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...

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

Gursimran Kaur Bakshi

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