Split Verdict, Uncertain Future - Analyzing The Legal Implications Of The Dhara Mustard Case
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Category: General Law
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SPLIT VERDICT, UNCERTAIN FUTURE: ANALYZING THE
LEGAL IMPLICATIONS OF THE DHARA MUSTARD CASE Akshita, Campus Law Centre, University of Delhi Kusha Mehta, Campus Law Centre, University of Delhi
INTRODUCTION
Genetic modification often comes up in discussions among certain groups, yet its influence on public understanding, particularly in India, is uncertain. Even with ongoing conversations, a large segment of the Indian populace lacks knowledge about fundamental concepts such as GM crops, revealing a significant gap in public awareness. At present, India allows the commercial cultivation of Bt. cotton, which is the only genetically modified crop approved. Various other GM crops are undergoing research and trials in India, including Bt Brinjal, GM Mustard, and GM Maize. DMH-11, also known as Dhara Mustard Hybrid-11, is another GM crop currently embroiled in a legal dispute in India. GM mustard is created using the barnase-barstar gene technology. This hybrid technology for GM mustard has the potential to significantly enhance mustard yields in India.
Such an increase in productivity could result in greater availability of edible oil for human consumption and seed meal for animal feed, addressing vital needs in the country. The Genetic Engineering Appraisal Committee (GEAC), which is India's regulatory authority for genetically modified organisms under the Ministry of Environment, Forest and Climate Change, has granted conditional approval for the environmental release of DMH-11. Following this conditional approval from GEAC, numerous petitions were submitted to the Supreme Court contesting this decision. These petitions expressed concerns regarding the potential environmental impact, biosafety issues, and possible risks to human health. In the case, Gene Campaign & Another vs. Union of India & Others the Supreme Court delivered its judgment on July 23, 2024.
DETAILED
ANALYSIS
OF SPLIT VERDICT OF SUPREME COURT On July 23, a noteworthy ruling from the Supreme Court, which received little attention amidst the flurry of coverage on the General Budget that day, was a divided decision regarding the Centre’s choice to give conditional approval for the environmental release of genetically modified (GM) mustard, known as Dhara Mustard Hybrid-11 (DMH-11). In this case challenging the approval for the environmental release of GM mustard (DMH-11), a two-judge bench in India delivered a split verdict. Justice Nagarathna ruled to overturn the approval granted by the GEAC, deeming the decision flawed. Conversely, Justice Karol upheld the approval.
Justice Nagarathna held that the recommendations of GEAC dated 18-10-2022 as well as the decision taken by the respondent Union of India on 25-10-2022 approving environmental release of transgenic mustard hybrid DMH-11 on the application made by the applicant, CGMCP, University of Delhi (South Campus’) were vitiated and hence, liable to be quashed. OBSERVATIONS BY J NAGARATHNA Justice Nagarathna's decision to revoke the environmental release approval for DMH-11 hinged on several key arguments. Crucially, she cited the lack of essential long-term studies, including chronic and trans-generational investigations, deemed vital by expert bodies. She emphasized the potential for irreversible harm to public health and the environment, outweighing any potential economic gains, particularly given the power imbalance between polluters and affected communities.
Furthermore, she criticized the lack of transparency and public participation in the decision-making process, highlighting the denial of access to the biosafety dossier and the rushed approval. Drawing a parallel with the Urgenda case, she argued that the state failed its duty to prioritize the public good and protect fundamental rights, including the right to a healthy environment. In essence, her judgment underscores the importance of the precautionary principle, environmental justice, transparency, scientific rigor, and the state's duty of care in environmental decision-making. OBSERVATIONS BY J KAROL Justice Karol disagreed with Justice Nagarathna, upholding the approval for GM Mustard's commercial sale. He argued that the decision, made by a specialized expert body (the GEAC), was sound and not arbitrary.
Justice Karol asserted that established procedures and monitoring regulations were adhered to, and that any minor procedural imperfections did not infringe upon fundamental rights. Justice Karol acknowledged the inherent tension between public concerns about potential risks from new technologies and the government's drive for scientific and agricultural progress. He determined that the conditional approval of GM Mustard aligned with the government's scientific objectives and the need for food security. While allowing field testing to proceed under rigorous monitoring to prevent contamination, he concluded that the approval process, though conditional, was consistent with precautionary principles, which he defined and explained using established legal precedents.
Importantly, both judges on the original bench stressed the urgent need for a comprehensive national policy on GM crops, encompassing research, cultivation, trade, and all related aspects. This highlights the current lack of a clear legal and regulatory framework for GM technology in India. The case itself underscores the critical importance of rigorous scientific evaluation and robust public discourse regarding the safety and environmental impact of GM crops. The court's deliberations also reflect the "precautionary principle," which suggests that when scientific certainty is lacking, it's wiser to exercise caution when dealing with potentially risky technologies. Because of the split verdict, the DMH-11 case now goes to a larger bench of the Supreme Court for a definitive ruling, leaving the future of GM mustard in India uncertain.
This larger bench will have to carefully consider all the arguments presented. GM CROPS, ITS IMPACT AND FUTURE IN INDIA As per the data on record, by 2015, genetically modified (GM) crops were being cultivated across 179. 7 million hectares in 28 countries, representing over 10% of the world's usable farmland—an area seven times the size of the UK. The leading GM crop producers were the United States, Brazil, and Argentina. Talking specifically about USA, GM crops have played a very significant role in US agriculture, contributing to increased yields, reduced pesticide use, and economic benefits for farmers. However, the rise of herbicide-resistant weeds, concerns about gene flow and impacts on non-target organisms, and issues related to corporate control and public perception highlight the challenges associated with this technology.
Talking about Indian scenario, where only Bt cotton is commercially grown, studies have shown yield increases ranging from 30% to over 60% in Bt cotton compared to non-Bt varieties. Insecticide use has decreased substantially in Bt cotton cultivation, with some studies reporting a reduction of 30-50% or even more. Bt cotton now occupies a vast majority of the total cotton growing area in India, accounting for over 90% in recent years. This demonstrates the widespread adoption of the technology. But on the contrary, it is well known that India’s agricultural landscape is diverse, with a large number of smallholder farmers who may have limited access to resources and technology. It is crucial to assess the socio-economic effects of GM crops, ensuring they provide advantages for all farmers without deepening existing inequalities.
In addition, the emphasis should be on creating crops that are tailored to the unique agro-ecological conditions of various regions in India instead of adopting a uniform strategy. In the end, the trajectory of GM crops in India will rely on finding a compromise between leveraging the potential benefits of biotechnology and addressing possible risks. Achieving this necessitates a comprehensive approach that considers scientific data, ethical implications, socio-economic aspects, and environmental sustainability. By emphasizing transparency, public involvement, and scientific integrity, India can make well-informed choices regarding the role of GM crops in its agricultural landscape. The Dhara mustard case is a landmark legal battle that will significantly impact the future of GM crops in India.
REFERENCES :
1.https://www.scconline.com/blog/post/2024/07/24/justice-nagarathna-decision-quashingcentre-approval-for-gm-mustard-cultivation/ 2.https://www.civilsdaily.com/news/why-sc-couldnt-agree-on-the-environmental-release-ofgm-m 3.https://www.scconline.com/blog/post/2024/07/27/sc-calls-for-national-policy-ongenetically-modified-crops/ 4.https://www.nextias.com/ca/editorial-analysis/02-08-2024/contested-harvest-on-india-andgenetically-modified-foo