Commercial sale of GM mustard will have to wait as SC gives split verdict

Matter set for larger bench. The judges, however, have asked the Centre to consider a national policy for seamless approach to GM crops.

Representational image of a mustard field | Reuters/Danish Ismail

New Delhi: The uncertainty over the commercial sale of genetically modified mustard (GM mustard) in India is likely to continue, with the Supreme Court delivering a split verdict Tuesday .

While Justice B.V. Nagarathna quashed the approval given to GM mustard by the Genetic Engineering Appraisal Committee (GEAC), Justice Sanjay Karol upheld the panel’s decision to allow the crop to be sold commercially.

With the two judges giving divergent views, the matter will now be placed before Chief Justice D.Y. Chandrachud, who will then allot it to a larger bench.

The court order came on a set of public interest litigations (PILs) challenging the Centre’s nod to the commercial cultivation and release of GM mustard. 

The central government body GEAC in 2022 had cleared the proposal for the commercial farming of GM mustard. The Ministry of Environment, Forest and Climate Change, too, approved the plan. 

However, after the PILs reached the top court, the Centre in November 2022 gave a verbal assurance that it would not go ahead with the release. But in August last year, the Centre moved the apex court to allow it to commercially release GM mustard.

Ruling against the release, Justice Nagarathna faulted the GEAC for clearing the project without relying on any indigenous studies on the crop’s effect in India and its possible environmental ramifications.

She noted in her part of the order that only foreign research studies were considered while making the recommendation favouring its release. “When the applicability is in India, research studies conducted indigenously must have been taken note of but nothing has been relied upon,” she noted in her order. The judge went on to hold the GEAC’s two orders of approval — on 18 and 25 October 2022 —  to be non-binding.

On the other hand, Justice Karol upheld the GEAC’s clearance for GM mustard’s commercial release. He said that since the GEAC’s composition was in accordance with the rules, the constitutional challenge to it would fail. Therefore, he held that the approval granted by GEAC, which is an expert body, should be allowed. 

But both judges agreed on some of the points that were put forth during the argument. They accepted that a judicial review of a decision taken by the GEAC was permissible and that the Centre must consider implementing a national policy for a seamless approach to GM crops.

The judges asked the Union Ministry of Environment and Forest to formulate such a policy, along with rules, within four months. For importing GM oil, they said, authorities must rely on Section 23 of The Food Safety and Standards Act, 2006, which relates to packaging and labelling.

Against principles of accountability or no arbitrariness

Justice Nagarathna’s opinion emphasised striking a balance between development and the environment. She underscored that the court was not conducting a scientific review of the proposal as it was not the appropriate authority to do so.

She, therefore, focused on whether the approval given by GEAC was properly granted. After perusing documents placed before the court, the judge concluded the meeting that cleared the proposal for cultivation and commercial sale of GM mustard was not properly conducted because it did not have proper representation.

According to her, the approval was then against “principles of accountability”. She also said the panel failed to adequately assess the effect of GM mustard on public health and the environment. This, she underlined, was in “gross violation of principle of intergenerational equity” as well as “public interest”.

“We note that the environmental protection aspect has to be considered before granting any approval. The formation of GEAC also needs to be reformed,” the judge added.

Justice Karol touched upon finding the right balance when it came to deciding between competing interests.

On an independent analysis of the case, he did not find “any aspect of manifest arbitrariness” in the approval that was granted by GEAC, nor in its composition. “On the composition of GEAC, I find that the constitution of this committee ensures that bureaucrats and their views do not overpower anything,” he said.

(Edited by Tikli Basu)