It is most heartening to note that just recently, the three-Judge Bench of Apex Court comprising of Justice Dr DY Chandrachud, Justice Surya Kant and Justice Vikram Nath while hearing a petition on Char Dham Highway expansion in full court room exchange took the extremely commendable, clear, cogent, composed, courageous and convincing stand that concerns of defence forces cannot be overridden. It goes without saying that our national security must always stand paramount and everything else comes later. How can we ever allow compromise with our national security under any circumstances? We already paid a heavy price in 1948 and then again in 1962 but not again can we afford at any cost and under any circumstances!
It merits no reiteration that we are surrounded by hostile neighbours like Pakistan and in addition China which is much more powerful than any other ready always to clash even with the biggest super power like USA. Under such circumstances, how can we afford to be nonchalant towards developing our border infrastructure when we fully know that China has already developed its border infrastructure to the hilt and even bullet trains are running right up to the border? In addition, we all saw how China of late has started being extremely aggressive with India without any provocation from the Indian side and we also witnessed the Galwan face-off on June 15, 2020 in which our 20 soldiers were killed including Col Santosh Babu who was the commanding officer of an infantry battalion.
It must be mentioned here that the senior advocate Colin Gonsalves while appearing for the petitioner-NGO told the three-Judge Bench that the justification offered by the Centre that the expansion of these roads, which are being described as feeder roads leading to the border roads at the Indo-China border, is of strategic importance for national security, is only a ruse and that the Armed Forces has stated that it does not need the same. It would also be apposite to mention here that Justice Chandrachud rightly asked that, “Can we deny the factual position that these roads are feeder roads to the roads which lead up to the border? Suppose you have to go from Rishikesh to Meerut to the border, I don’t think there can be any dispute about the fact that these are strategic feeder roads to the border. We will of course be dealing with the environment as well. We will be asking the AG about those considerations. But just for clarity, we cannot dispute the fact that these are feeder roads, and that border roads are only those which are appurtenant to the border in a geographical proximity sense may not be the correct way of dealing with it, because a feeder road which subserves the movement to the border is equally to be upgraded.”
It may be recalled that the Centre in 2020 had moved an application for the modification of the order dated September 8, 2020 which was passed by a three-Judge Bench headed by Justice Rohinton Nariman in order to permit the Union of India to make roads with 10 meters tared surface as opposed to the 5.5 meters as ordered by the Court. The September 8, 2020 order directed that the road in hilly and mountainous terrains for the Char Dham Highway project are to be constructed in accordance with the 2018 circular of the MoRTH and hence the width of the road would remain at 5.5 meters. On December 2, 2020, the Defence Ministry before the Supreme Court had rightly sought wider roads for national security, arguing that the three national highways- Rishikesh to Mana, Rishikesh to Gangotri and Tanakpur to Pithoragarh lead up to the northern border with China and act as feeder roads.
Most remarkably, Justice Dr DY Chandrachud then very rightly, rationally and robustly maintained that, “What they are trying to do now is not to create a six lane or an eight way highway, but we are only having double laning of the road. By robust common sense, we understand that it allows two vehicles to pass. If you have travelled in Ladakh and if you have moved from Leh to Kargil and Kargil to Zanskar, one would know that the high-altitude roads in Uttarakhand are not much different. Today, you have essentially a road leading to the border where only one vehicle can pass. I give you the example of Ladakh because if you are climbing and an army vehicle is descending, or even if there is a civilian vehicle, both cannot pass at one point of time. There is an unwritten code between the civilians and the army that whoever is ascending will give way to the vehicle which is descending because the vehicle which is descending has a greater danger of slippage. If this is the overall scenario which is persisting on the border roads, and I don’t think there has been a very radical change since 1962, then can the court really turn its eyes into oblivion and say that this need should be ignored? You are right that the Himalayas are young mountains which are fragile, the work of any road construction on the mountains has to be carried out with a considerable degree of care. At the same time, can we really completely say that the concerns which have been expressed before the court can be disregarded by the court? Would we be justified in doing that?”
To this, Colin Gonsalves responded by saying that, “The High Powered Committee (HPC) report and what we are going to bring to the Court’s notice indicate that though we may have grand intentions and grand wishes to have all kinds of roads or particular kinds of roads, the Himalayas can’t take it. It was predicted that they would not be able to take it. The court injuncted them in using the 2018 circular. They went ahead notwithstanding and now the proof is in the events which have happened now.” Justice Chandrachud in turn then while taking on board the paramount national interests quipped that, “But you have an adversary (China) who has developed infrastructure up to that hilt on the other side of the border?” Absolutely right.
While reiterating that the petitioners are also “for the defence”, Mr Gonsalves indicates a conversation with General Bipin Rawat who was formerly the Chief of Army Staff. He was asked if they want proper roads. He was sitting in the Himalayas which is his home and he said that ‘in the army we are happy with the roads as they are’. His words were, “We must look after defence and we must look after the environment”. When he was asked about trucks going up these roads, he said ‘we don’t want these roads to be like that. We have very heavy artillery-lifting helicopters and they have done their jobs.’ This Gonsalves pointed out was a candid conversation with him who is a thorough army man and a thorough pahari.
At this, Justice Chandrachud sagaciously observed that, “He may not be completely right. When an army soldier from the southern command is sent up to Ladakh, for every thousand feet that they climb beyond 12,000, there is a mandatory waiting period. Otherwise, you can’t just take soldiers from Chandigarh upto the Siachen glacier. The level of attrition will be unbelievably high. I have done a lot of trekking. I will say this as a matter of personal experience because we are also citizens of the world. Whenever you are going through to these heights, you will realize there are convoys of soldiers from the army led by the Colonel where, for every thousand feet that they have climbed, there is mandatory period for you to stay so that you can acclimatize. If you don’t do that, any army man will tell you that there will be a very high level of attrition. While you may have very good equipment for airlifting, you have the C130 Hercules with the army, but the human cost is very high. The movement has to be gradual when men and materials have to be moved!”
As we see, Gonsalves then submitted that, “But we also don’t want our troops racing up the roads and then having mountains break on them. What is the point then? What is the security then?” In reply, Justice Chandrachud then rightly observed that, “If you have ever been on those mountains, there is no question of the troops racing up. They go on the Tata trucks, you know how those trucks go, you know how the army travels. Even the Gypsies don’t go up and down racing.” No denying it!
Needless to say, Justice Suryakant also rightly asked that, “Do you have any official or unofficial report on the impact on the Himalayas on the other side of the border where China has a huge build-up of multiple buildings, macro rail etc?”
Most significantly, Justice Chandrachud then very rightly underscored that, “All development has to be sustainable, there is no doubt. We have the precautionary principle, the principle of sustainable development, the polluters’ pay principle. But the needs of sustainable development have to be balanced with the defence of the nation! We cannot really deny the fact that we are in such terrain and at such altitude where the defence of the nation is extremely complicated. Can we therefore say that we will override the concerns which the armed forces are voicing through the AG? Can we, as the highest constitutional court, say we will override the concerns of defence, particularly in view of contemporary events which have taken place in the recent past, and say that whatever your concerns are, this does not comport with the environment and therefore we will interdict these concerns of the armed forces? Or do we say that we will ensure that you must also provide for environmental protection when you are carrying out these projects which will be in the interest of the defence of the nation?”
While continuing in the same vein, Justice Chandrachud then added that, “Yes, there is glacial melt, there is a lot of flooding which has taken place because of that. But glacial melt is not only because of the construction of roads. It pertains not only to India but other countries in the region. It is the product of the rampant development which is taking place across the board. The court is treading into a very critical area where, we are told that the defence of the nation requires upgradation of these roads. But like Justice Surya Kant said – look at the preparedness on the other side of the border! Should the court say the environment will trump over the concerns of the defence of the nation? Or should we say that defence of the nation is a very important priority for any elected government of the day but when you do that, act in a manner consistent with the environment? The court has to have a more nuanced approach than that you have upgraded roads which are critical to defence and because it is defence, it will override the environment. Should the approach be that they will do it in a manner which will protect the environment also and not completely bypass environmental concerns?”
Furthermore, Justice Chandrachud also hastened to add that, “Look at the predicament of the court in a matter like this. If a government says we are doing this in an ecologically fragile zone to promote tourism, the court is on a slightly more stable ground that we will impose a much more stringent standard for development. But here the government is saying it is necessary for us to defend our borders! Can we second-guess this assessment in that sense? If you go to Ladakh where there are Buddhist monasteries, could you say that the government is intruding upon the roads in the border areas of Ladakh which are in the adjunct of pilgrimage?”
What’s more, Justice Chandrachud also rightly voiced his sagacious view that, “Undoubtedly. You cannot equate the mountain terrain in Uttarakhand with Ladakh. But in terms of the security environment, equally, we cannot deny that the border areas in Uttarakhand have a degree of sensitivity which they share with the border areas in Ladakh.”
In conclusion, as long as we have learned Judges like Justice Dr DY Chandrachud, Justice Surya Kant and Justice Vikram Nath sitting in the Supreme Court, we as citizens ought not to worry on any score pertaining to defence. Such learned Judges can never allow the national security to be breached anyhow or somehow and for them the national security always stand paramount of which we must be rest assured as can be discerned from what all they have said as we have discussed hereinabove! One is pretty confident that whatever Apex Court will rule in this case will be certainly in the larger and best interests of our national security which always stands paramount under all circumstances! India definitely cannot afford to again foolishly undermine China and repeat the Himalayan blunder as we did most unfortunately in 1962! Who can understand this better than these three most learned Judges led by seniormost Judge Dr DY Chandrachud who always places nation and national interests as paramount! No denying it!