New Delhi: The Supreme Court on Tuesday delivered a split verdict on the petition questioning the validity of the Genetic Engineering Appraisal Committee (GEAC) decision of October 18, 2022, and the subsequent decision of the Ministry of Environment and Forests and Climate Change of October 25 to allow environmental release of Genetically Modified (GM) mustard. The apex court, however, unanimously directed that the Central government should formulate a national policy concerning GM crops for research, cultivation, trade and commerce in the country.
A bench comprising justices BV Nagarathna and Sanjay Karol in a 409-page judgment gave divergent opinions on the validity of decisions regarding GM mustard. The bench directed the matter to be listed before the Chief Justice of India DY Chandrachud for adjudication by an appropriate bench. Justice Nagarathna said that the GEAC approval and the subsequent approval regarding the release of genetically modified organisms (GMO) was vitiated and was in gross violation of public trust. She quashed the October 2022 decision by an expert panel, while Justice Sanjay Karol upheld the GEAC's decision. However, the judges unanimously held that judicial review of both the October 18 and 25 orders of GEAC is permissible.
The verdict by Justice BV Nagarathna
Justice Nagarathna said 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 standard of health. She said that the recommendations of the Technical Expert Committee (TEC), a panel constituted by the apex court in 2012, have been completely ignored by GEAC.
She said, “I am of the view that the GEAC approval dated 18.10.2022 and the consequent decision dated 25.10.2022 regarding the environmental release of transgenic mustard hybrid DMH-11 is vitiated. I also find that the impugned approval was in gross violation of the principle of public trust."
She stressed that the right to environmental information comes within the scope of the right to information as the public’s right to know every public act that is done by public functionaries is subject, of course, to absolute secrecy to be maintained in certain circumstances.
Justice Nagarathna said transparency is critical to preserve the integrity of the decision-making process and the access to environmental information facilitates 'meaningful engagement' and rights-conscious decision-making.
She said GEAC is duty-bound, both under domestic and international law, to sanction long-term chronic and intergenerational studies, as recommended by the TEC. “The reluctance to conduct such studies would risk the health of future generations as well as the farmers’ right to conduct their agricultural activities most suitably," she said.
Justice Nagarathna said at the crucial 147th meeting of GEAC held on October 18, 2022, there was no representative of the Indian Council of Medical Research (ICMR), Ministry of Health. "Hence, the matter was not considered from the paradigm of the adverse effect on the health of human beings and animals as well as on other plants in the event of environmental release," she said.
“No material has been brought before us to point out as to how the decision of GEAC was accepted by MoEF&CC and the recommendation of the environmental release of transgenic mustard hybrid DMH-11 was simply permitted”, she said.
“Given the fact that the unanticipated consequences of the environmental release of DMH-11 remain in the sphere of uncertainty, I am impelled to construe the failure to undertake necessary measures in light of the TEC and the PSC (Parliamentary Standing Committee) recommendations and the non-compliance with directions of this Court as a violation of the right to a safe and healthy environment”, she said.
Justice Nagarathna stressed that matters concerning environmental governance concern not just the living, but also generations to come, which is the basis of the doctrine of inter-generational equity.
She said 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 standard of health. "Based on the opinion of this Expert Committee, GEAC brushed aside its earlier decision taken in the 134th and 136th meetings to undertake field demonstration and restrict the area to only five acres at two to three different locations to generate additional data on honeybees and other pollinators, and on soil microbial diversity, which decision was also put on hold by GEAC", she said.
The verdict by Justice Karol
Justice Karol did not agree with the views of Justice Nagarathna. He said that the question of a ban on Herbicide Tolerant (HT) crops is not warranted given the precautionary principle and it is a decision squarely within the domain of policy. He said that field trials of DMH-11 shall continue in strict consonance with the conditions imposed and the Union of India and statutory authorities shall continue to strictly monitor the same.
“The conditional approval, leading to field trials for DMH-11 is in line with a developmental approach, of a scientific temper. The same has been supplemented with conditions imposed by the expert body, to facilitate mitigating measures qua the environment….”, said Justice Karol.
He said the decision of the GEAC to grant conditional approval is not vitiated by non-application of mind, or any other principle of law, on the part of the body, which itself is an expert body. “The Union of India should consider implementing a national, all-encompassing policy concerning GMOs to ensure a streamlined approach to this important issue. Connected thereto, is the setting up of infrastructure, including laboratories with state-of-the-art facilities, to aid the interplay of biotechnology and agriculture and the advancement thereof," he said.
Justice Karol said the field trials of DMH-11 shall continue in strict consonance with the conditions imposed and the Union of India and statutory authorities shall continue to strictly monitor the same.
“GEAC to ensure that the conditions mentioned in the conditional approval of DMH-11 are strictly complied with by the applicant in letter and spirit. The GEAC to take into account all environmental factors before granting future approvals and endeavour to have specifically designated farms for field testing, in collaboration with the Union of India”, he said.
The judges directed the Union of India to evolve a National Policy about GM crops in the realm of research, cultivation, trade and commerce in the country. “The said National Policy shall be formulated in consultation with all stakeholders, such as experts in the field of agriculture, biotechnology, State Governments and representatives of farmers. The National Policy to be formulated shall be given due publicity”, said the bench.
The apex court delivered the verdict on separate pleas by activist Aruna Rodrigues and NGO ‘Gene Campaign’ seeking a moratorium on the release of any Genetically Modified Organisms (GMOs) into the environment pending a comprehensive, transparent and rigorous biosafety protocol in the public domain and environmental release means release into the environment and if they want to do any test, they can do it in greenhouse conditions otherwise it will lead to contamination.
