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.
National Policy on GM crops
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. It was directed that the 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 MoEFCC 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.
The Centre was directed to 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. Regarding importing of GM food and more particularly GM edible oil, the Centre shall comply with the requirements of Section 23 of FSSA, 2006, which deals with packaging and labelling of foods.
Justice Karol held that the decision of the GEAC to grant conditional approval was not vitiated by non-application of mind, or any other principle of law, on part of the body, which itself is an expert body.
Directions- Justice Karol
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Field trials of DMH-11, shall continue in strict consonance with the conditions imposed. The Union of India and statutory authorities shall continue to strictly monitor the same. In case of any adverse change in circumstances, the decision for field trials can be reviewed.
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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.
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All environmental factors must be taken into account before granting future approvals and make an endeavour to have specifically designated farms for field testing, in collaboration with the Union of India.
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All studies conducted and received while granting such approvals, to be uploaded on the website of the GEAC in a time-bound manner, in accordance with the mandate of law.
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All decisions to be taken in regard to GMOs should endeavour to strictly follow “wholistically aware” approach which takes the preservation of naturally occurring seeds hand in hand with popularising Genetically Modified seeds.
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The Post-Release Monitoring Committee be provided with adequate infrastructural and administrative facilities to closely monitor the field testing.
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The Union of India may consider constituting a special cell under the MoEFCC to monitor all studies being undertaken with respect to GMO’s.
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Before commercial release of DMH-11 and other GMOs in the future, specific testing on their impact on human health must be conducted prior thereto.
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The Union of India should consider implementing a national, all-encompassing policy in respect of GMOs so as to ensure a streamlined approach to this important issue.
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Union of India to ensure strict compliance qua labelling of GM foods, in accordance with the Food Safety and Security Act.
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 SANJAY KAROL’S DECISION
Judicial Review of the Impugned Decision
Regarding the question of judicial review of the impugned decision, Justice Karol referred to N.D. Jayal v. Union of India, (2004) 9 SCC 362, wherein it was laid down that the only point to consider is whether the decision-making agency took a well-informed decision or not. If the answer is “yes”, then there is no need to interfere. Further, reference was placed on State of NCT of Delhi v. Sanjeev, (2005) 5 SCC 181, wherein it was discussed that if the power has been exercised on non- consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous and that, the test is to see whether there is any infirmity in the decision-making process and not in the decision itself.
Relying upon Jacob Puliyel v. Union of India, 2022 SCCOnline SC 533, Justice Karol said that the generally accepted yardstick would be that the merits of a decision are ordinarily not examined to accommodate the possibility of a better alternative nor does it scuttle the government’s ability to achieve the best outcome through trial and error but at the same time if any of the decisions made are such that the vires of the process would be affected or in other words, that the decision taken is compromised in regard to the manner in which it was arrived at, then, the Courts would be within terms to exercise its jurisdiction of judicial review.
1. Whether in the appointment and acceptance of the recommendation of the expert committee, the GEAC has delegated its core function, in view of the 1989 Rules?
On perusal of the 1989 Rules, it was noted that the primary function of the GEAC, is the process of granting approvals to proposals relating to release of genetically engineered organisms and products into the environment including experimental field trials. For the conditional approval of DMH-11, the GEAC constituted a sub-committee and expert committee respectively, in its 126th and 146th meeting, with a specific purpose on each occasion. In my considered view, this cannot be said to be delegating its core function.
Justice Karol said that in the present case, the scenario was not where the approval process itself was delegated to the subcommittee/expert committee, but a specific purpose was set out for the committee, on which a report was submitted back to the GEAC. On perusal of the mandate of the expert committee, he said that the same was constituted for a limited purpose and was only a part of the larger decision-making process. Relying on State of U.P. v. Batuk Deo Pati Tripathi, (1978) 2 SCC 102 and Khargram Panchayat Samiti v. State of W.B., (1987) 3 SCC 82, wherein, it was laid down that the power to do a thing necessarily carries with it the power to regulate the manner in which the thing may be done and said the power of the GEAC, to grant approvals, necessarily carries with it the power to regulate the manner, in which the approvals are so granted. The mere absence of a specific statement in the 1989 Rules allowing assistance of expert committees would not preclude the GEAC from doing so in furtherance of its main objective. Hence, the decision of the GEAC could not be said to be vitiated by the delegation.
Non-application of mind by the GEAC
Justice Karol on perusal of the conditional approval granted vide letter dated 08-10-2022 said the approval was granted based on multiple documents and not only the comments of the expert committee. It was prudent by the decision-making authority to call for the comments of the Department of Biotechnology and the Department of Agricultural Research and Education. After receiving their comments, an expert committee within the GEAC was formed to evaluate the presence/absence of sufficient literature regarding the effect of GM crops on honeybees, exemption from further trial for which, was sought by the applicant.
Further, he noted that the conditional release of DMH11 was made subject to several conditions including, among others, that the MoEFCC/GEAC may impose further conditions as may be necessary. Such conditions include the revocation of approval in case adverse impact is shown on environment or human health; it is made subject to other statutory clearances including the clearance from Food Safety and Standards Authority of India, Seeds Act. Additionally, it imposes certain obligations on the applicant including obligation to inform regulatory bodies as soon as any adverse impact is shown; obligation to submit annual/seasonal report of the yield etc. to the GEAC. Hence, the conditional approval of DMH-11 granted by the GEAC was upheld as being independent, reasoned and in consonance with the rules.
“Whether or not the State allows or disallows the scientific experimentation of a particular kind of crop, particularly when the Central Government is the primary authority entrusted with such function, is a decision squarely within their domain and the role of the Courts therein is circumscribed to the violation of fundamental rights; manifest arbitrariness; conflict with any other law and/or other grounds of similar nature.”
Justice Karol held that the field testing of DMH11, pursuant to the conditional approval of the GEAC, with sufficient safeguards and precautions, ought to continue and cannot be said to be violative of the precautionary principle and therefore, the constitutional challenge thereto, fails. 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.
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