Char Dham Project: Bench avoidance allegations raised against Central government in Supreme Court; case sent to CJI

The hearing in the case before Supreme Court on widening of Char Dham road in Uttarakhand witnessed stirring arguments on Thursday as allegations of Bench avoidance were raised against the Central government to which Attorney General KK Venugopal took strong objection.

. Senior Advocate Colin Gonsalves , appearing for the petitioner-NGO, Citizens for Green Doon, submitted a note to the Supreme Court alleging that the Central government was trying to avoid the regular Bench hearing the matter.

The noted said that the matter should be placed before the regular Bench for the reason that Union of India is engaging in "most unfortunate activity" of Bench avoidance.

. The regular Bench, which is headed by Justice Rohinton Nariman, had been hearing the matter since August 2019.

The current application by the Ministry of Defence has sought permission to construct the road at 10 meter width.

. The Supreme Court had by its September 2020 order mandated the government to keep the width of the Char Dham road at 5.5 meters in compliance with Central government's own 2018 notification regarding the same.

The said notification had subsequently been amended in December 2020.

The Centre’s application had subsequently come up for hearing before Justice Nariman four times but had been adjourned on each occasion before it eventually came up before the vacation bench of Justices Vineet Saran and Dinesh Maheswhari.

. When it came up for hearing on Thursday, the Attorney General took strong objection to the note submitted by Gonsalves stating that such tactics should not be employed.

He also submitted that case concerns roads which are vital to national security.

The Court eventually directed that the matter be placed before the Chief Justice of India for constituting appropriate Bench.

“Learned Attorney General for India has submitted that because of urgency in the matter as Strategic Border Roads are to be constructed urgently, the matter should be taken up early. Written submissions have been filed by the appellants. A convenience compilation has also been filed by the Union of India. Let the matter be listed on Tuesday, i.e. 18.05.2021. The papers be placed before the Hon’ble Chief Justice of India for assignment of appropriate Bench to hear this matter,” the Court directed.

. The Char Dham highway, is a 900-kilometre road project that promises to offer all-weather connectivity to four Hindu pilgrimage centres in Uttarakhand.

One of the benefits of the project as claimed by the Central government is that it will facilitate rapid deployment and movement of Indian Armed forces along China border.

However, according to Central government’s own notification of 2018, the road width cannot exceed 5.5 meters in the hilly terrains like the one through which Char Dham road is proposed.

In August 8, 2019, when the matter came up before a Bench of Justices Rohinton Nariman and Surya Kant, the Court had ordered constitution of High Powered Committee (HPC) consider the cumulative and independent impact of the Chardham project on the entire Himalayan valleys.

The HPC, with the help of the technical body and engineers of implementation agency (MoRTH) should consider whether revision of the full Chardham project (about 900 Kms) should at all take place with a view to minimize the adverse impact of the project on environment and social life, the Court had directed.

. “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 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.

As regards the stretches where work has not started, the HPC will review the proposed project and recommend measures 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,” the August 2019 order said.

. Pursuant to the order, the HPC delivered a report in July 2020.

The Supreme Court in September 2020 accepted the report of the HPC but with a narrow variance, that road width shall not exceed 5.5 meters as prescribed in the 2018 circular.

Interestingly, this was in tune with the minority opinion of the HPC report.

“Whereas, a majority of 13 members of the HPC was in favour of applying the Ministry of Road Transport and Highways (MORTH) circular of 2012, which laid down a certain standard, the minority-five members, including the Chairman were of the opinion that the latest MORTH circular dated March 23, 2018 should govern. 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 apply for the reasons given at page 93 of the report. Consequently, the 2018 circular alone will apply,” the Court ordered on September 8, 2020.

The 2018 circular was later amended to increase road width limit from 5.5 meters to 10 meters.

. [Read May 13, 2021 order]

Char Dham Project: Bench avoidance allegations raised against Central government in Supreme Court; case sent to CJI

Bar & Bench

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