CITIZENS FOR GREEN DOON & ORS. v. UNION OF INDIA & ORS. Miscellaneous Application No. 1925 of 2020 In

[2021] 14 S.C.R.503 503

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A China border should be of Double lane with paved shoulder configuration (DL-PS) standard – Considerations for construction of highways which are of strategic importance and used by armed Forces cannot be same as those for other roads in hilly and mountainous regions – Need for development of national highways of a DL-PS standard is proportionate to the object of fulfilling the B security concerns of the nation as assessed by the Ministry of Defence (MoD) – Moreover, majority of the members of the HPC recommended the adoption of the DL-PS standard as road-width for the project – However, more than 50 per cent of the hill cutting and double-laning has been completed on national highways – C Therefore, partial development of the highway compliant with the IW standard and the remaining in conformity with the DL-PS standard would not be suitable for the needs of the Armed Forces – Order of this court was modified to this extent – Hence, UOI and MoD were permitted to apply a DL-PS configuration to the highways – With respect to the environmental issues – Sustainable measures D must be adopted – Obligation imposed upon MoRTH and MoD to implement recommendations made by HPC – There has to be an assessment of the nature of the problem by obtaining actual data for all individual projects – Mitigation measures should be implemented for all projects. E Doctrines/principles: Principle of Sustainable development – Environment Rule of Law - Multi-faceted principle, which does not prohibit development, but structures it around what is sustainable – It not only ensures equity between the present and the future generations but also development which ensures equity between F different sections of society at present – There is lack of consensus on how to ascertain whether a particular developmental project abides by the principle – It not only creates uncertainty within the law, but makes the application of the principle selective – Environmental law. G National Highways: A combined reading of Art.246 along with Entry 23 of List I of Schedule VII of the Constitution of India indicates that national highways fall entirely within the ambit of the Parliamentary 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 is H

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A 2. The Circular of 2020 states that roads in hilly and mountainous terrain, which act as feeder roads to the Indo-China border should be of DL-PS standard, with a 7m carriageway and 1.5m paved shoulder. Neither the 2012 nor the 2018 MoRTH Circulars specifically addressed the issue of strategic border roads. The considerations for development of national highways B in plains and in hilly and mountainous regions are not identical. Similarly, the considerations governing the construction of highways that are strategic roads from a defence perspective, and may be used by the Armed Forces of the nation, cannot be the same as those for other roads in hilly and mountainous regions. C This Court must arrived at a delicate balance of environmental considerations such that they do not impede infrastructural development, specifically in areas of strategic importance crucial to the security of the nation. This Court found that the need for the development of national highways of a DL-PS standard is proportionate to the object of fulfilling the security concerns of the nation as assessed by the MoD. [Paras 69-71][555-A-E]

3. A majority of the members of the HPC recommended the adoption of the DL-PS standard as road-width for the Project. This opinion was reiterated in HPC Report II, which considered the MA No 2180 of 2020 filed by the MoD. This Court agreed with the finding of the HPC. The court modified the order of this Court dated 8 September 2020 to the extent that the national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh be developed according to the double- lane carriageway width with paved shoulder standard as provided in the 2020 MoRTH Circular. However, liberty is granted to the respondents to pursue appropriate legal proceedings and seek reliefs in the event that it is necessary to implement the DL-PS standard for the entire Project. [paras 75,76,79][558-B-C; 560- C-E] G 4. It is important that there must be a significant alteration in the approach to this Project by adopting sustainable measures. Piecemeal implementation of some mitigation measures for protection of the environment, without any concrete strategy in place, cannot pass muster. The Court made conditional upon MoRTH and MoD implementing the recommendations made by H

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the HPC which are unanimous. There has to be an assessment of A the nature of the problem by obtaining actual data through relevant studies for all individual projects. Specific mitigation measures then should be implemented for all projects, keeping in mind their unique concerns. This requires a concerned shift in the approach which has been adopted till date. Making the Project B environmentally compliant should not be seen a “checkbox” to be obtained on the path to development, but rather as the path to sustained development itself. Thus, the measures adopted have to be well thought out and should actually address the specific concerns associated with the Project. Understandably, this may make the Project costlier, but that cannot be a valid justification C to not operate within the framework of the environmental rule of law and sustainable development. Thus, this court directed that the MoRTH and MoD can proceed with the Project subject to the condition that it addresses all the concerns which have been raised by the HPC and enumerated by this Court. [Paras 99, 100] D [569-E-H; 570-A-D] Project Implementation Unit v. P.V. Krishnamoorthy, (2021) 3 SCC 572 - relied on. Case Law Reference [1996] 1 Suppl. SCR 507 relied on Para 26 E

[2004] 1 SCR 808 relied on Para 27 [2003] 3 Suppl. SCR 152 relied on Para 28 [2019] 5 SCR 916 relied on Para 34 F (2020) 15 SCC 63 relied on Para 35 (2021) 4 SCC 309 relied on Para 36 (2021) 3 SCC 572 relied on Para 38 CIVIL APPELLATE JURISDICTION: Miscellaneous Application No. 1925 of 2020 in Civil Appeal No. 10930 of 2018. G

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

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A Miscellaneous 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 the Appellants. B K. K. Venugopal, AG, Ms. Aishwarya Bhati, ASG, Gurmeet Singh Makker, Ms. Swati Ghildiyal, Ankur Talwar, Anmol Chandan, Ms. Chinmayee Chandra, Rajesh Ranjan, Ms. Vanshaja Shukla, Sajal Singhai, Advs. for the Respondents. By Courts Motion C The Judgment of the Court was delivered by DR DHANANJAYA Y CHANDRACHUD, J. This judgment has been divided into sections* to facilitate analysis. They are: D A The Project ....................................................................... 3 B Proceedings before the National Green Tribunal ............. 5 C Proceedings before the Supreme Court ........................... 8 D Submissions .................................................................... 15 E Framework of Analysis .................................................. 23 E E.1 Principles of Sustainable Development and Environmental Rule of Law ........................................... 25 E.2 Circulars and Guidelines ................................................. 37 F Issues and Analysis ........................................................ 45 F.1 Road-Width Issue ........................................................... 45 F F.1.1 HPC Report dated 13 July 2020.................................. 45 F.1.2 HPC Report dated 31 December 2020 ....................... 51 F.1.3 Analysis on the width of road ...................................... 53 F.2 Environmental Issues ..................................................... 67 G F.2.1 HPC Report dated 13 July 2020.................................. 67 F.2.2 Analysis of the Environmental Issues .......................... 76 G Conclusion ...................................................................... 80

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

CITIZENS FOR GREEN DOON v. UNION OF INDIA 509 [DR DHANANJAYA Y CHANDRACHUD, J.]

A The Project A

1. The present case has a history fraught with litigation, with multiple proceedings before the National Green Tribunal1 and this Court. Before going into the history of the litigation, it is important to provide context for the public project in question in the case.

2. The Chardham Mahamarg Vikas Pariyojna2 is a program of B the Ministry of Road Transport and Highways3, which was announced on 23 December 2016. The Project aims to widen the roads of approximately 900 kms of national highways, in order to ensure safer, smoother and faster traffic movement. As the name suggests, these highways connect the holy shrines which have been labelled as the “Chote C Char Dham” in the State of Uttarakhand – Yamunotri (NH-94/134 up to Janki Chatti), Gangotri (NH-108), Kedarnath (NH-109, up to Sonprayag), Badrinath (NH-58) and the Tanakpur-Pithoragarh stretch of the Kailash Mansarovar Yatra route (NH-125).

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

4. Till the 1950s, access to these shrines was limited and they could only be accessed on foot. Hence, worshippers often undertook long and arduous journeys to reach the shrines. However, since the 1960s, F road connectivity to the shrines has improved, where vehicles now ply up to the Badrinath and Gangotri temples while Yamunotri and Kedarnath are 6 to 14 kms away from the nearest motorable road. The improved connectivity has resulted in a greater influx of worshippers. The four shrines typically open for worship in and around late April or early May, G and close in and around late October to early November.

5. The Project was conceptualized with the aim of improving accessibility to these shrines by widening the existing roads, making travel 1 “NGT” 2 “Project” 3 “MoRTH” H

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A safer, smoother and faster. The Project seeks to widen the existing highways into a double lane with paved shoulder configuration4 with 16 bypasses, realignments and tunnels, 15 flyovers, 101 small bridges and 3516 culverts. The MoRTH has divided the Project into 53 individual projects, the length of each project being less than 100 kms, traversing the 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; and (vii) NH-125 - Tanakpur to Pithoragarh - 161 kms. D A pictorial representation of the connecting routes of the Project is provided below, as taken from the report of the High Powered Committee5 dated 13 July 20206:

E

F

G

4 “DL-PS” 5 “HPC” 6 H “HPC Report”

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B Proceedings before the National Green Tribunal A 7

6. An Original Application was filed before the Principal Bench of the NGT on 27 February 2018 in public interest, challenging the construction under the Project on the ground that the development activity has a negative impact on the Himalayan ecosystem. The applicants argued that the Project will lead to deforestation, excavation of hills and dumping B of muck, which will lead to further landslides and soil erosion, in an already sensitive environment. It was also alleged that an Environment Impact Assessment 8 under the Environment Impact Assessment Notification 20069 had not been conducted and that to obviate the requirement of conducting an EIA, the Project had been divided into smaller stretches. The application alleged violations of the EIA C Notification, Forest (Conservation) Act 1980, Wildlife Protection Act 1972, Environment (Protection) Act 1986 and Articles 14, 21 and 48A of the Constitution. Another Original Application10 was filed seeking directions to take precautions for muck disposal and for ensuring the stability of slopes. D

7. In its order dated 26 September 2018, the NGT observed that the 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 kms and thus, the NGT held that the projects did not require an EIA approval E or Environment Clearance11 under the EIA Notification. However, given the fragile ecosystem within which the Project was to be developed, the NGT directed the constitution of an ‘Oversight Committee’ to monitor the environmental safeguards for the execution of the Project.

8. The Oversight Committee was to be headed by a former Judge F of the Uttarakhand High Court, and had representatives from the Wadia Institute of Himalayan Geology; National Institute of Disaster Management; Central Soil Conservation Research Institute; GB Pant Institute of Himalayan Environment; Forest Research Institute; the Secretary to the Forest Department, Uttarakhand; and District Magistrates, who were to act as co-ordinators. The task of the Oversight G

7 OA No 99/2018 8 “EIA” 9 “EIA Notification” 10 OA No 431/2018 11 “EC” H

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A Committee, inter alia, was to oversee the implementation of the Environment Management Plan to be prepared by an agency of the Ministry of Environment, Forests and Climate Change12. The relevant portion of the order of the NGT is produced below: “54. Accordingly, we direct constitution of the following Oversight B Committee:—

1. Justice U.C. Dhyani, Former Judge, Uttarakhand High Court, Chairman Public Service Tribunal, Dehradun.

2. Representative of Wadia Institute of Himalayan and Geology.

C 3. Representative of National Institute of Disaster Management.

4. Representative of Central Soil Conservation Research Institute with expertise in Natural disasters, landslides, etc.

5. Representative of G.B. Pant Institute of Himalayan Environment. D

6. Representative of Forest Research Institute, Dehradun.

7. Secretary of Environment and Forest Department, Uttarakhand, Dehradun to be Member Secretary/convener/coordinator of the Committee. E 8. Concerned District Magistrates of the Districts concerned will act as co-coordinator and for arranging visits and meetings at local level.” C Proceedings before the Supreme Court

9. An appeal13 was filed to challenge the NGT’s order dated 26 F September 2018 before this Court. By an order dated 8 August 2019, a two-judge Bench, comprising of Justice Rohinton F Nariman and Justice Surya Kant, modified the order of the NGT and instead constituted an HPC to be chaired by Professor Ravi Chopra, who would replace Justice UC Dhyani, and also added representatives from various other bodies. G The HPC was directed to make its decisions on the basis of majority vote. The relevant portion of the order of this Court is as follows: “We constitute a High Powered Committee (HPC) consisting of the persons who are mentioned in para 54 of the said order. 12 “MoEF&CC” 13 H CA No 10930/2018, CA Nos 8518-8520/2018 and MA No 2678-2680/2018

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However, the Committee is to be headed by Prof. Ravi Chopra, A who will replace Justice U.C. Dhyani, and will be the Chairman of the Committee. In addition to this, we add a representative of the Physical Research Laboratory, Department of Space, Government of India, Ahmedabad; a representative of the Wildlife Institute of India, Dehradun; a representative of MoEF&CC, B Regional Office, Dehradun; and a representative of the Ministry of Defence dealing with Border roads, not below the rank of Director. We direct MoEF&CC to constitute the High Powered Committee within two weeks from the date of this order. The HPC may co-opt member(s) for effective discharge of its functions. The MoEF&CC shall provide venue and C secretarial assistance to the HPC, who will make decisions by majority voting.” (emphasis supplied) The terms of reference of the HPC were also revised in the following terms: D

“I. The Committee shall consider the cumulative and independent impact of the Chardham [P]roject on the entire Himalayan valleys and for that purpose, the HPC will give directions to conduct EIA/ rapid EIA by the Project Proponent/MoRTH. E II. The HPC, with the help of the technical body and engineers of implementation agency (MoRTH) should consider whether revision of the full Chardham [P]roject (about 900 Kms) should at all take place with a view to minimize the adverse impact of the project on environment and social life. F 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 Powered Committee should recommend the measures which are required for stabilizing the area where hill-cutting has taken place, among G others, the environmentally safe disposal of muck which has been generated so that it does not adversely affect the flora and fauna of the catchment area of the river. IV. As regards the stretches where work has not started, the HPC will review the proposed project and recommend measures H

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A which will minimize the adverse impact on environment, social life and bring the project in conformity with the steep valley terrain, carrying capacity, thus avoiding any triggering of new landslides and ensuring conservation and protection of sensitive Himalayan valleys. B V. The HPC will assess the environmental degradation in terms of loss of forest land, trees, green cover, water resources, dumping of muck and impacts on the wildlife and will direct the mitigation measures. Specific attention will be laid on protecting wildlife corridors, and rare and endangered flora and fauna. C VI. The HPC will assess and quantify the impact on social infrastructure/public-life due to triggering of fresh landslides, air pollution, frequent road blocks etc. and will suggest necessary measures for its redressal, including preparation of disaster management plans prior to the monsoon season.

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

E VIII. The HPC will also suggest the areas in which afforestation measures should be taken. It will also suggest the kind of saplings which have to be planted in different terrains of Himalayas. A separate Committee be constituted by the Forest Department of Uttarakhand to continuously monitor and report on the website that the saplings which have been planted have survived and grown. F In case of non-survival of any sapling, further plantation should be done. Compensatory afforestation should be ten times the number of trees which have been cut. The HPC shall prepare an effective afforestation plan ensuring its proper implementation. IX. The HPC will invite experts from different fields and consult G local people or hold public meeting in the local areas to take recommendations and suggestions, as it deems fit. X. The HPC shall consider giving specific directions to the concerned agencies to put in the public domain the landslide-prone areas, and their treatment by the Project Proponent, the total muck H

CITIZENS FOR GREEN DOON v. UNION OF INDIA 515 [DR DHANANJAYA Y CHANDRACHUD, J.]

generated, and the places where it has been disposed of in an A environmentally sound manner.” (emphasis supplied) The HPC was directed to submit its report of recommendations in four months. Following the submission of the report, the Court directed MoRTH to implement its recommendations. For this purpose, the Court B observed: “The reports prepared by the HPC with its recommendations shall be given to the project Proponent i.e. MoRTH for implementation. The HPC shall hold quarterly meetings thereafter to ensure timely and proper compliance of its recommendations. The HPC may C suggest any further measure which may be required, in the interest protection and conservation of environment, after each quarterly review meeting.”

10. Pursuant to the order of this Court, a report dated 13 July 2020 was submitted by the HPC to this Court. By an order dated 8 D September 2020, a three-judge Bench of this Court comprising of Justice Rohinton F Nariman, Justice Navin Sinha and Justice Indira Banerjee took cognizance of the Report, and noted that the conclusions in the HPC Report were unanimous, except for the issue relating to the width of the road. A majority comprising thirteen members of the HPC was in favour of applying a Circular dated 5 October 2012 issued by MoRTH14, 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 MoRTH Circular, the road-way width would be 12m comprising of 7m for the double-lane carriageway, a 1.5m paved shoulder on either side of the highway, and a 1m earthen shoulder on either side of the highway. A minority comprising of 5 members, including the Chairperson, was of the view that a subsequent Circular dated 23 March 2018 issued by the MoRTH15 should govern the Project. The 2018 MoRTH Circular provides that in hills and mountainous terrains, where the traffic volumes range from 3,000 to 8,000 Passenger Car Units16 a day, the carriageway width should be of intermediate lane configurations (Intermediate Width17 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” H

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A standard), i.e., of 5.5m width with two-lane structures. The order of the Court accepted the view of the minority and observed: “We have perused the conclusions and recommendations of the report, in particular, from pages 90-93 in Part I. We are of the view that it is correct that the 2018 MORTH circular should B apply for the reasons given at page 93 of the report. Consequently, the 2018 circular alone will apply. The other directions that were issued by us on 08.08.2019 must be strictly complied with, including the holding of quarterly meetings to ensure timely and proper compliance of the recommendations.” (emphasis supplied) C

11. Following the above order, a letter dated 5 October 2020 was received by the Registry of this Court from the Chairperson of the HPC. Professor Chopra highlighted the steps he had taken to notify MoRTH of the order of this Court. He stated that he had requested MoRTH to submit a plan to bring the Project in conformity with the 2018 MoRTH D Circular and suspend all fresh hill-cutting activities. The letter also highlighted that Professor Chopra had received reports of tree-felling and fresh hill-cutting on various stretches on NH-58, NH-94, et al, which was 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 27 E September 2020, he had read a news report indicating that MoRTH had informed the Government of Uttarakhand that the 2018 MoRTH Circular would be applicable only to the proposed 13 projects where work had not yet begun. Through this letter, Professor Chopra urged that the directions in the order of this Court dated 8 September 2020 should be strictly followed. The letter dated 5 October 2020 was converted into F MA No 1925 of 2020, which is the subject-matter of this judgment. Further, another letter dated 2 November 2020 was received from Professor Chopra, where he highlighted the non-compliance of the order of this Court and raised issues regarding the functioning of the HPC.

12. An affidavit was filed by the seventh appellant (Swami G Samvidanand) seeking, inter alia, directions to MoRTH to: (i) stop hill-cutting, tree-felling and activities in violation of the 2018 MoRTH Circular; (ii) compensate for hill-cutting beyond the IW standard with tree plantations and footpath; and H (iii) render full secretarial assistance to the HPC.

CITIZENS FOR GREEN DOON v. UNION OF INDIA 517 [DR DHANANJAYA Y CHANDRACHUD, J.]

13. An interlocutory application, IA No 6097 of 2021, was later A filed by the sixth appellant (Deepak Chand Ramola) seeking the following directions: (i) that the amendment to the 2018 MoRTH Circular through the Circular dated 15 December 202018, should be revoked; (ii) that the IW standard be adhered to for the entire Project, B both prospectively and retrospectively, as mentioned in this Court’s order dated 8 September 2020; (iii) that the Bhagirathi Eco Sensitive Zone19 be given special protection; C (iv) that the HPC be strengthened to ensure proper implementation of its functions; and (v) on the basis of the findings of the HPC, a committee be set up to direct an inquiry against the persons responsible for wilful violations of the laws in force. D

14. Another miscellaneous application, MA No 2180 of 2020, was then filed by the Union of India20, through the Ministry of Defence21, seeking modification of this Court’s order dated 8 September 2020, which is also the subject matter of this judgment. This application seeks permission for the widening of the national highways from Rishikesh to E Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh to a two- lane, DL-PS configuration. The application avers that a minority of the members of the HPC, whose view was adopted by this Court in its order dated 8 September 2020, relied on a statement of the then Chief of Army Staff which confirmed that the requirements of the Indian Army are fulfilled by the existing roads. However, according to the Union F Government, there has been a material change in circumstances, necessitating an improvement of roads to enable movement of troops and equipment to Army stations on the Indo-China border. Thus, the application has urged that a double lane road having a carriageway width of 7m (or 7.5m) is necessary to meet the Army’s requirement. The G relief 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” H

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A “Modify the Order dated 08.09.2020 and direct that the national highways from Rishikesh to Mana, from Rishikesh to Gangotri and from Tanakpur to Pithoragarh may be developed to 2 lane configuration in the interest of the security of the nation and for the defence of its borders”. B (emphasis supplied)

15. By an order dated 2 December 2020, a three-judge Bench comprising of Justice Rohinton F Nariman, Justice Navin Sinha and Justice KM Joseph directed the HPC to consider the issues raised by its Chairperson in his letters and applications, including the application by C the MoD, and to submit a detailed report. Pursuant to the order of this Court, the 11th meeting of the HPC was held on 15 and 16 December

2020. The report22 of the deliberations and submissions of the HPC was received by the Registry from the Secretary, Forest Department, State of Uttarakhand through a letter dated 31 December 2020.

D 16. This is where the matter stands presently. We shall consider the submissions urged by the parties. D Submissions

17. Mr Colin Gonsalves, Senior Counsel appearing on behalf of the appellants, urged the following submissions: E (i) Issues concerning the functioning of the HPC: The HPC was not allowed to function independently and was given inadequate assistance by the UOI: (a) The HPC consisted of 8 District Magistrates, 5 State Government officials, 2 Union Government officials and F 5 representatives from institutions funded by the State and Union Governments. The members of the HPC linked to the government voted en bloc and toed the ‘official line’, rather than basing their judgment on a scientific basis; and G (b) The Chairperson of the HPC faced opposition from the UOI, as they were unwilling to cooperate with the work of the HPC. The Chairperson had repeatedly written to MoRTH, regarding the plan of action for slope

22 H “HPC Report II”

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stabilisation, muck disposal and restoration of damaged slopes; to the State, pointing out that the original order of the NGT did not stipulate District Magistrates to be members of the HPC and that their role was limited to coordination with the local population; to the UOI, to provide inventory of vulnerable slopes and muck; and to the MoEF&CC, regarding the continuing hill-cutting activities. However, no concrete action was taken by any of the parties; (ii) Violations committed by MoRTH: MoRTH has been constructing roads and widening the highways in violation of the 2018 MoRTH Circular and the order of this Court dated C 8 September 2020: (a) MoRTH started widening the highways according to the DL-PS standard, in violation of the 2018 MoRTH Circular which provided for adherence to the IW standard; D

(b) During the deliberations of the HPC, massive hill-cutting and deforestation activities were undertaken, which have caused irreversible damage to the Himalayan environment; E (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 a stand that the order will only be implemented for the 13 F projects where the work has not yet started. However, the order of 8 September 2020 stated that the 2018 MoRTH Circular alone has to be followed and will apply retrospectively, i.e., it will be applicable to the entire Project, even where the work had already been initiated; G (e) MoRTH, in a recent notification dated 10 September 2020 which was advertised in the newspapers, proposed the acquisition of land for a toll booth. The toll is only applicable on roads of DL-PS standard;

H

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A (iii) Road-width: The minority view, adopted by this Court in its order dated 8 September 2020, to construct the highways with an IW standard must be upheld as: (a) According to the Manual of Specifications and Standards for Two Laning of Highways with Paved Shoulder23 B published by the Indian Roads Congress24 in June 2015, the vehicle size in India cannot exceed a width of more than 2.4m. Thus, an intermediate lane of 5.5m on a linear profile and 7m on curves, is sufficient for two large vehicles to cross each other; C (b) The fragile environment of the Himalayas will be severely damaged if the DL-PS standard is adopted. As opposed to this, the IW standard will ensure reduction of green cover loss, reduce landslides, land loss, and tree loss by 80-90 per cent;

D (c) The 2012 MoRTH Circular is inappropriate for mountain roads as it can cause massive instability and environmental damage. As opposed to this, the 2018 MoRTH Circular is specific to hilly and mountainous areas, and should be adopted instead; and

E (d) The amendments made by the 2020 MoRTH Circular are arbitrary as they reinstate the 2012 MoRTH Circular without engaging with the rationale of having an IW standard for mountainous areas; (iv) Security concerns: The national security concerns regarding F the widening of the strategic roads are also met as: (a) The arguments raised by the MoD were considered by the HPC Report. It was after consideration of these views that the Court had passed the order dated 8 September 2020; G (b) To meet the defence requirements, it is essential that disaster-resilient roads be built, instead of disaster-prone roads;

23 “2015 IRC Guidelines” 24 H “IRC”

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(c) The Project was not an initiative of the MoD, and was A a project to increase the tourist inflow to over 9,000 vehicles per day. The HPC Report has noted that this projection is an exaggeration as Badrinath, which has the maximum tourist inflow, has only 1000 vehicles per day and has already reached its carrying capacity; and B (d) The Chief of Army Staff in an interview had commented on the all-weather road project and stated that the needs of the Army are being met by the existing infrastructure.

18. In opposition to this, Mr KK Venugopal, Attorney General for India, made submissions in support of the application filed by the UOI C and the MoD. The application seeks a modification of the order dated 8 September 2020 to allow the national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh to be developed with a DL-PS standard. The following submissions were urged: (i) Requirement of DL-PS standard for strategic border D roads: (a) The national highways from Rishikesh to Mana, Rishikesh to Gangotri, and Tanakpur to Pithoragarh act as feeder roads to the Indo-China border and have strategic importance; E (b) The minority opinion in the HPC Report relied on the statement of the Chief of the Army Staff, according to which the present infrastructure was adequate for the needs of the Army. However, there has been a change in the circumstances since, and it is necessary that personnel and equipment move swiftly to Army stations at the Indo-China border points. The movement requires that vehicles returning from the border are able to cross vehicles going in the opposite direction without causing road-blocks or coming to a dead halt. Thus, a carriageway with a width of 7m is necessary to meet the security concerns of the country; (c) These road-posts have been in use since the war with China in 1962. With the increase in defence capability; the nature of weapons, tanks and machinery; and the H

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A conditions at the border, wider roads with a DL-PS standard are required; (d) Neither the 2012 MoRTH Circular nor the 2018 MoRTH Circular deal with the security needs of the country. The 2018 MoRTH Circular, which is general in nature, is based on PCU traffic and is applicable to all the hilly areas. However, it did not consider the strategic requirement for movement of military vehicles in the Himalayan regions, closer to the border areas; (e) The Armed Forces have sufficient human-power, machinery and equipment to deal with landslides on any of these roads and can clear the way for movement of Army vehicles, machinery, tanks and artillery; (f) Prior to 2017, the development of these roads was under the Border Roads Organization25. However, in 2017, to develop these roads in a timebound manner, a portion was handed over to the Public Works Department26 and the National Highways and Infrastructure Development Corporation 27. Before the commencement of the Project, the road from Rishikesh-Mana already had a 7m wide carriageway, except in some stretches where the width was 3.75-5.5m; (g) The Guidelines for the Alignment Survey and Geometric Design of Hill Roads28 adopted by the IRC in 2019 also recommend a two lane uniform design for strategic border roads; and F (h) This need is further highlighted, given that across the border in China, Tibet, Nepal and in the China-Pakistan corridor, strategic roads are built with the DL-PS standard; (ii) The BESZ was notified by the Union Government through a G notification dated 18 December 2012. However, in 2018, the notification was amended to state that work related to national 25 “BRO” 26 “PWD” 27 “NHIDCL” 28 H “2019 IRC Guidelines”

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security infrastructure can be implemented without due study of environmental impacts; (iii) All-weather roads are also necessary for connectivity of persons living in remote border areas; (iv) Mitigation measures: The following mitigation steps have been undertaken to ensure that least environmental and ecological damage is caused by the Project: (a) The Geological Survey of India29 and MoRTH have signed a Memorandum of Undertaking to conduct geological studies of strategic roads near the Indo-China border; C

(b) Tehri Hydroelectric Development Corporation30 is being engaged for project management consultancy services for restoration of slopes; (c) The Defence Geo-Informatics Research D Establishment31 is providing sustainable mitigation measures for snow avalanches and other natural calamities; and (d) Slope stabilisation works and protection measures and landslide protection measures using soil nailing, E ‘shotcreting’, secured drapery, et al, are being undertaken; (v) Compliance with the directions of this Court: No hill- cutting activities for road-widening have been carried out by the executing agencies. In fact, MoRTH took the following F steps to comply with the order of this Court: (a) Directions were issued to all executing agencies, such as BRO and NHIDCL, to implement the order of this Court; (b) A Draft Rapid EIA Report was submitted to the HPC G on 16 September 2020;

29 “GSI” 30 “THDC” 31 “DGIRE” H

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A (c) Details of vulnerable slopes and muck disposal sites were submitted to the HPC on 25 September 2020; (d) A committee has been formulated to develop a permanent landslide mitigation strategy; (e) 12,75,813 plants have been planted in 797.28 hectares B as compensatory afforestation, and 5,45,268 plants are to be planted in future; (f) Secretarial assistance was provided to the HPC by the State of Uttarakhand under an order dated 7 October 2020; and C (g) Out of the 40 sanctioned projects within the Project, 12m formation cutting has already been carried out in 537 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 been carried out for 12m formation and 10m tarred road has been laid down, a substantial reduction of the width to 5.5m will result in non-uniform carriageway in short stretches.

19. Having addressed the rival submissions, we shall now analyse them. E Framework of Analysis

20. Before we analyse the specific issues raised in the context of the Project, it is important to consider the framework within which this Court must consider them. It is important for us to take note of the relevant judicial pronouncements on the subject, as well as understand the requirements of the circulars and guidelines which have been issued in regard to these issues. However, given the specific setting of the Project in the heart of the Himalayas, our framework has to take into account the unique ecology of the Himalayas. The appellants have provided this Court with examples from the past and the recent history of the Himalayas, which demonstrate that a lack of foresight in development has led to significant environmental harm.

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

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geographical terms, it is difficult to imagine that these majestic mountains are nothing more than the debris created during the collision of the Indian and Eurasian tectonic plates several million years ago. While the debris has solidified into rock in many places, it continues to be soil and rubble in others. In comparison to many others, the Himalayas are actually very young (when the point of reference is a comparison of ages in the millions). This lends to them a comparative fragility32. The HPC Report notes that “the still evolving Himalayan ranges consist of thrusted, jointed or sheared, fissured or twisted rock material interspersed with soil. Shorn of green cover, their slopes [are] even more fragile. When exposed to the monsoon rains, weakened slopes often collapse”33.

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

23. In a 2018 report published by the NITI Aayog, these concerns were noted with pointed reference to the effects of the tourism industry. The report noted34: “Current forms of tourism in the [Indian Himalayan Region] are unsustainable. They replace traditional and aesthetic architecture with inappropriate, non-aesthetic and often dangerous constructions, and compound other challenges such as poorly designed roads and associated infrastructure, inadequate solid

32 Michael P Searle and Peter J Treloar, “Introduction to Himalayan tectonics: a modern synthesis” in Peter J Treloar and Michael P Searle (eds), Himalayan tectonics: A Modern Synthesis (The Geological Society, 2019) 33 HPC Report, page 34 34 “Contributing to Sustainable Development in the Indian Himalayan Region” (August 2018, NITI Aayog) available at <http://164.100.94.191/niti/writereaddata/files/ document_publication/doc6.pdf> accessed on 6 December 2021 H

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A waste management, air pollution, degradation of watersheds and water sources, loss of natural resources, biodiversity, and ecosystem services.” Similarly, relying upon the NITI Aayog’s conclusions, the HPC Report also notes35: B “…the Himalaya call for a new development paradigm in which development must be fully embedded in the environmental, socio- cultural and sacred tenets of the IHR. It has been observed that the present demand-driven, uncontrolled economic growth has led to haphazard urbanization, environmental degradation and C increased risks and vulnerabilities, seriously compromising the unique values of Himalayan ecosystems.” It is In the backdrop of these observations that we must consider the principles applicable to the judicial review which this Court must undertake in the present case. D E.1 Principles of Sustainable Development and Environmental Rule of Law

24. Sustainable development is a common benchmark through which all development projects are judged. Arguably finding its origin in global policy from the Bruntland Report in 1987, it is often defined as E “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”36. Adopted globally as the standard for development by nations, it is the bedrock upon which the Sustainable Development Goals37 have been laid out. Their latest iteration, consisting of 17 SDGs, was adopted by all United F Nations member States in 2015. Titled as the “2030 Agenda for Sustainable Development”38, these SDGs are broad, with their focus being on overall development of society in a manner which comports with environmental preservation now and in trust for the future. SDG13 specifically focuses on “Climate Action”, which is to be balanced with the other SDGs (such as SDG9, which encourages “Industry, Innovation G and Infrastructure”). 35 HPC Report, page 43 36 “Report of the World Commission on Environment and Development: Our Common Future” (1987) available at <https://sustainabledevelopment.un.org/content/documents/ 5987our-common-future.pdf> accessed on 6 December 2021 37 “SDGs” 38 H Available at <https://sdgs.un.org/2030agenda> accessed on 7 December 2021

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

26. In Indian Council for Enviro-Legal Action v. Union of India40, a three-judge Bench of this Court described the principle of sustainable development in the following terms: “31…While economic development should not be allowed to take place at the cost of ecology or by causing widespread environment destruction and violation; at the same time, the necessity to preserve ecology and environment should not hamper economic and other developments. Both development and environment must go hand in hand, in other words, there should not be development at the cost of environment and vice versa, but there should be development while taking due care and ensuring the protection of environment. This is sought to be achieved by issuing notifications like the present, relating to developmental activities being carried out in such a way so that unnecessary environmental degradation does not take place. In other words, in order to prevent ecological imbalance and degradation that developmental activity is sought to be regulated.” F

27. In Essar Oil Ltd. v. Halar Utkarsh Samiti41, a two-judge Bench of this Court referred to the Stockholm Declaration while elucidating on the principle of sustainable development. It noted that while socio-economic needs could be fulfilled through development, environmental concerns will always remain. However, these concerns should not be seen as a deadlock between development and the G environment but as an opportunity to harmonize both, through the principle 39 J B Ruhl, ‘Sustainable Development: A Five-Dimensional Algorithm for Environmental Law’ (1999) 18 Stanford Environmental Law Journal 31 40 (1996) 5 SCC 281 41 (2004) 2 SCC 392 H

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A of sustainable development. Speaking through Justice Ruma Pal, this Court observed: “27. This, therefore, is the aim, namely, to balance economic and social needs on the one hand with environmental considerations on the other. But in a sense all development is an environmental threat. Indeed, the very existence of humanity and the rapid increase in the population together with consequential demands to sustain the population has resulted in the concreting of open lands, cutting down of forests, the filling up of lakes and pollution of water resources and the very air which we breathe. However, there need not necessarily be a deadlock between development on the one hand and the environment on the other. The objective of all laws on environment should be to create harmony between the two since neither one can be sacrificed at the altar of the other…”

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balance. This could be ensured only by strict adherence to A sustainable development without which life of the coming generations will be in jeopardy.” Justice Babu also noted that while the right to a clean environment is guaranteed as an intrinsic part of the fundamental right to life and personal liberty, the right to development can also be declared as a B component of Article 21: “24. The right to development cannot be treated as a mere right to economic betterment or cannot be limited as a misnomer to simple construction activities. The right to development encompasses much more than economic well-being, and includes C within its definition the guarantee of fundamental human rights. The “development” is not related only to the growth of GNP. In the classic work, Development As Freedom, the Nobel prize winner Amartya Sen pointed out that “the issue of development cannot be separated from the conceptual framework of human right”. This idea is also part of the UN Declaration on the Right to D Development. The right to development includes the whole spectrum of civil, cultural, economic, political and social process, for the improvement of people’’ well-being and realization of their full potential. It is an integral part of human rights. Of course, construction of a dam or a mega project is definitely an attempt to E achieve the goal of wholesome development. Such works could very well be treated as integral component for development.”

29. More recently, in Rajeev Suri v. Delhi43, a three judge Bench of this Court had to decide on the permissibility of the Central Vista Project. In considering the use of the principle of sustainable development, F Justice A M Khanwilkar observed that the principle of sustainable development 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 precautionary G principle need to be understood in a proper context. The expression “sustainable development” incorporates a wide meaning within its fold. It contemplates that development ought to be sustainable with the idea of preservation of 43 2021 SCC OnLine SC 7 H

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A natural environment for present and future generations. It would not be without significance to note that sustainable development is indeed a principle of development—it posits controlled development. The primary requirement underlying this principle is to ensure that every development work is sustainable; and this requirement of sustainability demands that the first attempt of every agency enforcing environmental rule of law in the country ought to be to alleviate environmental concerns by proper mitigating measures. The future generations have an equal stake in the environment and development. They are as much entitled to a developed society as they are to an environmentally secure society. By Declaration on the Right to Development, 1986, the United Nations has given express recognition to a right to development. Article 1 of the Declaration defines this right as: D “1. The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized.” E 508. The right to development, thus, is intrinsically connected to the preservance of a dignified life. It is not limited to the idea of infrastructural development, rather, it entails human development as the basis of all development. The jurisprudence in environmental matters must acknowledge that there is immense inter-dependence between right to development F and right to natural environment. In International Law and Sustainable Development, Arjun Sengupta in the chapter “Implementing the Right to Development [International Law and Sustainable Development–- Principles and Practice, Edn. 2004, pg. 354]” notes thus: G “… Two rights are interdependent if the level of enjoyment of one is dependent on the level of enjoyment of the other…”” (emphasis supplied)

H

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82. The conceptual frameworks of environmental justice and equity should merit consideration vis-à-vis the NG’’s domain and how its functioning and decisions can have wide implications in socio- economic dimensions of people at large. The concept of environmental justice is a trifecta of distributive justice, procedural justice and justice as recognition.[Schlosberg D, Defining D Environmental Justice : Theories, Movements, and Nature (Oxford University Press 2009)] Environmental equity as a developing concept has focused on the disproportionate implications of environmental harms on the economically or socially marginalized groups. The concerns of human rights and E environmental degradation overlap under this umbrella term, to highlight the human element, apart from economic and environmental ramifications. Environmental equity thus stands to ensure a balanced distribution of environmental risks as well as protections, including application of sustainable development principles. F

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

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A “Environmental Justice, which focuses on whether minorities and low-income people bear a disproportionate burden of exposure to environmental harms and any resulting health effects. In the past ten to fifteen years, this issue has crystallized a grass-roots movement that combines civil rights issues with environmental issues, with a goal of achieving “environmental justice” or B “environmental equity”, which is understood to mean the fair distribution of environmental risks and protection from environmental harms.”[Schiffer, L. J., & Dowling, T. J. (1997). Reflections On The Role Of The Courts In Environmental Law. Environmental Law, 27(2), 327-342]” C (emphasis supplied)

31. The principle of sustainable development is deep-rooted in the jurisprudence of Indian environmental law. It has emerged as a multi- faceted principle, which does not prohibit development, but structures it around what is sustainable. Sustainable development incorporates two related ideas – development which not only ensures equity between the present and the future generations but also development which ensures equity between different sections of society at present. However, while the principle has deep roots, there is a lack of consensus on how to ascertain whether a particular developmental project abides by the principle of sustainable development. Without a common benchmark or standard being applied by the Court in its analysis of the impact of development projects, the principle of sustainable development may create differing and arbitrary metrics (depending on the nature of individual projects). This not only creates uncertainty within the law, but makes the application of the principle of sustainable development selective, taking away from its potential to drive sustained change.

32. A cogent remedy to this problem is to adopt the standard of the ‘environmental rule of law’ to test governance decisions under which developmental projects are approved. In its 2015 Issue Brief titled “Environmental Rule of Law: Critical to Sustainable Development”, the G United Nations Environment Programme45 has recommended the adoption of such an approach in the following terms46:

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

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“Environmental rule of law integrates the critical environmental needs with the essential elements of the rule of law, and provides the basis for reforming environmental governance. It prioritizes environmental sustainability by connecting it with fundamental rights and obligations. It implicitly reflects universal moral values and ethical norms of behaviour, and it provides a foundation for environmental rights and obligations. Without environmental rule of 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 Rule C of Law: First Global Report”, where it notes: “Environmental rule of law is key to achieving the Sustainable Development Goals. Indeed, it lies at the core of Sustainable Development Goal 16, which commits to advancing “rule of law at the national and international levels” in order to “[p]romote D peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” […] E Environmental law and institutions have grown dramatically in the last few decades, but they are still maturing. Environmental laws have taken root around the globe as countries increasingly understand the vital linkages between environment, economic growth, public health, social cohesion, and security. Countries have adopted many implementing regulations and have started to enforce the laws. Too often, though, there remains an implementation gap. Environmental rule of law seeks to address this gap and align actual practice with the environmental goals and laws on the books. To ensure that environmental law is effective in providing an enabling environment for sustainable development, environmental rule of law needs to be nurtured in a manner that builds strong institutions that engage the public, ensures access to information and justice, protects human rights, and advances true accountability for all environmental actors and decision makers…” H

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A 34. Within the Indian context, environmental rule of law was first applied by this Court in Hanuman Laxman Aroskar v. Union of India 47. In that case, the Government of Goa had mooted a new international airport at Mopa in Goa in 1997. While the MoEF&CC gave it an EC, it ultimately came to be challenged before this Court. In its decision, a two-judge Bench of this Court found a lack of information B transparency in the disclosures filed by project proponents, and directed a fresh exercise for a rapid EC to be carried out. In emphasizing on environmental governance within a rule of law paradigm, Justice DY Chandrachud observed: “J. Environmental Rule of Law C […]

144. The environmental rule of law provides an essential platform underpinning the four pillars of sustainable development — economic, social, environmental and peace D [United Nations Environment Programme, First Environmental Rule of Law Report. Available at <https : //wedocs.unep.org/ bitst ream/handle/20.500.11822/27279/Envir onme ntal _rule_of_law.pdf?sequence=1&isAllowe d=y>]. It imbues environmental objectives with the essentials of rule of law and underpins the reform of environmental law and governance [ 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>] . The environmental rule of law becomes a priority particularly when we acknowledge that the benefits of environmental rule of law extend far beyond the environmental sector. While the most direct effects are on protection of the environment, it also strengthens rule of law more broadly, supports sustainable economic and social development, protects public health, contributes to peace and security by avoiding and defusing conflict, and protects human and 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 H 47 (2019) 15 SCC 401

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

145. […] Thuspprox.terizedd, it encompasses the preservation, and when possible even the expansion of the substantive freedoms and capabilities of people today without compromising the capability of future generations C to have similar — or more — freedoms. The intertwined concepts of environmental rule of law thus further intragenerational as well as intergenerational equity. (emphasis supplied) D Thus, the Court acknowledged that consistent decision-making on its behalf was a crucial factor in upholding the environmental rule of law.

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

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A within which every stakeholder complies with its duty to ensure sustainable development. A framework of environmental governance committed to the rule of law requires a regime which has effective, accountable and transparent institutions. Equally important is responsive, inclusive, participatory and representative decision-making. B Environmental governance is founded on the rule of law and emerges from the values of our Constitution. Where the health of the environment is key to preserving the right to life as a constitutionally recognised value under Article 21 of the Constitution, proper structures for environmental decision-making find expression in the guarantee against arbitrary action and the affirmative duty of fair treatment under Article 14 of the Constitution. Sustainable development is premised not merely on the redressal of the failure of democratic institutions in the protection of the environment, but ensuring that such failures do not take place.” (emphasis supplied)

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environmental adjudication in a manner that was stable, certain and predictable.

53. However, even while using the framework of an environmental rule of law, the difficulty we face is this — when adjudicating bodies are called on to adjudicate on environmental infractions, the precise harm that has taken place is often not susceptible to concrete quantification. While the framework provides valuable guidance in relation to the principles to be kept in mind while adjudicating upon environmental disputes, it does not provide clear pathways to determine the harm caused in multifarious factual situations that fall for judicial consideration. The determination of such harm requires access to scientific data which is often times difficult to come by in individual situations. 54…the environmental rule of law calls on us, as Judges, to marshal the knowledge emerging from the record, limited though it may sometimes be, to respond in a stern and decisive fashion to violations of environmental law. We cannot be stupefied into inaction by not having access to complete details about the manner in which an environmental law violation has occurred or its full implications. Instead, the framework, acknowledging the imperfect world that we inhabit, provides a roadmap to deal with environmental law violations, an absence of clear evidence of consequences notwithstanding.” (emphasis supplied)

37. Having now established the framework of judicial principles necessary for this Court to adjudicate the present matter, it is important to consider the specific set of circulars and guidelines which are applicable. E.2 Circulars and Guidelines

38. A combined reading of Article 246 along with Entry 23 50 of G List I of Schedule VII of the Constitution of India indicates that national highways fall entirely within the ambit of the Parliamentary domain. The executive power of the Union is co-extensive with the power of Parliament. 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.” H

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A Act 1956, the Union Government is empowered to declare any road as a national highway and issue directions for its development and maintenance51. Within the Union Government, the specific responsibility lies with MoRTH. Hence, we must first begin by analyzing the relevant circulars which have been issued by MoRTH. B 39. The first of these is the 2012 MoRTH Circular, which was titled “Capacity building and lane width of National Highways”. It stated: “I am directed to inform that Ministry intends to take up development of such National Highways having carriageway width less than the two lane width. These roads are to be C developed to a minimum level.

2. Generally, the carriageway width is dictated by the expected traffic. National Highways which are the primary route have higher expectation from the consideration of level of service as well as from safety consideration. This aspect was deliberated in the D Ministry, and observed that the NHs are serving the mixed traffic. Besides, India has the dubious distinction in terms of fatalities on roads and there is need to segregate slow moving traffic from fast moving traffic.

3. In the above back ground to ensure safe and smooth traffic on E NHs, it has been decided that efforts be made to convert all the NHs to a minimum level of two lane with paved shoulders. Towards implementation of this, henceforth whenever new projects of widening/bypass/realignment are taken up, the width of the carriageway shall be at least two lane with paved shoulders irrespective of the traffic thereon.” (emphasis supplied) 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 if it was under development, had to henceforth meet the requirement of the DL-PS standard in order to ensure safety and the smooth flow of traffic. Accompanying this circular, was the following pictorial representation of the new national highway width:

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A

As we can note from the above depiction, the highway would be of a two-lane width (i.e., 7m) with each of its sides being flanked by B 1.5m of paved shoulders, which would be followed by 1m of earth/ granular shoulders.

40. Following the 2012 MoRTH Circular, the IRC (an apex body of engineers in relation to road development) issued its 2015 IRC Guidelines in relation to the standards to be followed while developing highways with the DL-PS specification. Section 13 of the Guidelines C dealt with the special requirements for hilly roads. While it is not necessary for us to explain the specific requirements, the 2015 IRC Guidelines highlight that highways with the DL-PS standard could be constructed for hilly roads.

41. The 2012 MoRTH Circular was modified by the 2018 MoRTH D Circular, which was titled “Standards for Lane width of National Highways and roads developed under Central Sector Schemes in Hilly and Mountainous terrains”. As the name suggests, the 2018 MoRTH Circular modified the 2012 MoRTH Circular to the extent that it applied to national highways in hilly and mountainous terrains. The relevant portions of the Circular read as follows: “On the subject of “Capacity building and lane width of National Highways”, it has been stipulated vide this Ministry’s letter No. NH-14019/6/2012-P&M dated 05.10.2012 [2012 MoRTH Circular] that width of carriageway shall be at least two lane with paved shoulders irrespective of the traffic thereon in new projects undertaken for widening of carriageway/ bypasses/realignments.

2. However, challenges have come to the fore in adhering to these standards in the context of National Highways and roads in hilly and mountainous terrains. These challenges arise on account of destabilization of hill slopes and progressive damaging effects on road alignments and structures in higher contours on hills due to excavation works, requirement for large-scale felling of precious trees, associated environmental damages. Resultantly, there arises need to provide largescale protection works, acquisition of additional land for Right of Way (ROW), etc. H

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A […]

4. The provisions of Ministry’s letter No. NH-14019/6/2012-P&M dated 05.10.2012 [2012 MoRTH Circular], have, accordingly, been reviewed and it has been decided with the approval of the Competent Authority that the following provisions shall be applicable B henceforth for National Highways and roads under Central Sector Schemes in hilly and mountainous terrains until further orders: […] 4.4 Following specific provisions shall be made for traffic volumes ranging from 3,000 PCUs/day to about 8,000/day:- C (i) The carriageway width shall be of intermediate lane configurations, i.e. of 5.5 m width (18 ft), with two-lane structures (23 ft.). (ii) The passing places may have widths of 2.5 m and 12 m D length and these may be provided on alternate sides of the road. The length of the tapered section may be 6 m on either side of their approaches. Accordingly, the length of the passing places may be 24 m inclusive of the tapered length. […] E (vii) The Roadway width for Hilly and Mountainous Terrain as per IRC: SP-2015 (Manual of Specifications and Standards for Two laning of Highways with paved shoulder) [2015 IRC Guidelines] would stand amended accordingly. 4.5 For traffic volume of more than 10,000 PCUs/day or F the existing traffic volumes likely to witness a fast growth to reach this level within a period of 3 to 5 years, the carriageway width shall be of two lane NH configurations, i.e. of 7 m width. The carriageway widths shall be of two lane NH configurations with paved shoulders only in cases where the traffic is likely to increase at about more than 10 G % per annum.

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

H (emphasis supplied)

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The 2018 MoRTH Circular modifies its precursor of 2012 for A hilly and mountainous terrains in the following ways: (i) for areas where the PCUs are in the range of 4,000-8,000 PCUs per day, the carriageway width 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 width have to be included; (iii) the 2015 IRC Guidelines stood amended; (iv) B for areas where the PCUs are more than 10,000 per day (or expected to reach that level within 3 to 5 years), the carriage way width could be of double lane configuration (i.e., 7m); and (v) where the traffic is likely to increase 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 relation C to hilly roads. Of particular importance is Clause 6.2.2, which reads as follows: “6.2.2 Width of carriageway, shoulders and roadway for various categories of roads are given in Table 6.2. D Table 6.2 Widths of Carriageway, Shoulder and Roadway […]

E

F

G

Notes: […] H

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A 6. On roads subject to heavy snow fall, where snow clearance is done over long periods, roadway width may be increased by 1.5 m. However, the requirement of such widening may be examined with reference to ground conditions in each case considering terrain traffic and other influencing conditions and factors. B […]

8. Strategic and border roads for military/paramilitary/security forces operations/movements shall be constructed for not less than two lane carriageway alongwith paved shoulder on hill side + paved and earthen shoulder on valley side on same lines of C national highway.” Clause (8) of the Notes attached to Clause 6.2.2 provides that if a road is a strategic or a border road and is going to be used for “military/paramilitary/security forces operations/movements”, then it must be of DL-PS configuration (along with earthen shoulders), D “on the same lines” as other national highways.

43. Finally, the 2020 MoRTH Circular modifies the 2018 MoRTH Circular, in view of the suggestions received from the MoD. The circular, titled “Standards for Lane width of National Highways and roads developed under Central Sector Schemes in Hilly and Mountainous E terrains”, provides as follows, in so far as is material: “MoRT&H had issued circular on “Standards for Lane width of National Highways and roads developed under Central Sector Schemes in Hilly and Mountainous terrains” vide this Ministry’s letter of even number dated 23rd March, 2018 [2018 MoRTH F Circular]. The standards prescribed therein have been further reviewed in the Ministry in light of the issues raised by Ministry of Defence. A committee of Chief Engineers considered the suggestions received in this regard and have recommended modifications to the standards prescribed in the circular referred above. G

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

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3. Accordingly, in partial modification of the circular cited above, A the following additional guidelines are notified with immediate effect. “For roads in hilly and mountainous terrain which act as feeder roads to the Indo-China border or are of strategic importance for national security, the carriageway width should be 7m with 1.5m paved shoulder on either side.”” B (emphasis supplied) The 2020 MoRTH Circular amends the earlier circular of 2018 since its directions were incompatible with the recommendations under Clause (8) of the Notes attached to Clause 6.2.2 of the 2019 IRC Guidelines, according to which every strategic and border road has to be C of DL-PS configuration along with earthen shoulders. Hence, the 2020 MoRTH Circular provides that roads which may be located in hilly and mountainous regions but serve as feeder roads to the Indo-China border or are of strategic importance for national security should also be of DL-PS configuration. D

44Copy pinpoint44. On a combined reading of the 2012, 2018 and 2020 MoRTH Circulars and 2015 and 2019 IRC Guidelines, it emerges that a road shall be of a DL-PS configuration in the following circumstances: (i) if it is a national highway, other than in hilly or mountainous terrain; (ii) in hilly or mountainous terrain, a national highway can be double-laned if E there are more than 10,000 PCUs per day or that level will be reached in 3 to 5 years; (iii) in hilly or mountainous terrain, a national highway can be of DL-PS configuration if the traffic is likely to increase more than about 10 per cent per annum; and (iv) in hilly or mountainous terrain, any road (including a national highway) can be of DL-PS configuration if it is strategic or a border road serving as a feeder road to the Indo- F China border or if it is of strategic importance to national security. FIssues and Analysis F.1 Road-Width Issue

45Copy pinpoint45. The issue that arises for consideration is regarding the road- G width to be adopted for the three strategic border roads, as indicated in MA No 2180 of 2020 filed by the MoD, namely: Rishikesh to Gangotri (NH-94 and NH-108), Rishikesh to Mana (NH-58), and Tanakpur to Pithoragarh (NH-125). Broadly speaking, the appellants have argued that the present road infrastructure is sufficient to meet the needs of the H

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A Indian Army. Any further development, it has been urged, must be balanced keeping in mind the fragility of the Himalayas, the excessive damage caused to the environment and the need to ensure disaster- resilient roads. On the other hand, the UOI has stressed on the necessity of developing these feeder roads, for the security of the nation. Given the proximity of the roads to the Indo-China border, and the necessity of B free movement for transport of trucks, machines, equipment and personnel of the Indian Army, double lane configuration must be allowed, according to the UOI. To analyse the issue, we shall first advert to the findings of the HPC. F.1.1 HPC Report dated 13 July 2020 C

46Copy pinpoint46. The HPC report was finalized by its members functioning under Professor Ravi Chopra as its Chairperson. For the preparation of the HPC Report, the members conducted site-visits, held meetings, interacted with the officers of MoRTH, district officials and the local communities. The Report is divided into twelve chapters, each of which D touches upon various aspects of the Project such as road-widening; hill cutting; bypasses; muck dumping; environment quality; loss of forests and green cover; impact on wildlife; managing water courses; disaster management and socio-cultural perspectives. For the purpose of the issue for consideration, i.e., the width of roads on the national highways, E Chapter II is of utmost relevance. The remaining chapters have been briefly summarized in Section F.2.1 of this judgment.

47Copy pinpoint47. Chapter II of the HPC Report titled ‘Road Widening’ deals with the construction of highways and the width of roads. For determining the width of the road, the HPC highlighted the following factors are to F be 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 horizontal curves.

48Copy pinpoint48. According to the Indian Roads Congress Hill Roads Manual 52 G 1998 , the following type of roads have been indicated, based on traffic volumes:

52 H “IRC Manual”

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A

B

49Copy pinpoint49. The 2012 MoRTH Circular, however, provided that for new projects of widening/bypass/realignment, the width of the carriageway will be at least two lane with paved shoulders, irrespective of the traffic.

50Copy pinpoint50. During the field visit, the HPC observed that though the routes for the Project are designed for the DL-PS standard, in certain stretches the formation width varies from 12m to 20m depending on the geometric requirements. Further, many of the existing stretches, which were already developed to an IW standard, are being widened. Due to the uniform standard, in some areas large hill-cutting has been undertaken resulting in vertical slopes without adequate slope protection measures. This has led to landslides and reflects inadequate assessment of slope vulnerability.

51Copy pinpoint51. The discussion of the HPC revolved around the road-width that should be adopted for the highways comprising of the Project. Factors such as the road geometrics, traffic volume, ecological considerations (such as steep terrain, loss of forest cover, et al) guided the discussion of the HPC. At present, the project requirement envisages a DL-PS standard as given below:

F

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

52Copy pinpoint52. A majority consisting of thirteen members of the HPC was of the opinion that the DL-PS standard must be applied uniformly throughout the Project for the following reasons: H

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A (i) The IRC Manual recommends a uniform application of design standards and any adjustments that need to be made to factor in the variability in slopes, must be intended for short distances; (ii) The roads of the hills require protective works such as retaining walls, breast walls, catch drains, et al, which form a B substantial part of the construction cost. Once the roads have been constructed, the widening of roads in the future is expensive, and at times impossible. Thus, the highways must be widened bearing in mind the traffic volumes for the next 20-25 years; C (iii) Some of the highways of the Project are important feeder roads leading towards border areas. The BRO has highlighted that the terrain in border areas is in a snow bound region and feeder routes such as Helong-Mana and Barethi-Gangotri must be double-laned. Further, the roads beyond Joshimath and Uttarkashi are operationally sensitive and fall within 100 kms of the Line of Actual Control. Single-lane roads are closed during the winter season due to accumulation of snow and hinder the movement of logistics and medical aid to the Indian Army; (iv) The 2019 IRC Guidelines also suggest that strategic border roads for military and paramilitary forces be not less than two lanes with paved shoulders; and (v) Suitable adjustments can be made to the standard design after considering vulnerability of slopes, identification of stretches vulnerable to floods, mapping wildlife corridors and providing adequate safeguards.

53Copy pinpoint53. A minority consisting of five members of the HPC, including the Chairperson, was in favour of adopting the IW standard for the Project. Their opinion was based on the following reasons: (i) The type of road must be determined based on traffic surveys, capacity of roads, and ecological considerations. The 2012 MoRTH Circular, however, recommended only an operational standard; (ii) The detailed project reports for the Project have based the choice of road-width on traffic survey data. However, the H

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data is insufficient as the traffic volume count of only April- A May, which is a non-peak period, was taken into account. Additionally, no traffic surveys were conducted for the Higher Himalayas, which suggest that the DL-PS standard is extremely wide; (iii) The current standard ignores the overall environmental considerations such as geological fragility, slope de-stabilization and recurring landslides, climate change and soil organic carbon loss. MoRTH has not conducted an EIA for the Project which would suggest site-specific mitigation measures; (iv) Although border security concerns are a relevant factor, not all routes lead to the international borders. To ensure that national security concerns are addressed, more disaster- resilient highways are needed which would not be achieved by cutting fragile slopes. Further, the Chief of Army Staff on 20 September 2019 had made a statement that the current roads adequately fulfilled the needs of the Army; and D

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

54Copy pinpoint54. Since the 2018 MoRTH Circular, which was central to the discussion on road-width, was inadequately considered by the HPC, it was suggested by the Chairperson that a final decision on this issue must be taken by the Supreme Court. Apart from the issue of road- width, the majority of members also recommended that: (i) To avoid the possibility of slope failures, valley side filling must be given importance; (ii) A footpath for walking along the highways of the Project must be made for the pilgrims; and

H

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A (iii) In built-up areas where road side facilities and establishments exist, the width of the roads should be kept at 10.5m (7m carriageway and 1.75m paved shoulder on either side).

55Copy pinpoint55. With regard to the BESZ, the HPC noted that the Project has five unsanctioned projects which run through it. MoRTH plans to upgrade B 100.5 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 all requisite clearances under the relevant notifications of the MoEF&CC; C (ii) Road widening activities should only be undertaken after detailed EIAs and mitigation measures; (iii) The felling of deodar trees should be avoided; (iv) Feasibility studies should be conducted in the short tunnels D proposed within the highways, and (v) Vulnerability evaluations and terrain assessments must be conducted. F.1.2 HPC Report dated 31 December 2020

56Copy pinpoint56. Following the filing of MA No 1925 of 2020 and MA No 2180 E of 2020, this Court by an order dated 2 December 2020 directed the HPC to consider the issues raised by Professor Ravi Chopra and the MoD, and submit a detailed report. The HPC Report-II was thereafter submitted. In relation to MA No 2180 of 2020 filed by the MoD, a majority of 21 members recommended that further work to be undertaken by the F MoRTH should be according to the 2020 MoRTH Circular, as it is necessary for the security of the nation. A minority of three members was not persuaded that the order of this Court dated 8 September 2020 should be modified. One member recommended that the work on the national highways from Rishikesh to Gangotri, Rishikesh to Mana, and Tanakpur to Pithoragarh may be carried out according to the 2020 G MoRTH Circular. However, a flexible approach should be adopted where necessary, to minimize damage to the forests and wildlife habitats. On the letters filed by the Chairperson, a majority of members recommended that the letters be withdrawn.

57Copy pinpoint57. The majority report indicates that: H

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(i) The concerns raised by the MoD had been deliberated by the A HPC and the majority view in the HPC Report indicated the adoption of the DL-PS standard. However, the majority report was overridden by the views of 4 members; (ii) The HPC Report discussed the strategic importance of the three national highways: NH-34 (previously NH-94 +NH-108), B NH-07 (previously NH-58) and NH-125; (iii) The District Magistrates of Uttarkashi, Chamoli and Champawat District expressed concern that the local people wanted an all-weather reliable road along with the requirement of the MoD; and C (iv) The Rapid EIA reports of the Rishikesh-Rudraprayag stretch indicated that the impact of the Project is 32.25 per cent, which falls in the medium impact category. Thus, from an EIA perspective, the widening of the highways should be permitted.

58Copy pinpoint58. The minority of members stated in their report that: D (i) On the three feeder highways mentioned by the MoD in their application, 161 landslides/vulnerable zones were created. Due to the new landslides, the entire project would be counter- productive for defence-preparedness; E (ii) The requirement of the MoD for the feeder roads should be considered in the context of the need for disaster resilient roads, capacity of roads to ensure swift movement of Army vehicles, minimizing environmental and social impact and long- term feasibility of the roads; and F (iii) The difference between the recommendation of the minority and the MA filed by the MoD is in regard to the reduction of carriageway by 1.5m, with due regard to the requirement of a footpath of 1.5m for the local population and pilgrims. F.1.3 Analysis on the width of road G

59Copy pinpoint59. Pursuant to the order of this Court of 8 September 2020, the issue of the width of the national highways that are a part of the Project has been raised in MA No 2180 of 2020 filed by the MoD, which seeks modification of the order itself. The grounds listed in the MA indicate that the national highways from Rishikesh to Mana, Rishikesh to Gangotri H

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A and Tanakpur to Pithoragarh are feeder roads to border areas and are vital from the perspective of national security. Thus, it has been urged that development of these highways should be according to the two-lane configuration.

60Copy pinpoint60. The details of these roads and their proximity to the international B border has been provided in the MA by the MoD, and is reproduced below: ‘‘Table A

C

D

E

F

G

H

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A

B

C

D

E

F

G

H

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