Supreme Court Begins Hearing Pleas To Ban Cultivation Of GM Mustard

Multiple petitioners have challenged this move in the top court. Non-governmental organisation Gene Campaign has filed an interim application in its ongoing public interest litigation (PIL), originally initiated in 2004 seeking the strengthening of the regulatory system for genetically modified organisms (GMO). The list of petitioners also includes Research Foundation for Science Technology and activist Aruna Rodrigues, and food security activist V Ananthasayanan.

These pleas were originally being heard by a bench headed by now-retired Justice Dinesh Maheshwari. But, after his retirement in May last year, this matter was placed before the Chief Justice of India for reassignment to another bench, leaving the hearing incomplete.

Yesterday, a bench of Justices BV Nagarathna and Sanjay Karol began hearing the clutch of petitions seeking a ban on the commercial cultivation of indigenously developed genetically modified mustard, christened 'HT Mustard DMH-11', which in October 2022, received the imprimatur of the environment ministry. This is the first time a transgenic food crop is planned to be commercially cultivated in India.

Pointing to the long pendency of the case, with one of the petitions dating back to 2004, the division bench during the hearing expressed its desire to hear and decide the main matter, instead of interlocutory applications. Justice Karol said, “We don't want any ad hoc-ism. This is a vital issue. We will have to examine it in detail and have a wholesome exercise.”

Courtroom Exchange

Advocate Prashant Bhushan led the arguments for the petitioners, beginning with an explanation of the dangers posed by genetically modified organisms, particularly when experimented on in open-field trials. Genetic modification is a process by which the gene of a completely foreign organism is inserted into either a food crop or anything else in order to change its characteristics, he told the bench before adding –

“When you insert a foreign gene into a different plant of an unrelated species, the cotton seeds and the plant start generating new proteins which can have all kinds of unintended consequences apart from conferring the characteristics for which it is intended. For example, it can cause toxicity, allergies…all kinds of things. Therefore, the regulation and biosafety relating to these genetically modified organisms have become major issues around the world.”

In India, the only genetically modified crop which is grown is Bt cotton, with 'Bt' standing for Bacillus thuringiensis, a soil bacterium killing insects that feed on cotton, Bhushan pointed out. The gene of this insect-killing bacteria is inserted into cotton in order to confer on the plant its characteristics of being an insecticide. Genetically modified brinjal was attempted to be introduced, but subsequently prohibited. “Thankfully,” the counsel exclaimed.

In aid of this contentions, Bhushan also pointed to the recommendations of a technical expert committee (TEC) constituted by the Supreme Court in May 2012, as well as the 'serious concerns' raised by a parliamentary standing committee. The TEC had opined that the entire GMO regulatory system in the country was in 'complete disarray' and needed to be set right. It had, among other things, highlighted our lack of expertise in conducting many important tests such as chronic and long-term toxicity studies, the deficiency in our laboratory capacity, and the conflicts of interest in the regulatory framework.

“The technical expert committee said that herbicide-tolerant crop should totally be banned in India. All we are asking is for the government to follow the recommendations of this committee,” Bhushan told the bench. GM mustard was not only a herbicide-tolerant crop, but India was also a centre of diversity for mustard, he pointed out, raising apprehensions about the contamination of mustard crops after the introduction of a genetically modified variety.

“The argument the government has advanced is also specious. They say it is not to produce a herbicide-tolerant crop but to produce new hybrids. This argument is completely illogical,” Bhushan exclaimed.

He also indicated that the TEC report was never properly considered by the top court in a hearing, and eventually in 2022, the environment ministry gave its approval for the commercial cultivation of GM mustard.

“Have the recommendations been accepted by the Union? Did you object to it?” Justice Karol asked Attorney-General R Venkataramani.

“Yes,” AG Venkataramani said.

In response, Justice Karol told the counsel, “Therefore, now we have to go into the legality of the statute…We are now hearing the main matter, not the application. What is the crux of the main matter? You will have to tell us that.”

The judge added, “We do not want any ad hoc-ism. This has been pending since 2004, and now it's 2024. We don't want this. Should you want us to hear, we will decide the main matter.”

Senior Advocate Sanjay Parikh, replying to the judge's instruction, stressed that the court would have to examine whether the 1989 Manufacture, Use, Import, Export and Storage of Hazardous Micro Organisms Genetically Engineered Organisms or Cells Rules were in line with principles of environmental jurisprudence and international conventions and instruments, such as the Cartagena Protocol on Biosafety. He added –

“A finding has been giving by the expert committee that the regulatory system is lacking on so many aspects. This court will have to look into the implementation of these rules.”

Attorney-General R Venkataramani, however, cautioned against taking the committee's report as the 'final word' on all issues covered by it and simply endorse the said report. “The court should look at the recommendations of the committee, the actions of the Government of India after these suggestions were made and whether they are broadly in consonance with the essential features of the report. After looking at the recommendations and the measures adopted, it will examine whether something more needs to be done. This is the only way to look at it.”

Notably, Justice Nagarathna also noted that the report was not against experimentation on genetically modified organisms or food crops –

“It has stressed the precautions that have to be taken. They have basically said that do not release it for open field trials. No one can be against experimentation or improvement in the quality or yield of the food crops.”

“You are also not against it. So, what is your concern?” the judge asked the petitioners. In response, Bhushan argued that this technology posed known and unknown risks to human and animal health, the health of the soil, and the environment in general. Commercial cultivation cannot be allowed in India, he said, before quickly adding that the government was welcome to experiment with non-herbicide tolerant varieties or varieties of crops for which India was not a centre for diversity.

“They can go on experimenting, but in closed conditions. If they do it in open conditions, it will lead to the contamination of all other crops,” Bhushan contended.

“In our limited knowledge, we can say one thing. Vegetables or food crops that grow and are harvested in winter cannot be made into a summer crop and vice versa, by using technology. That's totally against nature,” Justice Nagarathna remarked.

“This was the original promise of GM,” Bhushan replied, “It is premised on this basis…of going against nature.”

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, 2022, 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 the same 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 last 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 Dinesh 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.

Case Title

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