PRAYER

In view of the facts stated and grounds pleaded herein below, the petitioners

respectfully pray that this Hon’ble...
were evaluated only poorly without adequate peer-review in the current

       project design and implementation;

       ...
submitted to ensure and protect the industrialization, growth and assurance of
livelihood and welfare of the people of our...
Navajo people who considered a mountain sacred and refused permission to the
authorities to take a sewerage through that s...
the Constitution.   Neither the EIA report by NEERI completed in May/August 2004
nor the DPR by L&T/Ramboll for the Projec...
Rajamanickam, a leading geomorphologist, a field of necessary expertise that was
not consulted earlier, has estimated that...
this channel for navigation from Kolkata to Tuticorin according to the
    computation provided in the Annex 24)


    Ano...
4. Because the precautionary principle has not been kept in mind when giving
environmental clearances for the Project unde...
repent his sins (Annex 18). Annex 19 details significance and sacredness of Rama
Setu as described in Sri Skanda Purana.

...
11. Because the Respondents have not evaluated the considerations in the fields of

geomorphology, sedimentation dynamics,...
made to undertake any fresh exercise in view of the changes in the conditions
brought about by the tsunami.


13. Because,...
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 re...
……………Dredged spoil comprising clay and sand upto 2
                m of dredging depth will be used for             reclai...
16. Because, in addition to the above, non-application of mind in grant of
      environmental clearance is also evident f...
in accretion of sand in one sector and erosion in another sector.
              Once the canal is deepened, the passage wo...
19.   Because, in the respectful submission of the petitioners, a reading of the
      environmental clearance shows that ...
fundamental analytical tool for determining whether the environmental
                clearance should be granted to the P...
23. Because the traditional mode of survival of the fisherman and the tribals will be
destroyed by the destruction of cora...
2)    Article 46 which casts a duty to the State to protect the economic
              interest of the tribes and other we...
Project clearly violates the constitutional guarantees of the right to practice one’s
religion under Article 25 and Articl...
38. Because neither the EIA Report declared in May-August, 2004 by NEERI nor the
DPR by L&T Ramboll in February 2005 have ...
Part XI        Section 2, Article 145 and Article 237 emphasizing that
                      protection of Marine Environm...
It is noted that paragraph 23, repeatedly uses the verb quot;might bequot;, which means the
deponent himself is admitting ...
the Rama Setu is man-made. If it is man-made, its origins stretch back into
antiquity, and certainly more than the 100 yea...
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Response16june2007

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Response16june2007

  1. 1. PRAYER In view of the facts stated and grounds pleaded herein below, 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: a)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; b) 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; c) 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; d ) Issue a writ, order or direction in the nature of mandamus, directing the respondents herein not to touch, dredge through, bore through or anyway damage Rama Setu (also known as Adams Bridge) because it is a “sacred object” as per the definition and order given by SC, as per AIR 1958 Supreme Court 1032) (as appearing on page 1035 of AIR 1958 Supreme Court); e)Issue a writ, order or direction in the nature of mandamus, directing the respondents herein to suspend the project immediately and evaluate professionally and thoroughly the various scientific fields of expertise such as geomorphology, physical oceanography (tsunami) ,sedimentation dynamics, ocean turbidity, tsunami, seismology, accumulation of thorium placer deposits, archeology,anthropology) that were either not evaluated at all or 1
  2. 2. were evaluated only poorly without adequate peer-review in the current project design and implementation; f) Issue a writ, order or direction in the nature of mandamus, directing the respondents herein not to implement the ‘Sethusamudram Ship Canal Project’ before assessing and correcting the project design flaws to ensure project is feasible in view of changed fundamentals; before assessing and correcting the project design flaws in view of certain scientific and technical considerations that have come to light and that have not been evaluated or have been improperly evaluated; g) Issue a writ, order or direction in the nature of mandamus, directing the Central Government not to touch or cause any damage to Rama Setu (Adam’s Bridge) until the scientific tests contemplated and announced by the Minister of Science and Technology (Annex 1) are completed in accordance with a research design formulated and researches conducted by a multi-disciplinary team of scientific experts; g) Issue a writ, order or direction in the nature of mandamus, directing the Central Government to declare the ‘Rama Setu’ as a ‘sacred object’ as defined on page 1035 of AIR 1958 Supreme Court) and prevent any damage to it, an ancient monument of national importance, under the provisions of the Ancient Monuments and Archeological Sites and Remains Act, 1958 based upon scientific, textual, cartographic, numismatic and archaeological evidences; h) Pass such other and/or further order(s) as this Hon’ble Court may deem fit in the present case. Supreme Court in their order of 28 May 2007 (Annex 26 provides the SC Record of Proceedings) directed that the petitioners should approach the authorities concerned. Accordingly, the petitioners have sent Demand Notice Petitions in the context of the WP which primarily related to environmental concerns. The petitioners fully agree with, support and are committed to the principle outlined in the judgement passed by Chennai HC (17.12.2004), paragraph 17. The petition is 2
  3. 3. submitted to ensure and protect the industrialization, growth and assurance of livelihood and welfare of the people of our country, not to obstruct it. In 2004/05, several public hearings were held by SSPC. This statutory procedure was completed. The intention of this petition is not to re-gurgitate the earlier objections. A key new consideration has arisen. Plus, it has been learned since the hearings were completed that several other considerations in the areas of science, technical expertise, religion and national security strategy were either not evaluated at all or were evaluated in an unprofessional and incomplete manner. These factors compel the submission of this petition, with a request they be evaluated and decided upon properly and professionally by a comprehensive multi-disciplinary group of experts (including the fields of expert-knowledge such as geomorphology, physical oceanography (tsunami), sedimentation dynamics, seismology, tsunami, accumulation of thorium placer deposits, ocean turbidity, archeology, anthropology, marine biology that were left out earlier) Annex 21 outlines aspects of Sethusamudram Canal Project and Nation’s security. Because these considerations were either not evaluated at all or were evaluated in an unreasonable and unprofessional manner, the project, according to several world- renowned experts, is now doomed to failure in terms of what it is meant to achieve - the national good, commercially competitive marine traffic offering from India, increased forex earnings from marine traffic through the channel, commercial development along the coast, welfare and employment for the underserved population of India, industrialization and industrial growth of India, improved national security etc. We are bound by duty and by law, as patriotic citizens of India, to stop a damage to the public, once we learn of the damage whether imminent or underway. Petitioning the court is a step in executing our duty. Before submitting the petition, we have conveyed these points to the GOI, as the policy and executive authority, with a humble and firm request to evaluate these considerations in a professional manner. Our repeated requests have been repeatedly brushed aside. (All references where submissions have been made to the GOI or GOTN or SSCP including parliament questions are listed in Annex 2) We have no recourse except to petition the juidiciary to stop a willful damage to the public. This Honorable court in their judgement (IN THE HIGH COURT OF JUDICATURE AT MADRAS ,DATED: 17.12.2004 CORAM, THE HON’BLE MR.MARKANDEY KADJU, CHIEF JUSTICE and THE HON’BLE MR. JUSTICE N.V.BALASUBRAMANIAN W.P.NOS.33528 AND 34436 OF 2004 and W.P.M.P.Nos.40521 and 41570 of 2004) (Annex 11) paragraphs 17 and 18 emphasized the importance of industrialization and industrial growth of India to alleviate the sufferings of the poor and for India to command the respect of the world. The Hon’ble court illustrated examples from the western developed world. We submit to the court that in the western, developed world the sort of considerations that have either been not evaluated at all or evaluated only incompletely and unprofessionally in the matter of the SSCP project would have been assessed in the initial stages of the project it self. Also, if these were inadvertently missed and were brought to light later even as the project was underway, they would not be brushed aside but would be attended to diligently and professionally. Great care is taken in these countries to ensure investments, once approved, succeed in meeting their objectives. We also respectfully draw the attention of the court to how one western developed nation, USA, evaluated the consideration of religious sentiment (A US appeals court respected the beliefs of 3
  4. 4. Navajo people who considered a mountain sacred and refused permission to the authorities to take a sewerage through that sacred mountain). We respectfully submit to the court that Rama Setu is very important, very sacred to us, Hindus. We want to protect it. Respondents make unsubstantiated and questionable claims that this project is of national importance and brings lots of national benefits including coastal development, welfare/livelihood of people, improved commercial/maritime strengths, improved national defense/security etc. With the impact of improper and incomplete evaluation of certain considerations and with the impact of the changed fundamentals, the Respondents have a burden of proof, as part of discharging their lawful duty to the country, to prove these targeted benefits will be achieved and national good will be achieved by considering the professional need to address certain facts that have materialized post-project launch such as a) tsunami b) spiraling project costs c) reduced project benefits and d) review and certification by a group of comprehensive multi-disciplinary experts including the areas omitted last time. The multi-disciplinary experts committee should be formed under the chairmanship of a SC judge for absolute impartiality. We submit most respectfully that political forces have hijacked this issue to such an extent that honest technical and professional concerns expressed by world-renowned experts, who have only technical curiosity and have no political axe to grind, are simply ignored, let alone not being professionally addressed as they should be. By allowing this sort of “dilution of national good” to happen, one more nail is hammered into the coffin of “national good.” We most respectfully submit that while matters of sacredness CANNOT be decided by science, it is noted that in a Press meet on 2 June 2007, by Minister for Science and Technology, reports of which have appeared and provided as Annex 1, soil samples will be made available to the public for testing. Until these tests are completed, the Hon’ble Court should restrain the respondents from carrying out any work which touches or damages Rama Setu (what the respondent claims to be Adam’s Bridge). The Hon’ble Court may also direct the appointment of an Advocate Commission to be assisted by a multi-disciplinary team of experts to review the results of these tests and to report on the religious susceptibilities of the people who consider the Rama Setu a sacred pilgrimage site and a world heritage monument, exemplifying the quintessence of Bharatiya values. It is submitted most respectfully but firmly 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 1. Because the Project has been conceptualized without taking into account the likelihood of a Tsunami effect and has evaluated the Tsunami effect in a manner that is arbitrary, unprofessional and unreasonable and violates the fundamental right to equality under Article 14 and the right to life and personal liberty under Article 21 of 4
  5. 5. 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, who was consulted by GOI 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. (Annex 3) The SSCP’s approach to Tsunami evaluation as available from public records, is to contact Prof Murthy in May 2005 asking that he reply to them within 24 hours as the project was finalized by 2005 February end. (A fait-accompli note!) Prof Murthy did respond promptly advising he could not send the reply by February end since he received the request only in May. He provided his professional and expert opinion though. In response to Prof Murthy’s expert response, the SSCP CMD sent a curt note advising, in Prof Murthy’s words, “his (SSCP Chairman’s) experts outright dismissed my idea as ridiculous and has absolutely no merit”. The Respondents did not discuss this most important subject. The subject is important on several grounds. It is true the tsunami is an infrequent occurrence but the severity of a tsunami when it occurs is very high. It is a leading world-class best practice to conduct a risk analysis considering both frequency and severity. This evidenced by the fact that countries such as Japan have erected tsunami protectors. There was no technical discussion on this important subject. The Respondents curtly dismissed the opinion of a world expert without providing any technical details or analysis given to support the SSCP chairman’s statement. There was no identification of who the SSCP Chairman’s experts were . The subject matter is in the realm of scientific specialty where a professional manager in a developed country (a benchmark the HC compared India to in paragraphs 17 and 18 of the 17.12.2004 decision) would have encouraged a discussion among technical experts, especially when there are widely divergent views, before arriving at an executive decision. The conduct of the respondents lacks transparency and professionalism. 2. 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. (Annex 4) Dr. 5
  6. 6. Rajamanickam, a leading geomorphologist, a field of necessary expertise that was not consulted earlier, has estimated that the 2004 Tsunami would have carried enough silt material to the dredging area making it necessary to dredge at least an additional 1 m depth over and above what has been planned by the project to achieve the required 12 m draft. This estimate excludes the deposits from the tsunami caused turbidity that will settle down progressively with time, necessitating additional and more frequent project/maintenance dredging. The SSCP Technical and Feasibility report says “ upward revision in total costs is envisaged if there is change in dredging costs”. Based on SSCP’s website information, a conservative estimate of increase in costs from additional dredging needed post-tsunami ( a factor not considered by the project) will be upward of Rs 400 Crores, a whopping 20% increase in project costs. Why have the Respondents over-looked this important scientific aspect? What is the true increase in project costs? (This is public money that is being thrown down the drain without proper accountability) 3. Because the Project is not economically viable, based upon changed circumstance and based upon the knowledge that has come to light after the public hearings were held that project economic valuation was done improperly. - the costs of the Project have already gone up manifold from the Rs. 2,000 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. 2,000 crores, there were serious doubts about economic feasibility of the Project. Now, therefore, the Project has clearly become economically unviable Tsunami has increased the project costs from additional dredging - alone by atleast 20 % to about a whopping Rs 2500 crores Tsunami has increased the maintenance dredging costs in view of the - increased sediments brought into the region which is called the ‘sedimentation sink’ Project savings assume about 25 hrs savings in voyage-time based on - 12 knots speed through the canal. In fact the tug-boat will travel at 6 knots and the savings will be about 10-12 hrs. This will reduce the number of voyages from the estimate. (This alleged saving in time is questioned. Annex 24 details how the proposed channel doesn’t make nautical sense; in fact, only 1.45 hours are likely to be saved through 6
  7. 7. this channel for navigation from Kolkata to Tuticorin according to the computation provided in the Annex 24) Another factor that will reduce the number of ships passing through - the canal is the tug-boat charges. Mr. Ramakrishnan, former Chairman of Chennai Port Trust, estimates very conservatively, including the tug-boat charges a ship will have to pay an additional Rs 60 lakhs per passage to save about Rs 6 lakhs in fuel costs (Annex 5, views of Ramakrishnan) The project economics assumes a constant 9% interest cost, 10 % - annual increase in revenue and 5 % increase in costs, and estimates net positive cash flow beginning (only) in the 19th year. At constant costs and constant revenue, the project NPV is negative. The SSCP has not done a sensitivity analysis on project NPV if the capital costs go up, as they already have. Contingency is assumed at 5 % which is very low by internationally accepted best practices for project management/execution. Revenue increases assumed at 10 % per year are untenable for the tug-boat cost and speed reasons mentioned above and also from the fact that the trend in the international shipping industry is to go increasingly towards larger ships in the 180000 – 200000 MT range. The SSCP can accommodate a maximum of about 30000 MT at 12 m draft! The cost of borrowing at 9 % is also a subsidized rate (compare current inter-bank lending rate of 12%), meaning the public is funding this through the back-door! Funded through the back and the front- door, the project economics clearly show a the project is not feasible based on project cost, operating and maintenance costs, revenue projections and cost of borrowing assumptions. Even disregarding the fact that developed countries enjoy much better rates of return for such investments, an investment that is planned for break- even in the 19th year and that too based upon a set of unreasonable assumptions, cannot bring true economic benefits and cannot truly contribute to industrialization and growth of India. Public funds should not be wasted and should be responsibly utilized. 7
  8. 8. 4. 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 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. 5. 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. 6. Because there is considerable scientific evidence accumulated that the Rama Setu is man-made. (Annex 6, 7, 8 provide summar descriptions of evidence referencing to all detailed attachments and countering the arguments made by Respondents) 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. Annex 22 provides excerpts from Ramanathapuram Information Gazetteer about Rama Setu and archaeological/cultural significance of the region. Annex 23 details references to Rama Setu in literature and ancient texts (Hindi). 7. Because Rama Setu is a “sacred object” as defined and delineated in SC order referenced below. It is worthy of being designated a world heritage site in addition 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 8
  9. 9. repent his sins (Annex 18). Annex 19 details significance and sacredness of Rama Setu as described in Sri Skanda Purana. Hon. Supreme Court’s observations given vide paragraph number 7 of its judgement reported as S. Veerabadran Chettiar v. E. V. Ramaswami Naicker and others (AIR 1958 Supreme Court 1032) (as appearing on page 1035 of AIR 1958 Supreme Court) are reproduced as follows: “…. 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 (295 of Indian Penal Code). Nor is it absolutely necessary that the object, in order to be held sacred, should have been actually worshipped. An object may be held sacred by a class of persons without being worshipped by them. It is clear, therefore, that the courts below were rather cynical in so lightly brushing aside the religious susceptibilities of that class of persons to which the complainant claims to belong. The section has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds. Courts have got 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.” In view of the principles stipulated in the Supreme Court’s above-mentioned judgement, Ram Setu is a sacred object for Hindus within the meaning of section 295 of Indian Penal Code, and any action destroying, damaging or defiling the said sacred object will insult the religious feelings of Hindus under section 295 of Indian Penal Code. 8. 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. 9. 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, the techno-economic feasibility study and the detailed project report. [Annex 28 details Prime Minister’s Office questions of March 2005 and Tuticorin Port Trust observations of June 2005 on Sethusamudram Ship Channel Project (SSCP)]. 10. Because Respondents have proceeded, and are proceeding, with the project in a secretive manner. Paragraph 10 in Counter says - “…nothing has been done in secretive manner” However, Respondents have not provided “transparency” in their replies to PMO’s queries and have not been transparent in the matter of whether their replies involving subjects-matter expertise were subjected to peer-review as is the standard international best practice in these matters. 9
  10. 10. 11. Because the Respondents have not evaluated the considerations in the fields of geomorphology, sedimentation dynamics, geology, archeology, anthropology, ocean turbidity in a professional and complete manner, taking into accounts the concerns of the following types documented by experts: Prof. Rajamanickam: “A re-survey of the present depth and also the nature of the sediments that the Tsunami had brought in is a must today. Tsunami has brought in a new stratum of sediments. If the pre-Tsunami dredgers approach this now, they would find a quite contrasting change in the nature of the present sediments. Hence, it is always advisable for having a quick look in the seabed now existing after the Tsunami.” Prof. Tad S. Murth: “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. ” (Annex 3) Dr. DN Seshagiri: “While problems like the possible damage to the fragile ecosystem and hardship to the fisherfolk have been addressed, there has been no mention of another potential threat viz. -landslide. One does not know whether this aspect has been studied in detail while according environmental clearance to the project. ” (Annex 12) Dr. CP Rajendran: “Sethusamudram, as the name suggests, is part of an ocean that is being constantly bridged by natural sedimentation processes, and nature has been at this work for hundreds of thousands of years. I am sure, going by the rates of sediment build-up, in hundred of years there would be a land bridge connecting Rameswaram with Sri Lanka. Why disturb this process for questionable purposes?” (Annex 13). 12. 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 10
  11. 11. made to undertake any fresh exercise in view of the changes in the conditions brought about by the tsunami. 13. 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 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. 14. 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. 15. 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 disposal in the sea. On detailed examination and analyses, the study recommends that disposal would have to take 11
  12. 12. 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……………………………” (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 12
  13. 13. ……………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. 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. 13
  14. 14. 16. 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 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, 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 14
  15. 15. 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. 17. 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. No environmental clearance could have been granted based on NEERI’s study if this was the underlying assumption. (Annex 9) 18. 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. 15
  16. 16. 19. 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. 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. Annex 25 details the concerns of 34 Sri Lankan experts who call the project an eco-disaster; the annex also indicates the possibility of the issue being taken to International Court of Justice. This is one reason why the channel alignment should NOT be close to the medial line, creating an international waters boundary where none existed under the Historic Waters Agreement of June 1974. 20. 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 16
  17. 17. 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. However, there exists a probability of cultural/archaeological artifacts being encountered during the excavation of the canal…” 21. 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. 22. 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. (Annex 4) 17
  18. 18. 23. Because the traditional mode of survival of the fisherman and the tribals will be destroyed by the destruction of coral reefs which are the breeding grounds of the fishes. The Project does not make any provision for alternative employment. 24. 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. 25. 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. 26. 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. 27. 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 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. 28. 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. 18
  19. 19. 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. 29. 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 30. 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. 31. 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. 32. 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 19
  20. 20. Project clearly violates the constitutional guarantees of the right to practice one’s religion under Article 25 and Article 26 of the Constitution. 33. 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 sea tides and will increase the destruction caused by storm surges, hurricanes, cyclones etc. 34. 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. (Annex 10) 35. 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. 36. 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. 37. Because 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 (Annex 14) and the provisions of Articles 14, 19, 21, 25 and 26 of the Constitution. Annex 20 reports on a US heritage body which wants Rama Setu to be preserved. 20
  21. 21. 38. Because 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. Because 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 briefed below. This Honorable court decreed that within the bounds of law, the project must be expedited. The petitioners submit the project is not within the bounds of law. http://sethusamudram.gov.in/Projectstatus.asp Project Status: Work A and B: Adam’s Bridge (Progress 6.9% as of 31 May 2007) Work C: Palk Bay II Work D: Palk Bay I (Progress 98.24% as of 31 May 2007) 39. Because despite wide ranging investigations by the Petitioners, they have not been able to find any clearance having been granted by the 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. 40. Because 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. 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. 21
  22. 22. 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. 41. Because 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. 42. Because the aspect 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. 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. This counter filed by the Government confirms the importance of undertaking a conclusive study with full resources and participation of the Archaeological Survey of India, which is charged with the protection of ancient monuments and archaeological sites/ remains. The respondents are carrying on with the project, reporting about 7% progress in the Adam’s Bridge segment of dredging (as reported in their website http://sethusamudram.gov.in) , in violation of mandatory, statutory obligations in the Ancient Monuments and Archaeological Sites and Remains Act, 1958 and that they have proceeded without any conclusive material despite the religious and archaeological significance of Rama Setu. Additional comments on Respondents’ Counter: 22
  23. 23. It is noted that paragraph 23, repeatedly uses the verb quot;might bequot;, which means the deponent himself is admitting that he is not sure. Paragraph 26, admits that the result of the investigation by GSI was only a quot;preliminary conclusionquot; again, there is a doubt. Moreover, paragraphs 24 and 25 no where state explicitly that the boreholes drilled were on Adam's Bridge. The paragraph 27 in turn is based on the views of a team of geologists invited by respondent SCL, which has an extremely strong self interest in denying the historical significance of Rama Setu. (Annex 29 provides geological and anthropological information of about 2 million years ago and Annex 31 provides geo-physical, geo- tectonic and geo-thermal overview of the Project area, implications for safety and integrity of the coastline to be reviewed afresh by multi-disciplinary team of experts). As against this a reputed Government body such as the NIOT, has undertaken studies that strongly suggest, if not confirm, that Adam's Bridge is man made. With respect to paragraph 28, it is refreshing candour that the Government authorities themselves admit and rely upon records that Rama's Bridge did exist once upon a time. A bridge should have existed for it to be claimed to have been destroyed by Rama. The very same document from which the selective quote has been cited also repeatedly refers to the fact that what was later called Adam’s Bridge was indeed Rama’s Bridge (Ramar Paalam) or Nala Setu or Setu bandha, names used in cartographic maps and epigraphs and also in the logo of the Survey of India, established in 1767 which refers to Bharatam boundaries as aasetu himachalam (From Setu to the Himalayas). Annex 30 is a note on Copper plate inscription of ca. 900 CE of Paranta Chola refers to ‘setu’ It may be noted that in Paragraph 17 (i), the respondents state: “The creation of the channel will also afford an opportunity to the pilgrims to visit Adam’s Bridge, not possible today, and offer obeisance as the SCL is contemplating provision of a Viewing Gallery along the channel alignment.” This is clear admission by the respondents that this Ramar Paalam (Rama Setu also called Adam’s Bridge) is a pilgrimage place and it is refreshing candour on the part of the respondents to concede that pilgrims do “offer obeisance.” We submit that this statement of the respondent confirms the petitioner’s claim that this should be deemed to be an ancient monument, a sacred pilgrimage tirthasthaanam. In fact, this statement in Paragraph 17 (i) runs counter to the statement in Paragraph 13 (i) of the respondents’ counter: “It is further denied that the said bridge is a cultural heritage or ancient monument or archaeological site and remains.” We submit overwhelming epigraphical, numismatic, cartographic, textual and scientific evidence to counter this statement and false claim by the respondents. It is clear from the respondents’ statements that 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. 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. Rama Setu is an underwater cultural heritage, a sacred tirthasthaana. 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 23
  24. 24. 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. 24
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