GM Mustard Case | Supreme Court Expresses Displeasure At GEAC Not Considering Expert Committee Report

While making the arguments, Bhushan took the court through the report of the Technical Expert Committee (TEC), highlighting that it had examined many studies as well as experts, and was surprised to note that there was no scientific study of the impact of GM crops on human health.

Invoking the Precautionary Principle, he submitted that the consequences of the impugned decision would be irreversible, and as such, the principle, which is now understood as a part of Article 21 of the Constitution, is fully applicable to the present case.

“It says if you do not know yet what effect of certain things can be, you have to err on the side of caution… It also says that first do all studies which rule out adverse effect and then proceed with the matter”, Bhushan said.

Further, he contended that the issue at hand may not only turn out to be a disaster for the present generation, but also for generations to come. It was mentioned that compared to all else, to put a GM into a living crop is a completely different thing, because that crop reproduces, multiplies and impacts other plants.

Drawing attention to the fact that a 5-to-1 report was given by the TEC, Bhushan raised the issue of conflict of interest of the dissenting member i.e. ICAR Director Dr. Raj Paroda. He said that Dr. Paroda was on the governing body or Chairman of a number of bodies directly funded by Monsanto.

Attempting to convey the source of petitioners' apprehension regarding GM mustard, he highlighted that farmers, though prohibited, may use the herbicide-tolerant (HT) variety of mustard to kill weeds. “It is virtually impossible for the government to regulate this”, Bhushan said. It was also underlined that the herbicide is toxic and will impact our food.

Based on the TEC report, it was argued that no GM crop should be allowed to be cultivated where India is the centre of origin or centre of diversity. Bhushan claimed that India, having over 5000 varieties of mustard, is a centre of diversity thereof.

On the Bench's enquiry as to whether the genetic modification would improve quality, it was replied that it is an admitted case of the government that the variety will not be grown for any yield advantage. “Sole stated advantage for environmental release is that it would be used to produce new hybrids with better use in future”, Bhushan added. Speaking of the reliefs sought, he claimed that all reports pointed to one thing - that the government is not taking adequate precautions. Therefore, the court may direct implementation of the recommendations of the Technical Committee and Parliamentary Committee reports.

“All our prayers are designed to put into effect a system of regulation to ensure that the bio-safety, health effects, environment effects, etc. are addressed before any environmental release of any GMO is allowed”.

Notably, he remarked during the proceedings that, “effectively, human health was being sacrificed for the benefit of industry”. He further argued that seed selection will be done on the basis of the HT quality.

In response to Bhushan's assertion that the petitioners were essentially aggrieved by the government's decision (dated October 25, 2022) to release the variety in question into the environment, the Bench specifically enquired as to whether there were any qualms against experimentation. On this, Bhushan said that the government may experiment in close conditions (such as labs), but there is no point as the variety cannot be used.

Following Bhushan, Senior Advocate Sanjay Parikh led arguments. He took the court through the 1989 Rules to assert that the Precautionary Principle was at the heart of the said Rules, and that the burden to displace doubt, if there is scientific uncertainty (and Precautionary Principle applies), is on the Union of India.

On the aspect of application of the Biodiversity Act to the issue, the Senior Counsel added that under the inter-generational equity principle, one should not do something which ultimately results in adverse impact on the biodiversity.

When the court enquired as to what exactly was the petitioners' apprehension, he replied “what we are saying is that HT crop is not allowed...release done was contrary to recommendations given by the GEAC”. In reply to the query, Bhushan added, “ultimately farmers will use this variety to destroy weeds...many of them will not care that this herbicide is poisonous...herbicide is going to cause cancer to people who are going to eat it”.

Also appearing for the petitioner(s) was Senior Advocate Trideep Pais, who addressed three-fold arguments. First, he contended that the GEAC functions through sub-committees and an expert committee, which is not permissible under the Rules and therefore, the process was vitiated. It was added that these committees consisted of members other than the GEAC, which is also not permitted.

The second argument was that despite health safety being essential component of the preamble of the Rules, both in the GEAC and sub-committee meetings, the health expert was consistently absent.

The third contention raised by SA Pais was that the biosafety dossier which was the basis of the approval accorded “never saw light of the day”. He said, “it was never published, never placed before the Hon'ble court, never made accessible as promised to this Hon'ble court”.

After conclusion of arguments on behalf of the petitioners, AG Venkataramani addressed his arguments. At the very outset, the Bench remarked that the court's order dated April 08, 2008 had not been complied with by the Union and that it must show from documents that the test conducted for mustard was put in public domain.

The AG urged that the subject underlying the case involved many dimensions and aspects which were intertwined. “To say that the court is the final arbiter and moratorium on science will be too broad a proposition…The question of pure science by itself is not a consideration,” he claimed.

Relying on a recent study, the petitioners' claim that India is a centre of origin/diversity for mustard was denied. “India's mustard gene pool is very narrow”, the AG said. He also asserted that the bio-safety regime prevalent today guarantees and addresses all concerns and issues.

Pertinently, the AG denied that GM crops have any adverse impact on the soil. It was submitted that large scale adoption of GM crops has taken place in countries like USA, Brazil, Australia, etc. which are major producers and exporters of agricultural commodities.

Emphasizing that it was important to look at how Dr. Paroda had given his report, the AG tried to impress upon the court that it cannot “close its eyes to what influenced or informed the mind of committee members”.

At this juncture, Justice Nagarathna enquired whether the recommendations of the expert committee/Dr. Paroda were considered by the GEAC. 

Before the Bench rose, an issue came up as to whether the petitioners were challenging any Rules/law in this case. In response, Parikh clarified that the 1989 Rules were infact being challenged as arbitrary and unconstitutional. Taking note, Justice Nagarathna observed that the challenge had to be argued, and not merely mentioned in the petition, on the basis of relevant tests.

The matter has been listed next for January 16, subject to the availability/constitution of the same Bench.

Case Title

1. Gene Campaign & Anr. v. Union of India & Ors. [WP (C) No. 115/2004]
2. Aruna Rodrigues & Ors. v. Union Ministry of Environment, Forest and Climate Change & Ors. [WP (C) No. 260/2015]

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