Summary
The two judges differed on the conditional environmental release approval for GM mustard DMH-11: Justice Karol upheld it, while Justice Nagarathna would quash it. The common order referred that question for consideration by an appropriate Bench and directed a consultative national policy on GM crops, scrutiny of experts’ conflicts of interest, and compliance with food packaging and labelling requirements.
Issues
- Whether the conditional approval for environmental release of DMH-11 complied with the statutory process and the precautionary principle.
- Whether alleged defects in appraisal, access to biosafety information and assessment of health and environmental risks infringed constitutional rights.
- Whether the regulatory rules were unconstitutional and a complete ban on herbicide-tolerant crops was warranted.
- What common directions could be made despite the judges’ disagreement on the approval.
Provisions considered
- Rules 4(4), 12 and 13, Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms, Genetically Engineered Organisms or Cells, 1989Karol J. found expert assistance permissible and the conditional approval reasoned. Nagarathna J. found the appraisal and reversal of the earlier testing requirement deficient. Their disagreement on the approval was referred by the common order. (¶¶ 25, 27.5, 42, 43)
- Article 21 read with Articles 48A and 51A(g), Constitution of IndiaThe opinions discussed protection of a healthy environment and the precautionary principle but reached opposing conclusions on whether this approval met those requirements. (¶¶ 30, 40, 42, 43, 44.5, 48.10)
- Section 23, Food Safety and Standards Act, 2006The final common order directed the Union to comply with packaging and labelling requirements when importing GM food, particularly GM edible oil. (¶ 2)
Held
- Final common order: decisions of the bodies concerned with GMOs are amenable to judicial review. The divided opinions did not finally resolve the legality of the DMH-11 approval; that issue was directed to be placed before the Chief Justice for constitution of an appropriate Bench to consider it afresh. (¶¶ 1, 3)
- Final common order: the Union must evolve and publicise a national policy on GM crops covering research, cultivation, trade and commerce, after consultation with stakeholders including relevant experts, State Governments and farmers’ representatives. The Ministry must conduct a national consultation, preferably within four months, involving the States. (¶ 2)
- Final common order: experts’ credentials and past records must be verified, and conflicts of interest declared and appropriately mitigated with representation of a wide range of interests. Rules with statutory force may be formulated. Imports of GM food, particularly GM edible oil, must comply with Section 23 packaging and labelling requirements. (¶ 2)
- Karol J., separate opinion: GEAC’s use of expert committees for preparatory assistance did not delegate its core approval function. He considered the conditional approval independently reasoned and compliant with the rules, and would permit trials subject to strict monitoring and safeguards. This was not a unanimous ruling on the approval. (¶¶ 25, 49, 50.1, 50.2)
- Karol J., separate opinion: the challenge to the 1989 Rules failed for want of established manifest arbitrariness. He treated a blanket ban on herbicide-tolerant crops as a policy matter for informed expert determination, rather than a direction the Court should issue on this record. (¶¶ 26.14, 27.15, 47, 49)
- Nagarathna J., separate opinion: the unexplained reversal of the earlier requirement for pre-release pollinator studies, mechanical acceptance of a newly constituted committee’s recommendation, inadequate health representation and lack of consultation undermined the decision-making process and public trust. She would quash the approval. This view was not the final common disposition of its validity. (¶¶ 42.5, 42.6, 42.17, 42.18, 42.21, 42.22, 43, 49)
- Nagarathna J., separate opinion: failure to provide accessible biosafety information and adequately assess long-term health and environmental impacts infringed the right to a safe and healthy environment and the precautionary principle. She would require a fresh assessment of DMH-11’s herbicide-tolerant character and associated risks, with consultation and disclosure. (¶¶ 43.2, 43.3, 44.1, 44.2, 44.5, 48.10, 50)
Result
Validity of the DMH-11 conditional approval referred to the Chief Justice of India for constitution of an appropriate Bench owing to the split. Common directions issued on a national GM-crop policy and consultation, verification and conflicts of experts, and Section 23 compliance for imported GM food. Neither separate opinion alone constitutes a final decision upholding or quashing the approval.