Balancing National Security and Fundamental Rights in Environmental Cases

Reckless, short-sighted, rapid and uncontrolled changes are being made in the Himalayas which are causing incalculable loss and damage to an already fragile ecosystem.

On February 7 this year, Uttarakhand’s Chamoli district in the outer Garhwal Himalayas witnessed one of its major natural disasters in recent years that left over 200 killed or missing. Of the missing and dead, 140 were workers at the Tapovan Hydropower Plant site. This disaster was caused due to a large avalanche dislodged from the Ronti peak that led to flooding in the Chamoli district.

Reports claim that the slope movement that caused the avalanche began way back in 2016. They also attribute the massive slope failure to “regional climate and related changes in frozen ice that interacted in a complex way with the geological features of the region”.

This is not the only natural disaster to have claimed lives and livelihood in the Himalayas. The ferocious October flash floods that claimed at least 54 lives this year in Uttarakhand is another recent incident. One cannot forget the devastation that flash floods in Kedarnath caused in 2013, when more than 5,000 lives were lost.

Frequent forest fires, flash floods, cloud bursts, earthquakes and landslides in the region are evidence of it being in an extremely fragile and vulnerable zone geographically. Climate change and global warming further exacerbate the already precarious situation. The Union government’s own report claims that the region has gotten warmer by 1.5 degrees Celsius between 1951-2014.

Seismic activity is common in the Himalayas, making the region susceptible to earthquakes and landslides. In India’s seismic zonation map, Uttarakhand state falls in seismic zones IV and V – both denoting very high risk.

The above facts point towards the many risks to lives and livelihood faced by the people living in the region by any activity which destabilises the mountains.

The cutting of slopes for roads or hydel projects certainly causes such destabilisation. However, it’s not just the people of the region who are victims. The Himalayas, by their very nature, are not a closed system. They also have profound effects on the whole of the sub-continent and particularly their northern plains. Rivers, for instance, that originate in the Himalayas, feed much of the country and much of our agriculture is dependent on it.

It is, therefore, crucial that human and state interventions in the region must be scientific, evidence-based and rationally coherent. However, the opposite is the truth today. Reckless, short-sighted, rapid and uncontrolled changes are being made in the region which are causing incalculable loss and damage to an already fragile ecosystem.

Rescue team members work near a tunnel after a part of a glacier broke away and flooded Tapovan, Uttarakhand, February 8, 2021. Photo: Reuters/Stringer

The Char Dham Project adds fuel to fire

The Char Dham project is a flagship initiative of the Union government – a Rs 12,000-crore highway expansion project that was envisaged in 2016 to widen 889 kilometres of hill roads to provide all-weather connectivity in the Char Dham circuit, covering Uttarakhand’s four major shrines: Badrinath, Kedarnath, Gangotri and Yamunotri. The project, by its very nature, is perilous for the ecology of the Himalayas.

There were several concerns against the project right from the start. It was pushed through without clearances and valid permission, by falsely declaring that the stretches did not fall under the eco-sensitive zones and by clearly violating all Supreme Court’s directives. An Environmental Impact Assessment (EIA) of the project was not carried out. In fact, the Union government found a way to avoid environmental scrutiny by claiming that the project was made of “53 civil works”, each less than 100 km in length. Since 2013, highway expansion projects of less than 100 km in India have been exempt from EIA.

Image: Protected Areas of Uttarakhand and the Char Dham Project routes. Source: WII/HPC Report

In 2018, a petition before the NGT challenged the legality of the project. The tribunal set up an oversight committee but the petitioners decided to appeal to the Supreme Court, which modified the tribunal’s order and directed the environment ministry to form a high-powered committee (HPC), under the chairmanship of Ravi Chopra, an environmentalist, in August 2019. The Committee was tasked with recommending, among other things, the ideal width of the carriageway for the project. It submitted two reports after members failed to come to a conclusion.

The Supreme Court upheld the recommendation of four HPC members, including Chopra, to limit the carriageway to 5.5 metres based on the existing regulations. The majority report of 21 HPC members favoured a width of 12 metres as envisaged in the project. The reason behind favouring a narrower road was because a wider road would require additional slope cutting, blasting, tunnelling, dumping and deforestation – all of which would further destabilise the terrain, disturb the natural slope of the hill and increase slope failures, landslides and flash floods.

However, by the time the Supreme Court intervened this year, the project had already caused substantial damage as was also pointed out in Chopra’s report. Nearly 700 hectares of forest land had already been lost due to the cutting down of thousands of trees and the flow of streams and springs were severely impacted due to their blockages as a result of muck dumping. Roads had been widened by cutting hillsides, heavy earth excavators had been used instead of less destructive equipment and none of the slope protection measures were followed.

Also read: A Widened Char Dham Highway Will Not Help Lessen the China Threat From Tibet

The Union government’s ‘National Security’ rationalisation

The Union government has now argued before the top court seeking “a double-lane road having a carriageway width of 7 metres and formation width of 8-10 metres to meet the requirements of the army”. The Union government has referred to the recent India-China standoff as a justification for a wider carriageway on the ‘strategic highway’ which goes up to the China border.

The attorney general for India K.K. Venugopal while appearing for the Union government before the Supreme Court said, “There has been tremendous build-up on the other side of the border. They have ramped up infrastructure and built airstrips, helipads, roads, railway line networks which proceed on the assumption that they are going to be there permanently.”

He further said, “The country cannot afford to have a repeat of the 1962 war-like situation when Army supplies were made on foot up to the India-China borders. We cannot be caught napping just like in 1962. If the road is not two-lane then the purpose of having a road is defeated. Hence, double laning should be permitted.”

There are two specific concerns that warrant our attention at this stage.

Firstly, the Union government’s ‘National Security/Defence of the State’ argument and the fear-mongering around it before the court is an afterthought and at best an ex-post-facto rationalisation of the project. It is an open secret that the Char Dham project is, as its very name suggests, designed to promote tourism and improve connectivity to the four holy shrines of the Hindu religion. Even the minister for roads and national highways, Nitin Gadkari, while arguing for the project back in 2017, said, “This will be the biggest gift to people as pilgrimage to Char Dham remains high on people’s agenda as this is an issue linked with faith.”

Even the government’s official website states that the project is aimed at “connectivity improvement for Char-Dham”. Reports even claim that the Army never said that they wanted wider roads.

The second concern, however, warrants closer attention. It originates from a question that the Supreme Court too, while hearing the Union government’s appeal earlier this month, wondered about. The court said, “Can we say that environment protection will triumph over the defence needs of the nation”?

This question points towards a larger problem that revolves around the debate between national security versus fundamental rights of the citizens and the question as to which of the two should be given primacy in cases where there are serious environmental concerns.

Two-fold answer

There are specific responses to both the concerns raised above and this piece shall attempt to answer them into two parts. Firstly, that merely because the state has invoked the argument on national security, it does not necessarily bar the court from exercising its power of judicial review. Secondly, that the national security argument does not provide carte blanche power to the state to violate the fundamental rights of citizens. The court shall use its power of judicial review and apply the ‘doctrine of proportionality’ to balance competing interests to further principles of sustainable development.

Also read: Is Uttarakhand Govt’s ‘Demographic’ Probe of Property Deals a Play on ‘Land Jihad’ Bogey?

The power of judicial review when ‘national security’ is invoked

The Constituent Assembly debates reveal that the judiciary, as an institution, was envisaged as an extension of the rights guaranteed under the constitution. The members of the assembly were very particular about the power of judicial review in India. They wanted it to be more ‘direct’, ‘explicit’ and ‘conferred’ rather than ‘indirect’, ‘implicit’ and ‘inferred’ as was the case in the US. That is precisely why we find explicit provisions of judicial review in the Indian constitution in Articles 13(2) and 32(1).

However, there was a huge controversy among the members of the assembly over the question of reconciling competing interests of ‘individual rights’ vs ‘national security’ and ‘socio-economic needs of the nation’. This was also a time when socialism was at its full swing and national aspirations were heavily shaped around the partition, and the bloodshed that followed had raised serious security concerns for the state. It is in these contexts that a compromise had to be stuck on the above controversy of competing interests. Consequentially, the power of judicial review was heavily curtailed. One evidence of that is the removal of the “due process clause” from the final text of the constitution which was initially a part of the original draft constitution.

However, this debate was far from over. For a very long time after that, judicial review was seemingly put on trial, especially in cases involving concerns around national security. The Supreme Court seemed to walk directly into the trap of the state as and when arguments around the defence of the nation were raised. Some examples of these cases include Peoples Union for Civil Liberties vs Union of India; Kartar Singh vs State of Punjab; Naga Peoples’ Movement of Human Rights vs Union of India; Prakash Chandra Mehta vs Commissioner and Secretary, Government Of Kerala And Others

In fact in 2014, the Supreme Court in Ex-Armymen’s Protection Services Private Limited vs Union of India & Ors held: “What is in the interest of national security is not a question of law. It is a matter of policy. It is not for the court to decide whether something is in the interest of the state or not. It should be left to the executive.”

One is reminded of the famous dissenting words of British judge Lord James Atkin in Liversidge vs Anderson (1941) where he said that when it comes to national security, the courts tend to become “more executive minded than the executive itself”. This was true of the Indian Supreme Court as well.

supreme court contempt hearing

The Supreme Court of India. Photo: PTI.

However, the debate now seems to have been settled after two recent landmark decisions of the Supreme Court in Anuradha Bhasin & Ors vs Union of India and M.L. Sharma vs Union of India & Ors.

In M.L. Sharma, the court while putting the debate to rest, held as follows:

“It is a settled position of law that in matters pertaining to national security, the scope of judicial review is limited. However, this does not mean that the state gets a free pass every time the spectre of ‘national security’ is raised. National security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning. Although this court should be circumspect in encroaching upon the domain of national security, no omnibus prohibition can be called for against judicial review. The state must justify the stand that they take before a court. The mere invocation of national security does not render the court a mute spectator.”

For years the Supreme Court has held that the ‘right to clean and safe environment’ is a fundamental right [Subhash Kumar vs State of Bihar; Rural Litigation and Enlightenment Kendra vs State of UP; M.C. Mehta vs Union of India; Charan Lal Sahu vs Union of India; T.N. Godavarman vs Union of India] and when there is an identifiable risk of serious or irreversible harm to the environment, including, for instance, extinction of species, major threats to ecological processes, the burden of proof shall be placed on the person or entity proposing the activity that is potentially harmful to the environment.

This is also known as the precautionary principle [Vellore Citizen’s Welfare Forum vs Union of India]. It is this burden that the state has wanted to shift by raising the argument of national security in the Char Dham project case thinking that the court will grant it complete authority. The law laid down in M.L. Sharma, therefore, becomes crucial and significant.

In Vijay Narain Singh ss State of Bihar, Justice Chinnappa Reddy’s concurring opinion in the matter is pertinent herein where he said:

“The constitution of India does not give a carte blanche to any organ of the state to be the sole arbiter in matters of maintenance of security. So it is too perilous a proposition to say that the authorities concerned must be the sole judges of what the national security or public order requires.”

Doctrine of proportionality

To understand how the court will use its power of judicial review in cases where competing interests between national security and environmental concerns exist, we shall have to again revisit the Constituent Assembly debates.

Once fundamental rights were made a part of the draft constitution, the real issue now was to decide acceptable ways to limit them. The rationale behind limiting these rights was the situational context in which the country had gained independence. The horrible communal violence that occurred during partition had a profound impact on the minds of the constitution drafters. Resultantly, the Assembly had to again face the question of fundamental rights versus national security.

The Fundamental Rights Sub-Committee had drafted the “right to freedom” provisions and had voted to qualify each with the proviso that the exercise of these rights would be subject to “public order and morality”. During these deliberations, the Drafting Committee made the rights of free speech, assembly, association, and movement subject to public order, morality, health, decency, and public interest. During the debate on the draft Constitution, speakers attacked the proviso regarding public order and morality. During the cacophony that continued for quite some time, it was Thakur Das Bhargava who proposed an amendment that, in many ways, put a ‘soul’ back into the provisions relating to fundamental freedoms. He proposed to insert the word “reasonable” before “restrictions” in the various provisos. This proposed amendment was adopted.

Thakur Das Bhargava, therefore, was responsible, and fortunately so, for having introduced the concept of proportionality (through the idea of ‘reasonable restrictions’) in the Indian jurisprudence. This led the Supreme Court to further evolve this doctrine from time to time.

The doctrine of proportionality, as explained by Lord Diplock in R v Goldsmith (1983), is that “you must not steam hammer to crack a nut if a nut cracker will do”. The words of the Supreme Court of India in the landmark K.S. Puttaswamy judgment [reiterated in Anuradha Bhasin] are significant in this context.

The court held as follows:

“Proportionality is an essential facet of the guarantee against arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law.”

Also read: Rebuilding This Himalayan Village Would Prove India Is Serious About Its Environmental Commitments

Testing the Char Dham Project on the anvil of proportionality

In Anuradha Bhasin, the Supreme Court laid down the test for a court to balance competing interests based on the doctrine of proportionality. It held that first the court must look at the ‘possible goal’ intended to be achieved, the goal must be ‘legitimate’ and the state must ‘assess the existence of all alternative mechanisms’ before proceeding with the said restriction. It further added that the appropriateness of such a restriction will depend on its ‘impact on the fundamental rights of citizens’ and the ‘necessity’ of the restriction. It added that the action must be supported by ‘sufficient material’. The court specifically pointed out that the degree and scope of the restriction, both territorially as well as temporally, should be looked at.

It is important to point out that the state in the Char Dham project has followed none of these obligations as laid down by the Supreme Court. The goals of the project have changed from ‘promoting tourism’ to ‘better connectivity’ and now ‘national security’. There is no evidence to suggest that even if this is indeed necessary for the defence of the nation, other alternative mechanisms were assessed before carrying out the project or that this particular action is supported by enough evidences and research (given that no prior consultation, EIA or any kind of assessment was conducted). None of those burdens have been fulfilled.

It is clearly evident that the state’s policies are designed based on a flawed understanding of what development looks like. Pushing developmental projects at the cost of the environment that ends up adversely impacting the lives of millions of people and puts their very existence at stake, is not just a bad design but a patently unconstitutional and illegal act. Despite clear warnings, we have consistently ignored the various risks of rampant exploitation of the environment and the nature in the name of development. The Char Dham project is only one among several such projects. We now need to sketch sustainable models of growth where innocent citizens are not made to suffer as collateral damage time and again.

Prashant Bhushan is a public interest advocate practising at the Supreme Court of India. Anurag Tiwary is a final year undergraduate student of law at the National Law University, Visakhapatnam.