1. Writ petitions challenging approval for environmental release of transgenic mustard DMH-11 under precautionary principle and public trust doctrine. (Para 4 , 5 , 15 )
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SUPREME COURT OF INDIA
B.V. NAGARATHNA, SANJAY KAROL, JJ.
Gene Campaign and Another – Petitioners
Versus
Union of India and Others – Respondents
Writ Petition (Civil) No. 115 of 2004, Writ Petition (Civil) No. 260 of 2005, Writ Petition (Civil) No. 840 of 2016, Civil Appeal No. 4086 of 2006, Contempt Petition (Civil) No. 295 of 2007, Contempt Petition (Civil) No. 6 of 2016
Decided On : 23-07-2024
Advocates appeared:
For the Parties : Mr. V. Shyamohan, AOR Mr. Priyam Cherian, Adv. Ms. Anshika Bajpai, Adv. Mr. Akshat Gogna, Adv. Mr. Prashant Bhushan, AOR Mr. Rahul Gupta, Adv. Ms. Alice Raj, Adv. Ms. Ria Yadav, Adv. Ms. Ananya Kumar, Adv. Mr. Sanjay Parikh, Sr. Adv. Ms. Aparna Bhat, AOR Ms. Karishma Maria, Adv. Mrs. Anil Katiyar, AOR Applicant-in-person, AOR Ms. Sunita Singh Chauhan, Adv. Mr. Hitesh Kumar Sharma, Adv. Mr. Akhileshwar Jha, Adv. Mr. Amit Kumar Chawla, Adv. Mr. Virendra Mohan, Adv. Ms. Niharika, Adv. Ms. Manisha Chawla, Adv. Mr. Anil Kumar Mishra-i, AOR Mr. Supantha Sinha, Adv. Mr. Ankit Dhawan, Adv. Mr. Aditya Jain -i, Adv. Mr. S. Hariharan, AOR Mr. Jitendra Mohan Sharma, AOR Dr. N. Visakamurthy, AOR Mr. R. Venkataramani, AG Ms. Aishwarya Bhati, ASG Mr. Mayank Pandey, Adv. Mr. Ketan Paul, Adv. Ms. Manisha Chava, Adv. Ms. Sonali Jain, Adv. Mr. Nitin Chowdhary Pavuluri, Adv. Mr. Gurmeet Singh Makker, AOR Mr. Abhay Kumar, AOR Mr. Prashant Pakhare, Adv. Mr. Shagun Ruhil, Adv. Mr. Tirupati Gaurav Shahi, Adv. Ms. Neetu Jain, Adv. Mr. Amrish Kumar, AOR Mrs. D. Bharathi Reddy, AOR Mr. D.Rama Krishna Reddy, Adv. Mr. Nishant Sharma, Adv. Mr. Bonny Mehra , AOR Mr. Dhruv Dwivedi, Adv. Mr. Kushal Sharma, Adv. Mr. Ravindra Sadanand Chingale, AOR Dr. Ravindra Chingale, Adv. Mr. Ashish Sonawane, Adv. Ms. Sumbul Ausaf, Adv. Dr. N. Visakamurthy, AOR Mr. Pranav Sachdeva, AOR Mr. Jatin Bhardwaj, Adv. Mr. Abhay Nair, Adv.
For the Parties : Mr. V. Shyamohan, AOR Mr. Priyam Cherian, Adv. Ms. Anshika Bajpai, Adv. Mr. Akshat Gogna, Adv. Mr. Prashant Bhushan, AOR Mr. Rahul Gupta, Adv. Ms. Alice Raj, Adv. Ms. Ria Yadav, Adv. Ms. Ananya Kumar, Adv. Mr. Sanjay Parikh, Sr. Adv. Ms. Aparna Bhat, AOR Ms. Karishma Maria, Adv. Mrs. Anil Katiyar, AOR Applicant-in-person, AOR Ms. Sunita Singh Chauhan, Adv. Mr. Hitesh Kumar Sharma, Adv. Mr. Akhileshwar Jha, Adv. Mr. Amit Kumar Chawla, Adv. Mr. Virendra Mohan, Adv. Ms. Niharika, Adv. Ms. Manisha Chawla, Adv. Mr. Anil Kumar Mishra-i, AOR Mr. Supantha Sinha, Adv. Mr. Ankit Dhawan, Adv. Mr. Aditya Jain -i, Adv. Mr. S. Hariharan, AOR Mr. Jitendra Mohan Sharma, AOR Dr. N. Visakamurthy, AOR Mr. R. Venkataramani, AG Ms. Aishwarya Bhati, ASG Mr. Mayank Pandey, Adv. Mr. Ketan Paul, Adv. Ms. Manisha Chava, Adv. Ms. Sonali Jain, Adv. Mr. Nitin Chowdhary Pavuluri, Adv. Mr. Gurmeet Singh Makker, AOR Mr. Abhay Kumar, AOR Mr. Prashant Pakhare, Adv. Mr. Shagun Ruhil, Adv. Mr. Tirupati Gaurav Shahi, Adv. Ms. Neetu Jain, Adv. Mr. Amrish Kumar, AOR Mrs. D. Bharathi Reddy, AOR Mr. D.Rama Krishna Reddy, Adv. Mr. Nishant Sharma, Adv. Mr. Bonny Mehra , AOR Mr. Dhruv Dwivedi, Adv. Mr. Kushal Sharma, Adv. Mr. Ravindra Sadanand Chingale, AOR Dr. Ravindra Chingale, Adv. Mr. Ashish Sonawane, Adv. Ms. Sumbul Ausaf, Adv. Dr. N. Visakamurthy, AOR Mr. Pranav Sachdeva, AOR Mr. Jatin Bhardwaj, Adv. Mr. Abhay Nair, Adv.
The judgment emphasizes that while technical policy decisions on GMOs are generally deferred to experts, the decision-making process must adhere to the environmental rule of law, the precautionary principle, and the public trust doctrine to ensure transparency and protect the environment.
Headnote:(A) Environment (Protection) Act, 1986; Rules for Manufacture, Use, Import, Export and the Storage of Hazardous Micro-organisms, Genetically Engineered Organisms or Cells, 1989; Food Safety and Standards Act, 2006 - Sections 22 and 23; Constitution of India - Articles 14, 21, 48A and 51A(g) - Environmental release of transgenic mustard hybrid - Validity of approval by the Genetic Engineering Appraisal Committee (GEAC) - Precautionary Principle - Public Trust Doctrine.
(B) Precautionary Principle - "decision makers should act in advance of scientific certainty to protect the environment" (Para 31) - Mandates taking appropriate measures to identify potentially harmful activities even in the face of scientific uncertainty to avoid future environmental damage.
(C) Public Trust Doctrine - "State is the trustee of all natural resources and the public at large is the beneficiary" (Para 42.10) - Power vested in a public authority should be used as a trust coupled with duty to be exercised in larger public and social interest.
(D) Environmental Rule of Law - Requires "effective, accountable, and transparent institutions; responsive, inclusive, participatory, and representative decision making" (Para 23) to ensure the protection of the environment and public health.
Facts of the case:
Petitioners challenged the conditional approval granted by the regulatory authority for the environmental release of a transgenic mustard hybrid. They contended that the approval was arbitrary, lacked transparency, ignored the recommendations of a Technical Expert Committee, and violated the precautionary principle. The Respondents maintained that the approval followed a rigorous, multi-year regulatory process involving multiple levels of safety assessment.
Findings of Court:
The Bench expressed a difference of opinion. One judge found the approval vitiated by a flawed procedure and a violation of the public trust doctrine, noting a sudden change in the regulatory stance following lateral intervention. The other judge found the approval reasoned and in consonance with the existing statutory framework, emphasizing that courts should not substitute their view for that of technical experts in policy matters.
Issues: Whether the approval for the environmental release of the transgenic mustard hybrid is in accordance with law, violates the right to a safe and healthy environment under Article 21, or violates the precautionary principle.
Ratio Decidendi: The court held that while the merits of technical scientific decisions are generally not subject to judicial review, the decision-making process must be fair, transparent, and compliant with the environmental rule of law. The conflict between the need for agricultural development and the duty to prevent irreversible environmental harm necessitates a balanced, transparent, and inclusive regulatory approach, including the formulation of a comprehensive national policy.
Result: The matter regarding the validity of the conditional approval for environmental release is referred to the Chief Justice of India for the constitution of an appropriate Bench; directions issued to evolve a National Policy on GM crops and reform the regulatory committee.
Legal Category Hierarchy
- constitutional law
- administrative law
- environmental law
-
food and agriculture law
-
food safety
- food safety and standards act, 2006 (Para 23)
-
agricultural regulation
- seeds act, 1966
- insecticides act, 1968
-
food safety
-
practice and procedure
-
writ jurisdiction
- article 32 (Para 6)
- contempt proceedings
- appellate procedure
-
writ jurisdiction
Table of Contents
2. Whether DMH-11 qualifies as HT crop and whether GEAC approval violated precautionary principle and public trust doctrine, with respondents asserting regulatory compliance and national interest. (Para 14 , 18 , 19 , 20 )
3. Approval for environmental release of DMH-11 vitiated for violating precautionary principle and public trust doctrine; writ petitions dismissed. (Para 43 , 48 , 49 , 51 , 54 )
4. Does the precautionary principle apply to regulatory approvals for environmental release of GM crops?
Yes, the precautionary principle is a foundational doctrine of Indian environmental law and applies to GM crop approvals. Activities disturbing nature must proceed only upon ex-ante assessment of consequences, and the approval for DMH-11 violated this principle. (Para 45 , 48 )
5. Did the GEAC approval for DMH-11 violate the public trust doctrine?
Yes, the court found the approval was in gross violation of the public trust doctrine, which prohibits the executive from converting natural resources into private ownership or commercial use without authorization for public good and public interest. (Para 3 , 43 )
6. Is DMH-11 classified as a herbicide-tolerant HT crop, and what are the regulatory implications?
Yes, the court accepted DMH-11 possesses HT characteristics as admitted by the Union of India, and the TEC Report also classified it as an HT crop, raising concerns about impacts on sustainable agriculture, rural livelihoods, and biodiversity. (Para 20 , 38 , 41 , 46 )
7. What institutional features must environmental regulatory bodies possess, and what is the role of courts in monitoring them?
Environmental bodies must function with credibility, transparency, independence from commercial incentives, and robust infrastructure. Constitutional courts must monitor their proper institutionalisation to ensure the environment and ecology are protected and enriched. (Para 27 , 28 , 29 , 30 , 31 , 32 )
8. Must long-term chronic and intergenerational studies be conducted before approving GM crops for environmental release?
Yes, under the precautionary principle and binding obligations under Article 14(1)(b) of the CBD and Article 26 of the CPB, GEAC is duty-bound to sanction long-term chronic and intergenerational studies before approving GM crops for environmental release. (Para 45 , 46 )
JUDGMENT :
B.V. NAGARATHNA, J.
| Table of Contents |
| Acronyms |
| Preface: |
| Bird’s eye view of the controversy: |
| Pleadings: |
| Writ Petition (Civil) No. 115 of 2004: Writ Petition (Civil) No. 260 of 2005: Writ Petition (Civil) No. 840 of 2016: Civil Appeal No. 4086 of 2006: |
| Contempt Petition (Civil) No. 295 of 2007 in Writ Petition (Civil) No. 260 of 2005 and Contempt Petition (Civil) No. 6 of 2016 in Writ Petition (Civil) No. 260 of 2005: |
| Significant Orders passed by this Court in Writ Petitions: |
| Constitution of the Technical Expert Committee (TEC): |
| Final Report of TEC: |
| Parliamentary Standing Committee (PSC) on Agriculture’s Report on “Cultivation of Genetically Modified Food Crops - Prospects and Effects” - 2012: |
| Parliamentary Standing Committee (PSC) on Science and Technology, Environment and Forests’ Report titled “Genetically Modified Crops and its impact on Environment” - 2017: |
| Conditional approval by Government of India for Environmental Release of DMH-11: |
| Sub-committee meetings: |
| Interlocutory Applications filed by the petitioners: |
| Additional Affidavit of Union of India: |
| Submissions: |
| Submissions of the petitioners: |
| Submissions of the Respondents: |
| Submissions of Learned Solicitor General: |
| Reply Arguments: |
| Points for Consideration: |
| Legal Framework: |
| Environment (Protection) Act, 1986 (EP Act, 1986): |
| 1989 Rules: |
| Regulatory Framework: |
| Constitutional Court and the Environmental Rule of Law: |
| Public Trust Doctrine: |
| Precautionary Principle: |
| Analysis and Findings: |
| Re: Point No. 1: Whether GEAC approval dated 18.10.2022 and the consequent decision dated 25.10.2022 for the environmental release of DMH-11 is in accordance with law? |
| Public Trust Doctrine: |
| Re: Point No. 2: Whether the decision to grant approval for environmental release of DMH-11 violates the right to safe and healthy environment under Article 21? |
| Right to safe and healthy Environment: |
| Re: Point No. 3: Whether GEAC’s grant of approval dated 18.10.2022 and the decision dated 25.10.2022 for the environmental release of DMH-11 violate the precautionary principle? |
| Precautionary Principle: |
| Conclusion: |
Acronyms
| AFES | Assessment of Food/Feed and Environmental Safety |
| AICRP | All India Coordinated Research Project |
| ASHA | Alliance for Sustainable and Holistic Agriculture |
| BG-II | Bollgard-II |
| BRAI | Biotechnology Regulatory Authority of India |
| BRL | Bio-safety Research Level |
| BSU | Bio-safety Support Unit |
| Bt | Bacillus thuringiensis |
| CAC | Codex Alimentarius Commission |
| CBD | Convention on Biological Diversity |
| CCMB | Centre for Cellular & Molecular Biology |
| CGMCP | Centre for Genetic Manipulation of Crop Plants |
| CIB&RC | Central Insecticide Board & Registration Committee |
| CPB | Cartagena Protocol on Bio-safety |
| CSIR | Council of Scientific and Industrial Research |
| DARE | Department of Agricultural Research and Education |
| DBT | Department of Biotechnology |
| DGFT | Directorate General of Foreign Trade |
| DLC | District Level Committee |
| DMH-11 | Dhara Mustard Hybrid-11 |
| DoAC | Department of Agriculture and Cooperation |
| DRMR | Directorate of Rapeseed and Mustard Research |
| ECHR | European Convention on Human Rights |
| ERA | Environmental Risk Assessment |
| FAO | Food and Agriculture Organization |
| FSSA, 2006 | Food Safety and Standards Act, 2006 |
| FSSAI | Food Safety and Standards Authority of India |
| GE | Genetically Engineered |
| GEAC | Genetic Engineering Appraisal Committee |
| GEF | Global Environment Facility |
| GEO | Genetically Engineered Organism |
| GM | Gene Modification or Genetically Modified |
| GMO | Genetically Modified Organisms |
| HPV | Human Papilloma Virus |
| HT | Herbicide Tolerant or Tolerance |
| IAASTD | International Assessment of Agricultural Knowledge, Science and Technology for Dev |
