Vivian Fernandes
The Supreme Court’s split verdict on the commercial release of genetically modified (GM) mustard hybrid is a setback for agricultural biotechnology in the country. It might be confirmed or reversed by a larger bench.
In the July 25 judgment, Justice Sanjay Karol found no legal infirmity in the approval process but Justice B.V. Nagarathna held the decision to be hasty, lacking in transparency, violative of public trust, arbitrary, and, for these reasons, vitiated. Some of her cited reasons impinge on policy, which is the domain of the executive, but others reveal how a decision that should be strictly scientific was caught in the ebb and flow of ideological and political currents, inviting the judge’s censure. Her views reflect those of an influential section of Indian society that believes agriculture can be pristine; they cannot be ignored.
The issue before the two-judge bench was the government’s approval, given in December 2022 for seed production of Dhara Mustard Hybrid-11 (DMH-11), preparatory to its cultivation in farmers’ fields. A team of Delhi University scientists led by its former vice-chancellor, Deepak Pental, had developed it with funding from the Department of Biotechnology (DBT) and the National Dairy Development Board (NDDB), which sells cooking oil under the Dhara brand name. A bunch of anti-GM activists objected, saying the decision lacked transparency and did not factor in its impact on biodiversity and long-term hazards to humans, animals and the environment.
GM mustard just happened to be caught in the legal tangle. The writ petitions by Suman Sahai of Gene Campaign and Aruna Rodrigues were from 2004 and 2005, respectively. They were triggered by approval in 2002 for the cultivation of Bt cotton, which had been genetically engineered with a gene from a soil bacterium to be toxic to cotton boll borers. The petitioners regard GM crops as hazardous and are opposed outright to the technology.
After conducting two levels of biosafety trials in confined conditions starting 2010, the developers of the GM mustard hybrid applied for permission from the regulator, the Genetic Engineering Appraisal Committee (GEAC), for its release to farmers, in September 2015. They gave a 3,285-page document containing yield data and the results of toxicity, allergenicity and other tests. The GEAC published a summary of the document on its website, inviting public comment. The unabridged document was kept at the environment ministry’s office in Delhi.
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In May 2017, the GEAC said the mustard hybrid was safe and advised the environment minister to give its consent for commercial release. That did not happen. The final government approval came in December 2022. Despite the five-year gap, Justice Nagarathna said the approval was given in haste and the regulator has abused public trust. Why?
The judge noted that the regulator had wanted trials on the mustard hybrid’s effect on honeybees, other pollinators and soil microbial diversity before commercial release. But the government allowed deferment of the trials for three years. In 2022, the government relaxed the guidelines for gene editing (different from genetic modification) that did not involve the introgression of traits from foreign genes.
Sensing a change in the government’s attitude, Pental wrote a letter to the environment minister in May 2022. In his letter, Pental explained that Canada had developed a hybrid of rapeseed (related to mustard) using the same technology as his in 1996; the US and Australia had followed, and the literature showed no impact on honeybees or other pollinators. He also said his technology was an efficient way of producing mustard hybrids and would help the country reduce its dependence on cooking oil imports.
Things moved fast after that. The regulator formed a sub-committee which held a couple of meetings. After reviewing the literature on honeybees and the positive comments of DBT, the Indian Council of Agricultural Research and the Department of Agricultural Research and Education, it “outrightly recommended” release of the hybrid which, the judge noted, was “diametrically opposite” to its earlier views. In October 2022, the GEAC advised the environment minister to allow seed production of the GM mustard hybrid with post-release monitoring of impact on honeybees, other pollinators and soil microbial diversity. This the environment minister accepted in December 2022.
Those familiar with the backstory know that the GEAC had on May 11, 2017 advised release of the hybrid initially for four years with post-release monitoring. It had not imposed the pre-condition of honeybee trials. The then chairperson had told this correspondent that 21 of 26 GEAC members were present at the meeting that decided in favour of release and that the sub-committee had assayed GM mustard for herbicide tolerance, propensity to cause new allergies, toxicity and effect on honeybees and pollinators.
It had found the hybrid to be safe on all four counts. A couple of days later, the environment ministry had posted FAQs on its website, allaying fears about the technology and the hybrid. Environment Minister Anil Madhav Dave was expected to endorse the GEAC’s decision. So imminent was the decision that anti-GM activists had canvassed for protest phone calls to be made urgently to the prime minister’s office. But on May 18, Dave passed away.
His successor, Harsh Vardhan, was not keen on approval and, to provide him cover, the GEAC changed its minutes to say that the issue had been put on hold in view of representations from the public. It said the developers had been told to do honeybee trials before release. The developers thought this was a delaying tactic and did not proceed with the trials. (The Swadeshi Jagran Manch, an affiliate of the RSS, and the government itself had not been supportive of GM technology earlier.)
So, the GEAC’s initial decision was the same as its October 2022 stance. It changed its recommendation under political pressure.
The judge notes that the GM mustard hybrid is herbicide tolerant (HT) and the Technical Expert Committee (TEC) constituted by the Supreme Court in 2012 had sought a ban on incorporation of the trait in plants because it would impact sustainable agriculture, rural livelihoods and the environment.
But the TEC has exceeded its mandate, which was to suggest the sequence of risk assessment studies for GM crops before they were allowed to be cultivated in the open, the adequacy of conditions imposed on open field trials and additional restrictions that needed to be imposed, and whether trials of GM plants in greenhouses could be a proxy for those in varied agroclimatic conditions. It was not asked to pronounce on herbicide tolerance.
Herbicides are extensively used in the country. Large cotton acreages are of illegal HT cotton, as a government committee itself noted. And the Indian Agricultural Research Institute has developed herbicide tolerance in Basmati rice using conventional technology. Of course, herbicides impact the environment, as do pesticides and fertilisers. The government has not helped matters by being coy on the HT trait of GM mustard. It has been saying that the trait is needed for hybrid seed production, but mustard farmers are barred by law from applying the herbicide that the hybrid is resistant to. Also, in 2022, it imposed a condition that the herbicide glyphosate should be sprayed only by licensed pest control operators — making a commonly used herbicide seem exceptionally risky.
Is the TEC’s recommendation of a ban on herbicide tolerance binding on the government? Justice Karol, the other judge on the bench, said it was not for the court to decide on the issue based on the material placed before it. The court, he said, cannot do a cost-benefit analysis of a policy decision taken by the executive.
Justice Nagarathna finds the institutions regulating GM crops to be clubby. The DBT funds the Review Committee on Genetic Manipulation (which gives approval for trials of GM crops and their biosafety tests) and the GEAC. It also funds research on GM crops. The ICAR institutes do research using GM technology. And there is a revolving door between the research institutes and the regulatory institutions.
The judge emphasises the precautionary principle, which is defined in her judgment as a shift from the traditional reactive approach to one that seeks to avoid future environmental damage from unknown and unknowable risks. Europe abides by this, but the US, Canada, Australia and Brazil follow the principle of “substantial equivalence”.
For them it’s the product and not the process that matters. If GM mustard is equal in all respects to non-GM mustard except for the foreign trait engineering into it, it is acceptable to them. Which of the two principles to follow is a political decision.
Justice Nagarathna prefaces her judgment with citations from sacred texts that regard the earth as sacred, to be respected and preserved. This, for her, is the essence of intergenerational equity. But agriculture is itself not “natural”. It’s an imposition on nature and affects biodiversity. The issue really is how to keep the damage minimal without affecting affordable and nutritious food supply.
Both judges are for a national policy on GM crops. Such a policy is necessary because it will make explicit the government’s stand rather than the current on-off attitude. The judges also want the Food Safety and Standards Authority of India (FSSAI) to play its role as a regulator of food safety and take a call on foodstuff derived from GM crops.
