Cause and Effect of Environment Litigation
ON DECEMBER 21, 2021, the Supreme Court in an important ruling gave the green light to the `12,000 crore Char Dham project to improve connectivity to the China border. The project was challenged by environmental activists on the ground that the decision to permit widening of the highway to 10 metres endangered an already fragile section of the Himalayas. When the matter was being heard in court, the cutting for the road in many parts was already complete. In the end, the court took cognisance of national security needs that had become all the more urgent after border tensions flared up following the June 2020 Galwan clash.
The court ruled that a committee will ensure environmental concerns are addressed during the construction of the strategic highway. The safeguard provision failed to impress activists who felt the increase from 5.5m to 10m unacceptable. Yet, anyone who has travelled on the narrow roads leading up from Rishikesh to Pithoragarh will know that the poor connectivity was disadvantaging local populations as much as the defence forces. The flow of pilgrims during the Char Dham season was causing congestion and massively increasing travel time.
Litigation challenging road and hydro-power projects in the upper reaches of the Himalayas and the foothills has only increased over the years but the 2013 Kedarnath disaster was an eye opener on many counts. Under Modi 1.0, a review of Uttarakhand projects placed the dilemma in sharp focus. The state argued that residents need power for growing needs and this would be denied to them if even run-of-the-river projects were halted. The matter reached Prime Minister Narendra Modi’s table and he decided that the hill state could be compensated by the Centre and a more balanced approach to development could be adopted.
Barring seven projects in advanced stages of completion and where considerable sums had already been expended, there would be no new hydro power project in the Alaknanda and Bhagirathi river basins. The Centre reiterated its resolve recently in May 2026 when it informed the Supreme Court that it is against any new hydro-electric project along the higher reaches of the Ganges. While curbs have been placed on hydro projects, the decision to allow the Char Dham project is now bearing fruit. The 370 km Tanakpur-Lipulekh highway will by next year substantially ease travel of pilgrims for the Kailash Mansarovar Yatra and provide rapid connectivity to the border.
The case of developing the Himalayas along the long border with China and Nepal poses environmental challenges alongside border security needs. Not only is India having to catch up with the better road and defence infrastructure in Tibet, it has to be mindful that the Himalayas on the Indian side are more fragile. The landscape on the Chinese side of the Line of Actual Control (LAC) is flatter and more even. In any case environmental concerns did not prevent China from developing a network of roads, infantry and armoured corps camps, missile force deployments and military airfields. The engineering for executing tunnels and highways in the Himalayan regions has required innovative solutions. Despite setbacks like the collapse of a section of the Silkyara-Barkot tunnel—a part of the Char Dham project—in November 2023, border road access has vastly improved.
Rejecting questions regarding environmental clearance for the expansion of the Pipavav port in Gujarat in May 2026, the apex court asked a pointed question: Show a single instance where environmentalists have said “we welcome” an initiative. Pointing out that the environmental impact assessment (EIA) committee had found apprehensions regarding adverse consequences for turtle nesting to be unsubstantiated, the Bench headed by Chief Justice of India Surya Kant asked where else was deep water available in Gujarat for the development of such a port. The challengers shifted track, arguing that the port expansion would be the death knell for fishing activity in the area but the court did not buy the argument, saying economic activity is not part of the EIA’s brief. The project was cleared by the National Green Tribunal and studies showed marine ecology would not be affected.
Also in May 2026, the Calcutta High Court overruled the Centre’s pleas and agreed to hear a petition challenging the Great Nicobar Project. The petition alleges that the Forest Rights Act (FRA) provision relating to consent of gram panchayats and the Shompen tribe has been violated in the clearances granted to the `92,000 crore project. The FRA was passed in 2006 and was a brainchild of the National Advisory Council (NAC) headed by Congress leader Sonia Gandhi when the Manmohan Singh government was in office. The provisions relating to consent of gram panchayats in projects affecting forest land were intended to “democratise” decisions but actually increased opacity and the prospects for manipulation. It became obvious that a section of “nay sayers”, despite being a small minority, can hold up projects. It also provided the opening for activists to insert themselves into the discussion by inflaming local sentiments. The public hearing consultations and jan sunwai provisions were often dominated by activists and partisans effectively drowning out other opinion. The political activists who dominated NAC created a thicket of dense rules.
The Greater Nicobar Project’s environmental processes will no doubt go through detailed court scrutiny. But aware that the alleged violations may not stand up in court, activists are trying to move the goalposts, arguing that even if the letter of the law may not have been violated, was the Great Nicobar Project “fair” to native populations? The Centre’s assertion that just a little over 7 square km of tribal land will be affected and no Shompen or Nicobarese tribes will be displaced is promptly disputed even though it is unclear how such claims can avoid scrutiny or court oversight. A deep water port and an airport envisage the development of commercial interests with a container trans-shipment terminal and the defence objectives focus on building capacity for rapid maritime deployment in the Indo-Pacific and safeguarding of the Malacca passage which is about 70 km from the intended island project.
The lessons of the Iranian and US blockade of the Strait of Hormuz should spur India to boost its maritime capability in a region that is equally crucial to its trade. But again, as in the case of the Char Dham project, ideologically committed opponents are unlikely to be moved by such arguments.
The NGT has a backlog of more than 5,000 cases and the Supreme Court has a pendency of 110 environmental matters while thousands of litigations are before the high courts. Many of these cases are likely to require urgent attention and have a bearing on the lives of many communities. It is also likely they may get drowned out by high-profile cases represented by celebrity lawyers that take up a disproportionate time of the courts. The courts have become forums for lawfare where the objectives of the objectors are not always discernible. The motives range from activism that believes in an absolutist vision of environmental protection to political agendas intended to delay and derail key economic and development plans of the party in office.
When UPA was in office, the NAC provided activists with a strong anti-development bias a place at the high table. The Manmohan Singh PMO did not always agree with NAC formulations and diligent officials worked hard to dilute and erase more problematic recommendations. They did not always succeed and were forced to accept unwieldy legislation, such as the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act with its social impact assessments and compensation clauses that rival the labyrinthine architecture of the FRA. The “land bill” was used to halt development but despite the disquiet of Congress chief ministers, it became heresy to oppose the legislation. The battles being fought in the courts are an extension of these ideological battles that are more political than an evaluation of the merits of a policy decision.