GM Mustard Case | Hearing Left Unfinished Because Of Impending Retirement Of SC Judge, Pleas Reassigned To Another Bench

“Due to time constraints, the hearing could not be concluded. This matter stands released and will not be treated as a part-heard of this bench. It will be listed appropriately on Monday, May 15, after taking assignment orders.”

A special bench comprising Justices Dinesh Maheshwari and BV Nagarathna was hearing separate pleas by a grassroots-level non-profit non-governmental organisation (NGO), Gene Campaign, and environmentalist Aruna Rodrigues.

This order to list the matter anew before another bench, as directed by the chief justice, was passed even though the oral arguments had almost been concluded. Advocate Prashant Bhushan suggested, “Both sides have made most of their arguments. The written submissions have been filed. I will place a short written submission in rejoinder. On the basis of these, Your Lordships may deliver the verdict.”

Amused, Justice Nagarathna responded, “We are not machines.”

“I know it is a herculean task in less than two weeks - 11 days - to deliver a judgement in a matter like this. I understand that.”

“Not even 11 days,” Justice Maheshwari said with a smile. He said, regretfully, “Not to interrupt you Mr Bhushan, but, this bench could not be constituted since we sat in different combinations normally.” The judge added:

“This is a very serious matter. No one would want this to be hushed up and for us to pass an interim order. Practically speaking, it must be taken to its logical end. The main writ petitions (in which interlocutory applications were filed seeking a ban on the commercial cultivation of genetically modified mustard) have also been pending for a long time. We were also incredibly engrossed in understanding the many reports, the technicalities involved in this matter, its advantages and disadvantages, and how to bring about a balance. We were doing our homework. But no amount of homework or classwork would be able to serve a purpose if we cannot take it to its logical end. We do not have a long time left.”

Justice Nagarathna explained that her colleague (Justice KM Joseph) on her usual bench was also set to retire soon. She said, “There is a rush there as well.” Justice Maheshwari added, “When you mentioned this matter earlier, we were unable to arrange for this bench to sit. It was inconvenient at the time, and breaks up the combinations we normally sit in.”

“We understand that it is difficult to arrange for special bench hearings. We do not want to argue, Your Lordships,” Bhushan quickly submitted. Attorney-General for India R Venkataramani agreed, saying, “We only want to assist the court.”

Notably, the top law officer raised the issue of whether an oral observation by a bench headed by Justice Maheshwari instructing the union government to maintain status quo with respect to the release of genetically modified mustard would continue to operate. Bhushan interjected, emphatically saying that the status quo must continue to operate and the subsequent bench must “continue the statement”. However, Justice Maheshwari was unwilling to issue any order regarding this. To the attorney-general, he said, “You make a mention before whichever bench hears this next.” He added, “We are not saying anything on this, only that it has to be listed on May 15.”

Bhushan further insisted, “Since Your Ladyship has heard the matter, it should ideally follow her.” “We do not know that,” replied Justice Maheshwari, pointing out that the matter had to be reassigned by the chief justice, who served in an administrative capacity as the 'master of roster'. He added, “Normally, it should follow her.”

“If Your Lordships at least record that there have been so many hearings, so that the chief justice could assign accordingly,” a counsel suggested.

“That is why we have a record of proceedings,” Justice Maheshwari said in response.

Background

Under the scanner is the decision of the Union Ministry of Environment, Forest and Climate Change (MoEFCC) to release an indigenously developed genetically modified herbicide-tolerant crop, christened ‘HT Mustard DMH-11’ across the country, after sanctioning its commercial cultivation in October last year. This is the first time a transgenic food crop is planned to be commercially cultivated in India.

On November 3, a division bench comprising Justices Dinesh Maheshwari and Sudhanshu Dhulia, had orally asked the union government to maintain the status quo on the commercial cultivation of genetically modified mustard and to refrain from taking any precipitate action with respect to its release.

In December of last year, the Centre, on being asked to state the reason that compelled them to release the genetically modified crop immediately, instead of waiting till they developed a more robust understanding of its impacts, said that the entire protocol envisioned under the law being complied with, “there was no need for a ‘compelling reason’ to make this decision”. “We have crossed the stage where all the anxieties and concerns regarding this issue have been addressed, and by and large, resolved. The environmental release of the genetically modified mustard was the next logical step,” the attorney-general told the bench.

In support of the contention that the decision to release genetically modified mustard was preceded by thorough consideration of various aspects involved, the top law officer, in a subsequent hearing, took the court through a dossier of the minutes of meetings of the Genetic Engineering Appraisal Committee, reports of various committees and sub-committees, and other relevant documents to illustrate the stages in which the approval for the environmental release of the genetically modified mustard was granted.

The court also heard the submissions of the petitioners, represented by advocate Prashant Bhushan and senior advocate Sanjay Parikh. The counsel informed the bench that the process of the environmental release of genetically modified mustard was already underway, and the crop had been planted in open fields in certain locations. Invoking the precautionary principle, the counsel had requested the apex court to put an immediate end to this operation. This was met with strong resistance from the Attorney-General, who argued that the environmental release of the genetically modified crop marked the culmination of a decade of deliberations and scientific research and could not be undone on the basis of other scientists taking what he described as an ‘ideological’ stand.

In January this year, the top court indicated that it would be open to engrafting additional conditions on the regulatory framework governing the environmental release of genetically modified crops if the existing conditions failed to broadly account for all shortcomings or dangers associated with the exercise. Adverting to the rigours of the regulatory framework, Justice Maheshwari said:

“We understand that according to the government, these consciously inserted conditions themselves demonstrate that the question has been examined from all relevant angles and a considered decision has been taken. And that these conditions are sufficient safeguards. But we might insert additional conditions, this being in the nature of a public interest litigation, if we feel the need. If these conditions broadly take care of the possible shortcomings or dangers, as has been projected, then we will not add anything. Only if we find that there is any area that ought to receive more attention, we will provide additional conditions.”

Case Title

1. Gene Campaign & Anr. v. Union of India & Ors. | Writ Petition (Civil) No. 115 of 2004

2. Aruna Rodrigues & Ors. v. Union Ministry of Environment, Forest and Climate Change & Ors. | Writ Petition (Civil) No. 260 of 2015