Why K-Rail should seriously consider SC's latest ecology-first verdict on Castlerock-Kulem rail doubling

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The constitutional principles of 'sustainable development' and 'precaution' invoked by the Supreme Court on May 9 to refuse permission for the doubling work between Castlerock in Karnataka to Kulem in Goa could have some bearing on the Rs-64,000-cr SilverLine project.

Disregard for environmental concerns and unreliable traffic projects, two major criticisms levelled against the SilverLine, are among the factors that prompted the Supreme Court, in its May 9 order, to revoke the National Board of Wildlife (NBWL) approval for the Castlerock-Kulem doubling.

The Castlerock-Kulem line is 26 km long, involving 120.875 hectares of forest land. It is true that the Castlerock-Kulem line passes through the ecologically sensitive Western Ghats while the SilverLine does not. However, the apex court emphasised certain ecological principles that should be considered sacrosanct while going ahead with any development project in the country.

One is the adherence to the principle of sustainable development. The apex court, in its order, said it was a constitutional requirement. The court underlined a maxim laid down by it in 2008 in the T.N. Godavarman Thirumulpad v. Union of India case: "While applying the principle of sustainable development one must bear in mind that development which meets the needs of the present without compromising the ability of the future generations to meet their own needs. Therefore, Courts are required to balance development needs with the protection of the environment and ecology."

In another of its historic rulings, in the Andhra Pradesh Pollution Control Board v. Prof. M.V. Nayudu case in 1999, the apex court had said: "It is the duty of the State under our Constitution to devise and implement a coherent and coordinated programme to meet its obligation of sustainable development based on inter-generational equity." Meaning, present development should not unsettle future lives.

"Precautionary Principle" is the other major pillar of the ecologically-sensitive growth envisaged by the law. The May 9 order re-emphasises the principle, first given voice in the 1996 Vellore Citizens’ Welfare Forum v. Union of India verdict.

The principle has three aspects. One, environmental measures — by the State Government and the statutory authorities — must anticipate, prevent and attack the causes of environmental degradation. Two, where there are threats of serious and irreversible damage, lack of scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. Three, the “onus of proof” is on the actor or the developer/industrialist to show that his action is environmentally benign.

SilverLine critics have been relentlessly asking the Kerala Rail Development Corporation (K-Rail) to demonstrate how the new standalone north-south railway line would not intensify Kerala's already alarming proneness to floods. A scientifically convincing explanation has still not be proffered. The SilverLine DPR itself says that a comprehensive hydrological study has not been carried out.

The May 9 order then, as if sounding the wake-up call for the development hawks, said that if there was a conflict between ecology and growth, ecology would prevail. This was a principle established in 2004, in the M.C Mehta v. Union of India case.

In this case, the apex court paints a situation where a state is caught in a 'Catch-22'-like situation. There may be irreparable damage to the environment after an activity is allowed to go ahead and if it is stopped, there may be irreparable damage to economic interests. The Court held that in case of doubt, protection of the environment would have precedence over the economic interest.

The SC refused permission for the Castlerock-Kulem doubling despite the assurances given by the Ministry of Railways. The court was told that rail over-bridges and road under-bridges would be constructed for the crossing of animals. (The Central Empowered Committee, during its inspection, had found that no such underpasses could be constructed in the location.)

The court was also assured that there would be no additional disturbance to the forest area as no separate pathway would be constructed in the forest area for transportation of goods and machinery which would be carried out in the most ecologically efficient manner.

The traffic data provided by the proponents was also questioned by the Court. "There is also no credible supporting data for the projections that are given by RVNL (Rail Vikas Nigam Limited) relating to the traffic between Karnataka and Goa project for the period 2022-2023 and 2030-2031 and there is no explanation regarding the projected traffic for the next 4-5 years which is required for the completion of the construction of the project."

In the case of SilverLine, its traffic projections of 80,000 passengers a day from the first day of operations have been intensely contested. The projection for the busier Surat-Ahmedabad bullet train is far lower.

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