SC Issues Split Verdict on GM Mustard Approval; Directs Formulation of National GM Crop Policy

The Supreme Court Bench has issued a split verdict on petitions challenging the approval given by the Genetic Engineering Appraisal Committee and the Ministry of Environment and Forests to commercially cultivate and release a genetically modified mustard, named 'HT Mustard DMH-11' into the environment.

Justice BV Nagarathna quashed the approval, while Justice Sanjay Karol upheld its validity.

Subsequently, the Bench came to a consensus that the Judicial Review of the decision taken by the bodies concerned in the matter of GMOs is permissible. The Bench also directed that a National Policy with regard to GM crops be formulated.

Public Interest Litigations (PILs) were filed, challenging the Union government's decision to commercially cultivate and release genetically modified (GM) mustard, named 'HT Mustard DMH-11,' into the environment.

The petitioners highlighted the risks associated with genetically modified organisms, especially in open-field trials. It was explained that genetic modification involves inserting a gene from a foreign organism into a crop to change its characteristics. They referenced the recommendations of a Technical Expert Committee (TEC) formed by the Supreme Court in May 2012, which criticized the country's GMO regulatory system as being in "complete disarray." The TEC recommended a complete ban on herbicide-tolerant crops in India. The petitioners urged the government to follow these recommendations.

On the other hand, the Centre primarily argued that the scope of enquiry by the Court in the instant case was narrow, while contending that the Court's intent behind appointing the Technical Expert Committee (TEC) was not to have a view one way or the other on whether the pursuit of scientific research on GM crops is advisable or not. It was asserted that the bio-safety regime prevalent today guarantees and addresses all concerns and issues. The Centre denied that GM crops have any adverse impact on the soil. It was submitted that large-scale adoption of GM crops has taken place in countries like the USA, Brazil, Australia, etc., which are major producers and exporters of agricultural commodities. Subsequently, it was brought to the attention of the court that GM Mustard has a higher per hectare yield compared to non-GM variety and contended that it was for the petitioners to show the "public interest" in restraining open field trails, which are a mandatory process.

Justice BV Nagarathna's Judgment

Justice Nagarathna made the following observations while quashing the approval given by the Genetic Engineering Appraisal Committee and the Ministry of Environment and Forests:

(i) Violation of Public Trust

It was held that the approval for the environmental release of transgenic mustard hybrid DMH-11 was flawed and violated statutory requirements. It was stated, "When a statute contemplates a specific procedure...such procedure cannot be substituted by an alternative procedure which is not contemplated under the statute."

Procedural lapses were noted, including the absence of an ICMR representative at a crucial GEAC meeting, which meant potential health impacts were not considered. Additionally, it was also noted that the recommendations of the Technical Expert Committee (TEC) were ignored in favor of a new Expert Committee's recommendations, following intervention by the Ministry.

In light of the same, it was concluded that the GEAC approval and the subsequent decision were invalid and violated the principle of public trust.

(ii) Violation of Right to Safe and Healthy Environment

It was observed that the decision to grant approval for the environmental release of transgenic mustard hybrid DMH-11 violated the right to a safe and healthy environment under Article 21 of the Constitution of India.

Deficiences were noted in transparency and risk assessment, including the failure to publish the biosafety dossier and conduct long-term toxicity studies. This highlighted the lack of safeguards against misuse of discretion and the inadequate assessment of health and environmental impacts. In that vein, was emphasized that these failures infringed upon intergenerational equity and mandated proper assessment and monitoring as per established environmental regulations.

(iii) Violation of the Precautionary Principle

It was observed that the approval and the decision for the environmental release of transgenic mustard hybrid DMH-11 violated the precautionary principle. It was noted that there was no determination on whether DMH-11 is a herbicide-tolerant crop and the associated environmental risks.

It was observed that the deliberations failed to address biosafety, risk assessment, soil health, microbiology, and socio-economic aspects. Furthermore, it was noted the recommendations of the Technical Expert Committee (TEC) and Parliamentary Standing Committees were not considered.

Subsequently, Justice Nagarathna issued several directions regarding the future approval of environmental releases of transgenic mustard hybrid crops, outlining detailed steps and requirements for the regulatory process, ensuring transparency, public participation, and rigorous scientific evaluation.

Justice Sanjay Karol's Judgment

While upholding the validity of the approval given by the Genetic Engineering Appraisal Committee and the Ministry of Environment and Forests, Justice Karol came to the following conclusions:

i. Judicial review into the decision making of all bodies concerned with GMOs, is possible.

ii. The question of ban on Ht crops is not warranted in view of the precautionary principle and it is a decision squarely within the domain of policy.

iii. The composition of the GEAC is in accordance with the Manufacture, Use, Import, Export and Storage of Hazardous Micro-Organisms, Genetically Engineered Organisms or Cells, 1989 Rules, to which the challenge of constitutionality, has failed, and in the absence of any change in the Rules, no fault can be found with the same.

iv. The decision of the GEAC to grant conditional approval is not vitiated by non-application of mind, or any other principle of law, on part of the body, which itself is an expert body.

Subsequently, Justice Karol also issued a slew of directions pertaining to the regulation, monitoring, and future approval of genetically modified organisms (GMOs), particularly focusing on the genetically modified mustard hybrid.

The Bench collectively issued the following directions:

i. The respondent-Union of India is directed to evolve a National Policy with regard to 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, representatives of the farmers, etc. The National Policy to be formulated shall be given due publicity.

ii. For the aforesaid purpose, the MoEF&CC shall conduct a national consultation, preferably within the next four months, with the aim of formulating the National Policy on GM crops. The State Governments shall be involved in evolving the National Policy on GM crops.

iii. Respondent – Union of India must ensure that all credentials and past records of any expert who participates in the decision-making process should be scrupulously verified and conflict of interest, if any, should be declared and suitably mitigated by ensuring representation to wide range of interests. Rules in this regard may be formulated having a statutory force.

iv. In the matter of importing of GM food and more particularly GM edible oil, the respondent shall comply with the requirements of Section 23 of FSSA, 2006, which deals with the packaging and labelling of foods.

Cause Title: Gene Campaign & Anr. vs Union of India & Ors. (Neutral Citation: 2024 INSC 545)

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