GM Mustard Case | Centre Seeks Withdrawal Of Undertaking Given To Supreme Court Against Commercial Release Of Genetically Modified Mustard

Today, a bench of Justices BV Nagarathna and Ujjal Bhuyan was apprised by the central government of its application, in which it has sought to be discharged from its earlier undertaking saying that it would not take any precipitative steps for the environmental release of the genetically modified crop. The Centre has now contended that Additional Solicitor General Aishwarya Bhati had only given her word in November since the matter had been posted for final hearing in the following week and the sowing cycle was months away. Even though the statement made at the Bar by the law officer was not recorded in the order, it has been honoured by the government, the application has also mentioned.

Since the arguments could not be completed due to the retirement of Justice Maheshwari in May and the subsequent reassignment of the part-heard matter, the Centre has argued that the oral undertaking was only made in the specific context of the matter being listed for a final hearing in the following week. This was also not intended to halt the entire process of research or testing under the conditional approval granted by the Government of India for an extended period of time.

Mustard, the applicant has emphasised, is the most important edible oil and seed meal crop of India, meeting nearly 55-60 per cent of the country's edible oil demand through imports. Citing the importance of releasing genetically modified mustard with a view to ensuring India's future food security, the government has sought permission for the process to continue and arrive at its conclusion unfettered, especially in light of the upcoming sowing season in the months of September and October -

"Indigenous development of transgenic varieties through the male sterility or restorer system is a critical element in ensuring India's future food security as this technology will be utilised to produce new hybrids with higher yields in future, thereby increasing agricultural output and farmer income. The huge policy implications involved deserve early resolution. In the meanwhile, the process sanctioned under the conditional approval dated October 2022 must continue and arrive at its conclusions...The second growing season under the conditional approval granted by the Government of India is also approaching in the months of September and October of 2023. Therefore, it is most respectfully submitted that this court may consider discharging the Union of India from the oral statement made on November 3 which was made in a specific context for a limited purpose at the relevant time as explained."

The application has also highlighted the report of a post-release monitoring committee which has found no evidence that would indicate any 'legitimate scientific concern' against the conditional approval granted by the Government of India. The committee made its evaluation on the basis of a limited environmental release of the crop, in terms of the conditions prescribed by the government while giving its approval.

During the hearing, Advocate-on-Record Aparna Bhat, appearing for petitioner-NGO Gene Campaign, sought time to file a response - 

“This application was filed late last night. We have to file a response. They want to withdraw the undertaking that they had given this court. This has to be heard and without our response, it cannot be heard. This undertaking has been in operation all this while. This court may post the matter next week. We can file an application within two days.”

The government counsel began explaining, “There was an oral statement made at the time. Now, a lot of time has passed since then…”

“That does not mean that it stands withdrawn,” Justice Nagarathna pointed out, “The matter is still pending.”

“Yes, that is why we have filed this now,” the counsel said, before requesting the bench to issue notice on the Centre’s latest application.

Acceding to this request to issue notice, the bench pronounced –

“Respondent Union of India to serve copies of its application on counsel for petitioners, who accept notice on the said application. They seek a week’s time to file their response. List next week.”

Other than the non-profit Gene Campaign, the list of petitioners includes Research Foundation for Science Technology and activist Aruna Rodrigues through Advocate-on-Record Prashant Bhushan, and food security activist V Ananthasayanan, through Advocate-on-Record V Shyamohan.

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, 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.”

Ahead of Justice Maheshwari’s retirement in May, this matter was placed before the Chief Justice of India for reassignment to another bench, leaving the hearing incomplete. Even though the oral arguments had almost been concluded, this change will likely result in the counsel having to repeat most of their arguments again.

Case Title

Gene Campaign & Anr. v. Union of India & Ors. | Writ Petition (Civil) No. 115 of 2004 and other connected matters