APR 01, 2013SC Gives TN Time to Take Stand on Ram Sethu
The Supreme Court today granted two weeks' time to Tamil Nadu government to apprise it of its stand on the controversial Sethusamundram project after the Centre had said it intended to pursue its implementation.
"File your (Tamil Nadu) response affidavit within two weeks and give copies (of affidavit) to the Solicitor General and others at least two-three days before the filing. The pleadings in the case is almost complete," a bench of justices H L Dattu and J S Khehar said.
During the hearing, Janata Party President Subramanian Swamy, one of the petitioners, said now the court should decide the issue as the Centre had rejected the R K Pachauri Committee report that had found the entire Sethusamudram project unviable on two fronts – economically as ecologically.
The Centre, in its affidavit, had said it intended to go ahead with the Rs 25,000 crore Sethusamudram shipping channel project on the ground that it has economic, navigational and strategic advantages and moreover an expenditure of Rs 829.32 crore has already been incurred on it as on June 30, 2012.
The court had earlier asked the Centre to apprise it of its stand on the controversial project following the Pachauri Committee report.
The case relating to Ram Sethu had come under judicial scrutiny as a batch of petitions were filed in the apex court against the ambitious project, whose execution, the petitioners feared, could damage the mythological bridge.
Sethusamudram project is aimed at constructing a shorter navigational route around India's southern tip by breaching the Ram Sethu, said to have been built by Lord Rama's army of monkeys and bears to Ravana's kingdom Lanka.
As per the Sethusamudram project, the shipping channel is proposed to be 30 mt wide, 12 mt deep and 167 km long.
The Prime Minister had appointed the R K Pachauri Committee after the apex court had asked the government to explore an alternative alignment for the shipping channel to prevent any damage to the mythological bridge.
The committee, in its report, had raised questions on the alternative alignment after taking into account various aspects including its economic and ecological assessment.
It had said the entire Sethusamudram project was unviable economically as well as ecologically.
The court, on August 31, 2007, had restrained the Centre from damaging Ram Sethu while dredging for the Rs 25,000 crore project inaugurated in 2005.
Swamy, in his affidavit filed in response to the Centre's submissions made earlier on February 22, submitted that as per the March 2009 report of the National Institute of Oceanography (NIO), the Sethusamudram project cannot proceed and should be scrapped.
The NIO, which was asked by the Pachauri committee to examine the feasibility of the project, had concluded that the impact analysis data provided to it was "glaringly insufficient", he said in his affidavit.
He contended that the apex court while finally hearing the matter should not only consider the other documents and pleadings but also take into consideration reports of the NIO and the Pachauri committee.
Swamy has opposed the Centre's decision, to cut through the Rama Sethu to build a shipping channel, as illegal and ultra vires of the Constitution.
He submitted that if the project is implemented then various illegalities under civil, national and international laws will occur.
He also submitted that the decision of the Centre to cut through Rama Sethu to build the channel is "arbitrary, unreasonable and disproportional" and "it is vitiated by malafide, conflicts of interest and bias".
Swamy contended that the "project on facts is economically disastrous as well as a national security risk".
He said any damage to the Rama Sethu would hurt the religious feelings of Hindus as it is considered a sacred place of worship.
http://m.outlookindia.com/story.aspx?sid=1&aid=794178
MAIN POINTS MADE IN SUPREME COURT ON SSCP
In TC 26/27 of 2007 on 1.4.13
I. INTRODUCTION
1. My core submission is that SSCP is wholly illegal, arbitrary, unreasonable, economically unviable, lacks proportionality, and is violative of national security.
2. Thus, after a judicial review of the decision making process in selecting Alignment 6 for the SSCP, Your Lordships may be pleased to quash the said Project.
3. Furthermore, as prayed, enforce the performance of statutory duty by the UOI, to consider and declare the Rama Setu as a Monument of National Importance within the meaning of the Ancient Monument and Archeological Sites & Remains Act (1958).
4. This Hon’ble Court may also be pleased direct the Respondent UOI to recover the sunk costs since 2001 till date as a revenue measure, compounded at an appropriate rate of interest, from the public servants responsible for this malfeasance and reckless disregard of public interest, in the conception, and implementation of the said Project.
5. In this matter I had made these submission and accordingly argued the same before the First Bench of this Hon’ble Court both orally, as well in written arguments, before judgment was reserved on 30.7.08.
6. While reserving judgment, the Hon’ble First Bench had made an eminently constructive suggestion to the Respondent UOI, to consider an alternative ship channel route or “alignment” such as 4A, that does not cut through Rama Setu.
7. This alternative route ‘4A’ is for most parts the same as the impugned Alignment 6 in the SSCP, but differs only in the semi-circular turn near the Setu-- to the left of Dhanushkodi, and cutting through Pamban [Rameshwaram] island, instead of, as in Alignment 6, through the Rama Setu.
8. The Hon’ble First Bench obliged the Respondents by deciding to wait for the Respondent to convey their informed stand on the alternative Alignment 4A.
9. The judicial alternatives before this Hon’ble Court at that stage appeared to be: either cancellation of the SSCP or adoption by consent of another route, that does not cut through Rama Setu.
10. The Respondents thereafter informed the Hon’ble Court, both orally and by a letter, on 30.7.08, that a Committee headed by Dr. R. K. Pachauri, a Nobel Laureate, would be set up by the Prime Minister to consider this suggested alternative alignment.
11. After nearly 5 years, Dr. Pachauri Committee’s Report is now before this Hon’ble Court.
12. From the Summary of the Report dated February 2012 [especially Section 5.0 of Conclusions and Recommendation, pages 36-37] I submit that it becomes crystal clear that the high powered Pachauri Committee, after extensive investigation and generating of new data on site, holds that this Project is, for the reason of lack of environmental sustainability, not likely to be in the public interest.
13. From the time the project was first mooted in 1860 by the British Imperialists, i.e., more than a 150 years ago, till the findings of the Pachauri Committee in 2013, the SSCP has been abandoned 19 times [see my Rama Setu-A Symbol of National Unity, Haranand Publications Pvt Ltd (2008) p.17-19].
14. The last occasion for rejection of the project based on Alignment 5, was in April 1999. In IA No. 5 of 2008 [p.3 of the Documents Compilation] is reproduced a letter from the Ministry of Environment &Forests dated April 8, 1999 addressed to the Ministry of Surface Transport.
15. This letter shows that the Environment Ministry against going ahead with the project:
“Prima facie, the Ministry is not in favour of this Project as this Project has serious environmental implications with respect to Marine Park and the Biosphere Reserve located in that area………. Your Ministry has sought our comments on the Initial Environmental Report prepared by the NEERI. These are enclosed.
This Ministry is of the strong opinion that from the environmental angle this Project should not be taken at all [ref: ANNEXURE R-18, p. 1-3; COUNTER AFFIDAVIT VOL.VII; or IA 5 of 2008].
16. Thousands of years ago, Valmiki recorded in the Ramayana that when Lord Sri Rama took out his agnibahn to dry out the sea, in order to create a path to walk to Sri Lanka, the Samudra Raja emerged from the sea to inform the Lord of the environmental consequences.
17. The Lord of the Sea suggested instead to Sri Rama to use the ridge under the Gulf of Mannar and build on it the setu, which then the Lord Rama entrusted to Nala, the Vanar tribe architect.
18. Respondent UOI has so far failed to rebut my averment of multiple illegalities [IA No.5 , especially re:paras 6&7]. It is not denied that the SSCP Alignment No. 6 was approved by UOI on the following illegal basis:
[a] That SSCP is based on the preliminary study called the NEERI’s Rapid Environmental Impact Analysis of 1996 (REIA, or Rapid Analysis) as opposed to the mandatory requisite Comprehensive Analysis.
[b] This REIA was without the mandatory prior clearance on Tectonic and Cyclonic impact on the project. As is now obvious from the Pachauri Committee Report a Final Report based on a “Comprehensive Analysis” thus was never prepared for lack of data.
[c] The SSCP’s DPR and other studies are based on the tentative and stale data, without fresh investigation, and only that data which were available then, which is as old as 1996.
[d] The required and mandatory clearance for the Project from the Tamil Nadu Pollution Control Board was never obtained. The mandatory Tamil Nadu Government NOC had in fact been refused due to lack of adequate documentation since the environment clearance from NEERI was in fact based on the Interim EIA Report, not on the mandatory Final Comprehensive EIA.
[e] In fact, the then Chief Minister Ms. Jayalalitha publicly declared [see ANNEXURE P-5 hereto] that an expert committee appointed by her government, and headed by the former Director of the NIOT, Dr. M. Ravindran had, in a report submitted to the Tamil Nadu Pollution Control Board on May 30, 2005, recommended more studies, tests and research because the REIA report of the NEERI “has a number of deficiencies”.
[f] And yet the Respondents arbitrarily and unreasonably went ahead with the sanctioning and implementation of the Project without the mandatory required prior clearance from the Tamil Nadu Pollution Control Board.
[g] It is to be pointed out that even the NEERI in 1999 had declined to give environment clearance to Alignment No.5 because it would require the use of explosives to cut through the Rama Setu near Dhanushkodi that would be very damaging to the environment and sea life [ref: Initial Environment Examination (IEE) Report, NEERI, December 1998, and also Report of the Committee of Eminent Persons, Vol. I, para.6.3.2;p.70].
[g] It was only in October 2002 that Alignment No.6 was considered by an re-looked REIA, and not on the requisite Comprehensive EIA.
[h] In September 2003, the Draft Environmental Impact Assessment Report of NEERI (i.e. the Draft EIA) and not a Comprehensive EIA, for the first time recommended Alignment No.6 [The salient portion of the Report, is referred to in the counter-affidavit in para. 56].
[i] By May 2004 the EIA Report was ready; and by June 2004, so was the Technical Feasibility Report; and these were handed over to L&T Ramboll, which in February 2005, finalized the Detailed Project Report (DPR), in which Alignment No.6 is recommended (paras. 59, 60 and 61 of the counter-affidavit & pages 73-81 of DPR).
[j] In March 2005-May 2005, all other Clearances, including Approval of the Competent Authority, the CCEA, were granted; and the Project work was inaugurated on 2.7.2005.
[k] A 34-member expert advisory group [ref: ANNEXURE P-6Colly] set up by the government of Sri Lanka and which government has a locus standi in the SSCP due the UN Law of the Sea Treaty (1982) holds the same view about the shoddy environmental assessment. However the UOI committed an illegality by not obtaining concurrence of Sri Lanka for the project.
[l] The SSCP Alignment 6 is also fraught with illegality because cutting through the Rama Setu would attract Section 295 of the IPC as well as Article 49 of the Constitution.
[m] A plain reading of Section 295 IPC shows that it is a cognizable non-bailable criminal offence to break the Rama Setu.
[n] Even if Rama Setu is mythical or imaginaryor in disuse, if the belief is that the Setu is sacred [Annexure P-29], and believed by a sizable population, then that by itself is enough to invoke Section 295 of IPC. In Assam, Manjuli, and in Haryana, Brahma Sarovar [AIR 1995 P&H ]. See also (1991) 4 All ER 638; AIR 1958 SC 1032 [at 1035 para 7].
LACK OF ECONOMIC VIABILITY OF THE SSCP
19. On the question of economic viability, the Pachauri Committee states “…… In the Affidavit filed by the UOI dated February 22, 2013 this is noticed [para 3] but rejected on grounds of the Report of a Committee of Eminent Persons is relied on by UOI.
20. But this Committee in their Report admit that the statistics and assumptions on which the economic viability of the Project was sought to be proved, have to be re-worked.
21. In Chapter 8 of Volume I of the Committee’s Report [paras. 8.2.3 to 8.2.6; p.96-97], it is stated that: “While the DPR takes the savings in distance from Cape Comorin(sic)..ships coming from Europe, America, Africa etc, need not come to Cape Comorin for going around Sri Lanka. To that extent the savings in distance, particularly for non-coastal cargo, will be less.”
22. Reworking the numbers for one non-coastal route in tabular form, the Committee admitted that: “It is clear from this Table that there is hardly any saving for a ship coming via Port Louis(Mauritius) to the east coast ports (of India)”.
23. Moreover, the said Committee also conceded that: “The Consultants in DPR have taken Channel length as 152 km for calculation of savings in fuel and savings in time charters whereas, the actual Channel length in DPR is 167.22 km” [para.8.2.6, p.97]. And that: “The basis for estimating the escalation of 5% per annum in revenue and costs has not been spelt out. The Consultants have also made no mention of the social cost (of the Project)”[para.8.2.15].
24. This means that the Committee admits that the savings from the Project are over-stated because the numbers are either not genuine or arbitrary.
25. Appended herein is a complete tabular presentation of the re-worked cost-benefit analysis which shows that the Project will make a loss on every journey through the ship channel compared to going around Sri Lanka [ref: ANNEXURE P-6].
26. The economic calculations in the DPR are flawed in other ways too since no attempt was made to carry out social cost-benefit analysis.
27. It is blandly stated that about 8000 ships would avail of the Sethusamudram ship channel. But what is not explicitly stated is that only ships of less than 30,000 DWT can use the channel since lack of adequate depth will prevent passage of ship of higher tonnage.
28. This means not more than 500 ships would physically qualify to obtain safe passage through the channel. This overturns the financial returns calculations: from positive to negative. The said Committee also admits that no social cost-benefit analysis, which is mandatory for a public project, has been done.
29. Hence, it is apparent that the Project’s economic viability argument of the Respondents is based on contrived and arbitrarily selected statistics which misrepresent the true picture and hide the loss of public funds that is entailed in this Project.
30. It is well settled by case law [e.g., AIR 1996 SC 28, para 28; (2004) 4 SCC 71, para 30] that it is open this Hon’ble Court to review even the decision-maker’s evaluation of facts where the facts taken together as a whole could not logically warrant the conclusion of the decision-maker.
II. SACREDNESS OF RAMA SETU
31. In IA 6 of 2007, I had prayed that Rama Setu be declared an ancient and monument of national importance within the meaning of Sections 2 (a) & (b)(iv) and 4 of AM&AS and R Act 1958 [as amended upto 2010]:
32. In the sworn counter affidavit filed by the Learned ASG in the Hon’ble MHC, it was admitted by the UOI that Rama Setu is sacred and a place of worship for Hindu pilgrims. This was judicially noticed by the First Bench of the Hon’ble Madras High Court [ Paper Book p. 77 and 93-94].
33. In the written submission on behalf of the Union of India [UOI], the Learned Additional Solicitor had on September 14, 2007 assured this Hon’ble Court to honour the sentiments of the Hindus with regard to Lord Rama in the new counter affidavit that the Respondent UOI would subsequently file.
34. On that assurance, this Petitioner did not object then to the UOI withdrawing their earlier counter affidavit filed on September 10, 2007 which contained averments that hurt the religious and cultural sentiments of the people of India.
35. I may be permitted to bring to Your lordships’ notice that the Respondents have yet to comply with this Hon’ble Court’s direction on the question of designating the Rama Setu as an ancient monument under the AM&AR Act.
36. It has been held in a catena of cases, e.g., AIR1964SC 74 & 896 that failure to file an affidavit would mean an adverse inference against the Respondents.
37. The so-called Eminent Committee Report referred to by the UOI in their most recent affidavit [para 4] had by their own admission, no archeological data to come to any definite conclusion on this issue.
38. The Committee members moreover disgraced themselves by turning up at Karunanidh’s post-breakfast pre-lunch fast [to protest against the SC stay given on my Petition].
39. The Chairman of the Committee prostrated before the fasting Karunanidhi on a public platform thus destroying their impartiality.
40. Paras.79-83, 85, 86 of the so-called Committee on Eminent Persons contain specious arguments to debunk the finding of the Ramaswami Mudaliar Committee set up in 1956. That Committee had expressly recommended Alignment No.1 and had rejected the present adopted Alignment No.6 requiring cutting through the Rama Setu [ref: ANNEXURE R-4, in Vol.III p.22].
41. A plain reading shows that the Mudaliar Committee rejected the current Project Alignment 6, stating that the “idea of cutting a passage in the sea through Adam’s Bridge should be abandoned”, on the following grounds[paraphrased]:
first, difficult construction and exhorbitant maintenance costs;
second, the impossibility of protective works against navigational hazards for an under mid-sea furrow;
third, national security risks because this Alignment borders the Indo-Sri Lanka Medial Line. All three reasons have to be read together to understand the depth and weight of the Committee’s arguments against the Alignment.
42. The Respondent instead, relying on the Report of the so-called Committee of “Eminent” Persons, has chosen to caricature the findings, and dismiss it as if Mudaliar Committee’s Report is based on a superficial tourist view from Rameshwaram island at Dhanushkodi.
43. However, the Mudaliar Committee consisted of persons of widely acknowledged erudition, objectivity and stature. The Chairman Dr. A. Ramaswami Mudaliar was revered learned person in the shipping field, while the Committee Secretary Mr. R. A. Gopalaswami, ICS was respected for his vision of governance in government. Three Members of the Committee were persons who held high positions in government. Captain J.R. Davies was in fact Nautical Adviser to the Government of India.
44. The Report is replete with details of costing, scheduling and sources of data. Hence, the Mudaliar Committee reasons for rejecting Alignment 6 stand unrebutted by the Respondent.
45. The so-called Committee of Eminent Persons on this important matter has stated as follows:
“ 10.10. Upon a review of the archaeological investigations done in India so far[emphasis added], the Committee notes that no archaeological studies have been undertaken in the Rama Sethu/Adam’s Bridge area. As yet [emphasis added], no evidence pertaining to archaeological remains of any man-made structures are known from this are known from this area”
46. However, the clear direction of the Madras High Court contained in the Order of June 19, 2007 was as follows:
“ The Ministry of Culture and Tourism is directed to file a counter affidavit explaining [emphasis added] whether any study has been undertaken by the archaeological or any other concerned department in respect of the Adam’s Bridge/Rama Sethu and whether the said bridge can be regarded as a national monument within the meaning of the 1958 Act.”[ref: APPLICATION TO VACATE THE INTERIM ORDER, para.15;p.30].
Such an updated study could be revealing and reverse the current view on the mythical status of the Rama Setu. For decades, for example, the Sarasvati River referred to repeatedly in the Vedas, was derided as “mythical” by some scholars, but in 1982 scientists of the Ministry of Space led by Prof. Yash Pal established with the then new technology of satellite photo-imaging that Sarasvati River did exist and is now flowing underground. Similiarly, Dwarka city of Bhagwan Sri Krishna was dismissed as a figment of Hindu imagination, till 1994 when Dr. S.R. Rao, then Director General of the Archaeological Survey of India of the Ministry of Culture, led a team under the Gujarat coastal sea for six years, and established its existence. It is relevant to point out that Dr. Rao has written in 2007 a letter to the Minister of Shipping to ensure that the Rama Setu is protected and declared as an ancient monument and world heritage site[ ref: ANNEXURE P-7 Colly]. Hence, given the materials already at hand with the Respondents, with a further study meeting international norms of investigation and standards of research, the Rama Setu may be established as constructed and a cherished heritage.
This attempt to mislead cannot be termed as out of ignorance since Document No. NIOT/C-1046/TPT-Sethu/VBC-BH/Final Report of the National Institute of Ocean Technology, Chennai [NIOT] of the Union Ministry of Earth Sciences, UOI, under the charge of the Prime Minister[ref: ANNEXURE P-8 ], was prepared by a team of the NIOT led by the former Director of the GSI, Dr. S. Badrinarayanan, and submitted in February 2005. This Report was prepared by the NIOT on the request from the Sethusamudram Ship Channel Project.
39. The Respondent has failed to provide these documents to the Petitioner despite a formal Application by him for Discovery, despite a solemn assurance before this Hon’ble Court by the Learned ASG as counsel of UOI on September 14, 2007 that all such documents would be made available to him.
40. Hence, as of September 14, 2005 and before filing the present Counter Affidavit by the Respondent, the Respondents were aware of the existence of this Document cited above.
41. The Document has however been now obtained by the Petitioner through an application under the Right to Information Act made to the Ministry of Earth Sciences. It was also made available earlier in April 2007 by the said Ministry to the President of India on a reference following the representation made by the H.H. Jagadguru Shankaracharya of Puri Math, Swami Nischalananda Sarasvati [ref: ANNEXURE P-9].
42. Based on these materials, it is clear that NIOT Project Coordinator Dr. Badrinarayanan had opined and which opinion was communicated to the President of India[ref: ANNEXURE P-8, op.cit.] that the geological studies by the Team conducted do appear to point as follows:
“These things appear to point these coral rock pieces and pebbles have been transported and placed in these areas.”[emphasis added].
“Since the calcareous sand stones and Corals are less dense than normal hard rock and quite compact, probably these were used by the ancients to form a connecting link to Sri Lanka, on the higher elevations of the Adams bridge ridge and this is analogous to modern causeway.” [emphasis added].
This same NIOT in April 2005 submitted another report based on fresh boring of six holes just offshore in Rameshwaram island.
While confirming Dr. Badrinarayanan’s findings that corals rocks appeared between sand layers, the Committee blandly concluded that:
“Hence the claim of man-made origin in the article by Dr. Badrinarayanan[2007] is purely an assumption without any scientific validity”[ref: Report of the Committee of Eminent Persons on the Sethusamudram Ship Channel Project, Vol I, Chapter 5, p.45].
There is however no reference by the Committee to the earlier study in 2003 carried out by the very same Geological Survey of India in a more extensive investigation but coming to the opposite conclusion that because coral rocks and reefs do not grow naturally on sand beds therefore these rocks must have been transported and put where the Rama Setu formation exists.
Moreover, three now retired Directors of the GSI, Gopalkrishnan, Badrinarayanan, and Subramanian had submitted a jointly authored detailed research paper to the so-called Committee of Eminent Persons, in which they have stated that there are scientific evidences to indicate that the Rama Setu is an ancient constructed causeway. But this paper has not been evaluated.
Ethics of fact-finding demand that Dr. Badrinarayanan et al ought to have been invited to depose before the Committee, and be confronted with the bland assertions of the new NIOT investigations [2005] for his considered opinion. This failure or lapse is a reflection of bias.
43.Other Union Government agencies have also opined the same view of the constructed nature of the Rama Setu causeway bridge. In 2006, the Ministry of Space under the charge of the Prime Minister through its department, viz., National Remote Sensing Agency has in 2006 has published Images India, a book of photographs of India’s prominent geographical sites taken by INSAT and IRS satellites, with captions. This book was laid formally on the Table of Lok Sabha and Rajya Sabha by the Prime Minister, and distributed free to all MPs. On page 40-41, is the photo spread captioned “Adam’s Bridge—A Bridge With The Past”. Below this caption are three paragraphs extracted below as follows:
“Satellite images have revealed an ancient bridge between India and Sri Lanka in the Palk Strait…….Its structure suggests that it may be man-made. This has an echo in the ancient Indian mythological epic, the Ramayana…….Studies are still on but the bridge is seen as an example of ancient history linked to the Indian mythology”[ref: ANNEXURE P-10 ].
44. Even if the Setu was not constructed or ‘man-made’ but a natural formation, it is of no consequence for the Setu to be declared as an ancient monument. In the June 19, 2007 Order of the First Bench, the Hon’ble Madras High Court had rejected the Respondents reliance on the now obviously poorly researched view that the Rama Setu is not “man-made”, and hence not worthy of being recognized as an ancient monument in law but in fact fit for destruction and desecration to furrow out a ship channel.
The Hon’ble First Bench of MHC pertinently pointed out that from the “definitions given in the 1958 Act it would be apparent that an ‘ancient monument’ has been given a very wide meaning. It would mean to be any monument which is very old having historic past of record. It can also be a stone, a post, a river etc.”.
45. Indeed, the Respondent UOI has recently re-written to the UNESCO re: Manjuli island which is situated in the midst of the Brahmaputra river flowing through Assam, near Jorhat, seeking that it be declared a world heritage site for certain reasons of belief[ref: ANNEXURE P-11 Colly] and size. The Rama Setu eminently qualifies by those very criteria.
46. In AIR 1958 SC 1032 at para. 7; p.1035, this Hon’ble Court held:
“Any object however trivial or destitute of real value in itself, if regarded as sacred by any class of persons would come within the meaning of the penal section” [ i.e., Section 295 IPC which penalizes any destruction, damage or defilement of any object held as sacred by any class of persons as an insult to their religion].
47. This Hon’ble Court further held in that matter that:
“ Courts have to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs, irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the court”.
48. The ruling coalition of parties which directs the Respondent UOI in this matter is also in office in the State of Tamil Nadu. The DMK till recently of this coalition in the State prides itself on a being a party of atheists, and it derides Hindu religion at every opportunity. However, in Special Leave Petition (Civil) No.11686 of 2007 on the ‘Jallikattu’ matter, the DMK led State Government, then as Respondent represented by the Chief Secretary of the Government of Tamil Nadu, had stated in the counter affidavit that “strict implementation of the [Hon’ble Court’s] order[banning Jallikattu observance] would invite major law and order problems”[para.9], and “that Religion and Jallikattu are interwoven…”[para.11]. Furthermore, it is argued that “The Tamils, in most of the villages, are worried that non-celebration of the event could invite punishment from the local God” [para.6]. And hence a grave danger to public order!!
49. If the imagined wrath of a local God on public order can concern the Respondents to move this Hon’ble Court to review an earlier order, then there can be no substance in the Respondents’ averment in this instant Rama Setu matter that “The Union of India is of the belief that it should not be called upon to respond to issues of faith, except in recognizing their existence”.[ref: COUNTER AFFIDAVIT para.88;p.59]. In fact, on the contrary, the earlier counter affidavit of the Respondent UOI had to be withdrawn when remarks of the non-existence of Sri Rama in the text led to great public indignation and protests. Most prominent and respected Hindu religious leaders came out of their religious seminaries and strongly objected. Hence, by doing or not doing, the Respondents could put public order at risk. Hence the Respondents in this instant case of Rama Setu must respond appropriately to issues of faith when such matters arise from government policy. This has been the practice in the past
In the famous Shah Bano case, the Union of India was not called upon by this Hon’ble Court to respond to issue of faith in amending personal law of Muslims. Yet a Bill was enacted into law by the Parliament to in effect nullify this Hon’ble Court’s earlier judgment.
In the Delhi Metro Rail AIIMS-Qutab Minar Corridor construction, the Union of India intervened after an issue of faith was raised against the Corridor alignment by some Islamic NGOs. They contended that the overhead alignment proposed in the Detailed Project Report of the Rs.2358 crore project could threaten the Qutab Minar and some en route tombs by the vibrations of the Metro Rail service, and hence wanted the Alignment changed. The Union of India then directed the Delhi Metro Rail Corporation to change the Alignment despite the project’s work being in full swing. At an additional cost of Rs 400 crores, the Corporation changed the chosen Alignment to meet the demands of faith [ref: ANNEXURE P-12 ] and re-worked a new underground Alignment.
50. In this instant Rama Setu desecration matter, besides it being violative of Article 49 of the Constitution, the statutory provisions of the Ancient Monuments and Archaeological Sites & Remains Act(1958), and the Indian Penal Code]Section 295], the demolition or damaging of the Rama Setu will have cataclysmic and profound consequences for the secular and public order of Indian society. It is well settled by case laws that this Hon’ble Court may then intervene in such cases to judicially review the decision-making process so as not to allow injury to the public because of dereliction of constitutional and statutory obligations and duties on part of the Respondent.
51. Moreover, what to do, or not to do, so as to promote economic development while respecting issues of faith is a very important question that impinges importantly on Constitutional law and that requires urgent judicial determination by a Constitutional Bench of this Hon’ble Court. In the United States, the Religious Freedom Restoration Act[RFRA] holds that the Federal government may not “substantially burden a person’s exercise of religion” in pursuing economic interests. On March 12, 2007, the three judge bench of the 9th US Circuit Court of Appeals, in a celebrated case set aside the clearance granted to an Arizona State ski resort vide the Final Environmental Impact Statement under the National Environment Policy Act. The ski resort’s plan, as cleared, was for use of treated sewage effluent of a small tourist destination city called Flagstaff, to make artificial snow and spread it on the slopes of a mountain held sacred by native American tribes. The case pitted 13 native American tribes such as Navajos, Apaches etc., who claimed hurt to their religious beliefs versus local economic interests of skiing tourism. The Court unanimously held that the clearance violated the RFRA and hence should cancelled.
52. Given the national and global developments of the last two decades, government must know how to harmonise fairly the needs of rapid modern economic growth with nurturing a renaissance in our ancient faith, a faith which is deeply held and is a way of life, nurtured within the Basic Structure of our Constitutional framework so that followers of no faith feel themselves under a siege. This harmonization is a requirement of good governance and gives content to genuine secularism. Thus this is an important question that is expected to arise frequently in the future, with India on a fast economic growth path in a globalised framework but with a deeply religious people. This question hence requires to be answered now by a definitive and defining judgment of this Hon’ble Court. At present, contrary to the averment of the Respondent [ref: Counter Affidavit para. 88 p. 59], the union and state governments are indeed espousing the cause of some religions. The argument of the Tamil Nadu State government in the aforesaid Jallikattu issue [para.43 above] goes well beyond, as well as contradicts, the Respondent’s averments that a “secular state cannot espouse the cause of any religion, faith or belief” and that the “Union of India is of the belief that it should not be called upon to respond to issues of faith, except in recognizing their existence.”[Ibid]. The Rs. 400 crore subsidy annually for Muslims travel to Mecca for Haj; the underwriting of the costs of travel for Christians of Andhra Pradesh to Bethlehem in Israel; and the Union Cabinet’s recent decision [March 20, 2008] to underwrite the costs totaling about Rs.180 crores for developing the Anandpur Sahib and Talwandi Sabo in Punjab; and The Hindu Religious Endowments and Charitable Trusts Acts are other examples that contradict these averments and also point to the haphazard and ad hoc approach of the UOI.
This Petitioner does not object to the principle of positive promotion by the State of any religion, an accepted practice in our society for centuries. The peace, harmony, and freedom from organized persecution which followers of the Zoroastrian and Jewish faiths have enjoyed in this country, has received praise worldwide. What the Petitioner however contends is that it is not fair or constitutional for the State to promote of the cause of any religion on an ad hoc basis, but he submits that what is required is a well thought policy that is fair and just within the Basic Structure of the Constitution of India. The present ad hocism is arbitrary, unreasonable, and discriminatory.
53. It is established, and admitted by the Respondents that a structure, that is natural or constructed, and widely known for very long as Rama Setu, does exist but that its origins and nature have admittedly not been investigated yet by the Respondent despite overwhelming prima facie evidence that the Rama Setu is a constructed causeway that fits the description given in Valmiki’s Ramayana. There was thus enough material before the Respondents to, at the very minimum, carry out a thorough archaeological investigation that met the norms of investigation which are internationally accepted. There is also an obligation devolving on the Respondents to comply with the June 19, 2007 Madras High Court direction to the Respondent Ministry of Culture to file a counter affidavit explaining “whether the said bridge can be regarded as a national monument within the meaning of the 1958 Act”. If indeed the Rama Setu qualifies to be such a monument or archaeological site, then it would be illegal to dredge through or damage it. The Project would then be ultra vires. Therefore the admission of failure by the Respondent to carry out such an archaeological investigation is Wednesbury unreasonable and perverse. It is also vitiated by bias of the Respondent against Sri Rama and the Ramayana.
54. The so-called Eminent Persons Committee while acknowledging the said court order [ref: Report, Vol. I Chapter 9 para. 11] regrettably obfuscated the issue when in fact it ought to have called renowned experts from relevant fields and heard them. Instead, the said Committee recommends that “all archaeological and related materials recovered from the Rama Sethu/Adams Bridge should be displayed in a museum-cum-cultural centre to be developed at Rameshwaram.” [para.13, ibid].
There is room therefore to infer that the Committee was pushing a particular pre-determined point of view and there is room for apprehension that the said committee was informally mandated to do so. The selection of the Committee members, the exclusion of experts in fields which are relevant for the inquiry and for which purpose the Committee was set up at public expense, exhibit prima facie a bias and malafide intention on part of the Respondent.
55. All ten members of this so-called Committee of Eminent Persons are biased by a conflict of interest criterion, or have or have had contractual commercial obligations with the Project, or have for long held known positions which debunk the historicity of Sri Rama or Ramayana, or exhibited bias in some other concrete way.
56.The Committee Chairman Dr. Ramachandran, appeared at a protest fast by the leader of the DMK, Mr. M. Karunanidhi, which fast was organized against this Hon’ble Court’s injunction order passed on August 31, 2007 against any dredging that damages or destructs the Rama Setu [ref: ANNEXURE P-13]. He proceeded to garland and prostrate before the DMK leader, who is a strong proponent for breaking the Rama Setu allegedly for the sake of the Project or for some other fancied atheist endeavour, and who is a person given to making scurrilous remarks in public about Bhagwan Sri Rama. Such appearance and action completely vitiates the objectivity and credibility of the Committee itself.
57. Dr. Ramachandran is also a member of the SSCP Environment Monitoring Committee set up by the Respondent since 2004 when the Project was sanctioned and receives TA&DA for its meetings. In 2007 he organized a seminar to debunk the critics of the Project and issued a Press Statement to “confirm that Adam’s Bridge is purely of barrier islands formed due to natural process” He also added that: “This dynamic feature will disappear in the event of severe cyclonic storms and also due to future sea level rise due to global warming”[ref: ANNEXURE P-14].
58. Dr. Sakthivel, Dr. J.R.B. Alfred, and Prof. D. K. Biswas are also members of the SSCP Environment Monitoring Committee, while Dr. S.R. Wate is a senior official of the NEERI which has contractual obligations with the Project. Professors R.S. Sharma and P. Jagadeesan are said to be historians but have published volumes on debunking the historicity of Sri Rama and the Ramayana. The latter was appointed to the State Planning Commission by the DMK government. Mr. R. K. Jain IAS is Member--Secretary of the Committee, and as MD of the Indian Ports Association liaises for the Minister of Shipping in Chennai. The IPA is accountable to the Ministry of Shipping.
59. As is evident, at least 8 of the 10 members to the Committee cannot be termed as independent. They are persons who would defend the Respondent’s decision. The so-called Committee of Eminent Persons although constituted by the Respondent to inform the Respondent, thus does not inspire confidence or credibility.
Moreover, it was expected that such a committee would inform with facts and research to assist the Respondent to comply with the said two directions of the Madras High Court. Instead the so-called Committee of Eminent Persons has failed to explain “whether the said bridge can be regarded as a national monument within the meaning of the 1958 Act” [First direction; ref: Respondent’s Application I.A. 1/2007; p.31]. It has merely noted that “no archaeological studies have been undertaken in the Rama Sethu/Adam’s Bridge area. As yet, no evidence pertaining to archaeological remains of any man-made structures are known from this area.” [Report Vol. I, para 10.10, p.116]. This Committee also was of no help to the Respondent for complying with the High Court’s second direction “to explain as to whether the said project can be implemented without affecting the Adams Bridge/Rama Sethu by resorting to some other routes discussed and deliberated upon by the previous committees”.[op.cit. p.31]. The Committee baldly states that “The Ministry of Environment and Forests has given environment clearance for alignment no.6 only” [Report Vol.I, para.10.5, p.115]. However, there have been repeated suggestion in previous committees that besides alternative of alignments, there is also need to consider alternative of projects that will achieve the same goals as the Project herein. For example, while considering the SSCP, ab initio, the meeting of the Committee of the PIB under the chairmanship of the Secretary, Ministry of Finance, held on 3.1.2000, has recorded in the minutes that the Adviser of the Planning Commission “desired to know the assessment that has been made regarding the movement of traffic through alternative means, i.e., Railways or Expressways. He asked as to whether some preliminary study has been made as to which mode of transport would be the least cost option.” [Counter Affidavit, ref: ANNEXURE R-1/19; p.11]. This is a crucial issue of Proportionality, that is, an administrative decision must not choose a more drastic alternative than is necessary for attaining the desired objective. Hence alternatives to sea alignments such as rail or highways for moving freight and passengers from Tuticorin to Kolkatta without having to go around Sri Lanka, ought to have been considered by the so-called Committee of Eminent Persons and the Respondent, especially since there is this Hon’ble Court’s direction of July 17, 2007 to comply with the Madras High Court direction to determine if there are alternatives to a channel that that would break the Rama Setu. But this search was arbitrarily and entirely left out of consideration in the decision-making process. Such a serious lapse by the said Committee and the Respondents is a dereliction of duty as prescribed in the Terms of Reference set for the Committee.
The Committee’s Report moreover contains inferences that are not supported by the data or studies that were available to the Committee. Further, it is inexplicable that none of the members of the Committee were nominated from the fields of economics, national security, marine archaeology, geology, or international law of the seas and yet a Report was prepared by the said committee inform the Respondent on these issues.
59. In any event, without prejudice to the Petitioner’s aforesaid objections, the Petitioner appeared before the Committee and gave all his objections both procedural and substantive. Appended hereto as ANNEXURE P-15 are copies of the Petitioner’s correspondence with the Committee.
60. Rama Setu is a place of worship and faith and, as pointed out in paragraphs above, this reality has been admitted by the Respondents. The present Tamil Nadu government that is headed by Mr. M. Karunanidhi, recognizing the commercial value of this reality, has advertised for tourists to visit the State by displaying on railway train compartments, hoardings of a colour painting of the Rama Setu under construction, with Rama and Lakshmana standing on the Dhanushkodi tip to supervise, with a caption that states: “The waters here still carry the blessings of Lord Rama’s lotus feet. Because this where the monkey army crossed over to Lanka to rescue Sita. Visit Rameshwaram in Tamil Nadu” [ref: ANNEXURE P-16].
61. As the said Order of the Madras High Court points out, it is moreover irrelevant whether Rama Setu is man-made or God-made for deciding if the Setu should be declared an ancient monument. What is also important to recognize is that the religious sensibilities and feelings of nearly a billion persons of Hindu faith and those of other religious persuasions who respect the sanctity of faith, cannot be disregarded in a narrow pursuit of the Project claiming to advance economic development on economic calculations based on dubious and even bogus numbers, disregarding less drastic alternatives, and such projected development can never be sustainable for a stable secular society.
Hence, the Respondents decision to select Alignment No. 6 and thus to implement the Sethusamudram Ship Channel Project is arbitrary, unreasonable, perverse, malafide and illegal. Moreover, to hold the Project now a fait accompli as the Respondent claims, and hence beyond judicial review, merely because a considerable investment of public money has already been expended on the Project, is irrational and legally wrong. As this Hon’ble Court has held in Intellectuals Forum v State of A.P. [(2006)3 SCC 549 at 578-79, paras. 88,93], court decisions cannot be based solely upon the investments committed by any party. In several cases cited therein, this Hon’ble Court has ordered demolition of already built structures and restoration of status quo ex ante despite crores of rupees had been spent already on those development projects.
62. On the facts, admissions, and in the circumstances stated in above paragraphs, therefore this Hon’ble Court may be pleased to issue a Writ of Mandamus as prayed in the Writ Petition No.18223 of 2007 in the Madras High Court and now before this Hon’ble Court as T.C.(Civil) 26 of 2007, directing the Respondent to declare the Rama Setu as an Ancient Monument of National Importance within the meaning of the aforesaid provisions of law, and scrap the Project altogether if the Respondent cannot implement the Project’s aims without affecting the Rama Setu, and pass such further orders as this Hon’ble Court may deem fit and proper in the circumstance of the case, and thus render justice.
Report on the Geological and Geotechnical assessment of the subsea strata for the proposed Sethusamudram Channel Project Doc No.NIOT/C-1046/ETT-Sethu-VBC-B4 dated 14 Feb 2005” prepared under Dr. S. Badrinarayan Director(retired) of the Geological Survey of India and formerly coordinator Survey Division of the National Institute of Ocean Technology (NIOT), Ministry of Earth Science.Pallikkaranai,Chennai.
1. The contents of the aforesaid Report are known to the Petitioner through an interview given by Dr. Badrinarayan extracts of which are reproduced on pages 25-27 of the Petitioner’s Typeset of papers of W.P. No.18223-18224 of 2007.
As is evident from the content of pages 25-27, the exact complete content of the aforesaid Report ,is an important documentation for the Petitioner’s thesis that there is scientific evidence available that the Rama Sethu is not purely a natural formation.
QUASHING OF THE SSCP
47. In my Affidavit in Reply filed in March 2008 to the counter-affidavit dated February 29, 2008, I have prayed that the SSCP be quashed because the decision making process leading to the choice of Alignment No.6, is fatally flawed not only on plain illegality, but also on environmental and economic viability grounds, and is arbitrary, unreasonable, malafide, lack of proportionality, besides being ultra vires the Constitution, and therefore is to be quashed [See Written Arguments dated 7 & 8.5.08, 30/7/08, and 14.10.08].
The argument advanced by the UOI in its affidavit dated February 22, 2013 [in para. 4] that in view of the reason that the Union Government had already incurred Rs. 829.32 crores as on June 30, 2012, the SSCP must be validated as a fait accompli, is ridiculous [(2006) 3 SCC 549 in paras 88 and 93.]