The Supreme Court judge BV Nagarathna on Monday while pronouncing her part of the verdict said that the approval granted to release GM Mustard in environment was in gross violation of public trust.


A bench of Justice BV Nagarathna and Justice Sanjay Karol pronounced two seperate opposing verdicts on the issue of release of GM Mustard. Justice Nagarathna quashed the approval by Centre to release GM Mustard crops, while Justice Sanjay Karol upheld the approval. Now the matter will be placed before a larger bench.


While pronouncing her part of verdict, the top court judge Nagarathna said "Nature in all her elements are considered sacred." 




"The ideas drawn from the sacred texts of the world has impelled mankind to safeguard environment and all her elements. This is inter-generational equity. Faced with the widespread destruction of environment, we have to be aware that we cannot keep using the things of the environment without building initiatives to protect it. The citizen's right to safe environment while experimenting the aspect of it is the fact of the entire issue," Justice Nagarathna said.

 

She said that Genetic Engineering Appraisal Committee (GEAC) did not apply its mind to conduct indegeneous studies specific to India's unique biodiversity and instead relied on foriegn studies to grant approval to release of GM Mustard crops.

 

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"Having given my anxious consideration of the Technical Expert Committee (TEC) report...I am convinced that the ability to conduct robust risk assessment changes upon the availability of Indigenous and independent research and studies cannot be transplanted from research conducted in a foreign context," Justice Nagarathna said, while issuing several directions to the government on GM Crops and food.

 

Justice Sanjay Karol on the other hand gave a seperate verdict explaining the limits to judicial review while deciding the economic policies.

 

"I have concluded that judicial review is circumscribed in policy matters...But it has also been expanded time to time. But if the decision is made in such a way where rights are being compromised, we have to exercise our power to judicial review. The power of GEAC to grant approval also carries with it the manner in which it has to be granted. On an independent analysis, I do not find any aspect of manifest arbitrariness in the effect of GEAC granted approval. All the aspect of monitoring regulations, approval all exist...I do not find anything manifestly arbitrary." Justice Karol said.


On the composition of GEAC, I find that constitution of this committee ensures that bureaucrats and their views do not overpower anything, Justice Karol said.


"The question at hand is with regard to the approval granted. This is a legal determination whether there is a violation of fundamental rights. Even if the tech committee has found any issues, that cannot result in declaring the approval granted as violative in law."


Justice Karol gave three primary conclusions: (1) Judicial review is possible in this case. (2) The decision of the GEAC of conditional approval is not vitiated. (3) The Centre will strictly monitor the field trials of GM Mustard when released.


Both the judges however were in consensus where they directed the Centre to formulate a national policy on GM crops.



In January, the Supreme Court had reserved its verdict in the batch of Public Interest Litigations (PILs) challenging the Centre's decision to commercially release Genetically-Modified (GM) Mustard (DMH-11), into the environment. In October 2022, the Centre had approved the environmental release of GM Mustard for seed production and testing. In November 2022, the apex court had directed for maintaining the status quo on the decision of allowing the environmental release. While reserving verdict the top court had said that its judgment will be made keeping in mind what is good for the country.



Genetically-modified plants are developed to insert a new trait to a plant which does not occur to it naturally. Using genetic engineering, the DNA of the plant is modified to create a plant variety that can be used for growing food crops or non-food crops.


DMH (Dhara Mustard Hybrid)-11, is a variety of genetically-modified (GM) mustard (Brassica juncea). It has been developed using the genetic male sterility (GMS) technique to make it herbicide resistant. It has been shown to deliver 30 per cent higher yields than existing varieties.


In October 2022, the Genetic Engineering Appraisal Committee (GEAC) recommended the environmental release of DMH (Dhara Mustard Hybrid)-11 for the development of new generation hybrids.  


Petitions were filed in the Supreme Court by activist Aruna Rodrigues, Research Foundation for Science Technology and food security activist V Ananthasayanan and NGO 'Gene Campaign' seeking a stay on the release of any genetically modified organisms (GMOs) into the environment.


In 2004, Gene Campaign filed a writ petition in the Supreme Court that unless the regulatory system is made demonstrably more competent, transparent and responsive to public concerns, there should be a moratorium on commercial release of GM crops. In October 2007 Gene Campaign filed an application in the Supreme Court to stop the government from deregulating the import of GM foods and lifting regulatory oversight from this sector.


In May, 2012, the Supreme Court in Writ Petition (Civil) No. 260 of 2005, Aruna Rodrigues and Ors vs. Union of India, directed the constitution of a Technical Expert Committee (TEC) and asked it to prepare a report on seven Terms of Reference (TOR). It was basically asked to review whether there should or should not be any ban, partial or otherwise, upon conducting open field tests of the GMOs. And if open field trials are permitted, what protocol should be followed and conditions, if any, that may be imposed by the Court for implementation of open field trials.


The TEC was asked to review and recommend the nature of sequencing of risk assessment (environment and health safety) studies that need to be done for all GM crops before they are released into the environment. It was also tasked to recommend the sequencing of these tests in order to specify the point at which environmental release through Open Field Trials can be permitted.


The court also tasked the TEC with the role to advise on whether a proper evaluation of the genetically engineered crop/plants is scientifically tenable in the greenhouse conditions and whether it is possible to replicate the conditions for testing under different agro-ecological regions and seasons in the greenhouse. TEC was also asked to advise on whether specific conditions imposed by the regulatory agencies for Open Field Trials are adequate. If not, recommend what additional measures/safeguards are required to prevent potential risk.


In 2013, the TEC submitted in its report that it will not be advisable to conduct more field trials till gaps in the regulatory system are addressed.


"Based on the deliberations of the TEC and particularly the examination/study of the safety dossiers, it is apparent that there are major gaps in the regulatory system. These need to be addressed before issues related to tests can be meaningfully considered. Till such time it would not be advisable to conduct more field trials." the report said.


The report explained that the major concern with Herbicide Tolerant (HT) approaches is "the excessive reliance on increased amounts of one or two herbicides which results in strong selective pressure for the emergence of herbicide resistant weeds and' a negative impact on sustainability. 


The report further added that the benefits of HT crops in the Indian context may be short term and variable. "In addition they are likely to be accompanied by negative socioeconomic consequences as well as on the environment. There are alternatives to HT and it is likely that integrated weed management approaches (not stacking) as part of a basket of technologies would be more appropriate in the Indian context," the report had said.