'Environmental Harm Can't Be Reversed' : Supreme Court Defers Centre's Plea For Release Of Genetically Modified Mustard Seeds

Last week, the central government filed an application seeking to be discharged from its promise against taking any precipitative steps for the release of GM mustard, contending that the undertaking was made last year at the Bar in view of the matter’s imminent final hearing and the sowing season being months away. But, with the retirement of Justice Maheshwari, the batch of petitions had to be reassigned to another bench despite the near completion of the oral argument. This has now led to the central government requesting to be allowed to proceed with subsequent steps with respect to the environmental release of the transgenic crop. In its affidavit, the Centre has, among other things, highlighted not only mustard’s significance as a major edible oil and seed meal crop crucial for ensuring the food security of the country, but also the approaching September and October sowing season.

After Justice Dineshwari’s retirement, a bench of Justices BV Nagarathna and Ujjal Bhuyan is now hearing a batch of petitions seeking a ban on the commercial cultivation of indigenously developed genetically modified mustard, christened ‘HT Mustard DMH-11’, which in October, received the imprimatur of the environment ministry. This is the first time a transgenic food crop is planned to be commercially cultivated in India.

Courtroom Exchange

Today, Additional Solicitor-General Aishwarya Bhati, who had made the November undertaking, personally appeared in court with a request to be discharged from it. She put special emphasis on the upcoming sowing season and the circumstances under which the pledge was made in the first place –

“The seeds were already sown in eight out of ten sites. When this court asked us to not take precipitative action in view of the matter being listed in the following week for final hearing, I gave this assurance. The next sowing season was also one year away. This undertaking was made under these circumstances. We are at the last phase of research. This is not a commercial release, but environmental release.”

She further argued that the environmental release was a culmination of over a decade’s worth of research, and the conditional approval for it would be valid for four years. Four sowing cycles will have to be examined and studied by the scientists to determine the future course of action, the law officer told the court. Saying this, ASG Bhati requested –

“If Your Lordships discharge us from our undertaking, we can proceed to sow the mustard seeds at the ten sites initially proposed and carry out the research. This court, while deciding this matter, will also have the benefit of our reports. Alternatively, at least allow us to sow the seeds in the eight sites that we studied last year and place our report before this court. We are keen on not losing this season.”

Justice Nagarathna asked the law officer, “If we discharge you, what remains in this matter?” The judge also cautioned that the Centre should not ‘release anything’.

“It will not be commercially released without this court first hearing the matter,” ASG Bhati clarified, “This is only environmental release which is the final phase after 12 years of research.”

At this juncture, Advocate Prashant Bhushan interjected to raise biosafety concerns over an environmental release of GM mustard leading to contamination of non-genetically modified crops –

“Environmental release means release into the environment. If they want to do any test, they can do it in greenhouse conditions so that it is not released into the environment and contaminate other non-GM crops. The technical expert committee constituted by this court said, in no uncertain terms, that no open-field trial should be allowed unless the whole regulatory system, which is in shambles, is fixed first.”

ASG Bhati objected to this saying that field trials had gone on since the court-appointed committee lifted an embargo on it –

“They asked for a stay in 2006. Those field trials were on one-acre plots, and then 2.5-acre plots. It’s been out of the lab for a long time. After initially imposing a restriction, this court lifted the embargo. Field trials have gone on for a long time. Now we are at the final stage.”

Senior Advocate Sanjay Parikh, appearing for Gene campaign, chimed in, saying that the Centre had actually not honoured its undertaking –

“We urged the crops that were sown to be uprooted and disposed of in an environmentally sound manner to prevent any chance of contamination. This was not done. Their application should not be allowed and whatever they have done so far, in our understanding, is a violation of the undertaking given to this court promising to not take any precipitative action.”

“We will have to consider this application,” Justice Nagarathna, who was a member of the Justice Dineshwari-led bench, told the additional solicitor-general. She also categorically declined to consider such ‘piecemeal’ applications, saying –

“We are now a new combination. So there is no background to that extent. This is not a one-member bench. You will have to argue the whole thing again. Why should we do this piecemeal kind of a thing?”

ASG Bhati tried again, “Today, India has to meet 55-60 per cent of its edible oil demand through exports…”

“We know that,” Justice Nagarathna said before adding that the environment and ecology must also be maintained.

“The process is being conducted by experts. Not being discharged from this application will now put back our research. The stakes are huge in terms of food security,” the additional solicitor-general argued. Disagreeing with this contention, Bhushan pointed out that the central government had stated on affidavit that the new variety of mustard seeds had no benefits in terms of productivity.

Despite the law officer’s fervent appeals, the bench could not be convinced to allow the Centre’s application seeking to be discharged from its earlier undertaking, in view of the possibility of irreversible harm being caused to the environment. Directing the hearing to be adjourned until September 26, Justice Nagarathna said –

“One year here or there does not matter. This is only one season. Next year there will be another season. However environmental harm cannot be reversed. We will have to hear the application and consider it. List on September 26. Let us start on Tuesday. If it spills over, we will continue hearing on Wednesday. Please do not seek any adjournment.”

The additional solicitor-general made one last attempt to persuade the bench to allow GM mustard seeds to be sown in the eight sites where the crop was sown last year. But Justice Nagarathna remained steadfast in her unwillingness to allow any precipitative action before the hearing. “Nothing will happen in three weeks,” the judge said.

Multiple petitioners have challenged the Centre’s decision to commercially cultivate GM mustard. Non-governmental organisation Gene Campaign has filed an interim application through Advocate-on-Record Aparna Bhat in its ongoing public interest litigation (PIL), originally initiated in 2004 seeking the regulatory system for genetically modified organisms (GMO) to be strengthened. The list of petitioners also 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