[WP (C) No. 115/2004]
The supreme court’s division bench comprising Justices BV Nagarathna and Sanjay Karol delivered a split verdict in a batch of public interest litigation challenging the 2022 decision of the Genetic Engineering Appraisal Committee (GEAC) which granted conditional approval for the environmental release of transgenic mustard hybrid, ‘Dhara Mustard Hybrid-11 (DMH-11)’ to the Centre.
Justice Nagarathna has delivered the judgment against the GEAC's approval, thereby quashing the same and Justice Karol gave judgment in favor of the approval for the field trials of DMH-11. However, both the judges agreed upon some points and issued directions in that regard, and the matter is now placed before the Chief Justice of India to constitute a larger bench.
The Genetic Engineering Appraisal Committee (GEAC) granted conditional approval for the environmental release of DMH-11 based on the views of various committees, sub-committees, and expert reviews. The primary legal issues revolve around the regulatory framework, public participation, environmental and health safety, and the application of the precautionary principle. The petitioners, including Gene Campaign, contended the approval process for the environmental release of DMH-11, citing deficiencies in the regulatory framework, lack of public participation, and potential environmental and health risks. It was the case of the petitioners 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.
Moreover, concerns were raised regarding the lack of public consent and participation since 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. The trial of GMOs has been going on in the Supreme Court since 2004. The court has issued directions from time to time and in 2006, it permitted planting DMH-11 for environmental purposes in specifically identified fields. A Technical Expert Committee (TEC) was also instituted in 2012, which submitted its report highlighting various concerns on GMOs and suggesting more field trials to address the issues related to tests. Based on the report and the concerns raised, the Union Government halted the release of GMOs in 2016 and sought public opinion. The court was subsequently informed 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 which led to the present proceedings.
Justice Nagarathna in her opinion opined that that the biosafety dossier for the DMH-11 was not available for public inspection. This was contrary to the earlier process, wherein the biosafety dossier regarding Bt cotton and Bt brinjal was put in the public domain after the Court’s directions. This allowed critical examination of the same by national and international experts. This led to the approval given by GEAC having to be put on hold by the Ministry, as it became apparent that GEAC had not complied with the regulatory mechanism. However, by not making the DMH-11 dossier available violated the court's direction issued in 2008.
After taking note of the flaws in the procedure adopted by GEAC for DMH-11 and the approval by MoEF&CC, she held that the MoEF&CC has no role to play in approving the decision of GEAC. Moreover, the approval was made without consulting States which is mandatory since agriculture is a State subject under Entry 4, List II. Further, she has pointed out the lack of involvement of health experts. Justice Nagarathna emphasized that requisite environmental information formed a part of the right to information in the instant case which was denied to the citizens since it was not disclosed. Given the fact that the unanticipated consequences of the environmental release of DMH-11 remain in the sphere of uncertainty, she took the decision not to allow the release of DMH-11. On precautionary principles, she observed that the apprehensions of the petitioners that HT crops would exert a highly adverse impact over time on sustainable agriculture, rural livelihoods, and the environment are not unfounded. It is reasonable to infer that there is a potential of loss of species of Indigenous mustard crop, as India is the center of origin and diversity. The precautionary principle was upheld by the Supreme Court as an essential feature of sustainable development in Vellore Citizens Welfare Forum vs UOI 1996 5 SCR 241. Justice Nagarathna ultimately issued certain directions for the future environmental release of the DMH-11. She stated that they should take a decision on whether transgenic mustard hybrid DMH-11 is an HT crop or not, by having a wide and meaningful consultation on the report of TEC submitted to this Court with all stakeholders. For that, MoEF&CC must publish an official report, with adequate publicity. She directed GEAC to upload the biosafety dossier on the website. After concluding that that transgenic mustard hybrid DMH-11 is a HT crop, the nature of risk that would be caused by the said plant must be researched and deliberated upon by GEAC and MoEF&CC.
Justice Karol took the opposite opinion and held that the decision of GEAC does not suffer from the non-application of mind since it was based on multiple documents, not on the comments of the expert committee alone. He further denied the contention raised by the petitioners that the 1989 Rules, under which the GEAC is constituted, is unconstitutional primarily because the GEAC consists of executive members stating that members were made to sign a declaration of independence by the government. On the issue of the precautionary principle, Justice Karol held that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of “sustainable development”. The approval of DHM-11 is in line with a developmental approach of a scientific temper. However, he refused to issue directions on whether DMH-11 is an HT crop or not, expressing the court's lack of expertise.
The division bench agreed on the necessity of National Policy with regard to GM crops in the realm of research, cultivation, trade, and commerce in the country and directed the respondent-Union of India to evolve the same. The respondents were directed to ensure that the said National Policy shall be formulated in consultation with all stakeholders, such as, experts in the field of agriculture, biotechnology, State Governments, representatives of the farmers, etc. The decision reinforces the application of the precautionary principle in environmental decision-making, ensuring that potential risks are adequately assessed and mitigated.