Shifting lines

The Centre has withdrawn the affidavit filed by the ASI, but the one filed by the Union Ministry of Shipping vindicates the ASI.

in New Delhi

THE Union of India has withdrawn the counter-affidavit filed in the Supreme Court by the Archaeological Survey of India (ASI) in response to the petition filed by Subramanian Swamy challenging the dredging of Adams Bridge as part of the Sethusamudram Project. The government has promised the court that it will re-examine the matter and has sought three months time to do that.

In the written submission of Additional Solicitor General Gopal Subramanium, there is no explanation on what was wrong with the affidavit that was withdrawn. Affidavits, according to Supreme Court Rules, are confined to such facts as the deponent is able, of his/her own knowledge, to prove. In the Sethusamudram case, the deponent who filed the affidavit on behalf of the Union of India through the Ministry of Culture was C. Dorjee, Director (Monuments), ASI, New Delhi.

Dorjee verified the contents of the affidavit to be true and correct to the best of his knowledge as derived from the records maintained by the Union of India, Ministry of Culture, and the ASI, which had been made available to him. He also stated that no part of the affidavit was false and nothing material had been concealed therefrom.

In his written submissions to the court, Gopal Subramanium stated: Having regard to public sentiment, and having regard to the fact that representations, including additional material, are being brought to the attention of the government since the filing of this affidavit, the Central government, without any reservation, in a spirit of inclusiveness and high democratic tradition, to consider a different point of view, withdraws the present affidavit, to re-examine the entire matter. He also clarified that the affidavit did not, at any point of time, intend to touch upon the freedom/articles of faith or belief of any section of society.

Clearly, the government was yielding to the emotional outburst of the Bharatiya Janata Party (BJP) and others to Paragraph 20 of the affidavit. This paragraph read:

The Petitioners, while seeking relief have primarily relied upon the contents of the Valmiki Ramayana, the Ramcharitmanas Tulasidas, and other mythological texts, which admittedly form an important part of ancient Indian literature, but which cannot be said to be historical record to incontrovertibly prove the existence of the characters, or the occurrence of the events, depicted therein. Whereas it is submitted that the ASI is aware of, and duly respects the deep religious import bestowed upon these texts by the Hindu community across the globe, it is also submitted that the study of human history, which is the primary object of the ASI, like other sciences, and fields of study, must be carried out in a scientific manner, using available technological aids, and its findings must be based on tangible material evidence.

It is debatable whether the first part of this paragraph was relevant to the affidavit. But to understand why this was included in the affidavit, one has to read the writ petition filed by Subramanian Swamy in the Madras High Court in May 2007, which was subsequently transferred to the Supreme Court to be heard with a similar matter.

In his petition, Swamy contended that the Union of Indias inaction in not taking steps to investigate the history and origin of Adams Bridge was clearly arbitrary and violative of Article 49 and the Ancient Monument and Archaeological Sites and Remains Act, 1958. Swamy had earlier written to the government urging that Adams Bridge be declared an ancient monument of national importance under Section 4 of the Ancient Monument and Archaeological Sites and Remains Act, 1958. The government did not respond to the request.

Article 49 of the Constitution says it shall be the obligation of the state to protect every monument or place or object of artistic or historical interest declared by or under legislation made by Parliament to be of national importance from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.

The petitioners, including Swamy, referred to the ancient history of India, and the epic, Ramayana in support of their demand that Adams Bridge be considered an ancient monument. Therefore, it was important for the government to explain why it could not, on the face of it, accept the claims of the petitioners in this regard.

The government found that there was no concrete evidence for the claims of the petitioners and that they just wanted a fishing enquiry into the history of Adams Bridge to determine their claims that it was historic and ancient.

Therefore, the ASI analysed the ingredients of the definition of ancient monument under Section 2(a) of the Ancient Monument and Archaeological Sites and Remains Act, 1958. Under this law, to qualify as an ancient monument, the monument must be of historical, archaeological or artistic interest. In paragraph 32 of the affidavit, the ASI concluded: In the light of the scientific study conducted, the said formation cannot, therefore, be said to be a man-made structure. The same is merely a sand and coral formation which cannot be said to be of historical, archaeological or artistic interest or importance.

The ASI was categorical that its obligation under Article 49 of the Constitution must be fulfilled on the basis of scientific study and analysis with total objectivity. Excavations of sites and analysis of physical remains form an essential part of this scientific inquiry, and the ASI has so far not found any evidence to suggest that Adams Bridge is a man-made bridge. It concluded that there was no merit whatsoever in the claim to warrant any action on its part under the Act.

While the ASIs affidavit has been withdrawn, another affidavit filed on behalf of the Shipping Ministry remains on record. It is fairly detailed and provides a clue to some unanswered questions. One of them is: Why and how was Alignment No.6 involving dredging of Adams Bridge adopted by the Sethusamudram Project? Were the alternatives to it considered at all? Of related interest is the question whether the BJP currently seeking to derive political capital from its opposition to the dredging of Adams Bridge had tacitly approved this alignment when it was in power.

The counter-affidavit filed by S.T. Vijayaraghavan, Under Secretary, Ministry of Shipping, Road Transport and Highways, throws considerable light on how the Sethusamudram Ship Channel Project evolved over the years. Previous proposals for the project were based predominantly on economic considerations, and Alignments 1, 2 and 3 were considered from this perspective.

It was only in 1997, upon the intervention of the Ministry of Environment and Forests (MoEF) and the National Environment Engineering and Research Institute (NEERI), that the question of examining the viability of the project from an environment perspective was considered relevant for the first time. It was felt that the alignment should be far away from the environmentally sensitive marine parks in the Gulf of Mannar and the ecologically sensitive areas in the Palk Bay such as the Point Calimere Wildlife Sanctuary.

Initially, a steering committee constituted by NEERI had proposed that Alignment No.4 was the best alternative. This alignment would pass close to Shingle Island in the Gulf of Mannar Marine National Park and cut through Dhanushkodi land. It would be situated about 12 km away from Shingle and would be very close to the boundary of the buffer area of the Gulf of Mannar Biosphere Reserve. It would also cut off Lands End in Dhanushkodi island, which is visited by hundreds of pilgrims every day. This would involve the rehabilitation and resettlement of many fishermen.

The need for a comprehensive Environment Impact Study was felt as the steering committees report was primarily drawn upon the available information, which was limited, on the proposed project activities. Alignment No.4, therefore, needed further validation in respect of environmental engineering and navigational concerns by a year-long study of its environment implications through the seasons.

In 1999, in view of certain differences of opinions within the government on the project, the Ministry of Surface Transport took the matter to the Committee of Secretaries, seeking a direction on whether it should proceed with the Detailed Feasibility Study (DFS) and the Environment Impact Assessment (EIA) study as was originally decided.

The affidavit notes that the proposal for undertaking the studies was approved by the then Minister for Surface Transport, Arun Jaitley, on March 9, 2001. On December 20, 2001, Minister for Shipping V.P. Goyal advised the Tuticorin Port Trust (TPT) to engage NEERI for conducting studies to examine the techno-economic viability of the project and to conduct a detailed Environment Impact Assessment study in 12 months. Following this, a contract was entered into between the TPT and NEERI in May 2002.

On October 23, 2002, there was a review meeting convened by Minister of State for Shipping Thirunavukkarasar (BJP) on the Progress Report on Rapid EIA Study from NEERI. It was decided at this meeting that an alignment farther away from Dhanushkodi island appeared to be the best choice, although it would cut through Adams Bridge. Thirunavukkarasar put up a note to V.P. Goyal on October 25, 2002, asking for a decision on whether the Cabinet/Cabinet Committee on Economic Affairs/Cabinet Committee on Security could be approached for approval.

On October 29, 2002, Goyal endorsed the proposal by stating that a canal with a depth of beyond 9-10 m should not be considered as some estimates of cost were still being made. He, however, approved the constitution of a coordination committee under the Secretary (Shipping) to review the progress and put the project on the fast track.

The affidavit says in paragraph 60: The matter was continuously monitored by the government even under the previous dispensation. Shatrughan Sinha, then Minister for Shipping, communicated through Demi Official Letter to Prof. Sankaralingam, MP, on September 23, 2003, that NEERI had submitted a Rapid EIA Report in October 2002 suggesting a fresh alignment through Adams Bridge, east of Pamban island. He also stated that his Ministry had constituted a committee under the chairmanship of the Secretary (Shipping) to coordinate and monitor the progress of the Sethusamudram Project and the NEERI studies in this regard.

In September 2003, NEERI submitted a draft EIA report with a chapter on Analysis of Alternatives, with a recommendation to adopt Alignment No.6.

In January 2003, in the background note furnished by the Deputy Chairman of the TPT, for the meeting of the committee constituted under the Secretary, Shipping, it was clearly indicated that cutting through Adams Bridge was involved. A second meeting of this committee was convened on May 23, 2003, and a presentation was made by NEERI in February 2004 at the MoEF, before the Expert Committee. The Alignment proposed on both the occasions was the one involving cutting through Adams Bridge.

Alignment No.4 was found unviable on account of the NEERI recommendation that the channel alignment should be at least 20 km from the National Marine Park. Alignment No.5 is very close to the Dhanushkodi Tip and would pose difficulties for ship manoeuvrability. The project, along with Alignment No.6, was accorded environment clearance on March 31, 2005, subject to several specific and general conditions.

Alignment No.6 is backed by sound environmental, navigational, engineering and trans-boundary considerations with due regard for the preservation of the fishery potential of the area and the welfare of the fishermen, says the affidavit.

The affidavit also cites the results of recent bore-hole investigations over Adams Bridge to strengthen the ASIs thesis that it is a natural formation.