New Delhi: Lack of inter-departmental consultation; absence of a procedure to research to understand impact; non-involvement of states in decision making; and the disregard of expert recommendations to hold field trials were among the procedural flaws flagged by Justice B.V. Nagarathna, who ruled against the commercial release of genetically modified (GM) mustard in a split verdict by the Supreme Court.
Unlike Justice Nagarathna, who headed the two-judge SC bench, Justice Sanjay Karol upheld the approval given, first, by the Genetic Engineering Appraisal Committee (GEAC), and, subsequently by the Ministry of Environment and Forest (MoEF) in October 2022, though it was subject to several conditions.
He also held that the Indian regulatory system had a sufficiently robust framework of risk assessment that could be used by the regulatory authorities to protect health and ensure the safety of people and the environment as well as to foster research and development in the field of GM plants.
Given the divergent views, the matter will now be placed before Chief Justice of India (CJI) D.Y. Chandrachud, who will refer it to a larger bench to re-hear the case. In the meantime, the government cannot unilaterally release GM mustard as a result of an undertaking, albeit verbal, that it gave the court two years ago, promising not to take any steps on GM mustard till the judgment.
Petitioners question GEAC approval
Although public interest litigations (PILs) regarding the introduction of GM crops were filed in the Supreme Court nearly 20 years ago, the hearing in the case was expedited early this year after the GEAC approved the commercial release of the crop on 18 October 2022.
The petitioners told the court that the approval was not in line with the recommendations made by the court-appointed Technical Expert Committee (TEC), set up in 2012. The committee, in its report, had observed that GM mustard had never been tested as a Herbicide Tolerant (HT) crop because there are no regulatory guidelines and protocols for testing such crops in India.
It also flagged that no measures were undertaken in labelling GM foods and that no studies had been conducted into the impact of consuming them, highlighting the need for the formulation of a national policy for GM crops.
Petitioners also argued that the cultivation of GM crops in India would impact organic food producers and could adversely impact the export of organic food. The Centre, on the other hand, urged the Court not to intervene because the questions involved were highly technical and polycentric.
Both judges unanimously rejected the Centre’s submission that GEAC’s decision was beyond the remit of a judicial review. However, they disagreed in their opinions regarding the process that was followed to give the approval.
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Justice Nagarathna flags procedural flaws
Justice Nagarathna, who wrote 260 pages of the 409-page verdict, observed that there was undue haste in granting permission to Delhi University’s Centre for Genetic Manipulation of Crop Plants (CGMCP) to commercially release the GM mustard. This approval, he noted, also superseded the GEAC’s September 2018 decision to defer field demonstration studies on transgenic mustard.
Till 2020-21, field demonstrations for transgenic mustard had not yet been cleared by the GEAC. In 2022, the MoEF, after receiving a letter from the CGMCP, sought comments from different departments and constituted another expert committee on the need for conducting field demonstration studies of GM mustard on honeybees and other pollinators.
Justice Nagarathna questioned the reason for constituting this panel and its dramatically opposite view on field demonstrations to the GEAC in 2018. While the GEAC said field demonstration should be conducted before the environmental release of the crop, the expert committee suggested that within two years, post-environmental release, the effect of GM mustard on honeybees and other pollinators could be studied.
Moreover, as many as seven members — one-third of the panel — were not present in the crucial meeting on 18 October 2022 when the GEAC approved the commercial release, Justice Nagarathna noted. Among notable absentees were the representatives of the Indian Council of Medical Research (ICMR) and the health ministry. This means, the judge said, that the adverse effects on human health and the environment were not taken into consideration before giving the approval.
She also noted that the government did not place any material to show how GEAC’s decision was accepted by the MoEF given that the ministry does not have a role in the decision-making process. The judge also observed the ministry did not hold any inter-departmental consultation with other relevant ministers, notifying the GEAC’s proposal immediately.
“Therefore, the lateral intervention by the ministry seriously undermines the credibility and integrity of the decision-making as well as the regulatory process,” the judge said in her opinion.
Justice Nagarathna also said the approval was in gross violation of the principle of public trust and violated the right to a safe and healthy environment promised under Article 21 (protection of life and personal liberty) of the Constitution.
“The public trust doctrine enjoins upon the Government to protect the natural resources as well as the environment for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. The State is, therefore, under a legal duty to protect the natural resources.”
‘States should have been involved’
The Centre should not have unilaterally acted on such a serious matter without bringing the States on board, she said, adding that agriculture is a state subject under the Constitution. The States, the judge asserted, cannot be “treated as satellites of the Union of India as they have constitutional identity and powers and responsibilities conferred under the Constitution and, therefore, their views in the matter are of significance.”
Justice Nagarathna recorded that Bihar, Kerala, Madhya Pradesh, Haryana, Tamil Nadu, Delhi, Andhra Pradesh, Rajasthan, Odisha, West Bengal and Karnataka had expressed reservations against field testing and release of GM mustard. Yet, their views were not considered during the decision-making process to make it “wholesome,” she observed, adding that wider consultation would have made the decision less vulnerable and arbitrary.
The judge also cast doubt on the GEAC’s conditions on the commercial release of GM mustard and said that the Centre’s decision, based on a flawed procedure adopted by the GEAC, was arbitrary. The GEAC, the judge noted, brushed aside without any basis its own suggestions to hold field trials before the commercial release of the crop.
She also criticised the GEAC’s failure to make a biosafety dossier — a public document with the primary data on GM mustard which would have been accessible to the affected parties, such as farmers, farm workers, consumers, experts in the field and the citizenry. Justice Nagarathna held that the approval was vitiated because it “seriously undermined” the right to environmental information, which comes within the scope of the right to information, a critical aspect of the right to freedom of speech and expression.
The GEAC was duty-bound to sanction long-term chronic and intergenerational studies, as was recommended by the court-appointed TEC, she said. 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 a suitable manner.
The judge also referred to two Parliamentary Standing Committee (PSC) reports of 2012 and 2017 that recommended reforms in the institutional architecture of GEAC by way of having a full-time body with a competent leadership to conduct impartial and sound scrutiny of applications for approval under the 1989 Rules under the the Environment (Protection) Act. The government had, however, turned down this suggestion.
On this, Justice Nagarathna said: “I infer that the Government is reluctant to reform the composition and criteria for appointment to GEAC. No response is forthcoming on the PSC’s recommendation that the conflict of interest in the composition should be minimised.”
The judge said TEC and PSC’s conclusions about safety assessment and ecological impact cannot be transplanted from research conducted in a foreign context. “This, I find, is a serious omission, on the part of GEAC in not applying its mind to research studies to be conducted within the country as India has a unique biodiversity and a socio-economic structure of society which is directly related to land holdings and conduct of agricultural operations.”
She also highlighted the lack of safety regulations for labelling GM foods under the existing legal framework, adding that there was not enough clarity on the notification that was issued to regulate the sale, distribution, and consumption of GM food.
Justice Sanjay Karol rejects petitioners’ charge
Justice Karol, however, did not question the MoEF’s approval of the GEAC’s decision and said that it was based on multiple documents, not just comments of the expert committee. He rejected the petitioners’ charge that the GEAC decision was an outcome of the “non-application of mind”.
He also disagreed with Justice Nagarathna on the lack of adequate legal safeguards, adding that the 1989 Rules of the Environment (Protection) Act offered a well-rounded mechanism to deal with genetically modified organisms (GMOs) and their introduction into fields of common usage.
The law provides six different competent authorities to oversee the research and regulations in the field of GMOs, Justice Karol observed. “In none of these Rules could I find even the slightest hint of manifest arbitrariness. None of the parts of the Rules can be said to be irrational, capricious or without adequate determining principle; on the contrary, as displayed, a clear rationale is discernible.”
Certain irregular procedures in the TEC and PSC reports cannot “automatically lead to the conclusion that gaps in the impugned procedures result” is a violation of fundamental rights and must be invalidated, said the justice.
On examining the decision-making process, he concluded that the purported gaps mentioned in the reports do not violate the precautionary principle — which guides decision makers to take action to protect the public from social harm. Taking all these aspects into consideration, the judge said, the GEAC cannot be faulted for constituting an expert panel that submitted its findings in conformity with the mandate it was given.
The conditional approval, leading to field trials for GM mustard, he added, is in line with a developmental approach, of a scientific temper. It has been supplemented with conditions, imposed by the expert body, to mitigate the impact on the environment, the judge said.
Taking earlier court orders in the case into consideration, he said that the top court had never been inclined to direct a stop to field trials for GM crops, but directed a pause on approvals, subject to a hearing of all sides in the matter. Further, the apex court had never doubted the authority of GEAC and its ability to function properly.
The petitioners, he said, had failed to show “even a single negative instance” of an adverse impact of the field trials that have commenced in six out of the eight sanctioned locations. “The fears raised by the petitioners, therefore, are not substantiated by any negative occurrence.”
The judge also highlighted the Centre’s submission on a comprehensive risk assessment of GMOs and toxicity studies, which were undertaken as per guidelines on a case-by-case basis. “Field trials are a significant step in the development of crop varieties as the data representing the plant’s response to a particular agroecological environment can be collected only when such plant is grown outside in confined field trials. Without field trials, the performance of the plant in the field or environmental safety of such plant cannot be known,” he said.
Studies, conducted in an open environment, are necessary for studying the impact on human health and biodiversity since the performance of a GM crop is dependent on a host environment. This would be essential to developing appropriate biosafety mechanisms as well, the judge added, refusing to interfere with the approval.
(Edited by Sanya Mathur)
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