GM Mustard Case | Evolve National Policy On Genetically Modified Crops Consulting States, Farmers & Experts: Supreme Court To Centre

In a batch of public interest litigation challenging the 2022 decision of the Genetic Engineering Appraisal Committee (GEAC) granting conditional approval for the environmental release of transgenic mustard hybrid, Dhara Mustard Hybrid-11 (DMH-11) to the Centre for Genetic Manipulation of Crop Plants, the Supreme Court division bench of Justices BV Nagarathna and Sanjay Karol delivered a split verdict.

Justice Nagarathna has quashed GEAC's approval, Justice Karol has given a green light for the field trials of DMH-11. The bench has agreed upon some points and has issued directions in that regard, while the matter is placed before the Chief Justice of India to constitute a larger bench.

Brief overview

Petitioners have argued that the Rules for Manufacture, Use, Import, Export and the Storage of Hazardous Micro-organisations, Genetically Engineered Organisms or Cells, 1989 under the Environment (Protection) Act, 1986 are not in conformity with the Articles 14, 19, 21, 38, 47, 48, 48A read with 51A(g) of the Indian Constitution and India's international obligations under the 1992 UN Convention on Biological Diversity and the Cartagena Protocol on Biosafety in terms of health safeguards, precautionary principles, sustainable development, polluter pay principle and intergenerational equity doctrine.

Particularly, it was contended that the 1989 Rules do not allow the public to access information despite the technology of Genetically Modified Organisms (GMOs) having possible adverse effects on human and animal health, socio-economic conditions, and the environment. It neither requires taking prior informed consent from framers nor Gram Sabhas where field trials are conducted.

The petitions also prayed that the government should set up a High-Power Committee to formulate a National Policy on Genetically Engineered Organisms (GEOs) through a multi-stakeholder consultation process, which the GEAC still needs to adopt. Until then, they must implement a moratorium on releasing GMOs until adequate biosafety tests have demonstrated safety beyond a reasonable doubt.

The Supreme Court has been engaged in the trial of GMOs in India since 2004 and has issued directions from time to time. In 2006, it permitted planting DMH-11 for environmental purposes in specifically identified fields. It instituted a Technical Expert Committee (TEC) in 2012, which submitted its report highlighting various concerns on GMOs.

In 2016, the Union Government halted the release of GMOs and sought public opinion. It subsequently informed the court that no decision on the plantation of GM Mustard had been taken. However, in 2022, the GEAC granted conditional approval for conducting trials of DMH-11. Hence, the present proceedings.

Justice Nagarathna's opinion

Justice Nagarathna critically emphasised three issues. First, whether GEAC approval for the environmental release of DMH-11 is in accordance with law. Second, does it violate the right to a safe and healthy environment under Article 21? Lastly, does it violate the precautionary principle?

On all accounts, Justice Nagarathna held against the Union Government. She held that the biosafety dossier for the DMH-11 was not available for public inspection. In 2008, the court issued directions for making the biosafety dossier available for the public domain after the GEAC approved Bt Cotton and Bt Brinjal.

The dossier allowed national and international experts to critically examine the same, leading the Ministry of Environment, Forest and Climate Change (MoEF&CC) to put a hold on its release. However, not making the DMH-11 dossier available violated the court's direction issued in 2008. She also found that GEAC adopted a flawed procedure for approving DMH-11, while the MoEF&CC approved the recommendation.

Justice Nagarathna has held that the MoEF&CC has no role to play in approving the decision of GEAC. Moreover, the approval was made without consulting States even though agriculture is a State subject under Entry 4, List II. Further, she has pointed out that there was no involvement of health experts.

Additionally, the requisite environmental information, which Justice Nagarathna pointed out is a part of the right to information, was not disclosed. She held: “The presence of sufficient safeguards such as transparency, accountability and public participation wherever permissible within the decision-making process is critical to ensure that regulatory decisions are not made on partial and uncontested scientific evidence.”

Justice Nagarathna has stated that the unanticipated consequences of the environmental release of DMH-11 remain uncertain, and the non-compliance with the court's earlier directions violates the right to a safe and healthy environment. She held: “The failure to adequately assess the health and environmental impact of GM crops seriously infringes upon intergenerational equity as it potentially endangers the ability of future citizens to enjoy the highest attainable standard of health.”

Justice Nagarathna examined whether DMH-11 is a Herbicide Tolerant (HT) crop, which the TEC suggested is a potent carcinogen that may lead to bread cancer. It recommended a complete ban on HT crops.

HT crops confer tolerance to the herbicide glufosinate-ammonium, which is useful for weed control. However, it was contended that the HT trait would destroy the opportunity to do mixed farming prevalent in India because it would affect all vegetation in and around the field where the HT crop is cultivated.

Currently, the HT seeds of DMH-11 have been sown in five locations.

On precautionary principles, she observed: “I find that the apprehensions of the petitioners that HT crops would exert a highly adverse impact over time on sustainable agriculture, rural livelihoods, and the environment are not unfounded. It is reasonable to infer that there is a potential of loss of species of indigenous mustard crop, as India is the centre of origin and diversity, which fact cannot be doubted.”

The precautionary principle was upheld by the Supreme Court as an essential feature of sustainable development in Vellore Citizens Welfare Forum vs UOI (1996).

Justice Nagarathna has issued certain directions for the future environmental release of the DMH-11. She stated that the GEAC must only decide after it has determined whether transgenic mustard hybrid DMH-11 is an HT crop, based on a wide and meaningful consultation on the TEC report with all stakeholders. Further, MoEF&CC must publish an official report, with adequate publicity, on whether DMH-11 is indeed an HT crop or not.

The GEAC is directed to upload the biosafety dossier on the website. Once GEAC and MoEF&CC have determined whether DMH-11 is an HT crop, the study must be made on the nature of risk that could be caused to plants, the environment, human beings and animals, including consideration given to bio-safety, risk assessment, soil health, micro-biology and socio-economic aspects. Lastly, once all this is done, the Union Government shall take a fresh policy decision on the environmental release of transgenic mustard hybrid DMH-11.

Justice Karol's opinion

Justice Karol considered two issues: First, whether the conditional approval of DMH-11 by the GEAC is arbitrary. Second, considering the precautionary principle, would a complete ban on Ht crops be warranted?

On both accounts, he held against the petitioners. Justice Karol held that the decision of GEAC does not suffer from the non-application of mind because it was based on multiple documents and not just on the comments of the expert committee. It was alleged by the petitioners that GEAC bypassed the directions of the court's TEC. Instead, it constituted a sub-committee and an expert committee, thereby delegating its core functions. However, Justice Karol rejected this argument.

Justice Karol also noted that the 1989 Rules do not suffer from manifest arbitrariness as alleged by the petitioners. It was argued by the petitioners that the 1989 Rules, under which the GEAC is constituted, is unconstitutional primarily because the GEAC consists of executive members, making it lopsided with bureaucratic influence. He rejected this argument stating that the government has already stated that the members must sign a declaration of independence.

On the issue of the precautionary principle, Justice Karol held that the court has consistently upheld a balance between sustainable development and development. The approval of DHM-11 is in line with a developmental approach of a scientific temper. However, he refused to issue directions on whether DMH-11 is an HT crop or not, expressing the court's lack of expertise.

Directions passed by the court

The court has directed the Union Government to evolve a National Policy on GM crops in the realm of research, cultivation, trade, and commerce. It has suggested that policy must be formulated in consultation with all stakeholders, including State Governments, and given due publicity. Further, the court has directed the MoEF&CC to conduct a national consultation, preferably within four months, to formulate the policy.

The directions (which both the judges agreed) are :

i. The respondent-Union of India is directed to evolve a National Policy with regard to GM crops in the realm of research, cultivation, trade and commerce in the country. The said National Policy shall be formulated in consultation with all stakeholders, such as, experts in the field of agriculture, biotechnology, State Governments, representatives of the farmers, etc. The National Policy to be formulated shall be given due publicity.

ii. For the aforesaid purpose, the MoEF&CC shall conduct a national consultation, preferably within the next four months, with the aim of formulating the National Policy on GM crops. The State Governments shall be involved in evolving the National Policy on GM crops.

iii. Respondent – Union of India must ensure that all credentials and past records of any expert who participates in the decision-making process should be scrupulously verified and conflict of interest, if any, should be declared and suitably mitigated by ensuring representation to wide range of interests. Rules in this regard may be formulated having a statutory force.

iv. In the matter of importing of GM food and more particularly GM edible oil, the respondent shall comply with the requirements of Section 23 of FSSA, 2006, which deals with packaging and labelling of foods.

Case details:

Gene Campaign & Anr. v. Union of India & Ors [WP (C) No. 115/2004]

Aruna Rodrigues & Ors. v. Union of Ministry of Environment, Forest and Climate Change & Ors. [WP (C) No. 260/2015]

Citation: 2024 LiveLaw (SC) 501

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