Split decision by SC on environmental release of GM mustard

The judgment by justice BV Nagarathna quashed the government’s decision to allow the environmental release of GM mustard, DMH-11

The Supreme Court on Tuesday delivered a split decision on the environmental release of genetically modified (GM) mustard, even as the two-judge bench directed the Union government to come up with a national policy on stringent and transparent bio-safety protocols with regard to genetically modified organisms (GMOs).

The decision was vitiated on grounds of lack of effective consultation and disregard of the principles of public trust doctrine. (Reuters file photo)

The judgment by justice BV Nagarathna quashed the government’s decision to allow the environmental release of GM mustard, DMH-11.

This decision by the Genetic Engineering Appraisal Committee (GEAC) in October 2022 sparked a nationwide debate on the safety, necessity, and potential impact of GM crops on biodiversity, human health, and agricultural practices.

According to justice Nagarathna, the decision was vitiated on grounds of lack of effective consultation and disregard of the principles of public trust doctrine.

The judge also criticised the Centre for showing “undue haste” in getting the GEAC approve the decision on the conditional release of GM mustard. “The failure to adequately assess health seriously infringes upon the intergenerational equity,” she said.

Dissenting with this view, justice Sanjay Karol maintained that he was unable to find any evidence of arbitrariness or irregularity in the manner the GEAC took the decision on GM mustard in October 2022. The judge added that the perusal of all available documents on record could not indicate any procedural gaps, leading to the violation of fundamental rights of people.

In the wake of the difference of opinion, the series of petitions that have been pending for nearly two decades, focussing on the environmental and health impacts of GMOs, to a larger bench.

Despite the dissent on the environmental release of GM mustard, the bench was unequivocal in underlining the significance of a national policy on GMOs. It directed the Union government to evolve a national policy on GMOs following appropriate consultations with all the stakeholders, including states, independent experts and farmers’ bodies.

“For the aforesaid purpose, the MoEF shall conduct a national consultation, preferably within the next four months, with the aim of formulating a national policy on GM crops. Rules in this regard may be formulated with a statutory force,” stated the unanimous part of the judgment.

The court was dealing with a bundle of petitions, spearheaded by NGO Gene Campaign and environmental activists Aruna Rodrigues. Presently, India has permitted only one GM crop – Bt cotton for commercial cultivation. It was approved by GEAC in 2002.

The judgment in the matter was reserved on January 18 when the Centre argued that banning GM crops would harm national interests. Attorney general R Venkataramani and solicitor general Tushar Mehta highlighted that India imports significant quantities of genetically modified edible oils, and halting the cultivation of GM crops could adversely affect farmers and the economy. They contended that continuing research and cultivation of indigenous GM varieties, like GM mustard, could reduce dependency on imports and benefit the nation.

“GM oil has been consumed in India for decades without any proven adverse effects. The only question is whether it should be grown here,” said Mehta on the day, arguing that indigenous GM varieties like GM mustard could reduce dependency on imports and boost domestic production.

The bench, during the hearings, deliberated on what is best for the country and its people.

On January 17, the bench made it clear that their focus was on the broader implications of GM crops. “The question before us is what is good for the country and the people,” it stated, seeking to understand the steps taken by the Centre following a report by a Court-appointed technical expert committee (TEC) in June 2013. This report advised against the open release of GMOs due to unresolved safety concerns.

The Centre’s response to the TEC report has remained a key point of contention.

On January 11, the court questioned the weight given to the TEC’s recommendations before approving GM mustard.

Responding, AG Venkataramani argued that the TEC had exceeded its terms of reference and that the regulatory framework had since been strengthened.

However, senior advocates Sanjay Parikh and Prashant Bhushan, representing the petitioners, contended that the regulatory processes remained inadequate and lacked transparency. They argued that the environmental release of GM crops posed significant risks to human and animal health, soil and biodiversity.

Emphasising “the known and unknown risks” associated with GMOs, the petitioners referenced the TEC report which had raised serious concerns about the suitability of GM crops in India. They argued that the GM mustard variety, developed to increase yields and reduce dependence on edible oil imports, did not necessarily outperform traditional mustard varieties. The petitioners urged the court to prioritise the principle of “inter-generational equity”, ensuring that current actions do not harm future generations.

The Centre, meanwhile, defended its position by highlighting the potential benefits of GM mustard. Developed by the Centre for Genetic Manipulation of Crop Plants at Delhi University, GM mustard was touted as a solution to increase agricultural output and farmer incomes, it said. The government pointed out that it had conducted research at eight designated sites of the Indian Council for Agricultural Research, claiming that further sowing seasons would provide crucial data for achieving higher mustard productivity.

In November 2022, the Centre had given an undertaking not to take any “precipitative action” on GM mustard, which it sought to withdraw last year as it argued that after 12 years of research, the environmental release of the GM mustard over four successive sowing seasons will aid scientists in gathering findings considered crucial for achieving higher mustard productivity. The Centre claimed that mustard is the most important edible oil and seed meal crop in the country. The bulk of the edible oil demand, nearly 55% to 60%, is met through imports, it pointed out. The court was informed that The law officer told the court the total edible oil demand in India in 2020-21 was 24.6 million tonnes while domestic availability stood at 11.1 million tonnes.

The development of indigenous transgenic varieties of mustard will increase agricultural output and farmer incomes, said the application filed by the Centre for being permitted further sowing of DMH-11.

The petitions in the matter were filed by NGO Gene Campaign in 2004, activist Aruna Rodrigues in 2005 and Research Foundation for Science and Technology in 2006, followed by some others on this issue.