On 23 July 2024, the Supreme Court (SC) delivered a split verdict on the commercial sale of Genetically Modified Mustard (GM Mustard) in India in the case of Gene Campaign vs. Union of India and Others. A Division Bench (DB) comprising Justice BV Nagarathna and Justice Sanjay Karol issued two separate judgments. Justice BV Nagarathna quashed the approval granted by the Genetic Engineering Appraisal Committee (GEAC) and the Ministry of Environment, Forests and Climate Change (MoEFCC), while Justice Sanjay Karol upheld it. The case won’t be implemented as of now and will instead be placed before the Chief Justice of India (CJI) and.
In an (extremely) lengthy 400-page judgment, the DB offered several notable observations, calling for a National Policy on GMOs, thorough testing of genetically modified (GM) crops (discussed before here), and an assessment of the functioning of the GEAC (discussed before here). The DB directed the formation of a Committee to begin framing the policy within four months. This post aims to provide a bird’s eye view of what all this judgement is about and more.
Laying Down the Facts
The SC was hearing a series of PILs challenging the Union’s decision to permit the commercial cultivation and release of GM mustard (officially called ‘HT Mustard DMH-11’) in India. This would mark the first time a transgenic food crop is cultivated in India. Currently, GM cotton is the only genetically modified crop marketed in the country. This development has remained in anticipation for over a decade now. In 2022, the GEAC and the MoEFCC approved the proposal for the commercial cultivation of GM mustard. The hearings for the PILs started on January 9, 2023. Initially, the case was heard by a Bench having J Dinesh Maheshwari, but it was taken over by J. Nagarathna-led DB after J Maheshwari’s retirement in May 2023. Now, in July 2024, the DB has delivered a verdict, however, a split one, which has delayed a clear path for the entry of GM Mustard into India even further.
Arguments By The Parties
Advocate Prashant Bhushan argued for the petitioners, highlighting the dangers of genetically modified organisms (GMOs), especially when tested in open-field trials (experimental tests conducted in real agricultural environments to evaluate the performance, safety, and environmental impact of GM crops). He cited concerns raised by a technical expert committee (TEC), which criticised India’s GMO regulatory system as disorganised and recommended banning herbicide-tolerant crops. With respect to this, the DB expressed concern that the GEAC did not consider the TEC’s recommendations before approving GM mustard in October 2022. The release of GM Mustard was put on hold after the Court ordered the government to maintain the status quo in November 2022.
From the Union’s end, the Attorney General argued that the Court’s review should be limited to whether there exists an adequate regulatory mechanism for GMOs or not and whether it has been complied with, and that the TEC was not meant to take a definitive stance on GM crops. He countered claims that India is a centre of mustard diversity, saying the country’s mustard gene pool is narrow. The AG assured the Court that current bio-safety measures address all concerns and noted that GM crops are widely used in countries like the USA and Australia. He also pointed out that GM Mustard has a higher yield than non-GM varieties, challenging the petitioners to prove any public interest in halting open-field trials.
Observations by J Nagarathna
Justice Nagarathna has ruled against the commercial sale and environmental release of GM Mustard in India, citing several critical flaws in the approval process. She observed that the GEAC approved GM Mustard based solely on foreign research, ignoring any indigenous studies on its effects and potential environmental ramifications. As a result, she deemed the approvals dated October 18 and October 25, 2022, as flawed and not in the public interest.
She emphasised that environmental protection must be balanced with development. She pointed out that the Court was not reviewing scientific evidence but was focused on whether the approval process for GM Mustard was conducted properly. She further found that the GEAC’s decision lacked adequate representation and failed to consider health and environmental impacts, violating principles of public accountability and intergenerational equity, two concepts which were discussed rather nicely and in-depth within the judgement.
She also criticised the GEAC for not taking into account a 2012 report by a TEC, which had described the GMO regulatory system as being in ‘complete disarray.’ Despite the Court’s expectation that the GEAC would consider such reports, it was revealed that the committee’s findings were largely ignored, as confirmed by the Attorney General.
Justice Nagarathna detailed procedural issues, like how the GEAC overlooked the concerns raised by a Delhi University professor in 2022 about the adverse impact of GM mustard on honeybees. The subsequent expert committee’s recommendations were inconsistent with earlier suggestions, further undermining the decision’s credibility.
Her observations in this judgement underscore the importance of integrating local research and environmental considerations into regulatory decisions. She stressed the need for reform in the GEAC’s formation and procedures, highlighting that the approval process was rushed and lacked transparency. Justice Nagarathna’s decision reflects a broader push for greater public accountability and a reevaluation of how GM crops are regulated in India, ensuring that both environmental and public health concerns are adequately addressed. J Karol, however, had slightly different plans for this matter.
J Karol’s Opinion on the Matter
Justice Karol, in contrast to Justice Nagarathna, upheld the GEAC’s decision to approve the commercial sale of GM Mustard. He defended the GEAC’s composition and the approval process, stating that the decision was made by an expert body and did not exhibit arbitrariness. Justice Karol emphasised that the GEAC’s procedures and monitoring regulations were followed correctly and that any procedural gaps did not violate fundamental rights.
He recognised the challenge of balancing competing interests: concerns from individuals and organisations about the potential risks of new technology versus the government’s push for scientific and agricultural advancement. Justice Karol concluded that the approval, though granted with conditions, aligned with the government’s scientific goals and food security concerns. He directed that the field testing of GM Mustard should proceed under strict monitoring to prevent contamination, affirming that the approval process was consistent with precautionary principles, another classical concept that the court explained conceptually with precedents.
Aspects Both Judges Agreed Were Must(ard) to Acknowledge
Firstly, the DB unanimously affirmed that GEAC’s decisions on GMOs are open to judicial review. Secondly, it mandated the Central Government to develop a national policy for GM crops, involving all relevant stakeholders and ensuring broad publicity. Thirdly, the MoEFCC must finalise this policy within four months, with input from state governments and rule formulation. Lastly, the importation of GM foods, including GM edible oil, must comply with the packaging and labelling requirements outlined in Section 23 of the FSSAI Act, 2006.
Implications Bigger Than a Mere Mustard Seed
This judgment is undeniably significant in addressing an issue that has lingered far too long. Its well-crafted and structured nature was reminiscent of a meticulously prepared moot memo to me—albeit one that exceeded the word limit! It thoroughly explored key theoretical concepts of environmental legal theory, supported by relevant judicial precedents, making it comprehensive and insightful.
The most important aspect of this judgment is definitely the instructions to the Centre to develop a policy. On an online search for more such policies about genetically modified plants in India, I came across the MOEFCC’s Regulatory Framework for Genetically Engineered (GE) Plants in India. A lot of informative publications on GM crops have also been released by Biotech Consortium India Limited (BCIL) (see here). They have also released a set of FAQs especially for GM mustards, most recently. These primarily provide an overview of all applicable legislations, their features, extent, and caveats of their applicability. Apart from that, the Ministry of Science and Technology also has a National Biotechnology Development Strategy for the Period 2020-25. The Plaintiff claimed that only the Rules for Manufacture, Use, Import, Export, and Storage of Hazardous Micro-organisms, Genetically Engineered Organisms or Cells, 1989 are the primary legislation governing this domain and that the national policy is missing, as well as the final report on farmers and agriculture released by the “Inter-Ministerial Task Force,” which acknowledged the adoption and usage of hybrid crops across the document and is still under consideration, leaving the current regime deficient. The Court has directed the evolution of 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, and representatives. 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. However, it remains to be seen how quickly, if at all, the Union will act on this directive. It is a definite concern that this might become just another judgment urging action that ultimately goes unheeded.
The second most important aspect of this judgment is that the composition of the GEAC shall be suitably reformed, taking into account the recommendations of the TEC and the PSC Reports and the principles established by this Court in the T.N. Godavarman case. The GEAC is directed to comprise experts in agriculture, biotechnology, ethics, sociology, health, and the environment and should function as an independent and autonomous body. The Union is instructed to thoroughly verify the credentials and past records of any expert involved in the decision-making process, ensuring that conflicts of interest are declared and managed.
The functioning of the GEAC has previously been questioned, like the allegation in 2017 where activists claimed that the GM mustard tests were rigged and the product is actually harmful to the environment, as well as an earlier claim in 2010 that Bt Brinjal was given the go-ahead by the GEAC without adhering to global norms. More criticism against GEAC’s functioning can include when the CIC asked it to release information on GMOs (covered by Inika here). A rational and reasoned overhaul of the GEAC could potentially address these impediments in its functioning.
On a different note, there is substantial research and contention regarding the failure of GMOs in India. For instance, some studies claim that Bt Cotton does not fully meet its pest-free promises and further has adverse environmental effects. On the other hand, in a 2017 article, Jayaraman noted that GM mustard, despite receiving conditional clearance, failed to get a green flag from the GEAC as it chose to remain silent in the face of strong opposition from anti-GM groups and farmer unions. The government’s indecision caused a setback for the Delhi University team, which spent 14 years and reportedly Rs. 700 million to develop a hybrid mustard that could boost production and reduce India’s import bill for edible oil. He further highlights that Bt Brinjal and other types of GM mustards have faced similar issues over the years due to the GEAC’s indecision. While this debate is better addressed by experts, given that GM plants are receiving approvals in other countries and India lags behind despite having developed the technology indigenously, a strictly monitored allowance of field testing of GM Mustard can’t possibly hurt.
However, this judgment, no matter how well drafted, is not the end of the matter. The question of whether the commercial sale of GM Mustard should continue for now will need to be reviewed by a larger Bench of the SC. For this purpose, the case has been placed before the CJI and the Union has agreed not to implement the decision. The commercial sale of GM Mustard will have to wait once more. It will then be seen whether the larger Bench’s decision finally cuts the mustard!
[Hattip to Akshat Agrawal for letting us know about the Order.]