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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION ( CIVIL ) No. OF 2007
(A Writ Petition under Article 32 of Constitution of India invoking
the Original Civil Jurisdiction)
WITH PRAYERS FOR INTERIM RELIEF
1) Dandi Swami Sri Vidyananda Bharati-ji
Monk of Shankaracharya Order …… Petitioners
Versus
Union of India & others ……. Respondents
WITH
I.A. No OF 2007
Application for Exemption from Filing Official Translation
PAPER BOOK VOLUMES __ TO ___
FOR INDEX KINDLY SEE INSIDE
Advocate for the Petitioner
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SYNOPSIS AND LIST OF DATES
The Petitioners herein have filed the aforesaid Writ Petition
invoking the Original Jurisdiction of Article 32 of the Constitution of
India as a public interest litigation on behalf of citizens of India, in
particular of the States of Tamilnadu and Kerala, seeking protection of
the fundamental rights contained in Articles 14, 19, 21, 25 and 26 of the
Constitution of India against the implementation of the Setusamudram
Shipping Canal Project (the “Project”).
The Respondents including the Ministry of Shipping and the
Ministry of Environment in the Union of India as well as the Government
of Tamilnadu are all controlled by the same political party, which is
rushing through with the Project without any circumspection despite
serious concerns about the dangers posed by the Project to the lives of
the people as well as to sensitive biodiversity hotspots such as the region
where the Project is being implemented.
Although the decision to go through with a project such as the
present one is a policy decision, it is well settled by decisions of this
Hon’ble Court that even policy decisions must be set aside if they violate
mandatory statutory provisions or the fundamental rights guaranteed by
the Constitution.
The Project runs through the Gulf of Mannar and the Palk Straits
and Palk Bay in a region which was hit by the Tsunami of December 26,
2004. However, the mid-ocean channel has been conceptualized without
having taken into account the warnings of world-renowned Tsunami
experts that it could funnel and amplify the Tsunami waves in a manner
that will result in lakhs of deaths and destroy the coastline of Southern
Kerala and Tamilnadu, thus violating the fundamental right to equality
under Article 14 and the right to life and personal liberty under Article
21 of the Constitution. Prof. Tad S. Murthy, a world-renowned Tsunami
expert and a former editor of Tsunami Effects Review, has pointed out
that the alignment of the mid-ocean channel is such that it will funnel
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and amplify the wave from a Tsunami from South East Asia so as to
cause massive destruction to lives and property on the Southern Kerala
and Tamilnadu Coasts. Neither the EIA report by NEERI completed in
May/August 2004 nor the DPR by L&T/Ramboll for the Project
completed in February 2005 have taken into account the likelihood or
effects of a Tsunami despite the massive destruction caused by the
Tsunami of December 26, 2004.
Further, the Project involves not only dredging over many square
kilometers of the ocean floor but also controlled blasting in the Palk
Straits and Gulf of Mannar, which will endanger the flora and fauna of
Gulf of Mannar Biosphere Reserve declared by UNESCO to be one of the
most important biodiversity hotspots in Asia and declared as such by the
Government of India and the State of Tamilnadu. The Gulf of Mannar is
home to a number of endangered species such as the dugong (sea cow),
the sea horse, sea turtles, whales and dolphins and to endangered
habitats such as coral reefs, mangrove forests and sea-grasses that
support the species named above. Apart from such serious violations of
the Wildlife Protection Act, 1972, the environmental clearances for the
Project under the Environment (Protection) Act, 1986, have been granted
in complete violation of statutory provisions and without taking into
account the protective actions recommended by the National
Environmental Engineering Research Institute, a Central Government
Agency (“NEERI”), in the environmental impact assessment report (the
“EIA Report”).
It is vital to note that the Project also involves cutting through the
Ram Setu barrier in Palk Straits (situated south east of Rameshwaram
near Pamban and connects Talaimanar coast of Sri- Lanka) which is
believed to be man made according to highly reputed marine
archaeologists and geologists and whose origins stretch back into
antiquity. No investigation has been done of the Rama Setu structure to
4
determine if it is deserving of protection as an ancient monument or an
archaeological site under the Ancient Monuments Act, 1958.
There is considerable scientific evidence accumulated that the
Rama Setu is man-made. Article 51A(f) of the Constitution enjoins
protection of the cultural heritage of India. Therefore, it is respectfully
submitted that the Archaeological Survey of India is required to
determine under the Ancient Monuments Act, 1958 as to whether or not
the Rama Setu is man-made. If it is man-made, its origins stretch back
into antiquity, and certainly more than the 100 years required under the
said Act. If so, it would be fit and proper for this Hon’ble Court to stop
the project before it destroys the Rama Setu and to direct the
Archaeological Survey of India to have the Rama Setu declared as an
ancient monument or an archeological survey as the case may be and to
ensure that it gets all the protection that such a monument requires.
In addition, the environmental clearance dated 31.03.2005 is
vitiated on account of arbitrariness and non-application of mind. One of
the most important environmental aspects of the project is the problem
of disposal/dumping of the dredged material. The study report
highlights the fact that dredging will lead to increase in turbidity (i.e.,
suspended matter in the ocean) at, and in the vicinity of, the site; thereby
preventing penetration of sunlight into the water body, which would
endanger the survival of marine flora and fauna at and around the site.
For these reasons, quick and efficient removal of the dredged material is
crucial. Further, the disposal of the dredged material would have to be
done in a manner that minimizes the likelihood of any adverse impact at
the disposal site. On detailed examination and analyses, the EIA study
by NEERI recommends that disposal would have to take place both on
land, as well as at sea; the clay and silt to be disposed off/dumped on
land or to be used to help reclaim land near Pumban island, and the
sand to be dumped at suitable sites in the sea, at least 20-25 kilometres
from the Gulf of Mannar Marine Biosphere Reserve.
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NEERI’s note of caution has been totally disregarded. Firstly, the
recommendation regarding the implementation of the project in two
phases has does not appear to have been considered by the MOEF at all.
Further, the Ministry of Environment and Forests (MOEF), in its
clearance dated 31.03.2005, while laying down a specific condition that
“the Environment Management Plan recommended by NEERI should be
implemented” (Specific Condition ‘xix’), has, at the same time,
categorically prescribed that the “dredged material will be disposed off in
the identified sites in the sea”, and that “no dredged material will be
disposed off on land” (specific condition ‘I’). This is in clear conflict with
the recommendations of NEERI, as well as the Environment Management
Plan prepared by it. Clearly, despite the caution sounded by the NEERI
itself, this condition laid down in the environmental clearance would
itself render the project environmentally non-viable. No reason, much
less a detailed/satisfactory one, has been given for this departure from
the NEERI’s recommendations; showing the total non-application of
mind by the MoEF.The enormous religious sentiment of the people of
India with respect to Ram Setu which is regarded as a creation of Lord
Rama and his Vanara army led by Lord Hanuman has also been
intentionally disregarded by the Government of India and the Shipping
and Environment ministries of the Government of India, which curiously
enough belong to the same political party that is also the ruling party in
Tamilnadu. This clearly raises issues under Articles 25 and 26 of the
Constitution.
Accordingly, it is respectfully submitted that this Hon’ble Court
should intervene in the matter to ensure that mandatory statutory
provisions in environmental statutes are not violated and that the
fundamental rights of the citizens of India, particularly of Kerala and
Tamilnadu are protected.
6
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
Writ Petition (Civil) No. of 2007
In the Matter of:
1) Dandi Swami Sri Vidyananda Bharati-ji
Monk of Shankaracharya Order.
Plot No 229, Road No 4 (TMC ), Mahendra Hills,
Secunderabad. 500 003. AP. India.
2) Ms Deeksha Mishra
R/o Gwalior, Govind Bhavan,
Near Telephone Exchange
Gwalior, MP. ……
Petitioners
Versus
1) Union of India, through the Secretary, Department of Shipping ,
Ministry of Shipping , Surface Transport & Highways, Transport
Bhavan, 1, Sansad Marg , New Delhi 110001
2) Union of India, through the Secretary, Ministry of Environment
and Forests, Paryavaran Bhavan, CGO Complex, Lodhi Road
New Delhi 110001
3) State of Tamilnadu,
Through Chief Secratary.
4) Archaeological Survey of India
Through Director General,
Archaeological Survey of India,
Janpath, New Delhi-110001
4) Geological Survey of India
Through Director General, Janpath, New Delhi.
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5) Tuticorn Port Trust
Through Director
Tuticorin District, Tuticorin, Tamilnadu.
6) Sethusamudram Corporation Limited, a Corporation set up by the
Government of India having its registered office at Tuticorin
District Tuticorin, Tamilnadu.
7) National Environmental Engineering Research Institute [NEERI], [a
Central Government Agency] Nagpur.
8) L&T Ramboll Consulting Engineers Ltd
339/340 Anna Salai, Nandanam, Chennai-600 035. …….
Respondents
To
The Honorable Chief Justice of India
And His Companion Judges of the
Supreme Court of India at New Delhi
The Humble Petition of the Petitioners above named.
MOST RESPECTFULLY SHEWETH
1) That the Petitioners herein have filed the aforesaid Writ Petition
invoking the Original Jurisdiction of Article 32 of the Constitution
of India as a public interest litigation on behalf of the common
people of India, in particular of the States of Tamilnadu and
Kerala, seeking protection of the fundamental rights contained in
Articles 14, 19, 21, 25 and 26 of the Constitution of India against
the implementation of the Setusamudram Shipping Canal Project
(the “Project”).
8
2) Petitioner No 1 is a public spirited person, a Dandi Monk of the
Shankaracharya Order and a local resident of Rameshwaram
(presently residing at Thirunelveli) and is aggrieved by the Project.
The Petitioner No. 1 is also espousing the cause of numerous
downtrodden fishermen and others affected by the December 2004
Tsunami who live in the Rameshwaram area and whose lives
would be put in further danger if the Project is implemented. The
Petitioner No. 2 is a Lawyer by profession and is a public spirited
person. The Petitioner No. 2 is also a disciple of the Petitioner No.
1 and believes in espousing the cause of the poor and down
trodden masses of the nation who are unable to seek redress
themselves through courts of Law. It is submitted that the
Petitioners are law abiding citizens of India who have been granted
various constitutional protections under the Constitution of India.
At the same time, certain fundamental duties have been cast upon
the Petitioners as Citizens of India and they are discharging their
fundamental duties under Article 51A of the Constitution, such as:
a) 51A (f) to value and preserve the rich heritage of our
composite culture;
b) 51A (g) to protect and improve the national environment
including forests, lakes, rivers and wild life and to have
compassion towards living creatures.
c) 51A (h) to develop scientific temper, humanism and spirit of
enquiry and reform 51A (i) is to safeguard public property
and to abjure violence to protect by the fundamental duties
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3) Although the Respondent Union of India may seek to defend the
Project on the ground that it is a policy decision of the Government
of India, it is well settled by the decisions of this Hon’ble Court that
a policy decision must be set aside if it violates binding statutory
provisions or the fundamental rights guaranteed by the
Constitution. It is respectfully submitted that the Project and its
implementation are being pushed through in clear violation of the
provisions of various environmental statutes, the mandate of the
Ancient Monuments and Archaeological Sites and Remains Act,
1958 and the provisions of Articles 14, 19, 21, 25 and 26 of the
Constitution.
4) The Project runs through the Gulf of Mannar and the Palk Straits
and Palk Bay in a region which was hit by the Tsunami of
December 26, 2004. However, the mid-ocean channel has been
conceptualized without having taken into account the warnings of
world-renowned Tsunami experts that it could funnel and amplify
the Tsunami waves in a manner that will result in lakhs of deaths
and destroy the coastline of Southern Kerala and Tamilnadu, thus
violating the fundamental rights of citizens of India under Article
21 of the Constitution. Further, the Project involves not only
dredging over many square kilometers of the ocean floor but also
controlled blasting in the Palk Straits and Gulf of Mannar, which
will endanger the flora and fauna of Gulf of Mannar Biosphere
Reserve declared by UNESCO to be one of the most important
biodiversity hotspots in Asia and declared as such by the
Government of India and the State of Tamilnadu. The Gulf of
Mannar is home to a number of endangered species such as the
dugong (sea cow), the sea horse, sea turtles, whales and dolphins
and to endangered habitats such as coral reefs, mangrove forests
and sea-grasses that support the species named above. Apart
10
from such serious violations of the Wildlife Protection Act, 1972,
the environmental clearances for the Project under the
Environment (Protection) Act, 1986, have been granted in complete
violation of statutory provisions and without taking into account
the protective actions recommended by the National Environmental
Engineering Research Institute, a Central Government Agency
(“NEERI”), in the environmental impact assessment report (the
“EIA Report”).
5) It is vital to note that the Project also involves cutting through the
Ram Setu barrier in Palk Straits (situated south east of
Rameshwaram near Pamban and connects Talaimanar coast of
Sri- Lanka) which is believed to be man made according to highly
reputed marine archaeologists and geologists and whose origins
stretch back into antiquity. No investigation has been done of the
Rama Setu structure to determine if it is deserving of protection as
an ancient monument or an archaeological site under the Ancient
Monuments Act, 1958. The enormous religious sentiment of the
people of India with respect to Ram Setu which is regarded as a
creation of Lord Rama and his Vanara army led by Lord Hanuman
has also been intentionally disregarded by the Government of India
and the Shipping and Environment ministries of the Government
of India, which curiously enough belong to the same political party
that is also the ruling party in Tamilnadu. U.S. National
Aeronautics and Space Administration satellite pictures showing
Palk Straits, Palk Bay and the Gulf of Mannar and Ram Setu
bridge are marked and annexed as ANNEXURE P-1 (colly).
6) It is submitted that it has come to the knowledge of the Petitioners
that Writ Petition No 323 of 2006 and Writ Petitions No 402 of
2006, were filed before this Hon’ble Court but the same have been
11
dismissed. The Petitioners in the present writ petition have raised
various other grounds including the Right to equality under Article
14, the Right of Freedom of Profession and Occupation under
Article 19 and the Right to Life under Article 21 as well as
violations of various environmental statutes which have not been
placed before this Hon’ble Court in the earlier Petitions.
Accordingly, these issues have not received any consideration by
this Hon’ble Court. Further, it has also come to the knowledge of
the Petitioners that Special Leave Petition (Civil) 20758 0f 2005 is
pending on certain limited environmental issues relating to the
project where this Hon’ble Court was pleased to grant Leave.
7) There is considerable scientific evidence accumulated that the
Rama Setu is man-made. Moreover, NEERI which was mandated to
examine this issue under the citing guidelines of the Ministry of
Environment and Forests has simply proceeded on the basis that
the Rama Setu is not man-made. Article 51A(f) of the Constitution
enjoins protection of the cultural heritage of India. Therefore, it is
respectfully submitted that the Archaeological Survey of India is
required to determine under the Ancient Monuments Act, 1958 as
to whether or not the Rama Setu is man-made. If it is man-made,
its origins certainly stretch back into antiquity more than the 100
years required under the said Act. If so, it would be fit and proper
for this Hon’ble Court to stop the project before it destroys the
Rama Setu and to direct the Archaeological Survey of India to have
the Rama Setu declared as an ancient monument or an
archeological survey as the case may be and to ensure that it gets
all the protection that such a monument requires.
8) Despite wide ranging investigations by the Petitioners, they have
not been able to find any clearance having been granted by the
12
State of Tamil Nadu or the Ministry of Environment and Forests,
Government of India for the destruction of the wildlife in Schedule
I. Assuming that any clearance has been granted, it is not known
on what basis the wildlife protection division of the Ministry of
Environment and Forests has estimated the numbers of
endangered wildlife in Schedule I which would be destroyed as a
result of the implementation of the Project.
9) The Gulf of Mannar falls in the Indo-Pacific region, considered to
be one of world's richest marine biological resources. The Gulf has
been chosen as a biosphere reserve primarily because of its
biological and ecological uniqueness. The region has a distinctive
socio-economic and cultural profile shaped by its geography. It has
an ancient maritime history and was famous for the production of
pearls. Pearls were an important item of our trade with the Roman
Empire as early as the first century A.D., while Rameswaram, with
its links in legend to the Ramayana, has been an important pilgrim
centre. The region has been and continues to be famous for its
production of chank (Indian conch) although irrational chank
fishing has severely depleted stocks.
10) The Gulf of Mannar has 3,600 species of plants and animals that
makes it India's biologically richest coastal region. It is, of course,
specially known for its corals, of which there are 117 species
belonging to 37 genera. It is an inlet of the Indian Ocean, between
South Eastern India and Western Sri Lanka. The Gulf of Mannar is
130 km to 275 km wide and 160 km long. During high tide, the
seawater would raise to more than 1.2 meters above the sea level.
Full of beach ridges, the Gulf of Mannar can be grouped into: (I)
Beach ridges south of Vaigai River; (II) Beach ridges between
13
Kotangudi River and Palar River; (III) Beach ridges between Palar
River and Gundar River system; (IV) Beach ridges between Gundar
River and Vaippar River; and (v) Beach ridges south of Vaippar
River. In addition, the biosphere reserve in the area has 17
different mangrove species. The total water logged land has been
calculated to be 5.96 sq. km. Eight series of Strand Lines can also
be observed, apart from the Sea Cliff and Caves. The Palk Strait is
an inlet of Bay of Bengal which is 64 kms to 137 kms wide and
137 kms long. Several Indian rivers including Vaigai flows into the
Palk Strait and it also contains many islands which belong to Sri
Lanka.
11) The Tuticorin Port Trust, has been appointed by the Government of
India as the Nodal agency for the Project. The Tuticorin Port Trust
appointed NEERI to conduct a feasibility study of the proposed
Project and submit the EIA Report. The Tuticorin Port Trust also
appointed L&T Ramboll as the official consultants/contractors for
the project and entrusted to them the work of preparing the
Detailed Project Report for the Project (the “DPR”).
12) The Project was originally conceived in the year 1860, by the
British Commander A.D. Taylor of Indian Marines. As per the
present plan, the total length of the Project would be about 260
km, i.e., about 120 km from Tuticorin Port to Adam's Bridge (in
Gulf of Mannar), and about 140 km north of Rameswaram from
Adam's Bridge to Bay of Bengal channel (in Palk Bay). Together,
the Gulf of Mannar and Palk Bay cover an area of 18,500 kms. The
canal is being investigated for different depths (for 9.15 m, 10.7 m
and 12.8 m). In general, the canal will have a depth of 12 meters
enabling 10,000 to 12,000 GRT vessels to pass through. The
Government of India is proposing to dredge a width of 300 meters
14
through a 44 nautical mile stretch. It is estimated that 32.5 million
cubic meter sand will be dredged in the Adam's bridge area and
around 52 million cubic meters in Palk Strait area.
13) Between 1860 and 1922 as many as nine proposals were
formulated to cut the channel across the narrow strip of land
mostly through the Rameshwaram Island to connect the Gulf of
Mannar with Palk Bay. After independence, four proposals were
mooted between 1956-1996 regarding the viability of the project.
None of the pre-independence proposals nor the first three post
independence proposals speak of cutting the Rama Setu. However,
the fourth committee not being a committee consisting of marine
experts has proposed to cut Rama Setu in order to implement the
Project.
Threat of Tsunami if the project is implemented.
14) As stated above, if the Project is implemented and a channel with a
depth of 12m is created, then it will act as another route for a
Tsunami wave to travel and will be directed towards Southern
Kerala. It is important to note that neither the EIA Report declared
in May-August, 2004 by NEERI nor the DPR by L&T Ramboll in
February 2005 have taken into account the effect/ likelihood of a
Tsunami such as the one on December 26, 2004.
15) Various world-renowned Tsunami experts have warned that the
project could have dangerous consequences if it is implemented.
Prof Tad. S. Murthy, an advisor to the Government of Canada on
Tsunamis, in an interview has stated as follows:
“……I feel that the Bay of Bengal entrance of the present
orientation of the channel will undoubtedly funnel tsunami
15
energy into the channel and this will meet the tsunami
traveling from south of Sri Lanka at the southern part of
Kerala and through constructive interference will augment
the tsunami wave amplitudes. The southern part of Kerala
was not much impacted by the 26th December 2004
tsunami mainly because the tsunami that arrived from the
Indian Ocean has to diffract around Sri Lanka, which
necessarily has to take a very wide turn (because tsunamis
are long gravity waves and cannot bend as easily as short
waves, just like a big car versus a mini. A mini cut corners,
but a big car has to take very wide turns.) and missed south
Kerala……”
“…It is very easy to show that the SSCP channel with a
depth of 12m will indeed provide another route for the
tsunami and the energy will be directed towards south
Kerala.”
A copy of the interview given by Prof. Tad S. Murthy is annexed
herewith and marked as Annexure P-2.
16) Prof. Rajmanickam, an eminent coastal geo-morphologist and
minerologist, in an interview has stated as follows:
“The monitoring system, I mean the High Level Monitoring
Committee that the Government had appointed recently,
sadly does not have a hydrographer, sedimentologist, geo-
morphologist, geologist, coastal tectonics expert, or experts
from atmospheric sciences. So, what will this present
monitoring committee do?
The fields I have just mentioned are the dominant sciences
that are to ensure the safety and the stability of the
16
Sethusamudram Project and its environment. So, I really do
not know how this present monitoring committee, which
lacks all these expertise, is going to do its required job of
ensuring safety and stability to the channel and its
environment!
A copy of the Interview of Prof Rajamanickam is annexed herewith
and marked as Annexure P-3.
17) Another expert, C. P. Rajendran from Centre for Earth Science
Studies, Akkulam, Thiruvananthapuram has written an article in
CURRENT SCIENCE, VOL. 89, No. 2, 25 JULY 2005 in which he
has stated as follows:
“The question of cyclonic disturbances in changing the
sedimentary budget of the region has not been
properly addressed by the EIA studies, and consequently
skews the predicted estimates of the sedimentation pattern
and its rate. This means that total amount of material to be
dredged could be much more than what had been predicted.
Another question is how would the cyclones rework the
dredged material to be dumped at various sites,
although fortified with embankments (e.g. Dhanushkodi).
A copy of C.P. Rajendran’s article is annexed herewith and marked
annexed as Annexure P-4.
18) In a study made by Dr Ramesh, M.B.B.S, and Doctor for Safer
Environment, Coimbatore, Tamil Nadu, he expresses a concern
over risk factors such as Cyclonic Disturbances, ignored
fundamentals of sedimentations dynamics, unrealized dumping
17
sites and over other issues is being ignored. A Copy of the report
by Dr. Ramesh marked and annexed as Annexure P-5.
Rama Setu is a man-made structure and is of an enormous religious
significance
19) It is submitted that India which has a peninsular coast of 3554
nautical miles is surrounded by two seas i.e. the Bay of Bengal
towards the east and the Indian Ocean and the Arabian Sea
towards the west. These two seas have different currents and if
commingled, may cause disastrous conditions. The two are
presently separated by the “Ram setu” the mention of which is
made in many spiritual Hindu holy works like, Valmiki Ramayana,
Skanda Purana, Kurma Purana, Bhagwat Purana, Garuda Purana,
Narada Purana, Vishnu Purana, Agni Purana, Brahma Purana and
Padma Purana. (A Copy of Translated text of the Rig Ved, Krishna
Yajur Ved, Narada Purana, Vishnu Purana, Agni Purana, is
marked and annexed as ANNEXURE P-6 Colly). Mention of the
existence of the Ramsetu is referred to in the Gazetteer of India. (A
copy of the Gazetteer of India, Hindi Vol 1 & 2 along with the
English translation as marked and annexed as ANNEXURE P-7).
Markings of the Ramsetu are a part of the Survey Marine Maps of
the years 1747, 1788 and 1804 which is being marked and
annexed as ANNEXURE P-8.
20) That the bridge’s unique curvature and composition by age reveals
that it is man made. The legends as well as archeological studies
reveal that the first signs of human inhabitants in Sri Lanka date
back to the a primitive age, about 1,750,000 years ago and the
bridge’s age is also almost equivalent. Ramsetu or Adam's Bridge is
a chain of Shoal, nearly seven in all, and is 30 km in length. Sir
Emerson Tennet in his book 'Ceylon' writes -" The barrier known
18
as Adam's Bridge which obstructs the navigation in the canal
between Ceylon and Ramad, consists of several parallel ledges of
conglomerate and sand dunes, hard at the surface and growing
course and soft as it descends till it rests on a bank of sand,
apparently accumulated by the influence of current at the change
of the monsoons". Also according to geological survey, it is
apparent that Miocene Era limestone beds are under the Adams
Bridge which connects Jaffna peninsula in Sri Lanka and
Rameswaram in India. A Copy of opinion of S. Badrinarayanan
former Director General Geological Survey of India and a member
of NIOT is marked and annexed as ANNEXURE P-9 colly
Destruction of the Eco-Marine Biosphere and the Coral Reef.
21) The Gulf of Mannar reefs are developed around a chain of 21
islands that lie along the 140 km stretch between Tuticorin and
Rameswaram. These islands are located between latitude 8°47’ N
and 9°15’N and longitude 78°12’E and 79°14’ E. The islands lie at
an average of about 8 km from the main land. They are a part of
the Mannar Barrier reef, which is about 140 km long and 25 km
wide between Pamban and Tuticorin. Different types of reef forms
such as shore, platform, patch and fringing type are also observed
in the Gulf of Mannar. The islands have fringing coral reefs and
patch reefs around them. Narrow fringing reefs are located mostly
at a distance of 50 to 100 m from the islands. On the other hand
patch reefs rise from depths of 2 to 9 m and extend to 1 to 2 km in
length with width as much as 50 meters. Reef flat is extensive in
almost all the reefs in the Gulf of Mannar. Reef vegetation is richly
distributed on these reefs. The total area occupied by reef and its
associated features is 94.3 Sq. km. Reef flat and reef vegetation
including algae occupies 64.9 and 13.7 Sq. km, respectively.
Visibility is affected by monsoons, coral mining and high
19
sedimentation load. These reefs are more luxuriant and richer
than the reefs of Palk Bay.
22) There are about 96 species of corals belonging to 36 genera in the
Gulf of Mannar. The most commonly occurring genera of corals are
Acropora, Montipora and Porites. Coral associates such as
ornamental fishes belonging to the family Chaetodontidae,
(butterfly fish); Amphiprion spp (clown fish), Holocentrus spp
(squirrelfish), Scarus spp (parrotfish), Lutjanus spp (snapper fish)
and Abudefdul saxatilis (Sergeant Major) are found. Extensive sea
grass beds are present; green turtles, olive ridley turtles and
dugongs are dependent on the sea grasses.
23) The Central Government’s Coastal Regulation Zone Notification
1991 regulates onshore development activities, which affect coastal
environments, and strictly prohibits the collection and trade of
corals. The Wildlife Protection Act 1972 protects certain areas and
certain marine species. Efforts continue to bring corals under this
act and to encourage enforcement that is more stringent. Coral reef
conservation is also included in the Environmental Protection Act,
1986, the National Conservation Strategy and Policy Statement on
Environmental Development (1992) and the Action Plan of the
Ministry of Environment and Forests. The conservation and
management of coral reef resources is within the mandate of the
Ministry of Environment and Forests, the focal point for the Indian
Coral Reef Monitoring Network and the National focal point of ICRI.
24) India has 6 marine protected areas; the largest is the Gulf of
Mannar Biosphere Reserve (GoMBR), which encompasses 10,500
sq km. The reefs there have been neglected and there is no
systematic monitoring of the status of the reefs except for
20
occasional EIA studies for development activities. There is a great
need for training of conservation officers to manage the protected
areas and funding for infrastructure development.
25) Coral Reef Monitoring Action Plans (CRMAPs), prepared under the
first phase of the GCRMN, have been launched within the
framework of the ICRMN for all reef areas except the Gulf of Kutch.
Government support has been extended for the implementation of
the CRMAPs and to build capacity to monitor reefs through
training. However, activities are still at a beginning and overall the
capacity for monitoring and management is lacking. Other
significant international initiatives on the Indian coral reefs
underway and under development include UNDP/GEF DPF B
Projects on the Gulf of Mannar and Andaman and Nicobar Islands,
the Coral Reef Degradation in the Indian Ocean project (CORDIO),
an Integrated Coastal Zone Management Training Project
(ICZOMAT) funded by the UK Department for International
Development (DFID) and an India-Australia Training and Capacity
Building (IATCB) programme. The above stated data is based on
the article downloaded from http://envfor.nic.in/icrmn/misc/
cres.html which is marked and annexed as ANNEXURE P-10.
26) Coral reef systems as also the ecosystem of the tropical rain forests
are the most matured marine ecosystems of our planet. They play
an important role in global biochemical processes and in the
reproduction of food resources in the tropical regions. Coral reefs
act as a barrier against wave action along coastal areas thus
preventing coastal erosion. In addition, coral reefs protect
mangroves and sea grass beds in certain areas, which are the
breeding and nursing grounds of various economically important
fauna. Coral reefs are also important breeding, spawning, nesting,
21
and feeding areas for many economically important varieties of
fishes and other marine organisms. Coral reefs are a distinctive
shoreline habitat of stunning visual appeal found only between
latitudes 30°N and 30°S. They grow only where sea surface
temperatures are above 20°C, the seabed is kept silt-free by
prevailing currents and waves, and there is intense surface
sunlight. Most living coral communities do not grow at depths of
more than 50 m, although some grow at depths of 100 m. The
people living along the coast obtain a considerable proportion of
their food and earnings from the productivity of coral reefs. Coral
reef ecosystems are very sensitive to external impacts both natural
and manmade, which violate their homeostasis.
27) Therefore, according to the above reports, the implementation of
the Project may destroy coral reefs which, in turn, may tend to
cause High sea tides, surges, hurricanes, cyclones etc. Copies of
various articles on Coral Reef Eco-system and news articles to
protect marine-biosphere is marked and annexed as ANNEXURE
P-11 (colly).
28) Evaluation of the environmental/ecological impact of a maritime
project is usually based on a detailed study of geological,
biological, physical and chemical oceanographic parameters. These
factors play an important and collective role. If any one of these
factors is stressed beyond the manageable and threshold limit, the
system gets affected adversely beyond repair. Turbidity
(suspension of clay and mud in a column of water) is one such
factor. This could be fatal to an ecosystem. Unfortunately,
according to an estimate, the Project dredging may displace around
9.7 million m3 bulk of rock, shoal and sediments, making the
water column highly turbid till the project is completed. The
22
operation will displace/release a few hundred thousand tons of
clay-size particles. The stressed turbidity causes imbalance in O2–
CO2 ratio, imperative for life and health of phytoplanktons, which
are the lowest in the marine ‘food chain’. Moreover, if this kind of
turbidity continues for a long duration (i.e., till completion of the
project), penetration of sunlight below 2–3 m depth will be blurred.
This will check the photo-inhibitation and lower the pH of water as
CO2 supply will continue due to respiration of animals, while
release of O2 will diminish amidst the slow pace of photosynthesis.
This process will encourage abundant growth of anaerobic
organisms and may worsen the health of other organisms. Coral
reefs, the land-bridging platforms and lungs of the shallow oceans,
are at decline worldwide due to anthropogenic
impact/activity. Coral reefs are biotherms that favour
high biodiversity vis-à-vis supporting standing crop of
phytoplanktons. Like tropical rainforests, coral reefs have evolved
complex interdependent community structures despite or more
likely, because of paucity of nutrient resources in their
environments. The turbid conditions that the Project is likely to
cause will harm and destroy corals within a short span of time.
29) Moreover, Vibro Core operations are carried out for assessing the
physical characteristics and determination of the geo- technical
properties of the softer sediments. Dr Seshagiri, Former ,Director
of the Geological Survey India expresses his concern over the
amenability to conventional dredging of not only the rocky strata
but also of the softer sediments with high N-Value. A Copy of Dr.
Seshagiri’s views, published on Sept. 9, 2005, is marked and
annexed as ANNEXURE P-12
23
30) Further, the Project envisages dredging of the sea floor of 12.8
meters deep, 300 meters wide for permitting 2 way traffic of ships.
If there happens to be a sudden tilt in the sea bed while dredging,
it may cause numerous violent processes, such as a major change
in drift, possible change in gravitational pull etc. These alarming
concerns have been expressed by Prof. Rajamanickam, one of
India’s most eminent Coastal geo-morphologists and mineralogists.
A similar opinion has been expressed by Dr. Ramesh in his article
titled as “SSCP and Unconsidered High Risk”.
31) Geographically, past experiences have shown that ignoring these
environmental concerns could cause a lot of damage. For example,
when Panama canal was first designed, the problem of land slides
was ignored thus resulting in additional excavation, i.e., more than
double the original volume estimates resulting in cost and time
over runs.
NEERI EIA Report does not address all relevant issues.
32) The objectives for the EIA study are stated to be “assessment of
environmental impacts, its quantification and for delineating
environmental management plan for [the Project] to enable the
Ministry of Shipping to obtain environmental clearances from
concerned local, state and central Government authorities”. The
final report of the NEERI states that a rapid environmental impact
assessment study report was first prepared, after which a
comprehensive EIA report was prepared. [Para 1.5.1 of the NEERI
report]. The final comprehensive report appears to have been
prepared in/around May/ August, 2004.
33) The study is stated to have included components pertaining to the
coastal water environment, marine environment, land
24
environment, biological environment, socio-economic and health
environment, ecological risks etc. An Environment Management
Plan was also drawn up as part of the study. [Para 1.5.4]
34) Further, the EIA study itself states that permission/approval form
the following agencies/organizations would be required for the
project :
• Tamil Nadu State Pollution Control Board
• Tamil Nadu State Forest & Environment Department
• Tamil Nadu Maritime Board
• State Wildlife Warden
• Chief Conservator of Forests
• Ministry of Environment and Forests
• Ministry of Defence / Indian Navy
• Archeological Department
• Ministry of External Affairs
• The Government of Sri Lanka [Para 1.7]
35) The Petitioners, despite their best efforts, have not been able to
locate material available in public domain which would show that
approvals/permission from each of the said agencies were in fact
obtained before commencement of work on the Project. The record
clearly shows that the environmental clearance dated 31.03.2005
given by the Ministry of Environment and Forests (the one
clearance which does appear to have been obtained) is vitiated by
sheer non-application of mind and arbitrariness. This would be
clear from the grounds raised by the petitioners in the present
petition.
36) In any event, it is relevant to point out that the entire EIA study
was undertaken by the NEERI in the pre-tsunami era; the final
report having been submitted in/around May, 2004, much before
the 26th December, 2004 Tsunami. The occurrence of the tsunami
25
has resulted in a fundamental change in circumstances,
warranting a thorough multi-disciplinary re-examination and
reevaluation of the environmental and other aspects of the project.
Though the environmental clearance was given on 31.03.2005, 3
months after the tsunami, no efforts were made to undertake any
fresh exercise in view of the changes in the conditions brought
about by the tsunami.
37) The Petitioners have also learnt that in March, 2005, the office of
the Prime Minister of India had raised concerns regarding the
impact of a future tsunami on the project, which ought to have
been subjected to a multi-disciplinary evaluation. As stated above,
the tsunami which hit the Indian coast on 26.12.2004, and caused
wide spread devastation, should have warranted a review of the
entire project, and, at the very least, suitable changes should have
been made to account for the impact of the said tsunami, as well to
provide for the effects of any future tsunami. However, even the
concerns raised by the office of the Prime Minister of India were
given a go by, and no review/re-examination of the project was
ever undertaken; on the other hand, environmental clearance was
accorded in an arbitrary and mechanical manner, as set out in
detail in the grounds of the present petition.
Other Issues
38) Moreover, the dangers posed by the Project violate the UN Law of
Sea Convention, 1982.
Part II Section2, Article 6 deals with Reefs, Article 9 tells on
Mouths of Rivers, Article 10 speaks about Bays.
26
Part V Article 61 - Conservation of the living resources,
Article 64 - Highly Migratory species.
Article - 65 and Part VII, Section 2, Article 120 also
speaks on Marine Mammals.
Part VII Section 2, Article 116 speaks on fishing rights.
Part XI Section 2, Article 145 and Article 237 emphasizing
that protection of Marine Environment is obligatory. In
the same part Article 146 urges the need for protecting
the Human life, Article 149 and Part XVI, Article 303
both deals with Archaeological and historical objects.
Part XIII Section 3, Article 254 dealt with Rights of neighboring
land-locked and geographically disadvantaged States.
A Copy of Law of Sea Convention, 1982 is marked and annexed as
ANNEXURE P-13.
39) In an article entitled “Will ship use canal at such costs?” by K.S.
Ramakrishnan, Former Deputy Chairman, Madras Port Trust while
expressing his views suggest that the comparative cost that a ship
has to pay while passing through the canal, the Levy will be Rs. 60
Lakhs while the same ship has to spend only 1/8 of the Project’s
likely levy i.e., just Rs. 7 Lakhs for the ship to Sail round Shri
Lanka to reach Chennai Port. A copy of the Article of K.S.
Ramakrishnan is annexed herewith and marked as ANNEXURE P-
14.
40) In another Article published by Dr. Lareef Zubair on April 28, 2007
titled “The Dangers of Sri-Lanka and Tamil Nadu face from
Setusamudram”, Dr. Zubair expresses his alarm about threats to
27
both Sri Lanka and Tamil Nadu. Copies of articles by Lateef Zubair
are marked and annexed as ANNEXURE P-15 (colly).
41) Former CM of Tamilnadu Ku. J. Jayalalitha stated that “Ministry of
Environment and Forests, Government of India, should have
waited for the NOC (No-objection Certificate) from the State of
Tamilnadu which is mandatory under the regulations framed by
the Ministry itself”. A press statement of the former Chief Minister
Ms. Jayalalitha is annexed herewith and marked as ANNEXURE P-
16 colly.
42) The Petitioners understand that till now the Indian Government
has not officially notified Sri Lanka of the Project proposal.
Moreover, it is also the Petitioners understanding that an NOC has
not been obtained from the Government of Sri-Lanka or Maldives
which is mandatory.
43) It is vital to note that the Jaffna Peninsula in Sri Lanka and
Rameswaram in India are linked via Miocene era lime stone reefs.
And if, for the purpose of the Project, these reefs are dredged, there
is a fear that half of Jaffna peninsula & nearly 85 islands on the
western and north western coast of Sri Lanka and half of
Rameswaram in India will go under water. There is also a fear that
a sizable section of the fishermen in North and North western part
of Sri Lanka will also be adversely affected as well as the fishermen
of the Republic of Maldives. In fact, a Memorandum on the likely
destruction due to the proposed Project was submitted to the
Indian High Commissioner H.E Smt Nirupama Rao, by National
Movement against Setusamudram, an organistation consisting of
123 members. A copy of the petition filed with the Indian High
Commission is marked and annexed as ANNEXURE P-17
28
44) It is submitted that the government seeks to implement the project
ignoring the claims of the people living in the area whose lives and
property are threatened by the implementation of the project. It is
submitted that the government does not have a program to
rehabilitate and compensate the members of the fishing
community within India who will be adversely affected by this
project. A Copy of Dr. Ramesh’s Article “Wake Up Sri Lanka”
raising these issues is marked and annexed as ANNEXURE P-18.
45) The Petitioners are also alarmed by the news items which show
that religious hindu sentiments have been affected by the project
and that it has led to a nation-wide agitation which in turn can
lead to violence. Copies of these news items are marked and
annexed as ANNEXURE P-19 (Colly) .
46) It is important to note that neither the EIA Report declared in May-
August, 2004 by NEERI nor the DPR by L&T Ramboll in February
2005 have taken into account the effect/ likelihood of a tsunami
such as the one on December 26, 2004. A copy of the DPR
submitted by L&T Ramboll is annexed herewith and marked as
ANNEXURE P- 20. A copy of the EIA Report submitted by NEERI is
annexed herewith and marked as ANNEXURE P- 21.
47) The Respondents have been moving at a very fast pace in
implementing the Project only to ensure that it is a fait accompli
before this Hon’ble Court is able to dispose of the pending cases.
Copies of the progress charts downloaded from the website of
Sethusamudram Corporation are annexed herewith and marked as
ANNEXURE P- 22 (colly).
29
48) That in view of the above, it is submitted that the project as sought
to be implemented by the government cannot be allowed to
continue. The petitioners are seeking reliefs from this Hon’ble
Court, interalia, on the following grounds:-
GROUNDS
A. Because the Project has been conceptualized without taking into
account the likelihood of a Tsunami or its effects in a manner that
is arbitrary and unreasonable and violates the fundamental right
to equality under Article 14 and the right to life and personal
liberty under Article 21 of the Constitution. Neither the EIA report
by NEERI completed in May/August 2004 nor the DPR by
L&T/Ramboll for the Project completed in February 2005 have
taken into account the likelihood or effects of a Tsunami despite
the massive destruction caused by the Tsunami of December 26,
2004. Prof. Tad S. Murthy, a world-renowned Tsunami expert and
a former editor of Tsunami Effects Review, has pointed out that the
alignment of the mid-ocean channel is such that it will funnel and
amplify the wave from a Tsunami from South East Asia so as to
cause massive destruction to lives and property on the Southern
Kerala and Tamilnadu Coasts.
B. Because neither the EIA Report nor the DPR have undertaken a
comprehensive analysis of the effects of the Tsunami of December
2004 on the sensitive Gulf of Mannar and Palk Straits and Palk
Bay region, in particular bathymetry (depth) surveys,
sedimentation effects and effects of ocean currents.
C. Because the precautionary principle has not been kept in mind
when giving environmental clearances for the Project under the
Environmental (Protection) Act, 1986. In Vellore Citizens' Welfare
30
Forum v. Union of India, (1996) 5 SCC 647, at page 658, this
Hon’ble Court pointed out that “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.” Despite the fact that there is a
serious likelihood of danger to the unique habitat and the
ecosystem of the Gulf of Mannar from dredging and dumping of
material from the ocean floor to widen the channel to 300 metres
wide and 12 metres deep, the Respondents are going ahead with
the Project without considering the serious environmental
degradation that may result. The endangered species in this
region include the dugong (sea cow), sea horses, five species of
marine turtles and whales and dolphins. There is also a unique
link species between vertebrates and invertebrates called the
Balano-glossus that is unique to the region. These species thrive
in the endangered habitats consisting of mangrove forests and sea
grasses surrounding the islands on the Southern Coast of
Tamilnadu which have been declared a national park under the
Wildlife (Protection) Act. UNESCO has declared the Gulf of Mannar
as a biosphere reserve because it is a biodiversity hotspot and the
Government of India together with the Government of Tamilnadu
have confirmed this declaration of a biosphere reserve for purposes
of the Wildlife (Protection) Act.
D. Because, as a biosphere reserve declared by the Government of
India and the Government of Tamilnadu, the Gulf of Mannar
Biosphere Reserve is entitled to the protections contemplated by
Chapter IV of the Wildlife Protection Act, 1972 and no permit for
activities destructive of wildlife such as those inherent in the
Project may be granted except in order to protect wildlife.
31
E. Because there is considerable evidence that the Ram Setu is man-
made. A report of the Department of Earth Sciences of
Government of India states as follows:
[quote]… During the glacial Maxima, the sea level was about
130 m lower than what is today. This is evidenced both on
the east and west coast of India, where submerged Corals
occur around 1 to 2m water depths and they are clear
indicators of near coastal zone… However, during the last ice
age (18,000 year BP) the entire area from India to Sri Lanka
and further south and southeast were contagious land due
to the highly lowered sea level. As and when there were
major melting of glaciers both from the mountains as well as
from the Antarctic area, the sea level was rising. These
features were well recorded and studied by several
submerged Coral formations all over the world. About 7,300
years BP the sea level in the southern part of India was
about 3.5 m above the present level. This has been
deciphered by Dr.P.K.Banerjee, who studied Corals that
found in the land part as of Pamban, Rameswaram, and
Tuticorin etc. Subsequently the sea level went down and rose
+2m above than what is today between 5000 to 4000 years
B.P. .. In almost of all the boreholes between 4.5 and 7.5m
the borehole intersected hard formations, which have been
found to be calcareous sand stones and corals. It is to be
pointed out here that Corals are comparatively less dense,
compact and somewhat easy to carry. The Corals normally
grow atop compact to hard formations for the purpose of
stability, and as the sea level rises, the Coral colony grows
up vertically to maintain water depth of 1 to 2 m, which is
essential for their survival. It is always observed that these
Corals have continuous vertical growth like Lakshadweep,
32
Andaman's, and Gulf Of Mannar Natural Park. These have
always been found to grow on hard rock bottom. In the case
of Adams bridge area we observe that the Coral formations
hardly occur 1 to 2.5m in length and resting on loose marine
sands. Most of these coral rock pieces are seem to be
rounded pebbles of corals. These things appear to point
these coral rock pieces and pebbles have been transported
and placed in these areas. 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 day
causeway. In support of these observations there are many
archaeological and geoarchaeological evidences on the south
east coast of India around Rameswaram, Tuticorin and the
western coast of Sri Lanka. There are raised Teri formations
that supported a rich assemblage of mesolithic – microlithic
tools indicating the presence of strong human habitation and
activity in these areas as early as 8000 to 9000 years B.P
and as recent as 4000 years B.P. On Sri Lanka side there are
indications of human habitation extending to late Pleistocene
(about 13,000 B.P) based on bone and fossils of human and
animal form. All these point to a flourishing human activity
on both side of Adams Bridge and probably when the sea
levels were just right the link between India and Sri Lanka
could have been established. [unquote] Source: Dept. of
Earth Sciences, Govt. of India (March 2007)
F. As Ram Setu clearly was not built within the last 100 years, to the
extent that it is man-made, it is entitled to be designated an
“ancient monument” under Section 2(a) read with Section 4 of the
33
Ancient Monuments or an “archaeological site” under Section 2(d)
read with Section 4 of the Ancient Monuments and Archaeological
Sites and Remains Act, 1958.
G. Because there is considerable scientific evidence accumulated that
the Rama Setu is man-made. NEERI which was mandated to
examine this issue under the citing guidelines of the Ministry of
Environment and Forests has simply proceeded on the basis that
the Rama Setu is not man-made. Article 51A(f) of the Constitution
enjoins protection of the cultural heritage of India. Therefore, it is
respectfully submitted that the Archaeological Survey of India is
required to determine under the Ancient Monuments Act, 1958 as
to whether or not the Rama Setu is man-made. If it is man-made,
its origins certainly stretch back into antiquity more than the 100
years required under the said Act. If so, it would be fit and proper
for this Hon’ble Court to stop the project before it destroys the
Rama Setu and to direct the Archaeological Survey of India to have
the Rama Setu declared as an ancient monument or an
archeological survey as the case may be and to ensure that it gets
all the protection that such a monument requires.
H. Because the Project will certainly result in destruction of
endangered species such as dugongs, two varieties of dolphins,
certain turtles and certain species of whales in the Gulf of Mannar
region, which are all listed in Schedule I of the Wildlife Protection
Act and are entitled to protection under the provisions of that Act.
I. Because even the Prime Minister’s Office has expressed serious
doubts about the advisability of the Project on grounds of public
safety from future Tsunamis and the weaknesses in the EIA report,
34
the techno-economic feasibility study and the detailed project
report.
J. Because the costs of the Project have already gone up manifold
from the Rs. 2,300 crores projected in the Detailed Project Report
on the basis of which the Project was determined to be
economically feasible. Even at the originally projected cost of Rs.
2,300 crores, there were serious doubts about economic feasibility
of the Project. Now, therefore, the Project has clearly become
economically unviable.
K. Because, at the very outset and without prejudice to all the other
submissions and grounds raised in this petition, it is respectfully
submitted that there has been a fundamental change in
circumstances which warrants a complete, comprehensive and
exhaustive multi-disciplinary reevaluation of the SSCP project and
its likely impact on the lives of thousands of persons inhabiting the
southern coast of Kerala; the change in circumstance being the
tsunami which hit the Indian coast on of 26th December, 2004. It
is submitted that the entire EIA study was undertaken by the
NEERI in the pre-tsunami era; the final report having been
submitted in/around May, 2004, much before the 26th December,
2004 Tsunami. Though the environmental clearance was given on
31.03.2005, 3 months after the tsunami, no efforts were made to
undertake any fresh exercise in view of the changes in the
conditions brought about by the tsunami.
L. Because, in addition, it is also relevant that the region is known to
be, essentially, a sedimentation sink; and there is ample evidence
pointing to the fact that the tsunami has altered the bathymetry of
the region. The sea bed has risen in height in most places, on
35
account of deposit of silt etc. carried by the tsunami and deposited
in these areas. None of these factors have ever been taken into
account by any of the expert bodies/authorities.
M. Because the prospect and impact of a future tsunami have also not
been considered or dealt with before grant of environmental
clearance. The petitioners have learnt that in March, 2005, the
office of the Prime Minister of India had raised concerns regarding
the impact of a future tsunami on the project, which ought to have
been subjected to a multi-disciplinary evaluation. However, even
the concerns raised by the office of the Prime Minister of India were
given a go by, and no review/re-examination of the project was
ever undertaken; on the other hand, environmental clearance was
accorded in a mechanical manner, as set out below.
N. Because, in addition to the above, the environmental clearance
dated 31.03.2005 is vitiated on account of arbitrariness and non-
application of mind, as is clear from the following:
(i) One of the most important environmental aspects of the
project is the problem of disposal/dumping of the dredged
material. The study report highlights the fact that dredging
shall lead to increase in turbidity at, and in the vicinity of,
the site; thereby preventing penetration of sunlight into the
water body, which would endanger the survival of marine
flora and fauna at and around the site. For these reasons,
quick and efficient removal of the dredged material is crucial.
Further, the disposal of the dredged material would have to
be done in a manner that minimizes the likelihood of any
adverse impact at the disposal site. The study report
analyses the two available options, viz, disposal on land, and
36
disposal in the sea. On detailed examination and analyses,
the study recommends that disposal would have to take
place both on land, as well as at sea; the clay and silt to be
disposed off/dumped on land or to be used to help reclaim
land near Pumban island, and the sand to be dumped at
suitable sites in the sea, atleast 20-25 kilometres from the
Gulf of Mannar Marine Biosphere Reserve. The following
passages from the study report are relevant:
“ Thus impact due to dredge disposal could be
minimized by selecting option of land disposal
for dredged spoil containing higher percentage of
clay and silt. Balance dredged spoil containing
sand could be disposed in sea. As sand
particles have discrete setting, rise in turbidity
of sea water at disposal location is not envisaged
thereby minimizing impact on primary
production…”
“………… It is proposed that spoil containing a
mixture of clay and sand will be disposed on
degraded areas of Pamban island for reclaiminf
the land subject to approval of Forest and
Environment Department (TN) for use of area
falling under CRZ as dumping of wastes in CRZ
area is not permissible activity. Balance 30
million cu. meters spoil containing mainly sand
……………… will be discharged in sea 25 Km
away from the dredging area keeping safe
distance from the medial
line……………………………”
37
(ii) Even the Environment Management Plan envisages a similar
methodology for disposal of the dredged material. The
following extract from the ‘Executive Summary’ of the study
report, dealing with the Environment Management Plan is
relevant :
“Environmental Management Plan
Construction Phase
……………Dredged spoil comprising clay and
sand upto 2 m of dredging depth will be used
for reclaiming degraded land in Pamban island
subject to approval of FED for CRZ. Balance
dredged spoil will be disposed in sea at a depth
30-40 m, 20-25 km away from islands in
National Marine Park in Gulf of Mannar.
Dredged spoil generated in Palk Strait / Palk
Bay area will be disposed in open sea in Bay of
Bengal at 25-40 m depth, 30-60 km away from
dredging area.”
(iii) The study report also recommended that the project be
implemented in two phases; the first phase involving
dredging the channel upto 10m depth, and the depth being
increased to 12m in the second phase only after observing
and analyzing the environmental impact of the first phase.
38
The report itself adds a word of caution, stating that “the
route would become environmentally viable only if the
management plans and recommended measures are strictly
followed”.
(iv) This note of caution has been totally disregarded. Firstly, the
recommendation regarding the implementation of the project
in two phases has does not appear to have been considered
by the MOEF at all. Further, the Ministry of Environment
and Forests (MOEF), in its clearance dated 31.03.2005, while
laying down a specific condition that “the Environment
Management Plan recommended by NEERI should be
implemented” (Specific Condition ‘xix’), has, at the same
time, categorically prescribed that the “dredged material will
be disposed off in the identified sites in the sea”, and that
“no dredged material will be disposed off on land” (specific
condition ‘I’). This is in clear conflict with the
recommendations of NEERI, as well as the Environment
Management Plan prepared by it. Clearly, despite the
caution sounded by the NEERI itself, this condition laid
down in the environmental clearance would itself render the
project environmentally non-viable. No reason, much less a
detailed/satisfactory one, has been given for this departure
from the NEERI’s recommendations; showing the total non-
application of mind by the MoEF.
H. Because, in addition to the above, non-application of mind in grant
of environmental clearance is also evident from the fact that issues
regarding introduction of alien species into the Gulf of Mannar, as
well as the Palk Bay, Indian Ocean and Bay of Bengal, have been
completely overlooked by the MOEF. The ‘Convention on Biological
39
Diversity’, 1992 (an international convention adopted under the
auspices of the United Nations Environment Programme, to which
India is a signatory), casts the following obligation on all member
states:
“ Article 8
In-situ conservation
(a) – (g) ……………………………………………………
(h) Prevent the introduction of, control or eradicate those
alien species which threaten ecosystems, habitats or
species;”
NEERI in its study report, while accepting the richness in
biodiversity of the Gulf of Mannar, has specifically adverted to the
risk of introduction of alien species into this pristine and unique
habitat, in the following words :
“ The Channel will facilitate the movement of fish and
other biota from the Bay of Bengal to the Indian Ocean
and vice versa. By this way, the entry of oceanic and
alien species into the Palk Bay and the Gulf of
Mannar, as also the dispersal of endemic species
outside the Palk Bay and the Gulf of Mannar could
occur.”
“Excavation of the channel in the Adams Bridge sector
would provide a deeper passage in the sector, which is
shallow at present, and serve only as a barrier.
Underwater currents play a significant role, not only in
the transportation of large marine organisms, plankton
biota, fish eggs and larvae but also on shore dynamics,
40
specially of the islands, reef and paars. Strong current
would erode the banks of the canal and carry the
sediments from one sector to another, which
ultimately results in accretion of sand in one sector
and erosion in another sector. Once the canal is
deepened, the passage would greatly increase the
movement of fishes and other large animals from Bay
of Bengal to Indian Ocean and vice versa. Hence, the
entry of oceanic and alien species into Palk Bay and
Gulf of Mannar and also dispersal of endemic species
outside Palk Bay and Gulf of Mannar would be
facilitated.”
This aspect has not been adverted to at all in the
environmental clearance. No steps have been prescribed to cater
to this inevitable eventuality and its impact on the local marine
population. The argument that some water from the Bay of Bengal
enters Palk Bay and has always flown over the Ram Setu even
before the Project is no answer because the mid-ocean channel
envisaged under the Project would be 12 metres deep and 300
metres wide. Such a deep, wide channel will permit a much
greater range of sea-going species to pass through into the Gulf of
Mannar, which until now has offered a relatively sheltered habitat
for numerous endangered species. Such uncontrolled migration
will certainly lead to the extinction of numerous species.
I. Because NEERI itself has predicated its EIA study on the absence
of cyclones and other severe weather conditions on the Bay of
Bengal. However, there have been numerous severe cyclones in
this region including one in 1964, which washed away the Pamban
Bridge. Therefore, NEERI’s study is itself fundamentally flawed.
41
No environmental clearance could have been granted based on
NEERI’s study if this was the underlying assumption.
J. Because the environmental clearance also does not advert to the
possibility of blasting at all, and does not prescribe any safeguards
or conditions in this respect. This, despite the fact that NEERI, in
its EIA study report, has specifically stated that “dredging may also
require blasting if hard strata are encountered”, and that “in the
event of blasting, adverse impact on sea bottom fauna is
envisaged”. This aspect, as stated above, finds no mention at all in
the environmental clearance dated 31.03.2005.
K. Because, in the respectful submission of the petitioners, a reading
of the environmental clearance shows that it does not prescribe
specific, concrete and tangible measures/safeguards regarding
environmental and ecological protection, but merely pays lip
service, as it were, by setting out vague and generalized conditions,
such as the following :
“xiv Strict monitoring should be undertaken at four
hourly interval round the clock to monitor the
movement of sediments of dredged material in the
dredging area and daily on the coast and other
sensitive areas of Gulf of Mannar Biosphere/National
Marine Park.
xvi Effective monitoring of aquatic ecosystem may
be done to ensure that no damage is done to the
turtles, dugongs, flora and other endangered species.
42
Such vague and general conditions, which are basically
unenforceable, are not what is expected of a body such as the
Ministry of Environment and Forests which is charged with
protecting the environment under the Environment Protection Act.
L. Because the EIA study conducted by the NEERI also does not
comply with the requirements of the EIA Manual, which represents
the policy of the Union Ministry of Environment and Forests. The
EIA study conducted by NEERI does not conform to the
requirements of the EIA Manual with regard, inter alia, to the
following respects:
• The option of how the environment would fare if there were
‘no project’ was required to be considered under the EIA
Manual as a fundamental analytical tool for determining
whether the environmental clearance should be granted to
the Project.
• No assessment was made of the impact of the project on
significant historical, cultural and archeological sites/places
in the area, which is mandated under the EIA manual. A
reading of the EIA study report does not disclose any study
having been conducted by the NEERI in this behalf, with the
aid and assistance of experts in the relevant fields. On the
other hand, this aspect has summarily been brushed aside,
in the following words found in the executive summary of the
NEERI report:
“…… there are no archaeologically significant
structures along the proposed canal alignment.
43
However, there exists a probability of
cultural/archaeological artifacts being encountered
during the excavation of the canal…”
M. Because the environmental clearance granted under the
Environmental Protection Act by the Ministry of
Environment and Forests betrays complete non-application
of mind. The environmental clearance does not take account
of the fact stated by NEERI that controlled blasting will be
required if hard strata are encountered during dredging.
NEERI has admitted in the EIA Report that dredging itself
will destroy bottom flora and fauna in a 6 sq. km area of the
Palk Straits/Gulf of Mannar region. It has admitted further
that an even greater effect on the surrounding region is likely
in the event that controlled blasting is done. Nevertheless,
the environmental clearance of March 31, 2005 does not
take this into account or prescribe any steps to resolve this
issue.
N. Because NEERI, the agency selected to do the EIA Report for
the Project has had no experience of doing an EIA for a large
marine project of this nature. Moreover, as stated by one of
India’s most eminent coastal geo-morphologists Prof. Victor
Rajamanickam, the EIA study by NEERI was defective
because it did not involve specialists from earth sciences
such as geo-morphologists, sedimentologists, mineralogists,
oceanographers, climatologists, etc., whose presence was a
vital pre-condition to doing a proper analysis.
O. Because the traditional mode of survival of the fisherman
and the tribals will be destroyed by the destruction of coral
44
reefs which are the breeding grounds of the fishes. The
Project does not make any provision for alternative
employment.
P. Because the Government of India has not made any
provision for compensation for the fisherman community
and other tribes in the islands of the Project area. Along the
coast in the Gulf of mannar and Palk Bay, there are 138
villages and towns of 5 districts are being adversely affected.
The Socio–economic profile of the fisherman in the villages is
so low that more than 40% families are in debt. The result
of the Project will be to deprive these communities of fish
and they will starve.
Q. Because the implementation of SSCP is uprooting the
livelihood of 5 lakh fisherman and their families which is the
violation of the constitutional protection of the fundamental
right guaranteed by Article 19(1)(g) and Artice 14, 21 which
guarantee the right to life and livelihood and the freedom of
the fishermen to carry on the trade or business of their
choice.
R. Because the implementation of SSCP will destroy the Coral
reef which is the breeding ground for the fishes which will
affect the business of the fishermen which is the violation of
Article 19(1)(g) and Article 21.
S. Because no survey has been conducted for the tribal
inhabitants over the islands and their rehabilitation has not
been worked on before the project implementation which is
violation of the Constitutional Protection under Article
45
244(1), Schedule V Constitution of India ,and the other
various Acts which bars prohibit or restrict the transfer of
the land of the tribals.
T. Because implementation of SSCP constitutes a gross
violation of the constitutional duties of the State under:
1) Article 48A which casts the duty on the State to
protect and improve the environment and to safeguard
the forests and wild life of the country.
2) Article 46 which casts a duty to the State to protect
the economic interest of the tribes and other weaker
sections.
3) Article 49 casts a duty on the State to protect
monuments or place or objects of artistic or historic
interest from spoliation disfigurement destruction,
removal, disposal or export as the case maybe.
U. Because the petitioners are discharging the fundamental
duties cast upon every citizen of India under Article 51A .
1) Article 51A (f) to value and preserve the rich heritage of
our composite culture;
2) Article 51A (g) to protect and improve the national
environment including forests, lakes, rivers and wild
life and to have compassion towards living creatures.
3) Article 51A (h) to develop scientific temper, humanism
and spirit of enquiry and reform 51A (i) is to safeguard
public property and to abjure violence to protect by the
fundamental duties
46
V. Because the implementation of SSCP has not taken into
consideration the various provisions of Wildlife Protection
Act, and Air Pollution Act, Forest Conservation Act of 1980,
Water Prevention and Control of Pollution Act 1974, Water
prevention and Control of Pollution rules of 1975, Water
prevention and Control of Pollution Cess Act of 1977 and the
Coastal Regulation Zone Notification issued by Ministry of
Environment and Forests under the Environmental
Protection Act.
W. BECAUSE there is a gross violation of the International
Convention for Prevention of Pollution from ships of 1973 as
modified by the protocol of 1978 (MARPOL 73-78) to which
India is a signatory.
X. BECAUSE the implementation of the Project has not taken
into consideration that the Cultural and the Customary Rites
of the Hindus would be violated by the Project as Ram Setu
is claimed by hindus to be their TEERTH. The destruction of
Ram Setu by the Project will cause irreparable damage to the
religious sentiments of Hindus as Ram Setu is considered as
a holy place for performing religious ceremonies and
oblations which is mentioned in various Puranas and
Valmiki Ramayana. Thus, the Project clearly violates the
constitutional guarantees of the right to practice one’s
religion under Article 25 and Article 26 of the Constitution.
Y. BECAUSE the Coral reef system as also the ecosystem of the
tropical rain forest, are the most mature marine ecosystems
of our planet. Implementation of the project will tend to
destroy coral reefs which, in turn, would tend to cause High
47
sea tides and will increase the destruction caused by storm
surges, hurricanes, cyclones etc.
Z. Because the result of the Project being undertaken near the
medial line between the “historic waters” of India and Sri
Lanka in Palk Bay and Palk Straits is that these waters will
be turned into international waters. Countries such as the
United States will be able to claim a right of free passage (as
opposed to merely of innocent passage) without the consent
of India.
AA. Because, far from improving national security, the project
will seriously jeopardize India’s national security. The
Government of India has not applied its mind at all to this
issue.
BB. Because, assuming without admitting that Ram Setu is not
man-made and is a natural phenomenon, it is still worthy of
being designated a world heritage site because of its
importance to Hindus and to Muslims, who believe that the
original Adam crossed this bridge to Sri Lanka and stood still
on one leg for 1,000 years to repent his sins.
CC. Because even an inter-ministerial committee of the
Government of Sri Lanka has warned about serious damage
to the environment in Sri Lankan waters on account of the
Project. Petitioners crave leave of this Hon’ble Court to
produce relevant documents in Court if and when they
become available.
48
PRAYER
In view of the facts stated and grounds pleaded hereinabove, the
petitioners respectfully pray that this Hon’ble Court may be pleased to
grant any or all of the following prayers, each of which is made without
prejudice to the others:
1) Issue a writ, order or direction in the nature of certiorari, calling
for the records pertaining to the decision of the Union of India to
undertake/proceed with the ‘Sethusamudram Ship Canal Project’,
and quash the said decision;
2) Issue a writ, order or direction in the nature of certiorari, calling
for the records pertaining to the ‘Environmental Clearance’ dated
31.03.2005 granted by the Ministry of Environment and Forests to
the Sethusamudram Ship Canal Project, and quash the same;
3) Issue a writ, order or direction in the nature of certiorari, calling
for the records pertaining to clearance/permission granted to the
Sethusamudram Ship Canal Project under the provisions of the
Wildlife (Protection) Act, 1972, and quash the same;
49
4) Issue a writ, order or direction in the nature of mandamus,
directing the respondents herein not to implement the
‘Sethusamudram Ship Canal Project’;
5) Issue a writ, order or direction in the nature of mandamus,
directing the Central Government to declare the ‘Ram Sethu’ as an
ancient monument of national importance, under the provisions of
the Ancient Monuments and Archeological Sites and Remains Act,
1958;
6) Pass such other and/or further order(s) as this Hon’ble Court may
deem fit in the present case.
FILED BY
Advocate for the Petitioners
DRAWN ON
FILED ON
50
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I.A. No of 2007
IN
Writ Petition (Civil) No. of 2007
In the Matter of:
Dandi Swami Sri Vidyananda Bharati-ji
And Oths. …Petitioner
Versus
Union of India & others ……. Respondents
AN APPLICATION FOR ACCEPTING ENGLISH TRANSLATION
To
The Honorable Chief Justice of India
And His Companion Judges of the Supreme Court of India at New
Delhi
The Humble Petition of the Petitioners above named.
51
MOST RESPECTFULLY SHEWETH
1) That the Petitioners herein have filed the aforesaid Writ Petition
invoking the Original Jurisdiction of Article 32 of the Constitution
of India. All the set of the facts on which this Petition is based are
fully set out and the Petitioners carve leave of this Honorable Court
to refer to and rely upon the same in support of the present
Application.
2) That the Annexures ________________ accompanying the Petition
were originally in hindi and the Petitioners have got them
translated them into English from a local Advocate who is well
versed with both Hindi and English translation. It is therefore, not
only fit in proper but also in the interest of justice that the English
Translation filed by the Petitioner be taken on record and the
Petitioner be exempted from filing Official Translation for the same.
3) That this application is being made bona fide and in the interest
of justice.
PRAYER
It is therefore respectfully prayed that Your Lordships maybe pleased to :
52
a) Accept the English translation of Annexure____________________
and grant exemption for filing Official Translation for the same;
b) Pass such other and further orders as maybe deemed fit and
proper in the facts and circumstances of the present case.
DRAWN AND DRAFTED FILED BY
Ms Deeksha Mishra
Advocate Advocate for the Petitioners
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