The story begins with the Srinagar Hydro Electric Project being developed by the Hyderabad-based GVK Group. The project is located on the Alaknanda River—the major tributary of the Ganga. The project was granted Environment Clearance in 1985. However, the construction started only in 2006. In the meanwhile, the Ministry of Environment, Forests and Climate Change (MOEFCC) issued a Notification providing that projects which had been granted Environment Clearance earlier but the construction had not reached the plinth level till 2004 will be required to obtain a fresh Environment Clearance (See Para I.2.h.i). Construction of the Srinagar Project started in 2006 hence it was required to obtain a fresh Environment Clearance.
This is important because the Environment Clearance issued in 1985 was purely an administrative function of the Government and was done without undertaking a study of the environmental impacts of the project. Issuance of a fresh Environment Clearance would require the Government to study the impacts and then decide whether the project should be granted clearance.
This issue was raised before the High Court at Nainital by way of a PIL. Mr. Justice Barin Ghosh gave Judgment in November 2011 that the Srinagar project should indeed seek a fresh Environment Clearance. The project was only about 30 percent constructed at that time as seen in the photo 1.
It ordered the MOEFCC to hold a Public Hearing which is the first step for the issue of an Environment Clearance. Views of the people in the affected area are ascertained during the Public Hearing. The Expert Appraisal Committee of the MOEFCC examines the report of the Public Hearing before recommending issuance of an Environment Clearance. The High Court ordered the MOEFCC to rescind, renew or modify the Environment Clearance issued in 1985 after taking into account the submissions made in the Public Hearing. In doing so, the High Court held that the Environment Clearance issued in 1985 was no longer valid.
The GVK Company went in appeal before the Supreme Court. The matter came up before Mr. Justice Dipak Misra (Photo 2) and two other Judges in January 2012 for admission.
On the first date of hearing itself, Mr. Justice Dipak Misra and 2 other Judges admitted the appeal but at the same time provided that the construction of the project would continue without an hindrance. In doing so the Court allowed the project to continue with construction without Environment Clearance.
In July 2012, it was brought to the notice of the Supreme Court (Bench Mr. Justice K S Radhakrishnan and Mr. Justice Dipak Misra) that the MOEFCC had issued an order in June 2011 requiring GVK to stop work on the project. The GVK Company did not bring this order to the notice of the Supreme Court when its appeal came up for admission in January 2012. In the result, there were two contradictory orders. The MOEFCC had ordered the work to be stopped in June 2011 while the Supreme Court had ordered the work to continue without any hindrance in January 2012. The Supreme Court noted this fact. However, the Justices did not resolve this contradiction between the two orders. They did not modify their order of January 2012 allowing the work to continue without hindrance and simply provided that the MOEFCC order of June 2011 would be strictly complied. GVK, of course, relied on the January 2012 order and continued with construction of the project in blatant violation of the order of MOEFCC with the knowledge of Mr. Justice K S Radhakrishnan and Mr. Justice Dipak Misra.
The above case was decided in August 2013. Mr. Justice K S Radhakrishnan and Mr. Justice Dipak Misra held that there was no need for holding a fresh Public Hearing because the project was in advanced stage of construction. They allowed the project to continue. They did not take cognizance of the fact and gave no finding on the main issue that construction of the project had not come up to the plinth level in 2004 and, therefore, a fresh Environment Clearance was required. They also did not give any finding on the construction of the project in violation of the MOEFCC order of June 2011. As a result the project was constructed and commissioned in 2016 (as shown in photo 3) and flow of the Ganga was obstructed as seen in the flow of Alaknanda below the Srinagar Dam (As shown in Photo 4).
The disaster of June 2013 had taken place by the time the Judgement was delivered in August 2013. The Judgment also provided that MOEFCC will commission a study on the impact of Hydro Electric Projects on biodiversity and the disaster of 2013; and that MOEFCC or the State of Uttarakhand will not issue any new Environment Clearance or Forest Clearance for a Hydro Electric Project in Uttarakhand until the results of the study were considered by the Court.
In May 2014 two reports were submitted by MOEFCC to the Supreme Court. One report by a committee headed by Dr Ravi Chopra held that the HEPs had indeed contributed to the disaster of 2013. Another report by Wildlife Institute of India submitted that 22 HEPs that were proposed or under construction had a negative impact on biodiversity. The Mr. Justice K S Radhakrishnan and Mr. Justice Dipak Misra said that they would take a view on the issuance of fresh Environment Clearance and Forest Clearance after the Government of India placed its position on the two reports before the court. Till then, the Court ordered that work on these 22 HEPs would be stopped immediately.
Justice K S Radhakrishnan retired soon after delivering this order and the matter continued to be heard by Mr. Justice Dipak Misra and Mr. Justice U U Lalit thereafter. In 2015 the HEP Companies approached the Court to relax the bar on issuance of fresh Environment Clearance or Forest Clearance. Mr. Justice Dipak Misra modified the earlier order passed by Mr. Justice K S Radhakrishnan and himself and now provided that the bar on issuance of fresh Environment Clearance or Forest Clearance would only apply to projects on the Alaknanda and Bhagirathi basins, and not to the whole of Uttarakhand. They also framed the language in a way that was amenable to interpretation that the bar on issuance of fresh Environment Clearance or Forest Clearance would only apply to the 22 projects which had a negative impact on biodiversity as mentioned in the Wildlife Institute of India report. In the result the Expert Appraisal Committee of MOEFCC has recently recommended the issuance of Environment Clearance to the Devsari Hydro Electric Project on the Pindar River which is a tributary of the Alaknanda.
Now we can outline the role of the Judges.
Mr. Justice Barin Ghosh was positive. He directed the Srinagar Project to obtain a fresh Environment Clearance.
Mr. Justice K S Radhakrishnan was mixed. On the negative, he allowed construction of the Srinagar Project in violation of the MOEFCC Notification of 2004. On the positive he stopped issuance of any new Environment Clearance or Forest Clearance in Uttarakhand; and stopped the construction of 22 projects having negative impact on biodiversity.
Mr. Justice Dipak Misra was negative. He allowed the construction of the Srinagar Project in January 2012 in violation of the MOEFCC Notification of 2004 when the appeal of GVK came up for admission. He reduced the scope of the bar on issuance of fresh Clearances from whole of Uttarakhand to merely 22 projects.
