Supreme Court gives split verdict on commercial sale of GM Mustard

The Supreme Court on Tuesday rendered a split verdict on whether the commercial sale of Genetically Modified Mustard (GM Mustard) should be allowed in India [Gene Campaign vs Union of India and Others]..A Division Bench of Justices BV Nagarathna and Sanjay Karol today pronounced two separate judgments in the matter. Justice Nagarathna ruled against permitting commercial sale and release of GM Mustard in India for now. Among other reasons, she observed that the Genetic Engineering Appraisal Committee (GEAC) had approved GM Mustard sale without relying on any indigenous studies on the effect of GM Mustard in India and its possible environmental ramifications."Only foreign research studies available globally have been used to make recommendations. When the applicability is on India, research studies conducted indigenously must have been taken note of but nothing has been relied upon. In view of this, I say that approval of 18/10 and 25/10 is vitiated and expert committee report of 2022 is not binding," Justice Nagarathna heldJustice Karol, however, disagreed and upheld the GEAC's decision to approve the commercial sale of GM Mustard. "The composition of the GEAC is in accordance with rules and therefore constitutional challenge will fail. The approval granted by GEAC is by an expert body and therefore, challenge to such approval cannot be allowed. It will fail," Justice Karol said. .However, the Division Bench today did agree on the following related aspects that cropped up during the case:1) Judicial Review of the decision taken by the GEAC concerned in the matter of Genetically Modified Organisms (GMOs) is permissible. 2) The Central government should consider implementing a national policy for a seamless approach for GM crops. 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.3) For the aforesaid purpose, the Ministry of Environment, Forest and Climate Change will call for consultation to ensure passing of National Policy within 4 months. The State Governments shall be involved in evolving the National Policy on GM crops. Rules must also be formulated. 4) 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 FSSAI Act, 2006, which deals with packaging and labelling of foods..The question of whether commercial sale of GM Mustard should continue for now or not will now have to be heard by a larger Bench of the Court. For this purpose, the case has been placed before the Chief Justice of India..The Court was hearing a batch of PILs challenging Central government's decision to allow for commercial cultivation and release of GM Mustard, christened 'HT Mustard DMH-11', into the environment.In 2022, the GEAC had cleared a proposal for the commercial cultivation of GM mustard. It was also approved by the Ministry of Environment, Forest and Climate Change.A Bench headed by Justice Nagarathna began hearing the PILs challenging this move on January 9 this year. A Bench with Justice Dinesh Maheshwari had first heard the matter. However, it was taken up by the Justice Nagarathna-led Division Bench after Justice Maheshwari's retirement in May 2023. This Division Bench has now pronounced a split verdict. .What does the split verdict say?Justice Nagarathna emphasised that it is important to ensure that the environment is protected while pursuing development.She added that the Court is not conducting any review of the scientific documents produced during the case, as the Court is not the appropriate authority to do so. Therefore, the focus of the Court was on whether approval was properly granted for the commercial sale of GM Mustard and its release to the Indian environment.Justice Nagarathna concluded that the GEAC meeting during which approval was granted for the cultivation and commercial sale of GM Mustard was not properly conducted, and did not have proper representation.Therefore, she concluded that the approval granted for the sale of GM Mustard was against the principles of public accountability. "The failure to adequately assess health and environmental impact of GM crops seriously infringes upon intergenerational equity as it potentially endangers the ability of future citizens to enjoy the highest attainable standard of health," Justice Nagarathna said.She pointed out that GEAC has not relied on any indigenous study on the release of GM Mustard in India before approval was granted in 2022 for its sale. She also said that she has issued some directions on the broader aspect of how applications for cultivating GM crops should be dealt with."We note that at the last stage, environmental protection aspect has to be considered before granting any approval. The formation of GEAC also needs to be reformed," she added..On the other hand, Justice Karol observed that the court is often presented with situations where two competing interests fall upon it and a balance is required to be struck. "This case is one such task. On the one hand, is a group of concerned, informed individuals and organisations apprehensive about the potential impacts of new technology on the environment, agriculture, health and other socio-economic parameters; and on the other, is the government/competent authority batting for a cautious but optimistic approach furthering scientific and agricultural development, underscoring its importance in line with growing concerns of food security, population, economics and other matters of national interest," he added. He went on to find that there was no arbitrariness in the manner in which approval was granted for the sale of GM Mustard."On an independent analysis, I do not find any aspect of manifest arbitrariness in the effect of GEAC granted approval. All the aspects of monitoring regulations, approval all exist. In none of the rules governing GEAC and its composition, (do I find) anything manifestly arbitrary. On the composition of GEAC, I find that constitution of this committee ensures that bureaucrats and their views do not overpower anything," he held. .[Read judgment]