

74. While the HPC was empowered to assess the environmentaland social impact of the Project, it was not competent to address, assessor review the security needs of the nation. The work of the HPC waslimited to giving recommendations to improve the Project in terms of itsenvironmental impact and to suggest mitigation strategies to implementthe Project. The competing interests that the HPC had to evaluate wereenvironmental concerns as against infrastructural development, theprimary reason of which in this Project was focused on increasing tourism,providing an impetus to the economy, and ease of transportation forundertaking the Char Dham pilgrimage. Balancing the interests ofdefence as against environmental considerations was outside the ambitof the HPC.

75. Be that as it may, the HPC Report does highlight that certainhighways (NH-94, 108, 58 and 125) form the feeder roads to borderlocations in the districts of Uttarkashi, Chamoli and Pithoragarh. Anextract of the relevant portion of the HPC Report is reproduced below[53]:

“Roads beyond Joshimath and Uttarkashi are operationally verysensitive as they fall within 100 Km of the LAC. The borderterrain lies in high altitude, snow bound regions. Indian Army andITBP units maintain continuous vigil on the borders and importantpasses. To ensure better national security, the Government of Indiahas given impetus for the development of double lane roadstowards the border. Roads beyond Bhaironghati and Mana arealready double-laned but the important feeder roads Helong-Manaand Barethi-Gangotri are generally single lane (except someintermittent stretches which are improved to two lane) with steepgradients, sharp curves, narrow hairpin bends, avalanche pronelocations and weak bridges which pose major challenges to vehiclemovements in these areas. The single lane roads get closed due A

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Ato snow accumulation and hinder the movement of soldiers evenby foot for provisions of logistic and medical aid.”

Bearing the above observations in mind, a majority of the membersof the HPC recommended the adoption of the DL-PS standard as road-width for the Project. This opinion was reiterated in HPC Report II,Bwhich considered the MA No 2180 of 2020 filed by the MoD.

76. We find ourselves to be in agreement with this finding of theHPC. Based on the above reasons, we modify the order of this Courtdated 8 September 2020 to the extent that the national highways fromRishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to PithoragarhCbe developed according to the double-lane carriageway width with pavedshoulder standard as provided in the 2020 MoRTH Circular.

77. An ancillary issue regarding the width of the roads of theProject, apart from the above highways which are strategic feeder roadsto border areas, is regarding the interpretation of the order dated 8DSeptember 2020. This Court in its order held that:

“We have perused the conclusion and recommendations of thereport, in particular, from pages 90-93 in Part I. We are of theview that it is correct that the 2018 MORTH circular shouldapply for the reasons given at page 93 of the report.EConsequently, the 2018 circular alone will apply. The otherdirections that were issued by us on 08.08.2019 must be strictlycomplied with, including the holding of quarterly meetings to ensuretimely and proper compliance of the recommendations.

Shri Tushar Mehta, learned Solicitor General, persisted with hisFarguments that the 2018 circular is only prospective in nature. Weare well aware of the distinction between something which isretrospective in the sense that it applies for the first time to projectswhich are already completed as opposed to ongoing projects,where it is necessary to take stock of the current situation andthen move forward. Having taken stock of the current situationGand of the fragility generally of the eco system in mountain terrain,we are of the view that this argument has no legs to stand on.”

78. One of the arguments raised by the appellants in their MA1925 of 2020 is that pursuant to this order, MoRTH has stated that the H

order will only be implemented for the 13 projects which have not beensanctioned and where work has not been initiated. In its affidavit dated15 February 2021, MoRTH has stated:

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“3. […] showing the status of road construction work in theChardham Pariyojna which would show that in almost everysanctioned project of the Chardham Pariyojna, hill cutting has beenBcarried out at various stretches as the old formation width of 12mts, leaving unfinished stretches in between. It is submitted thatin a particular sanctioned project, due to operational difficulties,hill cutting and laying down of a tarred road is often not carriedout simultaneously and/or in linear form. Thus, reducing the widthCof the road to 5.5 mts in the those unfinished stretches at thisstage would cause a serious road safety hazard. The details ofthe same is also reproduced hereinbelow:

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4. It is further stated that out of the total length of 825 kms of theChardham pariyojna, only 151 Kms consist of non-strategic roads,Gwhereas the rest of the pariyojna having a length of 674 Kmshave immense strategic importance being feeder roads to the Indo-china border roads under the control of Ministry of [D]efence.The details of the same are also reproduced hereinbelow:

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C79. The order of this Court dated 8 September 2020 clarified thatthe 2018 MoRTH Circular will hold the field, regardless of whether workson a highway had been completed or were ongoing. By allowing the MAfiled by the MoD for modification of this order, we have permitted thewidening of the national highways from Rishikesh to Mana, Rishikesh toGangotri, and Tanakpur to Pithoragarh, which are strategic feeder roadsDto border areas. To this extent, the order dated 8 September 2020 willstand modified. However, we grant liberty to the respondents to pursueappropriate legal proceedings and seek reliefs in the event that it isnecessary to implement the DL-PS standard for the entire Project.

F.1 Environmental IssuesE

80. While we have permitted the UOI and MoD to apply aDL-PS configuration to the highways mentioned in MA No 2180 of2020, it is not the end of this matter. There may have been a disagreementbetween the members of the HPC in relation to the road-width issue butthey unanimously agreed on other environmental issues in the manner inFwhich the Project was being implemented by MoRTH. Some of theseissues have also been pointed out by the appellants in MA No 1925 of2020 and their affidavits thereafter, often based upon news reports inrelation to the Project. We shall first note these issues as flagged by theHPC, consider their recommendations and based on that, we will issueGdirections to MoRTH and MoD.

F.2.1 HPC Report dated 13 July 2020

F.2.1 HPC Report dated 13 July 2020

81. The environmental and social concerns arising from the Projecthave been dealt with in Chapter III-XI of the HPC Report, along withthe recommendations and conclusions in Chapter XII. Apart from Chapter H

II on the issue of road-width as provided in Section F.1.1 above, thefindings of the HPC on all other issues have been unanimous.

82. Chapter III of the HPC Report deals with hill cutting andhighlights that slope instability is one of the most frequent disasters inmountains. Hill cutting in the Himalayas is also a major reason forlandslides and rockfalls. During field visits, the HPC observed that therewere large stretches of hill-cutting with steep slopes and no protectionmeasures, no slope drainage measures had been taken, the debris wasfalling downhill, further destabilizing the slope. The HPC recommendedthe following measures which could be adopted to mitigate the damageand prevent landslides:

(i) In many locations, hill-cutting can be avoided by filling materialon the valley side to widen the road;

(ii) Sufficient vulnerability analysis must be conducted beforefurther hill-cutting and plans for maintenance of slopes mustbe made;

(iii) Roadside drainage measures and protection against toe-erosion must be undertaken;

(iv) In case of near vertical to vertical cutting, a breast wall maybe erected to avoid landslides; and

(v) Damaged gabion structures must be repaired through back-filling, et al.

83. Chapter IV of the HPC Report concerns the 20 bypasses,realignments and tunnel projects that have been proposed for somesegments of the national highways as they are geologically unstable orin congested passages. The HPC observed that geological infirmitiesand the felling of deodar and oak trees are a critical issue in these bypasses.It recommended that feasibility studies may be conducted for some ofthe bypasses, along with their impact on local area residents.

84. Chapter V of the HPC Reports concerns a critical area of theProject – muck dumping. Muck-dumping or muck management requiressafe disposal of the muck generated due to the material excavated,tunneled, and dislodged. Within the Project, 435 muck-dumping sites havebeen identified for the 53 projects. However, the following issues wereidentified by the HPC in relation to muck-disposal:

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A(i)Most of these projects do not have adequate muck dumpingcapacity. In 5 out of the 7 packages, the authorized muckdumping capacity is below the muck volumes anticipated. Inone-third of the projects, the expected generation of muck ismore than the carrying capacity of the sites; B(ii) Most of the muck dumping sites are located in gorges ornatural drains, along the concave sections of rivers, in oradjacent to forests, near agricultural fields or habitations whichmay not have been authorized;

(iii) There are many large and tall sites, with high slope anglesCbut attempts to stabilize them have not been made; and

(iv) There is no financial provision for environmentally safedisposal of muck and no guidelines have been provided byMoRTH to the EPC Contractors regarding its propermanagement, leading to variations in selection of sites andDadoption of environmentally safe disposal practices bycontractors, who also dump it on private land on request.

85. For adequate disposal of muck, the HPC recommended thefollowing measures to be taken:

(i) Muck dumping should generally be located downwind ofEhabitation;

(ii) Topsoil should be kept separately in a proper manner for lateruse in rehabilitating muck disposal;

(iii) A large quantity of boulders (locally available) should bechecked for their mechanical properties and usedFappropriately;

(iv) Before muck is dumped at identified locations and constructionof protection measures, it should be ensured that the substratumhas enough shear strength to sustain the load without creatinga slip hazard. The gabion/protection walls should preferablyGbe constructed along the contours for better stability and abovethe highest flood level at a safe distance;

(v) Muck dumping sites should not be located on the concaveside of river meanders. Gorges and natural drainage also needto be avoided;H

(vi) Plantation of locally available plant species should be preferredAfor rehabilitation of dump sites along with help from localpeople and forest department;

(vii) MoRTH and the implementing agencies must immediatelycoordinate with district authorities to acquire additional muckdumping sites and necessary clearances to ensure that muckBgeneration equals carrying capacities of muck dumping sites;

(viii) Capacities of sites fully utilized must be stabilized at the earliest,preferably before the onset of the rainy season;

(ix) Muck which has fallen on roads after landslides must not bepushed down slope; and C

(x) All natural drains/streams blocked with dumped muck shouldbe cleared before the monsoons.

87. Chapter VI of the HPC Report deals with the environmentquality of the Project, which can be divided into short-term and long-term impacts. Short-term impacts occur due to road construction activitieslike land clearing, ground excavation and cut and fill operations, and arevisible in the vicinity of the construction activity. Meanwhile, long-termimpacts include climate warming due to soil organic carbon loss as aresult of road construction and traffic problems. During their field visits,the HPC were unable to assess the impact of the project on theenvironmental quality due to stoppage of work prior to the visit. However,it observed dust pollution where debris had not been cleared from theroad. The HPC also identified long-term impacts such as vehicularpollution, black soot emission, soil erosion from hill-cutting and muck-dumping and soil organic carbon loss, due to the Project.

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87. On the basis of its observations, the HPC made the followingrecommendations:

(i) Reliable data should be obtained to formulate strategies tocontrol pollution during the construction phase effectively; G

(ii) Continuous air quality monitoring stations must be placed ateach of the Char Dham locations;

(iii) A reduction in diesel and petrol vehicles is warranted in viewof the ecological sensitivity of the Higher Himalayas; and 564SUPREME COURT REPORTS

A(iv) Robust stabilization measures are needed in the LesserHimalayas and the Shivaliks to conserve their vast forestsand SOC, as they are major carbon sinks.

88. Chapter VII of the HPC Report deals with the loss of forests,trees and green cover. Cutting of mountain slopes to widen roads leadsBto a reduction in the green cover in the State. A total area of 689.23hectares has been diverted from forest land for the Project. This loss ofgreen cover leads to a loss of riverine vegetation, top soil, wildlife habitats,ecosystem services, et al. To redress the loss of forest cover, theUttarakhand Forest Department raised a plantation as part of theCompensatory Afforestation program. In addition to this, a Draft ActionCPlan focusing on afforestation on degraded waste land and forest landalong the national highways, restoration of muck disposal, soil conservationworks, rejuvenation of existing water resources, and landscaping hasalso been proposed. The HPC has also recommended the followingmeasures to be taken:D

(i) Felling of deodar trees should be avoided;

(ii) Road-width in dense forest patches may be reduced;

(iii) In stretches that are yet to be widened, the top soil must beseparately stored from the remaining muck to facilitateEregeneration;

(iv) Regeneration of riverine vegetation should be included in theDraft Action Plan; and

(v) The Net Present Value rates of forests needs to be revised.

89. Chapter VIII of the HPC Report discusses the impact of theFProject on wildlife habitats. The Project lies close to the wildlife protectedareas of Gangotri National Park, Kedarnath Wildlife Sanctuary, GovindNational Park and Wildlife Sanctuary and Rajaji National Park. Theseprotected areas have four highly endangered species – snow leopard,Tibetan Argali, Eurasian lynx, Himalayan brown bear and WesternGTragopan. Other threatened species include the Asiatic black bear, Tibetanwolf, Himalayan musk deer, pheasant and Cheer pheasant. TheAlaknanda and Bhagirathi river basins also host a wide range of habitats.

90. During the field visits, the HPC observed that improper muckmanagement resulted in destruction of vegetation cover, which has H

threatened aquatic habitats. Accordingly, it recommended the followingmeasures:

(i) Safe wildlife passage should be maintained and included inroad building;

(ii) Gentle slopes shoulders on either side of the road, particularlyaround sharp bends/blind curves should be avoided. Box-type pre-fabricated culverts could be used by wildlife;

(iii) A comprehensive study of the carrying capacities of theuppermost stretches of the Project and the wildlifemovement should be conducted;

(iv) Opening of Char Dham locations in the winter season shouldbe considered only after a thorough wildlife impact study;

(v) Road widening work on NH-109, NH-94, NH-94/134 andNH-07/58, which are located in the eco-sensitive zones,should be conducted after due approvals; and

(vi) Deterrent action must be taken against unauthorized muckdumps and compensatory afforestation should be carriedout.

91. Chapter IX of the HPC Report, titled ‘Managing MountainWater Courses’ pertains to the management of springs, streams andsurface drainage. The HPC observed that there was poor managementof subsurface flows at many locations due to improper structures. Inplaces where perennial flow of water is there, toe drains had not beenconstructed. Further, due to the huge quantity of muck generated becauseof the cut and dump method and disposal into water courses, the waterhas been deemed unfit for human consumption. Accordingly, the HPCrecommended that:

(i) Culvert design should be based on hydrological investigationin order to avoid under designing or over designing of thestructure;

(ii) Immediate action be taken to clear all natural drains/streamsblocked with muck dumping;

(iii) The perennial streams should be managed properly byconstructing adequate structures; A

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A(iv)A diversion drain should be provided above the head of thehill cut area to safely drain out the water away from theunstable or landslide prone areas;

(v) Toe drains or catch-drains must be provided on the uphillside of a road and connected to a culvert or a main drain toBdispose of the water into a natural valley. Additionally, abreast wall or a toe wall should be provided to preventblockage of toe drains by accumulation of fallen over burdensoil/boulders from the uphill slope; and

(vi) There must be safe disposal of heavy runoff and debrisCthrough discharge channels/gullies.

92. Chapter X of the HPC Report concerns the disastermanagement measures that must be taken to prevent any disasters owingto the infrastructure activity from the Project. These disasters includenatural hazards such as slope failures, flash floods, avalanches, forestDfires; engineering hazards when poor quality protection measures aretaken; and mass tourist hazards. The significant disaster in the Projecthas been due to the vulnerability of slopes. One of the main reasons forthis occurrence is muck-dumping which results in landslides, toe-erosionsand other consequences. Further, no effort has been made to stabilizethe slopes already cut. Additionally, in a number of locations, such as atEBadrinath, the carrying capacity (that is the number of biological speciesthat can survive in a particular environment) has been reached. In viewof this, the HPC recommended the following measures:

(i) A comprehensive study regarding the carrying capacity atvarious locations in the Project must be conducted; F

(ii) Given the large number of tourists, Char Dham EarlyWarning System Network, connecting all villages, shouldbe developed such that timely action can be taken in caseof a disaster;

(iii) A survey of vulnerable muck dumping sites must beGundertaken, natural streams must be cleared, slopeprotection measures should be taken;

(iv) Climate vulnerability risk assessment must be conducted;and H

(v) Protective measures such as well-constructed breast walls,retaining walls, soil nailing, geotextiles sheathing, negativeslopes and half-tunnels in hard rock areas should beobserved.

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93. Chapter XI of the HPC Report focusses on socio-culturalperspectives. During the field visits, the HPC members observed thatthere was broad support for the Project as it would economically benefitthe people of the State. However, some of the issues that have not beenaddressed are the lack of footpaths for the traditional padyatra orpilgrimage, impact on traditional forest conservation methods, loss oflivelihoods due to hill-cutting without adequate safeguards, increase inthreat to lives and agriculture in case of heavy rainfall or cloud burst,and damage to schools and infrastructure due to slope failures.

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94. Based on these concerns, the HPC, inter alia, recommendedthe following:

(i) Project authorities should initiate formal mechanisms toDfacilitate dialogue and receive feedback and grievances fromthe local community;

(ii) A comfortable pathway for the pilgrims must be constructed;and E

(iii) Conservation of traditions should be encouraged.

95. In Chapter XII of the HPC Report, the HPC summarized theconclusions and recommendations made in each of the precedingchapters.

F.2.2 Analysis of the Environmental Issues F

96. The analysis conducted by the HPC in the unanimous segmentof its report is not only comprehensive, but it is based upon empirical andscientific data. The HPC took time to visit all project sites, and individuallyidentified a variety of issues with them. While these have been dividedinto chapters in the HPC Report (as noted in Section F.2.1), the underlyingthemes of all them are evident:

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(i) In many instances, MoRTH has gone ahead with the Projectbased on its assertions that the Project is compatible withenvironmental guidelines or that its developmental benefitsare proportionate to the harm. However, to reality-test these H

assertions, the HPC has recommended that the State carryout relevant studies to ascertain the true reality (such asfor creation of bypasses, maintenance of environmentalquality, protection of wildlife habitats and disastermanagement preparedness); A

B(ii)The HPC Report also notes that best-practices are not beingfollowed in some areas of concern (such as hill cutting ormuck dumping). It has thus recommended best practicesfor the MoRTH to implement;

(iii) In other areas of concern, the HPC has noted the harmsCwhich have already been caused due to the Project, hasrecommended remedial measures (such as protection ofwildlife habitats (especially in context of ecologically-sensitive zones) and maintenance of water resources) andhas also suggested future action to reduce its effects (suchas for hill cutting, muck dumping and protection of forestDcover);

(iv) For some areas, the HPC has highlighted that constantmonitoring by the MoRTH would be required and necessarysystems should be set up (such as for maintenance ofenvironmental quality and for disaster managementEpreparedness); and

(v) The HPC has also noted the Project’s effect on socio-cultural communities, and has mandated MoRTH to createavenues for dialogue through which concerns can beunderstood and resolved.

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97. The verdict of the HPC in its report indicates that the Projectis riddled with environmental issues, which need to be resolved in orderto make it environmentally sustainable. Unfortunately, due to the ongoinglitigation in relation to the road-width issue, these concerns seem to havetaken a back seat. However, that cannot be the case, going forward.

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98. The Attorney General has informed the Court that MoRTHand MoD are presently undertaking measures to address the concernsraised by the HPC, which have been noted in paragraphs 18(iv) and (v)of our judgment. While we appreciate the measures which have beeninitiated, they are limited in scope and have been late in coming. In H

comparison to the issues which have been raised by the HPC in itsReport, the measures adopted have only begun to scratch the surface.Indeed, they do not address crucial issues such as muck disposal, whichnot only affects the environment directly but also causes issues for wildlifeand availability of water resources. Even the remedial measures in relationto hill-cutting and landslides have been tardy and limited and, from thesubmissions, seem to have been limited only to the roads which are thesubject matter of the MoD’s MA No 2180 of 2020, which only concernsthe roads which are of strategic importance to India’s national security.However, it is important to remember that the Project consists of 53individual projects, not all of which are such roads. However, that doesnot mean that the environmental effect on these roads and theirsurroundings will be any less important and does not need to be remedied.The State has tried to justify the efficacy of its current measures solelyby noting their benefits directly to the Armed Forces. Indeed, while thatis a crucial factor (as this judgment acknowledges in Section F.1.3), it isnot the only thing at stake in a Project of this scale, which was conceivedto provide a more efficient route for those undertaking the Char Dhampilgrimage. What is at stake in this Project is also the health of theenvironment, and its effects on all individuals who inhabit the area.

99. It is thus important that there must be a significant alterationin the approach to this Project by adopting sustainable measures.Piecemeal implementation of some mitigation measures for protectionof the environment, without any concrete strategy in place, cannot passmuster. While we have granted our approval to the DL-PS configurationfor the roads mentioned in MoD’s MA No 2180 of 2020, it is madeconditional upon MoRTH and MoD implementing the recommendationsmade by the HPC, which have been outlined by this Court in SectionF.2.1. These recommendations are unanimous. A majority of the membersof the HPC comprised of government officials and experts. In line withthe HPC’s recommendations, there has to be an assessment of the natureof the problem by obtaining actual data through relevant studies for allindividual projects. Specific mitigation measures then should beimplemented for all projects, keeping in mind their unique concerns. Indoing so, the general recommendations issued by the HPC should formthe baseline, i.e., they should be implemented at the very least, alongwith anything over and above that is deemed necessary based on thestudies so conducted.

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A100. More than anything else, this requires a concerned shift inthe approach which has been adopted till date. Making the Projectenvironmentally compliant should not be seen a “checkbox” to be obtainedon the path to development, but rather as the path to sustaineddevelopment itself. Thus, the measures adopted have to be well thoughtout and should actually address the specific concerns associated withBthe Project. Understandably, this may make the Project costlier, but thatcannot be a valid justification to not operate within the framework of theenvironmental rule of law and sustainable development. In its bid tomake theproject more environmentally conscious, it is also imperativethat the MoRTH and MoD be transparent in the measures they adopt, inCorder for them to be held publicly accountable by spirited citizens. Thus,we direct that the MoRTH and MoD can proceed with the Project subjectto the condition that it addresses all the concerns which have been raisedby the HPC and enumerated by this Court in Section F.2.1 of thisjudgment, through the recommendations mentioned accompanying theseconcerns (in paragraphs 82, 83, 85, 87, 88, 90, 91, 92 and 94 of thisDjudgment).

A Conclusion

101. We thus allow MoD’s MA No 2180 of 2020 by permittingthe DL-PS configuration for the three strategic highways in respect ofEwhich relief has been claimed. At the same time, we have also takennote of the environmental concerns which have been raised by the HPCfor the entirety of the Project. We have noted the HPC’s unanimousrecommendations for taking remedial measures and direct that they haveto be implemented by the MoRTH and MoD, going forward. Thesespecific recommendations have been mentioned in Section F.2.1 andFare not being repeated here for the sake of brevity.

102. Further, in order to ensure implementation of theserecommendations, we also set up an ‘Oversight Committee’, which shallreport directly to this Court. This Committee shall be chaired by ShriJustice Arjan Kumar Sikri, former Judge of this Court. In order to enableGthe Chairperson to receive technical assistance, he shall be aided by:

(i) A representative of the National Environmental EngineeringResearch Institute (‘NEERI’) to be nominated by theDirector; and H

(ii) A representative of the Forest Research Institute, Deemedto be University, Dehradun to be nominated by its DirectorGeneral.

The Oversight Committee shall receive all logistical andadministrative assistance from the UOI, the Government of Uttarakhand,MoRTH, MoD and MoEF&CC. The Secretary of the Environment andForest Department, Uttarakhand shall ensure that logistical assistanceis provided to the Committee. MoRTH, MoD and MoEF&CC shall alsonominate nodal officers for rendering assistance to the Committee,providing information and co-operating with the work of the Committee.The District Magistrates for the Districts forming a part of the Projectshall also provide facilitation and assistance to the Committee.

103. The objective of this Oversight Committee is not to undertakean environmental analysis of the Project afresh but to assess theimplementation of the recommendations already provided by the HPC(which we have noted in Section F.2.1). A formal notification in terms ofthese directions shall be issued by the UOI within two weeks. Withinfour weeks thereafter, MoRTH and MoD shall place before theCommittee the steps taken by them to adhere to the HPC’srecommendations, along with a projected timeline for complying withthe remaining recommendations. Monthly reports of this nature shall beplaced before the Oversight Committee by MoRTH and MoD. TheOversight Committee shall then report on the progress undertaken tothis Court every four months. In case of any issues with theimplementation of the recommendations, the Chairperson of theCommittee shall be at liberty to approach this Court. The honorarium forthe Chairperson and members of the Oversight Committee shall bedetermined by the Chairperson and the payment shall be disbursed byMoRTH.

104. We further note that by the order dated 8 August 2019 of thisCourt, the HPC was tasked with overseeing the implementation of itsrecommendations and to suggest any further measures which may berequired. To avoid any overlap between the scope of work of the HPCand the Oversight Committee formed above in paragraph 102 and 103,we clarify that the HPC shall continue with its work on overseeing theimplementation of its recommendations for the Project, except for thenational highways from Rishikesh to Mana, Rishikesh to Gangotri, andTanakpur to Pithoragarh, which shall now fall under the purview of theOversight Committee.

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A105. With these directions, we allow MoD’s MA No 2180 of 2020,conditional upon the fulfillment of the conditions outlined above in ourjudgment and accordingly, MA No 1925 of 2020 is disposed of.

106. Pending application(s), if any, shall stand disposed of.

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Devika GujralMiscellaneous Application disposed of.

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