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...

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

Gursimran Kaur Bakshi

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