GM Mustard Case | Justice Nagarathna Flays Failure To Make Biosafety Dossier Public, Says Right To Environmental Information Affected

Recently, Justice BV Nagarathna has upheld the right to a safe and healthy environment as a part of Article 21 by reiterating its existing jurisprudence, including in Virender Gaur vs State of Haryana (1995), where the right to life was expanded to include the hygienic environment as an integral facet of the right to a healthy life and which puts a duty on the State to maintain ecological balance by taking concrete measures to promote, protect and improve the environment.

She said: “This Court's jurisprudence on the right to a safe and healthy environment is a firewall against unscrupulous and unsustainable decision-making. It encapsulates a concomitant duty for the State, as understood in light of Articles 48 and 51A(g) of the Constitution of India.”

On July 23, the Supreme Court division bench of Justices BV Nagarathna and Sanjay Karol delivered a split verdict on 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. While Justice Nagarathna has quashed the approval, Justice Karol has upheld it. The court has passed certain directions in this case while the matter awaits to be heard by a larger bench.

Justice Nagarathna's analysis of the right to a safe and healthy environment is based on three issues.

Unanticipated adverse effects cannot be ignored

Justice Nagarathna undertook a comparative study of the different foreign judgments where the courts upheld the courts' judicial review in cases where potential risk of environmental danger existed.

She relied on the judgment of the Supreme Court of the Netherlands in State of the Netherlands (Ministry of Economic Affairs and Climate Policy) vs Stichting Urgenda (2019), where the Netherlands had argued that the decision to fulfil environmental obligation remains a matter of legislative domain. The courts cannot interfere with it as a matter of separation of powers.

In this case, the Netherlands challenged the order of the Hague District Court, which directed the State to reduce greenhouse gas by at least 25 per cent by 2020. The Supreme Court rejected Netherland's argument and reasoned that the mere lack of complete scientific certainty about the efficacy of the ordered reduction scenario does not exempt the State from its duty to adopt sufficient remedial measures.

The Supreme Court of the Netherlands upheld the precautionary principle and stated that there exists an obligation to take measures if there is a risk that serious environmental contamination may affect people's well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely.

Justice Nagarathna also relied on a judgment of the European Court of Human Rights (ECtHR) in Fadeyeva vs. Russia (2005), wherein the court protected the right to health and well-being under Article 8 of the European Convention on Human Rights guaranteeing the right to respect private and family life.

In this case, a Russian citizen argued that the operation of a steel plant near her home endangered her health and well-being and thereby violated Article 8. The court took note of how Article 8 of the ECHR was reflected in Article 42 of the Russian Constitution, which protected the right to a favourable environment, reliable information, and compensation for damage caused to health or property by ecological offences.

The ECtHR acknowledged that there was information asymmetry between the citizen who claimed his right to health was violated and the State. It concluded that it would not be possible in such cases to rigorously apply the burden of proof on the citizen to prove this right has been violated. Therefore, in such cases, a very strong combination of indirect evidence and presumptions is required to conclude that the citizen's health deteriorated as a result of her prolonged exposure to industrial emissions from the steel plant.

Justice Nagarathna applied the reasoning of the above cases and held that the court-appointed Technical Expert Committee (TEC) for studying GMO technology in India had raised serious potential concerns and consequences over the gap of regulatory mechanism. It has been suggested that a chronic and transgenerational study be conducted to examine the impact of human health within the risk assessment process. A 2017 Parliamentary Standing Committee report reiterated the same suggestion.

However, in the present cases, no such studies were conducted.

Justice Nagarathna reiterated the reasoning of the Supreme Court in T.N. Godavarman Thirumulkpad vs UOI (2008), where it held that there exists a duty on the State under the Constitution to devise and implement a coherent and coordinated program to meet its obligations of sustainable development based on inter-generational equity.

Disclosure of information

Another issue Justice Nagarathna highlighted is that the biosafety dossier on the DMH-11 contained essential information, and the toxicity and allergenicity data was not made available to the affected parties.

She pointed out that this seriously undermined the right to environmental information. As per the court's directions given in two orders issued in 2008, GEAC was directed to upload the biosafety dossier on Bt Cotton and Bt Brinjal on its website. This led to international and national experts critically examining the effects of GMOs on various socio-economic aspects, including health. The government eventually stayed on the release of GMOs in 2016.

However, neither the biosafety dossier nor the toxicity and allergenicity data have been made available in the case of DMH-11. The government had argued that the dossier could not be made available on the website because an independent review of the same by the public would undermine the credibility of the extant regulatory regime.

Justice Nagarathna disagreed with this argument and observed that the right to environmental information comes within the scope of the right to information (as held in State of Uttar Pradesh vs Raj Narain (1975)) and is critical aspect of the right to freedom of speech and expression (Chief Information Commissioner vs State of Manipur (2011)).

She has also pointed out that the disclosure of information is a rule of open governance. However, maintaining secrecy is an exception, as held in S.P. Gupta vs UOI (1987).

Justice Nagarathna has remarked: “The access to environmental information facilitates 'meaningful engagement' and 'rights-conscious decision-making'. The engagement with stakeholders through participative process inspires confidence in the decision-making process and leads to more sound outcomes which are less vulnerable to legal challenges.”

Environmental decision-making based on transparency, accountability and public-participation

Justice Nagarathna has stated that in environmental decision-making, sufficient safeguards in the form of transparency, accountability, and public participation exist to ensure that the regulatory decisions are not based on partial and uncontested scientific evidence.

She relied on the decision of the US Court of Appeal, DC Circuit, on International Harvester Co. vs Ruckelshaus (1973) wherein the court emphasised that in environmental matters before the judiciary adjudicates upon technological questions, it ought to be assured that such questions are first “resolved in the crucible of debates through the clash of informed but opposing scientific and technological viewpoint”.

Based on this, Justice Nagarathna stated that various scholars and public activists had endorsed emails addressed to the Minister of Environment, Forest and Climate Change (MoEF&CC), particularly raising objections to the non-disclosure of the biosafety dossier to the general public. Another email raised grave concerns over the refusal of the GEAC to disclose the biosafety data to the general public, which scholars and activists claimed hindered the meaningful exercise of public consultation.

During the hearing, the government argued that based on the TEC's report, various regulatory frameworks such as the Risk Analysis Framework, 2016, and the Guidelines for Environmental Risk Assessment for Genetically Engineered Plants, 2016 were put in place.

Justice Nagarathna examined these frameworks and stated that while the Risk Analysis Framework includes a provision for transparency to support decision-making, the reliance on publishing a biosafety dossier and conducting chronic and transgenerational toxicity study showed otherwise.

She said: “The failure to publish the biosafety dossier on the website reveals a deficiency in the Guidelines for Environmental Risk Assessment (ERA) for Genetically Engineered (GE) Plants, 2016.”

Based on the above arguments, Justice Nagarathna concluded that there has been a violation of the right to a safe and healthy environment under Article 21 because the safeguards that were necessary to be taken before the grant of approval were not taken in the present case.

She termed the violation particularly serious in light of the directions issued by the court in T.N. Godavarman's judgment.

She further noted: “The failure to adequately assess 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.”

Precautionary principle

Justice Nagarathna relied on the precautionary principle, a foundational environmental law principle. This principle necessitates that those activities that disturb nature shall proceed only upon a prior assessment of their consequence. This principle is a part of Articles 14 and 26 of the 1992 UN Convention on Biological Diversity and the Cartagena Protocol on Biosafety, respectively, which India has ratified.

Justice Nagarathna stated that the GEAC must conduct long-term chronic and intergenerational studies under domestic and international law. This was also recommended by the TEC. However, it was not conducted in this case. She noted: “The reluctance to conduct such studies would risk the health of future generations as well as the farmers' right to conduct their agricultural activities in the most suitable manner.”

Here, it is particularly important to note that the Parliamentary Standing Committee conducted a study on GMOs. They noted: “The Committee notes with surprise that inspite of the fact that GM technology is being propagated as the most advanced agricultural technology, 17 of the 20 most developed countries (HDI) do not grow it which includes most of Europe, Japan, Russia, Israel etc. The Committee opines that there is increasing evidence about the lack of safety of GM crops and little or no benefits to justify the risks, most countries in the world do not grow GM crops.”

The committee recommended that India conduct a comparative study to examine the reasons why developing countries have not accepted GMO technology.

The committed had further stated in the report: “The Committee also feels that the policy makers of these countries, as custodians for both present and future generations, have seen that GM organisms spread rapidly, that the impacts have been unpredictable, potentially hazardous, uncontrollable and irreversible, assessed the benefits and risks, taken note of emerging evidence of harm, and therefore do not permit GM crops. The non acceptance of the most advanced agricultural technology, GM technology, by the most developed countries raises doubts about the efficacy of the technology.”

In this case, the Food Safety and Standards Authority of India has also not undertaken any study on the impact of GM foods on the right to health. The Indian Council of Agricultural Research had pursued a long-term study on the impact of Bt cotton cultivation, and it apparently found no adverse effects on soil, microflora, or animal health.

Further, Justice Nagarathna also examined whether DMH-11 is a Herbicide Tolerant (HT) crop. The TEC had recommended a complete ban on HT crops. HT crops confer tolerance to the herbicide glufosinate-ammonium. While the government has denied that the DMH-11 has HT traits, the petitioners and other reports cited in the judgment say otherwise.

She stated since no determination of whether DMH-11 is an HT crop or not was made before the GEAC granted approval, this violates the precautionary principle.

Justice Nagarathna concluded her opinion by stating: “The aspiration of transformative environmental governance cannot be realised merely through an effective bureaucracy and sound technical expertise. Environmental democracy and environmental rights are two ideas of the same coin. In this regard, the facts of this case shed light on the salience of the legislative role in preserving environmental democracy.”

She added: “Environmental decision-making in a rapidly changing climate requires healthy contestation of alternative worldviews, interests and rights. Only through such contestation can a fine and sustainable balance between development and the environment be arrived at.”

“The Department-related Parliamentary Standing Committees and other legislative committees discharge important functions. In the context of the environment, these committees are mandated to scrutinise public issues from multiple perspectives, appreciate available evidence, consult experts and the members of the affected communities and thereafter render a principled and considered report. Open and transparent deliberation on expert knowledge increases accountability and acts as a safeguard against conflict of interest but not a closed door decision making process,” she averred.

Background

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 for the public to access information despite the technology of GMOs having possible adverse effects on human and animal health, socio-economic conditions as well as on the environment. It neither requires taking prior informed consent from framers nor Gram Sabhas are 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 the release of GMOs until adequate biosafety tests have demonstrated safety beyond 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 granted permission to plan 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.

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

Click here to read the judgment