‘Non-consideration of adverse effect on health of humans, animals, plants’: Justice Nagarathna on Centre’s approval for Genetically Modified mustard cultivation

Supreme Court: In a batch of civil writ petitions assailing the Genetic Engineering Appraisal Committee’s (‘GEAC’) approval for environmental release of Dhara Mustard Hybrid-11 (DMH-11) mustard, the Division Bench of B.V Nagarathna and Sanjay Karol, JJ. delivered split verdict in the matter Justice Nagarathna quashed the approval given by the GEAC and the Ministry of Environment Forests and Climate Change (MoEFCC’), Justice Karol upheld the same.

Justice Nagarathna held that the recommendations of GEAC dated 18-10-2022 as well as the decision taken by the respondent Union of India on 25-10-2022 approving environmental release of transgenic mustard hybrid DMH-11 on the application made by the applicant, CGMCP, University of Delhi (South Campus’) were vitiated and hence, liable to be quashed.

Directions:

Regarding approving the environmental release of transgenic mustard hybrid in future on the application made by the applicant, CGMCP, Justice Nagarathna directed that:

1. there shall be a decision taken by GEAC, on whether, transgenic mustard hybrid DMH-11 is a HT crop or not, by having a wide and meaningful consultation on the report of TEC submitted to the Court with all stakeholders, including experts in the field of agriculture, biotechnology, health experts and other scientists/experts preferably within a period of four months from today.

2. MoEF&CC must publish an official report, with adequate publicity to the said report, on whether the GE mustard hybrid DMH-11 is indeed a HT crop or not, preferably within a period of one month from the date of receipt from GEAC.

3. GEAC to upload the applicant’s biosafety dossier comprising 3285 pages on its website after prior intimation to the applicant CGMCP, within a period of two weeks from today.

4. The aforesaid biosafety dossier shall remain on the website of GEAC for a minimum period of 30 days from the date it is uploaded so as to enable the stakeholders to respond to the said dossier.

5. If GEAC and MoEF&CC conclude that transgenic mustard hybrid DMH-11 is a HT crop, then the nature of risk that would be caused by the said plant to the environment including other plants as well as to human beings and animals must be researched and deliberated upon. The deliberations must take into consideration different aspects, such as biosafety, risk assessment, soil health, micro-biology and socio-economic aspects etc.

6. The Union of India shall also comply with the recommendations made by Technical Expert Committee (TEC) on Agriculture, Science and Technology.

7. The Union shall also comply with the recommendations made by the Parliamentary Standing Committees (PSCs) on Agriculture and on Science and Technology, Environment and Forest, to the extent they are not contrary to the aforesaid directions.

8. Regarding import of GM edible oil such as mustard or canola being made, the requirements of Section 23 of FSSA, 2006 in the matter of packaging and labelling shall be complied with by the Union of India as early as practicable.

Background

In the matter at hand, the petitioners sought issuance of a writ of mandamus or similar writ directing the respondent-State to bring the Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro-Organisms, Genetically Engineered Organisms or Cells, 1989 (‘the 1989 Rules’), framed under Sections 6, 8 and 25 of the Environment (Protection) Act, 1986 (‘EP Act, 1986’) in consonance with Articles 14, 19, 21, 38, 47, 48, 48-A read with Article 51-A(g) of the Constitution of India and if there is a failure to do so, to declare the said Rules as unconstitutional.

The petitioners contending that question of the consequences of transgenic mustard hybrid DMH-11 being an Herbicide Tolerant or Tolerance (‘HT’) crop remained unanswered as Union of India, in its additional affidavit dated 09-11-2022, acknowledged that transgenic mustard hybrid DMH-11 possesses HT characteristics, yet they asserted that it cannot be officially labelled as such and therefore, it should not be referred to as HT crop, and as mustard hybrid DMH-11 has never been tested as a HT crop because India does not have any regulatory guidelines and protocols for testing of HT crops, sought implementation of the recommendations of the majority of the Technical Expert Committee.

JUSTICE BV NAGARATHNA’S DECISION

Justice Nagarathna said that as per her understanding, Gene Modification or Genetically Modified (‘GM’) crops are those crops whose genomes have been modified by the insertion of usually foreign genes through rDNA technology. Such modification serves to incorporate traits into plants that are either absent or rare in their domesticated and/or wild varieties.

The 1989 Rules

Justice Nagarathna noted that the 1989 Rules deals with manufacture, use, import, export and storage of hazardous micro-organisms/GE organisms or cells were notified with a view to protect the environment, nature and health in connection with the application of gene-technology and micro-organisms. They are applicable to Genetically Engineered Organisms (GEOs)/micro-organisms and cells and correspondingly to any substances and products and food stuffs, etc., of which such cells, organisms or tissues thereof form part.

Parliamentary Standing Committee (PSC) on Agriculture’s Report on “Cultivation of Genetically Modified Food Crops — Prospects and Effects” — 2012

Justice Nagarathna on perusal of the PSC Report noted that the PSC Reports recommended reforms in the institutional architecture of GEAC, by way of having a full-time body with a leadership that is competent to conduct impartial and sound scrutiny of applications for approval under the 1989 Rules, the Action Taken Report clearly denied the very need for such reforms. Hence, inferring that the Government is reluctant to reform the composition and criteria for appointment to GEAC, accentuates the concern about the lack of indigenous and independent research institutions. Further, she said that the Action Taken Report did not address the question of labelling of GM foods under Section 23 of the Food Safety and Standards Act, 2006 (‘FSSA, 2006’).

Whether GEAC approval dated 18-10-2022 and the consequent decision dated 25-10-2022 for the environmental release of DMH-11 is in accordance with law?

Implementation of the recommendations of the Technical Expert Committee (‘TEC’)

The Court had set up the TEC on 10-05-2012. Justice Nagarathna on perusal of the recommendations as to constitution of sub-committees with domain expertise in the fields of health, environment, agro-economics and socioeconomics, molecular biology, etc.; elimination of conflict of interest, earmarking of specific sites for field trials and stakeholder participation; need to develop consultation, collaboration and capacity building, and that the Indian regulatory system must develop the ability to assess as to how any GM product is likely to impact different sections of the society, saod that the TEC did not breach its Terms of Reference, which was based on four aspects of sequencing; scientific tenability; adequacy of regulatory conditions and availability of technological facilities.

Regarding the GEAC’s step recommending the environmental release of transgenic mustard hybrid DMH-11 without any deliberation as such, which resulted in the Centre’s decision, which is impugned herein, Justice Nagarathna said that no material was put forth for the sudden decision, whereas earlier it was submitted by the Union that they were still deliberating on the matter. It was observed that a statutory functionary entrusted or authorised to carry out certain functions contemplated under a statute must do so in accordance with law and known procedure. She reiterated that where a statutory authority exercises its jurisdiction, conferred on it by a statute or rules made thereunder, it has to apply its own mind and the procedures laid, therefore, must be scrupulously followed. Further, it she said that when an authority changes its policy decision, it is expected to give valid reasons and act in the larger interest of the entire community.

Public Trust Doctrine

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. Justice Nagarathna referred to M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388, wherein it was observed that there is no reason why the public trust doctrine should not be expanded to include all ecosystems operating in our natural resources. The State being a trustee of all natural resources and the public at large is the beneficiary of the same, is under a legal duty to protect the natural resources. Furthermore, noting that while granting permission of the environmental release of transgenic mustard hybrid DMH-11, the condition imposed was that usage of any formulation or herbicide would not be permitted for cultivation in the farmer’s field and any such use in the farmer’s field without due approval would attract appropriate legal action under various enactment, Justice Nagarathna said that there was no indication as to how the use of any herbicide could be prevented, rather, the condition not to use any herbicide was open-ended without having any means to check whether any herbicide would be used in the farmer’s field pursuant to the environmental release. Any evidence of harmful effects or damage to the environment, nature and health owing to non-compliance of conditions stipulated by GEAC was also left open-ended.

“The Union of India could not have unilaterally acted on such a serious matter without bringing to the notice of the States, particularly in the northern and north-western States where mustard is being grown. The States cannot be treated as satellites of the Union of India as they have constitutional identity and powers and responsibilities conferred under the Constitution of India and therefore, their views in the matter are of significance.”

Hence, she said that the impugned decision of the Union, was based on a flawed procedure adopted by GEAC. Further, it was observed that the principle of public accountability and transparency in State action are applicable to the cases of execution or statutory exercise of power. Every officer in the hierarchy of the State by virtue of his being a public officer/servant is accountable for his decisions to the public as well as to the State. The concept of dual responsibility should be applied in larger public interest and proper governance. Justice Nagarathna stated that “when a statute contemplates a specific procedure to be adhered to in order to arrive at a desired end, such procedure cannot be substituted by an alternative procedure which is not contemplated under the statute. Further, if an action is to be carried out by way of issuance of a particular statutory instrument on the basis of certain requirements, such action cannot be validly carried out by way of issuance of an instrument when the same is not contemplated under the statute”.

Whether the decision to grant approval for environmental release of DMH-11 violates the right to safe and healthy environment under Article 21?

Justice Nagarathna referred to Supreme Court of the Netherland’s decision in State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v. Stichting Urgenda, 19/00135, wherein it was observed that the State’s violation of the right to life and right to respect for private and family life necessitated judicial direction for remedial measures. Therefore, disputes seeking review of administrative decisions impacting the environment turn on the relative weight that a decision maker accorded to competing considerations while perceiving the larger public interest.

She said that the failure to conduct chronic and transgenerational studies to study the impact on human health is a significant omission within the risk assessment process in the instant case and conducting the said studies was a critical facet of the TEC’s recommendations and the same was fortified by the PSC Report, 2017. The asymmetry between probable benefits and adverse consequences cannot be adequately counter balanced by economic or policy safeguards because of the serious and irreversible public and environmental health effects if such consequences occur. Such asymmetry becomes especially acute in light of the long-acknowledged disparity between polluters and those adversely affected by pollution. She reiterated that the right to environmental information comes within the scope of the right to information and transparency is critical to preserve the integrity of the decision-making process. Public scrutiny would be crucial to evaluate the putative separation of interests and influence between scientific research and regulatory policy formulation.

“The access to environmental information facilitates ‘meaningful engagement’ and rights-conscious decision-making. The engagement with stakeholders through the participative process inspires confidence in the decision-making process and leads to more sound outcomes which are less vulnerable to legal challenge.”

It was also noted that various scholars and public activists endorsed an email addressed to the Minister of Environment, Forest and Climate Change raising serious objections to the conduct of the appraisal process, particularly the refusal to disclose the biosafety dossier to the general public and sought extension of the consultation process by another 120 days. Justice Nagarathna said that objections initially weighed with GEAC to defer environmental release of DMH-11 in the years 2019-2021, but in the year 2022, things moved with an undue haste and speed and thereby GEAC ignored all precautionary measures suggested by TEC as well as by the sub-committee constituted by it and simply leaf frogged into the impugned decision dated 18-10-2022. Thus, she held that it had several legal and environmental consequences and was a violation of the right to a safe and healthy environment. Hence, the decision granting approval for environmental release of transgenic mustard hybrid DMH-11 violates the right to safe and healthy environment under Article 21 of the Constitution of India because the safeguards which were necessary to be taken prior to the grant of the approval were not taken in the instant case.

Whether GEAC’s grant of approval dated 18-10-2022 and the decision dated 25-10-2022 for the environmental release of DMH-11 violate the precautionary principle?

Justice Nagarathna said 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 can be inferred that there is a potential of loss of species of indigenous mustard crop, as India is the centre of origin and diversity, which fact cannot be doubted. The concerns about the impact on other beneficial organisms, such as honeybees, earthworms etc. are also well-founded and serious. She said that the GEAC committed a serious omission 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. The constitution of Expert Committee in the year 2022 itself was an eye-wash, since the Ministry of Environment required the report of the so-called Expert Committee to approve the application given by CGMCP, University of Delhi (South Campus), which is contrary to the stand of GEAC in its earlier meetings. Therefore, she said that the Expert Committee’s report was tailor-made and “suitable” in order that GEAC could accord approval to the application submitted by CGMCP. It was held that GEAC failed to take into consideration the precautionary principles while approving the environmental release of the transgenic mustard DMH-11 hybrid.

National Policy on GM crops

Justice B.V Nagarathna and Justice Sanjay Karol, unanimously directed the Union of India to evolve a National Policy on 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. The MoEF&CC was directed to 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.