Why the Supreme Court couldn’t agree on environmental release of GM mustard

When a split decision is delivered, the case is referred to the Chief Justice of India for placing before a larger Bench. However, both judges directed the Union of India “to evolve a National Policy with regard to GM crops”, and to consult experts, farmer representatives, and state governments during the process.

Story of GM mustard

On September 15, 2015, the Centre for Genetic Manipulation of Crop Plants (CGMCP) at the Delhi University sought the GEAC’s approval for the environmental release of a genetically engineered hybrid mustard called DMH-11 (commonly known as GM mustard).

Mustard flowers contain both female (pistil) and male (stamen) reproductive organs, which makes the plant largely self-pollinating. The GM mustard developed by the DU scientists contains two alien genes — the first, ‘barnase’, gene interferes with pollen production and renders the plant male-sterile, and the resulting plant is crossed with fertile mustard flowers containing the second, ‘barstar’, gene which blocks the action of the barnase gene. The resulting plants are meant to be high-yield variants of mustard.

Along with the proposal, the CGMCP submitted a biosafety dossier, and the GEAC created a sub-committee to examine its contents. Following some revisions, the sub-committee considered the dossier and submitted its report. In September 2016, the report was published and comments were invited.

On May 11, 2017, the GEAC recommended the environmental release of GM mustard. If approved, this would allow field tests to be conducted to examine the effects of cultivating the crop.

However, after receiving several representations, the Ministry of Environment sent the proposal back to the GEAC for re-examination in March 2018. The GEAC then directed the CGMCP to examine the effect of GM mustard on honey bees and soil microbial diversity. But these tests were deferred through 2020-21.

In May 2022, gene scientist Prof Deepak Pental on behalf of the CGMCP wrote to the Minister for Environment urging him to accept the recommendation for the environmental release of GM mustard. The GEAC sought comments from various government departments, which recommended releasing GM mustard. The proposal was submitted on October 18, 2022. It was accepted by the Centre on October 25, and recommendations and conditions regarding the field tests were sent to Prof Pental.

Case before the SC

Environmentalist Aruna Rodrigues and the research and advocacy organisation Gene Campaign challenged the decision to approve the environmental release of GM mustard before the Supreme Court.

In their split decision, the judges disagreed on two key aspects: first, whether the GEAC’s decision-making process was legal and, second, whether it violated the “precautionary principle” for scientific innovations. The precautionary principle, a standard test in environmental litigation, is recognised as a facet of the right to a clean environment, a subset of Article 21 (fundamental right to life).

JUSTICE NAGARATHNA said that the field tests that the GEAC committed to conducting with the CGMCP did not take place. Instead, the GEAC did a “volte-face” after Prof Pental sent the letter to the Centre in May 2022, and recommended the environmental release of GM mustard regardless. This shift in stance without providing any reasons, shows there was no “application of mind” by the GEAC, which is in “gross violation of the principle of public trust”, Justice Nagarathna ruled.

She also said that the GEAC did not sanction any studies on the long-term effects that GM mustard could have on future generations. The process adopted by the GEAC “has failed to take into consideration the precautionary principles while approving the environmental release of the transgenic mustard”, violating both the precautionary principle and the right to a safe and healthy environment, she said.

JUSTICE KAROL held that environmental release and the following tests and trials were in line with “the development of a scientific temper” and abided by the precautionary principle. “Without field trials, the performance of the plant in the field or environmental safety of such plant cannot be known. Studies, being conducted in open environment is necessary for studying the impact on human health and biodiversity, for the performance of a GM crop is dependent on a host environment,” he said.

Justice Karol held that the GEAC’s process was “independent” and “reasoned”. He observed that the GEAC-appointed expert committee had found that honeybees do not discriminate between other GM crops such as genetically engineered canola. He noted that the Department of Biotechnology and the Department of Agricultural Research and Education had both recommended the environmental release of GM mustard.