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Green Update
The Supreme Court has upheld the government’s mandate to broaden three Himalayan highways, considered crucial by the Ministry of Defence (MoD) for quick troop build-up along the Indo-China border. The three national highways — Rishikesh to Mana, Rishikesh to Gangotri and Tanakpur to Pithoragarh — act as feeder roads to the northern border with China. They are part of the Char Dham project. These highways would now be developed in accordance with the Double Lane with Paved Shoulder (DLPS) system. “This court in judicial review cannot second-guess the infrastructural needs of the armed forces,” a Bench led by Justice DY Chandrachud said in a judgment.
The verdict is based on an application filed by the MoD to modify the court’s September 8, 2020 order, which directed that mountain roads for the Char Dham Highway project should be 5.5 m in width in compliance with a 2018 circular of the Roads and Highways Ministry. The Ministry had gone on to amend its circular in December last, saying that “for roads in hilly and mountainous terrain which act as feeder roads to the Indo-China border are of strategic importance for national security, the carriageway width should be 7 m with 1.5 m paved shoulder on either side”. Modifying the September order, the judgment said “we allow the Ministry of Defence’s application for DLPS configuration for three strategic highways… At the same time take note of the environmental concerns raised for the entirety of the project and the unanimous recommendation of the High-Powered Committee (HPC) for taking remedial measures and direct that they have to be implemented by the Ministry of Road Transport and Highways and the Ministry of Defence going forward”. The Bench formed an oversight committee chaired by former Supreme Court judge, Justice AK Sikri, to ensure that the government implements the remedial measures recommended by the court’s HPC for the environment. The court clarified that the Justice Sikri Committee however is not to undertake “an environmental analysis of the project afresh” and should focus on the three highways in order to avoid overlapping into the HPC’s ambit. The Ministries of Road and Defence have to give monthly reports to the committee, which would in turn report to the court every four months. Noting that while a majority of the HPC had recommended DLPS-standard road width for the highways, the court said the panel had also unanimously suggested “best practices” and remedial measures to protect the ecology from harm, especially in “areas of concern”. The court questioned the government’s assertions that development benefits from the broadening of the highways were proportionate to the harms. “The reality tests these assertions. HPC had recommended carrying out relevant studies to ascertain the true reality, such as creation of bypasses, maintenance of environmental quality, protection of wildlife, disaster management preparedness…” it stated.
The court observed that some of the areas needed constant monitoring by the Roads Ministry. A system needed to be set up. The court highlighted the HPC’s recommendation to study the effect on local communities and a dialogue with them to resolve their problems. It said the government had made efforts to resolve the issues, but they were “late in coming and did not address crucial issues”. The remedial measures, say against landslips, had been “tardy and limited”. “Making the project environmentally compliant will not be seen as a check-box in the path of development,” Justice Chandrachud stressed. Environmentalists had argued in court that broadening the highways using DLPS would prove fatal to the already fragile Himalayan ecology. The petitioner, an NGO called Citizens of Green Doon, had called the Himalayas the “best defence for our country”. It had challenged the Road Ministry's December 2020 circular, saying the government introduced DLPS without application of mind. But the court concluded that the Roads Ministry’s circular was based on recommendations from the MoD. The court said it cannot “interrogate” the defence requirements of the nation. The MoD was the “specialised body” which discerned the requirements of the armed forces. Security concerns, which changed over time, were assessed by it. When the conservationists contended that smaller, disaster-proof roads served the needs of the armed forces, Justice Chandrachud responded in the judgment that “The submission of the petitioners requires the court to override the modalities decided upon by the Army and the Ministry of Defence to safeguard the security of the nation’s borders… The petitioners want the court to interrogate the policy choice of the establishment which was entrusted by law for the defence of the nation. This is impermissible”. The judgment said a “delicate balance” should be maintained between environmental considerations and infrastructural development so that the former did not impede the latter, specifically in areas of strategic importance crucial to the security of the nation. The government had argued in court that the armed forces cannot surrender the defence of the nation to threats of landslips by the widening of Himalayan roads, for quickly moving military hardware to the “very vulnerable” Indo-China border, may cause.
Karnataka HC permits shifting of Atal Bihari Vajpayee Zoological Park inside reserve forest
The Karnataka High Court while allowing the state government to shift the Atal Bihari Vajpayee Zoological Park from Ballari to Bilikallu Reserved Forest, Hospet has directed that no recreational activity shall be allowed in the forest area and only minimum required construction shall be carried out for shifting of the zoo. A division bench of Chief Justice Ritu Raj Awasthi and Justice Sachin Shankar Magadum disposed of the petition filed by Santosh Martin, challenging the government order dated 28.08.2015, issued for shifting the zoo. The state government filed a memo in the court stating that all necessary approvals have been obtained before shifting of the said zoological park. It said, "Clearance from the Central Zoo Authority has been obtained and the Forest Advisory Committee in its meeting held on 17.02.2021 has recommended establishment of zoo over forest area by the Forest Department/State Zoo Authority and its management by the Forest Department/State Zoo Authority after it is duly approved by the Central Zoo Authority." Further it was said "As the extent of the built-up area at Atal Bihari Vajpayee Zoological Park, Hosapet Taluk is less than 20,000 square metres, in view of the provisions of the Environment Protection Act, 1986, there is no requirement of Environment Clearance Certificate. It was also said that the Zoological Park has been already relocated from Ballari and Hosapet and it is serving as a Wildlife Rescue Centre for northern Karnataka." The counsel for the petitioner contended that in view of the judgment of the Apex Court reported in (2011) 1 SCC 744 in the matter of Construction of Park at Noida Near Okhla Bird Sanctuary and Others, the Environment Impact Assessment was required to be done before shifting of the said zoo and the same had not been done. It was also argued that "The Apex Court in the said judgment has categorically laid down that the said restricted forest area shall be completely independent of any township development project as in case of creating an artificial lake or an urban forest or setting up a zoological or botanical park or a recreational, amusement or a theme park." Following which the court said: "Since the State Government and its authorities have specifically come out with a stand that the Forest Advisory Committee in its meeting held on 17.02.2021 has recommended establishment of Zoo over forest area by the Government Authorities and its management which is duly approved by the Central Zoo Authority as non-forestry activity and no clearance was required for construction of the said Zoo as it is in the area of less than 20,000 square metres under the said Act, there is no violation of any Act, Rules or Regulation." Further the court said: "The Apex Court has categorically laid down that no recreational park shall be constructed in the restricted zone. In the present case, respondent Nos.1 to 5 have specifically taken a stand that there is no recreational activity which is to be taken up in shifting of Atal Bihari Vajpayee Zoological Park in the forest area and they will carry out minimum construction which is required for the zoo activities. Accordingly, the court disposed of the case stating "The necessary requirement of obtaining clearance from the concerned authorities shall be mandatory for shifting of Atal Bihari Vajpayee Zoological Park from Ballari to Bilikallu Reserved Forest, Hospet." -TTN
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