GM mustard: SC bench split on verdict, matter to go before CJI

The Supreme Court on Tuesday delivered a split verdict on the environmental approval for genetically modified (GM) mustard. This raises doubts about the validity of the Centre's 2022 decision on the environmental release of mustard hybrid DMH-11 for seed production and testing.

Despite the split verdict, the two-judge bench instructed the Union government to formulate a comprehensive national policy outlining rigorous and transparent bio-safety guidelines for genetically modified organisms (GMOs).

A bench of justices B.V. Nagarathna and Sanjay Karol heard pleas challenging the 18 October 2022 decision of the Genetic Engineering Appraisal Committee (GEAC) — the country's regulator for genetically modified organisms — recommending environment release and the subsequent decision on 25 October approving the environmental release of transgenic mustard hybrid DMH-11.

Justice Nagarathna, in her judgement, quashed the government’s decision to allow the environmental release of GM mustard, DMH-11, while justice Karol upheld the committee’s and the ministry of environment and forests' recommendation.

Owing to conflicting opinions, the bench instructed the registry to place the matter before the Chief Justice of India to constitute a larger bench to reconsider the case. It should be noted that during the petition hearing, the Union government had agreed to refrain from implementing the decision.

In her judgement, justice Nagarathna termed the process of approval given for the environmental release of transgenic mustard as "vitiated" and contrary to public interest. She highlighted that the decision was taken in haste, without considering several aspects, including the impact on health.

Justice Nagarathna pointed out that the FSSAI (Food Safety and Standards Authority of India) had not undertaken any study on the health implications of GM mustard. She emphasised that the lack of thorough health and environmental impact assessments significantly undermines intergenerational fairness.

In contrast, justice Karol upheld the validity of the GEAC's approval, stating it was not flawed. He said the GEAC decisions do not suffer from any manifest arbitrariness or capriciousness. However, he mandated stringent monitoring measures to be implemented by the Union government.

Both judges agreed on the need for judicial review of the GEAC order, and the need for the Union government to formulate a national policy on GM crops within the next four months. While framing the policy, the government has to consult all stakeholders, including states and farmers.

With regards to importing GM food, the provisions of the FSSAI Act should be enforced.

Reacting to the split verdict, Coalition for a GM-free India called upon citizens and experts to participate in large numbers in the public consultations ordered by the court for a national policy to be formulated, while welcoming the order that the government organise public consultations preferably within the next four months for a national policy to be formulated on the subject

“The Coalition welcomed the observations and conclusions of Justice Nagarathna. Justice Nagarathna, the senior Judge on the Bench concluded that the processing of the application and approval of GM mustard was violative of Article 21, of the Precautionary Principle, of the doctrine of public trust and was ignoring the recommendations of the SC Technical Expert Committee etc. She concluded that GM mustard approval infringes on Inter-Generational Equity,” read a statement released by the coalition.

It also pointed out that while justice Karol did not find any manifest arbitrariness or capriciousness, or non-application of mind in GM mustard application processing, or anything unlawful about GEAC Rules and its functioning, he also stated in his conclusions that human health tests are required as part of risk assessment and decision-making, and sought independent studies to be conducted.

In 2012, the Supreme Court had constituted a technical expert committee (TEC) on the subject, which had stated that the GMO regulatory system in the country was in "complete disarray" and had to be set right.  

During the hearing, the bench questioned attorney-general R. Venkataramani about whether the GEAC had reviewed the committee's report. The AG responded is the negative, clarifying that it was the government's responsibility to review the report and that there was no legal obligation for the GEAC to do so.

The Supreme Court issued its judgment on petitions filed separately by activist Aruna Rodrigues and the NGO 'Gene Campaign'. These petitions sought a moratorium on the environmental release of any genetically modified organisms (GMOs) until a comprehensive, transparent, and stringent biosafety protocol conducted by independent expert bodies is established and made publicly available.