Genetically Modified Organisms — Regulation and approval of genetically modified organisms — Environmental release of transgenic mustard hybrid DMH-11 — The Supreme Court has quashed the approval of the environmental release of transgenic mustard hybrid DMH-11, developed by the Centre for Genetic Manipulation of Crop Plants (CGMCP) at the University of Delhi — The court found that the decision-making process was arbitrary and violated the precautionary principle — The court directed the government to take a fresh decision on the release of the transgenic mustard hybrid, considering the recommendations of the Technical Expert Committee (TEC) and the Parliamentary Standing Committee on Agriculture — The court also directed the government to formulate a National Policy on GM crops, involving all stakeholders, and to ensure transparency and public participation in the decision-making process — The court emphasized the importance of protecting the environment, biodiversity, and the health of citizens in the context of genetically modified organisms.

2024 INSC 545

SUPREME COURT OF INDIA

DIVISION BENCH

GENE CAMPAIGN AND ANOTHER — Appellant

Vs.

UNION OF INDIA AND OTHERS — Respondent

( Before : B.V. Nagarathna and Sanjay Karol, JJ. )

Writ Petition (Civil) No.115 of 2004 with 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; Contempt Petition (Civil) No.6 of 2016 In Writ Petition (Civil) No.260 of 2005

Decided on : 23-07-2024

Per : Nagarathna, J.

A. Genetically Modified Organisms — Regulation and approval of genetically modified organisms — Environmental release of transgenic mustard hybrid DMH-11 — The Supreme Court has quashed the approval of the environmental release of transgenic mustard hybrid DMH-11, developed by the Centre for Genetic Manipulation of Crop Plants (CGMCP) at the University of Delhi — The court found that the decision-making process was arbitrary and violated the precautionary principle — The court directed the government to take a fresh decision on the release of the transgenic mustard hybrid, considering the recommendations of the Technical Expert Committee (TEC) and the Parliamentary Standing Committee on Agriculture — The court also directed the government to formulate a National Policy on GM crops, involving all stakeholders, and to ensure transparency and public participation in the decision-making process — The court emphasized the importance of protecting the environment, biodiversity, and the health of citizens in the context of genetically modified organisms.

B. Genetically Modified Organisms — Regulation and approval of genetically modified organisms — Precautionary Principle — The court emphasized the importance of the precautionary principle in decision-making related to GMOs — It held that when there is uncertainty or potential risks associated with GMOs, the decision-makers must err on the side of caution and prioritize environmental and health protection.

C. Genetically Modified Organisms — Regulation and approval of genetically modified organisms — Public Participation and Transparency — The court stressed the need for public participation and transparency in the decision-making process regarding GMOs — It directed the government to involve all stakeholders, including experts, farmers, and civil society, in the decision-making process and to ensure that relevant information is made accessible to the public.

D. Genetically Modified Organisms — Regulation and approval of genetically modified organisms — National Policy on GM Crops — The court directed the government to formulate a comprehensive National Policy on GM crops, involving all stakeholders, to provide a clear framework for the research, cultivation, trade, and commerce of GMOs in the country — The policy should prioritize environmental and health protection, as well as the interests of farmers and consumers.

E. Genetically Modified Organisms — Regulation and approval of genetically modified organisms — Regulatory Reforms — The court called for reforms in the composition and functioning of the Genetic Engineering Appraisal Committee (GEAC), the apex regulatory body for GMOs in India — It emphasized the need for an independent, autonomous, and transparent regulatory body with expertise in various fields, including agriculture, biotechnology, ethics, sociology, health, and environment.

F. Genetically Modified Organisms — Regulation and approval of genetically modified organisms — Compliance with International Agreements — The court directed the government to comply with international agreements, such as the Cartagena Protocol on Biosafety, and to ensure that the regulatory framework for GMOs is in line with international standards and best practices.

Sanjay Karol, J.

A. Genetically Modified Organisms — Regulation and approval of genetically modified organisms — Environmental release of transgenic mustard hybrid DMH-11 — The Supreme Court dismissed a batch of writ petitions challenging the conditional approval of DMH-11, a genetically modified (GM) mustard hybrid, for field trials — The court upheld the decision of the Genetic Engineering Appraisal Committee (GEAC), stating that it was not vitiated by arbitrariness, delegation, or non-application of mind — The court also clarified that the constitution of the GEAC, which has been criticized for being lopsided with bureaucratic influence, is in accordance with the 1989 Rules [Manufacture, Use, Import, Export And Storage of Hazardous Micro Organisms Genetically Engineered Organisms Or Cells Rules, 1989].

B. Genetically Modified Organisms — Regulation and approval of genetically modified organisms — The court further directed that field trials of DMH-11 shall continue in strict consonance with the conditions imposed, and that the GEAC must ensure that the conditions mentioned in the conditional approval are strictly complied with.

C. Genetically Modified Organisms — Regulation and approval of genetically modified organisms — The court also directed the GEAC to consider all environmental factors before granting future approvals and make an endeavor to have specifically designated farms for field testing, in collaboration with the Union of India — The court further directed that all studies conducted and received while granting such approvals must be uploaded on the website of the GEAC in a time-bound manner, ensuring public participation in the process and wider publicity of the same

D. Genetically Modified Organisms — Regulation and approval of genetically modified organisms — The court also directed that before commercial release of DMH-11 and other GMOs in the future, specific testing on their impact on human health must be conducted prior thereto.

E. Genetically Modified Organisms — Regulation and approval of genetically modified organisms — The court further directed that the Union of India should consider implementing a national, all-encompassing policy in respect of GMOs so as to ensure a streamlined approach to this important issue, including the setting up of infrastructure including laboratories with state of the art facilities, to aid the interplay of biotechnology and agriculture and the advancement thereof — The court also directed that the Union of India must ensure strict compliance with labelling of GM foods, in accordance with the Food Safety and Security Act.

Due to differing opinions within the court regarding the conditional approval of the environmental release of DMH-11 by the Genetic Engineering Appraisal Committee (GEAC) and the MoEF, the matter has been referred to the Chief Justice of India for the constitution of an appropriate bench to reconsider this aspect.

JUDGMENT

B.V. Nagarathna, J.

Table of Contents

Acronyms

Preface:

Birds 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 Agricultures 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 GEACs 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

Preface:

The ideas drawn from sacred texts of the world have proffered to worship and respect nature and impel mankind to preserve the same. This, in essence, is the doctrine of intergenerational equity.

1.1 Faced with the widespread destruction of the environment, people everywhere are coming together to understand that we cannot continue to use the benefits of the earth as we have in the past. A new ecological awareness is beginning to emerge which, rather than being downplayed, ought to be encouraged to develop into concrete programs and initiatives.

2. This Court, in State of Bihar vs. Murad Ali Khan, (1988) 4 SCC 655 (“Murad Ali Khan”) speaking through Venkatachaliah, J. (as the learned Chief Justice then was) observed that “the tragedy of the predicament of the civilised man is that, Every source from which man has increased his power on earth has been used to diminish the prospects of his successors. All his progress is being made at the expense of damage to the environment which he cannot repair and cannot foresee.”

3. This Court in M.C. Mehta vs. Kamal Nath, (1997) 1 SCC 388 (“M.C. Mehta”), speaking through Kuldip Singh, J. observed that, “…the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources.”

4. These writ petitions, filed in public interest in the years 2004 and 2005, have been pending since then. However, IA No.47 of 2016 and IA No. 122182 of 2021 were filed by the petitioner (Aruna Rodrigues) in Writ Petition (Civil) No.260 of 2005, leading to the hearing of the said applications and consequently, the writ petitions also.

The catalyst for considering these writ petitions on merits is the approval of Genetic Engineering Approval (now Appraisal) Committee (GEAC) dated 18.10.2022 culminating in the decision dated 25.10.2022 being questioned by the petitioners. It would therefore be useful to initially state the birds eye view of the controversy.

Birds eye view of the controversy:

5. What does it mean to preserve, protect and respect the citizens right to a safe and healthy environment while exploring and experimenting with era-altering novel technologies? That is the crux of the controversy in these cases. The factual aspects of the controversy were crystallised to some extent when this Court had set up Technical Expert Committee (TEC) on 10.05.2012.

5.1 In the immediate context, these cases impugn the decision taken by GEAC to grant approval for environmental release of Dhara Mustard Hybrid-11 (DMH-11) mustard at the 147th meeting held on 18.10.2022. Whether the said approval was in compliance or in derogation of the recommendations of the TEC Report is a foundational aspect. Whether the said decision is in consonance with due process of law, as understood in the context of the public trust doctrine? There is also the question whether the right to a safe and healthy environment under Article 21 has been violated and whether there has been a violation of the precautionary principle.

5.2 In these cases, the said controversy has been considered from several angles. Arguments at length have been heard by us. Therefore, we propose to encapsulate the pleadings, arguments and voluminous materials that has been submitted during the course of the hearing while arriving at the findings and conclusion in this matter.

Pleadings:

Writ Petition (Civil) No.115 of 2004:

6. According to petitioner in Writ Petition (Civil) No.115 of 2004, namely, Gene Campaign, it is a society registered under the Societies Registration Act, 1860. It consists of lawyers, geneticists, social scientists, agriculturalists, economists, environmentalists, farmers etc. who work towards the cause of protecting genetic resources and ensuring that the rights of rural and tribal communities to access the same are not infringed. Petitioner No.2, Dr. Suman Sahai is the President of Gene Campaign, a researcher and instructor in several institutions in India and abroad. It is his considered opinion that the use of Gene Modification (GM) technology must not be permissible without having the requisite safeguards and regulatory regimes in place.

6.1 The prayers in Writ Petition (Civil) No.115 of 2004 filed by the petitioners read as under:

7. The pleadings in the aforesaid writ petition could be encapsulated as under:

7.1 Writ Petition (Civil) No.115 of 2004 has been filed for the issuance of a writ of mandamus or similar writ directing the respondent-State to bring the Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro-Organisms, Genetically Engineered Organisms or Cells, 1989 (“the 1989 Rules”, for the sake of convenience), which have been framed under Sections 6, 8 and 25 of the Environment (Protection) Act, 1986 (“EP Act, 1986”, for short) in consonance with Articles 14, 19, 21, 38, 47, 48, 48A read with Article 51-A(g) of the Constitution and if there is a failure to do so, to declare the said Rules as unconstitutional. It is averred that this Court has on various occasions interpreted Article 21 of the Constitution to include the right to health of the individual as well as to a clean and safe environment. That tenets of the precautionary principle, sustainable development, polluter pays principle and inter-generational equity doctrine have been held by this Court to form a part of Articles 14 and 21 of the Constitution. That there is a need for the 1989 Rules to be in accordance with the aforesaid principles so as to be held constitutional. That the public need to be provided sufficient opportunity to participate in the process of decision-making when there is an actual or likely possibility of their fundamental rights being affected and necessary information needs to be made available to facilitate the same. The said right has been recognized by the decision of this Court in Research Foundation for Science Technology National Resource Policy vs. Union of India, (2003) 9 SCALE 303 : (2005) 10 SCC 510 (“RFSTE”).

7.2 It is further averred that the 1989 Rules as they exist are not in conformity with established principles of environmental law as elucidated by this Court. The 1989 Rules are also stated to be not in conformity with international instruments such as the Convention on Biological Diversity (CBD) and the Cartagena Protocol on Biosafety (CPB), that have been ratified by India. That, a reading of these along with the fundamental rights conferred by the Constitution would serve the purpose of furthering the said rights and such an approach should be adopted by this Court.

7.3 That Genetically Modified Organisms (GMOs) are an emerging area of research and study but the 1989 Rules are still inadequate to meet the challenges of the limited findings and evidence that are a product of this research. That overseas jurisdictions have established robust regimes that regulate GMOs, in recognition of the risk they may pose to the environment. But the 1989 Rules as they stand do not appear to contain any of the safeguards found in the regulatory regimes of other jurisdictions. The aforesaid absence of safeguards has contributed to India being used as a “dumping ground” and the Country being used to test experimental crop varieties that have not been sufficiently studied, with these possibly posing a serious risk to the countrys biodiversity. That this would directly impact the economic prospects of a large section of the population that works in the agricultural sector and could further harm the countrys food security. Small and marginal farmers are to be the most disadvantaged in the aforesaid scenario.

7.4 That the 1989 Rules were enacted owing to mounting evidence of the possible adverse effects of GMOs on agricultural ecosystems and the countrys biodiversity as well as on human and animal health. It is the petitioners case that the said Rules are riddled with lacunae that lead to them being applied arbitrarily and in violation of the Constitution. That the said Rules do not bear any mention as to the qualifications required to be eligible for membership in the various regulatory agencies constituted thereunder. This renders the functioning of these agencies largely ineffective as they often lack the necessary technical competence, particularly in the fields of Risk Assessment and Risk Management (RARM).

7.5 Further, the prescribed constitution of various agencies, in particular those of the Review Committee on Genetic Manipulation (RCGM), GEAC, the State Biotechnology Coordination Committees (SBCC) and District Level Committees (DLC), include representatives of various authorities who do not possess the necessary qualifications, technical expertise, competence, skills and knowledge to carry out the respective mandates of each agency. Majority of the members are only in ex-officio capacity and lack competence in the field of operation.

7.6 That, there is a complete lack of transparency at each stage of the regulatory process. The 1989 Rules do not allow for public to access information despite GMOs having possible adverse effects on human and animal health, socio-economic conditions as well as the environment which directly pertains to the publics rights and interests. These Rules do not allow public to sufficiently participate in the decision-making at any stage, viz. grant of approval for research, field trials or commercial-scale cultivation of a GM crop. Public participation is needed to both accurately gauge the risks and benefits as well as to increase the confidence of public in GMOs.

7.7 That the 1989 Rules do not require taking prior informed consent from those farmers and Gram Sabhas which are located in the vicinity where a field trial would be conducted. This is in violation of the 73rd and 74th Constitutional Amendments which make the involvement of Gram Sabhas and Gram Panchayats in such decisions necessary and non-optional.

7.8 That the Rules envision a regulatory regime that lacks accountability and there is no indication as to who would bear the liability in case of an erroneous decision being made that has an adverse impact on human and animal health, the environment and the socio-economic conditions of the country. Such harm may take the form of personal injury, property damage or financial loss, however, the liability corresponding to each of these has not been considered in the 1989 Rules at all.

7.9 Further, the penal provisions contained in the said Rules do not sufficiently deter prospective offenders as these provisions just mention “measures” that may be taken by the concerned agency, which do not include the description of a penalty of any kind. The actions that can be taken by the concerned agencies are only in a corrective capacity to ensure damage is minimized.

7.10 That neither SBCC nor DLC had been made functional at the time of filing of this Petition despite the commercial cultivation of the Bacillus thuringiensis (Bt) cotton crop which is a GMO.

7.11 That GM technology is an emerging technology that enables outcomes that were hitherto unimagined such as the transposition of the genes of fish into those of tomatoes, genes of bacteria into those of plants etc. There is an inherent uncertainty to this technology and its effect on the environment and on human life. This necessitates the re-examination of extant regulations and regulatory regimes so as to mould them in light of newer developments.

7.12 That till these uncertainties have been clarified through the process of scientific research thereby enabling a thorough consideration of the risks and benefits, there must be a moratorium on the commercial release of GMOs.

7.13 That the impact of GM technology would vary based on the socio-economic, cultural, and ecological context of each country and any research conducted must evaluate the specific impact of such technology in the Indian context. On the other hand, GM technology have evolved in industrialized and developed economies with highly mechanized agricultural processes and vast monocultural tracts that are generally isolated from natural ecosystems. Unlike India, these countries do not possess similarly rich biodiversity.

7.14 That India, being the centre of origin for many food crops, has to be more vigilant and cautious in adopting this new technology which is still in the process of evolution. In particular, transgenic varieties of crops for which India is the centre of origin should not be released for commercial cultivation until its impact is adequately assessed. That there are serious concerns about contamination of the natural gene pool of crops originating in India. These are some of the potential consequences:

7.15 That farm lands in India are small and closely packed together as agriculture is practiced in close proximity to natural biodiversity, often bordering forest areas or even within forest areas, where natural gene pools are found. A GM crop cultivated in one field is likely to impact other fields as well as the natural ecosystems. No research has been undertaken to assess the adverse effects of such transfers.

7.16 Moreover, GM crops could directly impact the economic prospects of a large section of the population that works in the agricultural sector. Small and marginal farmers are likely to be the most disadvantaged. Other socio-economic risks include market concentration, the loss of livelihood of small farmers, and restriction on the consumers’ right to choose.

Writ Petition (Civil) No.260 of 2005:

8. The petitioner who is a public-spirited citizen in this case has made the following prayers and has averred as follows in the context of GM Technology and GM Crops:

8.1 It is further averred that the CPB was adopted in 2002 and came into force on 11.09.2003. It is a binding International agreement on Biosafety and India being a signatory, is bound to implement its provisions. According to Article 10(6) of the Protocol, the lack of scientific certainty due to relevant scientific information and knowledge regarding the extent of potential adverse effects shall not prevent the contracting party from taking a decision, as appropriate, in order to avoid and/or minimize potential adverse effects. In addition, Annexure-III of the said protocol includes, inter alia, the general principles of risk assessment. It states that risk assessment should be carried out in a scientifically sound and transparent manner and implores states to take into account expert advice as well as guidelines developed by relevant international organizations. Further, Article 21(6) of the said Protocol prescribes that the information about the risk assessment cannot be kept confidential.

8.2 That the United Nations Convention on Biological Diversity (CBD), 1992, to which India is a party, inter alia, requires that the contracting parties shall domestically regulate or manage the risks associated with the use and release of Living Modified Organisms (LMOs) resulting from Biotechnology and which are likely to have adverse environmental impacts and risks to human health. It also implores states to introduce appropriate procedures to require impact assessment of proposed projects likely to have significant adverse effects on biodiversity and to allow public participation in the procedure.

8.3 That in addition to implementing a moratorium on the release of any GMO into the domestic environment until adequate biosafety tests demonstrate safety beyond reasonable doubt, labelling for imports sourced from countries which produce GM crops and foods should be mandated. Therefore, both moratorium and labelling must be concurrent mandatory requirements.

8.4 That farmers have the right to save seed for sowing in the next season, which a patent-based regime of GM seeds will effectively deny. This choice is a fundamental right and must be retained as such for better farming prospects and livelihoods. Therefore, the petitioner has sought the aforesaid reliefs.

Writ Petition (Civil) No.840 of 2016:

8.5 The petitioner is stated to be a public-spirited citizen based in Chennai and is involved in a consumer movement in Tamil Nadu called Safe Food Alliance. The petitioner is stated to be one of the National Convenors of Alliance for Sustainable and Holistic Agriculture (ASHA), which is an organization that has been actively involved in the cause of the genetic modification of crops and its effects on human health.

8.6 It is averred by the petitioner that in September 2015, the Centre for Genetic Manipulation of Crop Plants (CGMCP) submitted an application to GEAC, seeking approval for the environmental release of GE mustard hybrid (DMH-11) seeds and the use of parental events, i.e., Varuna bn 3.6 and EH-2 modbs 2.99, for development of new generation hybrids. Upon receipt of the application, GEAC, in its 125th meeting held on 11.12.2015, appraised the same and decided that the CGMCP will be invited to give a presentation before GEAC in the subsequent meeting. Pursuant to the same, the CGMCP made a presentation before GEAC in the 126th meeting held on 04.01.2016 and the CGMCP was directed to furnish clarifications with respect to some issues in para 3.3 of the Minutes of the Meeting. It was further decided in the meeting that a subcommittee would be constituted under the chairmanship of Dr. K. Veluthambi, Co-Chair of GEAC, and the said sub-committee would have the duty of examining the issues raised by GEAC in para 3.3 and submit a report with recommendations to GEAC.

8.7 On 02.02.2016, the sub-committee appointed by GEAC convened its first meeting and in that meeting, it voiced concerns over the clarifications furnished by the CGMCP on the issues mentioned in para 3.3. However, in the 127th meeting of GEAC held on 05.02.2016, GEAC adopted the recommendations of the sub-committee and directed the CGMCP to revise the biosafety dossier, in light of the comments of the sub-committee and the biosafety unit, and prepare an RARM document for further review. It is stated that GEAC had decided to put the biosafety dossier in the public domain, but this was not carried out.

8.8 In its 128th Meeting held on 04.03.2016, GEAC decided to await the completion of the Biosafety Support Unit’s (BSU) review of the revised dossier before further consideration. On 11.04.2016, the sub-committee, in its 2nd Meeting, recommended incorporating expert comments and remarks from the Biosafety Unit into its report. The report was to be presented to GEAC and uploaded onto its website. In its 129th Meeting on 20.06.2016, GEAC noted the Sub-Committee’s request for an additional month to finalize recommendations. Subsequently, in its 130th Meeting, GEAC concluded that a report had been submitted by the sub-committee, titled “Assessment of Food and Environmental Safety (AFES)”. It was published on GEAC’s website for stakeholder comments within a period of 30 days. However, it was complained that the biosafety dossier was deliberately not disclosed on the website for public scrutiny.

8.9 On 07.09.2016, Dr. Bhargava, a member of GEAC, made a startling revelation. He stated that the so-called Report of the sub-committee titled “Assessment of Food and Environmental Safety” was never shared or discussed before GEAC. Following this revelation, on 22.09.2016, various scholars and public activists endorsed an email addressed to the Honble Minister of Environment, Forest and Climate Change. The email raised serious objections to the conduct of the appraisal process, particularly the refusal to disclose the biosafety dossier to the general public. It urged the Ministry of Environment, Forest and Climate Change (MoEF&CC) to extend the consultation process by another 120 days. In addition to the email, on 24.09.2016, eminent scholars and experts sent a letter to the Honble Minister of Environment, Forests and Climate Change, expressing grave concerns regarding GEACs blatant refusal to disclose the biosafety data to the general public, hindering a meaningful exercise of public consultation. It also requested an extension of the consultation process for another 120 days. Despite objections and requests for transparency, it is stated that GEAC continued the consultation process, culminating in a comment note published on 30.09.2016, refusing to extend the consultation period and setting the deadline for receiving comments as 05.10.2016.

8.10 Challenging the appraisal procedure adopted by GEAC, the petitioner has preferred the writ petition before this Court, under Article 32 of the Constitution of India, primarily contending that the aforesaid procedure adopted by GEAC was not only arbitrary but also lacked proper application of mind, rendering it illegal and violative of the fundamental rights enshrined under Articles 14 and 21 of the Constitution.

This assertion was underscored by instances such as the failure to disclose crucial information, including the biosafety dossier, and the opaque nature of the consultation process, which impedes meaningful public participation. Further, the petitioner has emphasized the statutory obligations of GEAC to exercise its power of granting approvals for environmental release of GE products in a fair, transparent, and reasonable manner, especially considering the lack of any procedure laid down under the 1989 Rules for the exercise of its powers by GEAC. It is stated that the potential impact of the GM crops on health and environment can only be known after a long gestation period and therefore, a stricter scrutiny ought to have been undertaken.

8.11 Furthermore, the petitioner has criticized the subcommittee formed by GEAC, arguing that such delegation of statutory functions to another body is ultra vires the 1989 Rules. Additionally, concerns regarding the non-disclosure of the biosafety dossier despite assurances and directives from authorities has been raised, which undermine the transparency and integrity of the decision-making process.

8.12 The petitioner has also questioned the validity and adequacy of the AFES Report uploaded by GEAC, highlighting discrepancies in its findings, the lack of application of mind and the lack of comprehensive scientific scrutiny. It is averred that the said document was merely a 133-page summary document that does not explain to the public the data collected and the studies/tests conducted by the CGMCP. It is further pointed out from the AFES report that no study was conducted to examine the physiological impact of the transgene products from the transgenic mustard hybrid DMH-11 on the insects, no testing was done under the herbicide-sprayed conditions on an HT crop, and no testing was done on the honey quality, despite the questionable study of the impact on honey bees by the crop developers having vested interests in the subject.

8.13 Moreover, the restricted access to the biosafety dossier, despite assurances and directives to disclose it, has also been criticized, since it impedes meaningful public engagement and violates the rights of stakeholders to be informed and participate effectively in the consultation process. In terms of the consultation process, the petitioner has contended that GEAC ought to have adhered to the principles of fairness and transparency and ought not to have made a mockery of the entire process of public consultation to defeat the valuable rights of the general public to be informed about the critical date pertaining to the transgenic mustard hybrid DMH-11 crop. It was asserted that the present consultation process couldnt be completed without making available to the public the critical scientific data. Further, the petitioner avers that it was also highly arbitrary to expect all the interest stakeholders from all corners of the country to travel to New Delhi and conduct a physical examination of the 3000 odd pages at the premises of the MoEF&CC and submit meaningful inputs.

8.14 It is averred that there has also been a failure to involve State Governments in the process, despite agriculture being a state subject and mustard being a highly important crop for the country.

8.15 Finally, the petitioner has drawn attention to the comparative inadequacy of the testing and consultation processes for genetically modified (GM) mustard, compared to previous cases like Bt brinjal.

8.16 Overall, the petitioner has contended that the appraisal process for transgenic mustard hybrid DMH-11 lacks transparency, has violated legal mandates, and fails to adequately consider the concerns of stakeholders, thereby warranting judicial intervention to ensure procedural fairness and safeguard public interest.

Civil Appeal No.4086 of 2006:

8.17 This appeal assails order dated 08.10.2003 passed by the Appellate Authority in Appeal No.2 of 2002, constituted under Rule 19 of the 1989 Rules notified under the EP Act, 1986. The Appeal No.2 of 2002 was filed against the order dated 05.04.2002 of GEAC granting conditional clearance to M/s. Maharashtra Hybrid Seeds Co. Ltd. for three transgenic Bt hybrid cotton varieties, namely, Bt MECH 12, Bt MECH 162 and Bt MECH 184. By the impugned order, the appeal was dismissed by the Appellate Authority.

8.18 Vide Order dated 08.09.2006, leave was granted and vide order dated 13.07.2017, the appeal was directed to be tagged with Writ Petition (Civil) No.260 of 2005.

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:

8.19 These contempt petitions have been filed alleging violation of orders dated 22.09.2006, 08.05.2007, 01.08.2007; and orders dated 15.02.2007, 08.05.2007, 08.04.2008 and 12.08.2008 respectively passed by this Court in Writ Petition (Civil) No.260 of 2005.

Significant Orders passed by this Court in Writ Petitions:

9. By order dated 01.05.2006, this Court had directed that until further orders, field trials of GMOs shall be conducted only with the approval of GEAC. Order dated 10.05.2012 referred to above also notes that as of the year 2007, nearly 91 varieties of plants, i.e., GMOs, were being subjected to open-field tests. However, in terms of the aforesaid order of this Court, no further open-field tests were permitted nor had GEAC granted any such approval except with the authorization of this Court. This had given rise to serious controversies before this Court as to, whether, or not, the field tests of GMOs should be banned, wholly or partially, in the country.

9.1 This Court, feeling that it had no expertise to determine such an issue, which, besides being a scientific question, would have very serious and far-reaching policy consequences, by order dated 08.05.2007 lifted the moratorium on open-field trials, subject, however, to certain conditions. These included a directive in regard to the maintenance of 200 metres isolation distance while performing field tests of GMOs.

9.2 A further clarification was given vide order dated 08.04.2008, by which all concerned were directed to comply with the specific protocol of Level of Detection of 0.01 per cent. Since there was non-adherence to the said protocol and in the face of the report of one of the independent Experts, Dr. P.M. Bhargava, who was appointed to meet GEAC by the order of this Court dated 30.04.2009, the Government of India, on its own, imposed a complete ban on Bt brinjal.

9.3 Later, while hearing the Additional Solicitor General for Union of India as well as the learned counsel for the petitioners, this Court found that there was a consensus on the constitution of an Expert Committee on certain terms of reference as suggested in the Minutes of the Ministrys meeting dated 15.03.2011 as there was a joint prayer for its constitution.

9.4 In these writ petitions, vide order dated 10.05.2012, this Court had noted the prayers of the petitioners seeking issuance of directions or order to the respondent, namely the Union of India, inter alia, not to allow the release of GMOs into the environment by way of import, manufacture, use or any other manner. An ancillary prayer was for the prescription of a protocol to which all the GMOs release would be subjected to. In addition, a direction was sought to the Union of India to frame relevant Rules in this regard and to ensure its implementation was sought.

Constitution of the Technical Expert Committee (TEC):

10. In view of the above plea, this Court, after several dates of hearing, vide order dated 10.05.2012 constituted a Technical Expert Committee (TEC), the constitution of which was as follows:

10.1 The Terms of Reference of the TEC were as follows:

10.2 This Court directed the TEC to hear the Government, petitioners and any other intervenor, who, in the opinion of the TEC, could assist the cause of expeditious and accurate finalization of its report. A direction was also given to the TEC to submit an interim report on the following issue:

10.3 Thereafter, an order was passed by this Court on 09.11.2012 recording the filing of an interim report dated 07.12.2012 and the objections filed to the said Report by the Union of India and others. Six weeks time was granted to the TEC to finalise and submit its final report. In the meantime, Dr. R.S. Paroda was appointed as a sixth member to the TEC in place of Prof. V.L. Chopra by order dated 09.11.2012. The TEC submitted its final report dated 30.06.2013. This included two reports, one, by the majority of five members of the TEC, and a separate note by Dr. R.S. Paroda.

Final Report of TEC:

10.4 The Final Report of TEC is divided into following two topics:

10.5 The recommendations contained in the majority report are as follows:

10.6 The specific findings of the Report of the majority of TEC on the terms of reference may be discussed at this stage.

10.7 Dr. R.S. Paroda submitted a separate dissenting report. A brief discussion of the Report may be adverted to.

10.8 A corrigendum was issued to the final report of TEC on 12.07.2013. Paragraph 6 of the Majority Report is modified by the corrigendum, which reads as under:

Parliamentary Standing Committee (PSC) on Agricultures Report on “Cultivation of Genetically Modified Food Crops -Prospects and Effects” – 2012:

11. The aforesaid Report, submitted on 09.08.2012, has been relied upon by the learned counsel Sri Prashant Bhushan. The salient observations and recommendations of the said Committee are encapsulated in the following paragraphs:

Parliamentary Standing Committee (PSC) on Science and Technology, Environment and Forests Report titled “Genetically Modified Crops and its impact on Environment” – 2017:

12. The aforesaid Report has been perused by us. The salient observations and recommendations of the said Committee are encapsulated in the following paragraphs:

13. As is well-settled, the Parliamentary Select Committees are entities through which Parliament scrutinises the policies and actions of the Government and enforces executive accountability. Select Committees are constituted with specifically nominated Members of Parliament and exercise the authority delegated by the House. The role of Select Committees has been outlined in Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, (Lexis Nexis, 24th Edn. 2011, p.37.] as under:

13.1 Parliamentary material, such as the reports submitted by Select Committees, is an aid to the construction of legislation, as such material may disclose the legislative intention lying behind the ambiguous words and expressions, vide Pepper (Inspector of Taxes) vs. Hart, 1992 UKHL 3 (HL) (“Pepper”). Noting the evolution of Indian law, Justice G.P. Singh, in Principles of Statutory Interpretation (14th Edn.), has stated that this Court has pressed the parliamentary materials as an aid in resolving questions of construction. This Court has clarified that courts may seek recourse to background parliamentary material, including a statement of position by the Government, to understand the reasons of the enactment of a law and the problems sought to be remedied vide Kalpana Mehta vs. Union of India, (2018) 7 SCC 1 (“Kalpana Mehta”).

13.2 The pertinent facts in Kalpana Mehta were that a writ petitioner, who had challenged the grant of approval to an HPV (Human Papilloma Virus) vaccine by the Drugs Controller General of India, had invited the attention of this Court to a report of the PSC and this Court had directed the Government to file an affidavit about the status of compliance with the contents of the report. At that stage, the State and private respondents raised doubts about the appropriateness of adverting to a report of the PSC while exercising jurisdiction under Article 32 in a public interest litigation. Therefore, the core question raised therein that came to be referred to the Constitution Bench was whether a PSC report can be placed reliance upon for adjudication of a fact in issue and also for what other purposes it can be taken aid of.

13.3 It was concluded that the reports of the Parliamentary Committee can be relied upon to adduce the position adopted by the Government. In this respect, reliance can be placed upon the responses given by the Government to the queries raised by the Parliamentary Committee. The Union of India has filed Action Taken Reports with respect to the recommendations made by the Standing Committee.

Conditional approval by Government of India for Environmental Release of DMH-11:

14. We shall now proceed to the actual controversy. According to Union of India, the conditional approval for environmental release of transgenic mustard hybrid DMH-11 and parental lines bn 3.6 and modbs 2.99 containing barnase, barstar and bar genes has been made after following the detailed procedure in law and after considering the biosafety data accumulated over several years. Also, the conditional approval has been made in accordance with the guidelines and framework which enable a consistent and rigorous risk-analysis approach to evaluating applications for the environmental release of GE plants is the contention of the Union of India.

14.1 That in the instant case, after recommendation of RCGM, GEAC had considered the recommendations of RCGM in the following meetings in regard to confined field trials:

14.2 After confined field trials, the facts leading to conditional approval for grant of environmental release by GEAC are as under:

Sub-committee meetings:

14.2.1 In the first sub-committee meeting, held on 02.02.2016, the sub-committee made the following submissions:

14.2.2 The second sub-committee meeting of GEAC was held on 11.04.2016. In the said meeting, Dr. S.R. Rao briefed the subcommittee members on the follow up actions taken by BSU pursuant to the 128th GEAC meeting held on 04.03.2016 regarding the application for environmental release of transgenic mustard (Brassica juncea) hybrid DMH-11 by the CGMCP, University of Delhi (South Campus). The sub-committee was made aware of the fact that the 128th GEAC meeting held on 04.03.2016, had sought further information/clarifications from CGMCP and accordingly, a revised document was submitted by the applicant. Accordingly, the revised biosafety dossier and draft RARM report of the sub-committee was circulated amongst the sub-committee members and comments of the experts were tabulated along with remarks of the BSU.

14.2.3 Observation of one of the members of the sub-committee was regarding the sustainable use of deregulated GE mustard in future and as to how honey derived from GE mustard be tested for the absence of barnase for a definite period as a part of post-release monitoring.

14.2.4 The sub-committee opined that one of the members of the sub-committee explained that self-reproducible populations of mustard (Brassica juncea) may get established in the hills (not in the plains) and though probability of such occurrence may be low, this question needs to be addressed. The sub-committee opined that this should be taken as a scientific question, which should be addressed from a research angle in the interest of long-term sustainability of transgenic mustard hybrid DMH-11 technology.14.2.5 The sub-committee sought time to analyse and review the revised dossier and results obtained in the 129th GEAC meeting, which was held on 20.06.2016.

14.2.6 In the meantime, GEAC invited two groups of NGOs for presenting their views/concerns regarding release of transgenic mustard hybrid DMH-11 in India.

14.2.7 The sub-committee constituted by GEAC suggested a report being placed on the MoEF&CC website for thirty days, to invite comments from stakeholders in the 130th GEAC meeting held on 11.08.2016.

14.2.8 Accordingly, the AFES Report was uploaded on the website of MoEF&CC, inviting comments from all stakeholders. The comments received were to be reviewed by the subcommittee and GEAC prior to taking an appropriate decision. The full biosafety dossier submitted by the applicant was available in GEAC Secretariat and any person interested in studying the same could access the dossier during working hours in person, by prior appointment during the public consultation period, at Indira Paryavaran Bhawan, Jorbagh, New Delhi – 110 003, till the closing of working hours, i.e., 05:30 PM on 05.10.2016. A total of 759 comments were received between 05.09.2016 and 05.10.2016.

14.2.9 It is also to be noted that about 29 persons (including from places other than Delhi) personally inspected the dossier at the premises of the MoEF&CC and provided their comments. It is stated that thereafter, all these comments were analyzed and deliberated by the sub-committee of GEAC.

14.2.10 The instant proposal was again considered on 11.05.2017 in the 133rd GEAC meeting, wherein the report submitted by the sub-committee was examined in detail and GEAC recommended the proposal with certain terms and conditions for further approval by the Competent Authority. But pursuant to receipt of various representations from different stakeholders, matters related to environmental release of transgenic mustard were kept pending for further review.

14.2.11 In the 134th meeting of GEAC held on 21.03.2018, it was recorded that the instant proposal was referred back to GEAC for its re-examination, pursuant to receipt of several representations, both in support and against, after the 133rd meeting of GEAC held on 11.05.2017. In this meeting, GEAC examined all the representations and reiterated that these representations were already deliberated extensively while taking the decision in the 133rd meeting of GEAC. After a detailed discussion, GEAC agreed that the applicant may be advised to undertake field demonstration on transgenic mustard hybrid DMH-11 in an area of five acres at two to three different locations, with a view to generate additional data on honey bees and other pollinators and on soil microbial diversity.

14.2.12 The instant matter was re-examined in the 136th meeting of GEAC held on 20.09.2018, wherein the said Committee accorded permission for conduct of field demonstration studies on honey bees and other pollinators at two locations of up to five acres in each location namely Punjab Agricultural University (PAU), Ludhiana and Indian Agricultural Research Institute (IARI), New Delhi.

14.2.13 Thereafter, in the 137th meeting of GEAC held on 20.03.2019, the Committee noted the response from the applicant regarding the reasons for deferment of field demonstration studies on transgenic mustard during the season 2018-19 and the deferment was further extended for the seasons 2019-20 and 2020-21.

14.2.14 At this stage, Prof. Deepak Pental, Former Professor of Genetics and Vice-Chancellor, University of Delhi, on behalf of CGMCP, University of Delhi, South Campus, New Delhi, made a representation on 10.05.2022 to the Honble Minister for Environment, Forest and Climate Change, to accept the recommendations for environmental release of transgenic mustard hybrid DMH-11 made in 133rd GEAC meeting. Accordingly, comments were sought from the concerned Department, namely DBT and Department of Agricultural Research and Education (DARE). Some of the relevant comments related to the present matter are reproduced herein below:

Soon thereafter, ICAR by its letter dated 30.07.2022 wrote to MoEF&CC for GEAC to consider the recommendation for environmental release of transgenic mustard hybrid DMH-11 made in its 133rd GEAC meeting. DBT, by its letter dated 01.08.2022, also wrote to MoEF&CC for GEAC to consider the recommendation for environmental release of transgenic mustard hybrid DMH-11 made in its 133rd GEAC meeting, in light of the biosafety data received from the applicant as well as reviewing the international evidence of safety of the concerned technology.

14.2.15 Thereafter, on 25.08.2022, at the 146th GEAC meeting, the applicant made a detailed presentation on all aspects of the proposal for environmental release of DMH-11. In this meeting of GEAC, it was recommended that an Expert Committee be constituted to examine the request letter dated 10.05.2022, with respect to availability of adequate evidence about impact of transgenic mustard on honey bees and other pollinators, in order to assess the need for conducting field demonstration studies on honey bees and other pollinators. The composition of this Expert Committee was as follows:

14.2.16 First and second meeting of this Expert Committee were convened on 23.09.2022 and 30.09.2022 respectively. The recommendations of the Expert Committee constituted in 146th meeting were submitted to GEAC and were as under:

14.2.17 Based on the comments of the DARE and the DBT, and recommendations of the sub-committee, GEAC, in its 147th meeting held on 18.10.2022, recommended environmental release of transgenic mustard hybrid DMH-11, which was accepted by the Central Government on 25.10.2022.

14.3 It is clear from a bare perusal of the abovementioned events that the Union of India has taken the decision on the environmental release on the basis of the aforesaid procedure which was followed by GEAC. That the conditional permission granted by Union of India to the CGMCP for environmental release of transgenic mustard hybrid DMH-11 is said to be for the following purposes:

14.4 The environmental release of transgenic mustard hybrid DMH-11 hybrid DMH-11 for its seed production and testing as per ICAR guidelines was recommended by GEAC in its 147th meeting. The seed production and testing was to require three crop seasons, unless otherwise decided by ICAR, before the seeds are commercially available to the farmers.

14.5 It is further pertinent to note that the permission for environmental release was to be subjected to terms and conditions to ensure environmental safeguards, for example:

14.6 Within two months, on 18.10.2022, at the 147th GEAC meeting, it was recommended that environmental release of DMH-11 be approved subject to some conditions and safeguards. The recommendations and the conditions were communicated by the MoEF&CC to the applicant-Prof. Deepak Pental on 25.10.2022 and the same are extracted as under:

These recommendations are subject to the following conditions:

Interlocutory Applications filed by the petitioners:

15. I.A. No.185604 of 2022 has been filed by the petitioner in Writ Petition (Civil) No.840 of 2016 seeking quashing of the approval letter F.No.C-12013/35/2010-CSIII dated 25.10.2022 issued by respondent Nos.1 and 2 to respondent No.3 therein being void ab initio; secondly, to disclose all the sites/locations where the environmental release of transgenic mustard hybrid DMH-11 is planned/commenced; thirdly, to direct the respondents to immediately uproot/remove/destroy all transgenic mustard hybrid DMH-11 that has been planted pursuant to the environment clearance issued in 147th meeting of respondent No.2 held on 18.10.2022 and the subsequent approval letter number F.No.C-12013/35/2010-CSIII dated 25.10.2022; and, fourthly, a direction is sought that the TEC report recommendation be adopted and to ban all HT crops and crops for which India is a Centre of Origin/Diversity. It is unnecessary to narrate the pleadings accompanying the aforesaid prayers as the same shall be dealt with while considering the main petition.

I.A. No.209550 of 2023 has been filed in Writ Petition (Civil) No.115 of 2004 by the petitioner therein, seeking a direction to the respondent Union of India to destroy the planted material of transgenic mustard hybrid DMH-11 in view of the undertaking given to this Court and there being violations of the same.

The aforesaid prayer made by the petitioner has also to be considered in light of the prayer made by the Union of India, which has also filed an application (I.A. No.167110 of 2023), seeking discharge from the oral statement made before this Court on 08.11.2022 to the effect that no precipitative steps for environmental release of transgenic mustard hybrid DMH-11 would be taken.

Additional Affidavit of Union of India:

16. It would be useful to refer to the additional affidavit dated 09.11.2022 filed by the Union of India through Scientist G in the MoEF&CC, New Delhi.

16.1 That on 03.11.2022, it was brought to the notice of this Court that permission of environmental release of transgenic mustard hybrid DMH-11 had been granted by the Government of India to the CGMCP at the University of Delhi on 25.10.2022. Pursuant to the said order, the Union of India has sought to place on record the decision-making process employed by the Government of India and the regulatory framework under which this permission was granted.

16.2 In addition to the above, the Union of India has stated in its Additional Affidavit dated 09.11.2022 that the research, development, and use of GE technologies is a highly technical matter guided by the views of subject experts. As such, the inquiry before this court is limited to whether there exists an adequate regulatory mechanism governing this field and whether material compliance with the same has been made.

16.3 The conditional approval for environmental release of transgenic mustard hybrid DMH-11 and its parental lines Varuna bn 3.6 and EH-2 modbs 2.99 containing barnase, barstar, and bar genes prior to commercial release has been made after a long and exhaustive regulatory process which commenced as far back as in 2010 and is outlined as below:

16.4 It is further averred that the production of seeds of transgenic mustard hybrid DMH-11 would take place under the supervision of ICAR, as per existing guidelines and other extant rules and regulations. As a precautionary measure, the data with regard to the impact of transgenic mustard hybrid DMH-11 on honey bees and other pollinators is to be generated during these two years of supervision by ICAR and approval could be revoked under Rule 13 (2) of the 1989 Rules, if any harmful effects are found. In addition, during the period of approval, a PRMC would visit the growing sites at least once during each season and submit its report to GEAC. Only after this elaborate process would the commercial cultivation of transgenic mustard hybrid DMH-11 start. Commercial cultivation, too, shall be subject to the Seeds Act, 1966 and the rules and regulations made thereunder.

16.5 Finally, emphasizing the importance of mustard as a prominent edible oil and seed meal crop of India, the economic need to increase its domestic yield was highlighted. It was also submitted that internationally, the United States of America (USA), Canada, and Australia have allowed cultivation of GE rapeseed containing the bar, barnase, and barstar genes. Parental lines and hybrids were also released for cultivation in Canada (1996), the USA (2002), and Australia (2003). In all three countries, yields of rapeseed increased with the introduction of GM hybrids. Therefore, if employed, the DMH-11 hybrid technology would contribute to increase in the domestic yield of mustard in India.

Submissions:

17. Elaborate submissions have been advanced by the learned senior counsel, Sri Sanjay Parekh and learned counsel, Sri Prashant Bhushan for the petitioners as well as learned Senior Counsel Sri Pais and other learned Counsel for other petitioners and intervenors. Learned Attorney General and the learned Solicitor General have appeared for the respondents. A summary of the submissions is set out hereinbelow.

Submissions of the petitioners:

17.1 Sri Prashant Bhushan, learned counsel has made the following submissions:

The decision dated 18.10.2022 of GEAC to approve environmental and commercial release of DMH-11/GM mustard/ HT mustard is violative of Articles 14 and 21 of the Constitution as it suffers from non-application of mind and is, therefore, arbitrary and unreasonable. Elaborating on the same, it was contended that the said decision would lead to irreversible contamination of the environment and threaten biodiversity. The decision was also said to violate the choice of consumers to consume non-GM food and that of farmers to grow non-GM crops in violation of Article 21 of the Constitution. In this regard, the following points were highlighted:

17.2 On the decision of GEAC to approve HT mustard/GM mustard/DMH-11 for environmental and commercial release, learned counsel contended that GEAC in its 147th meeting decided to permit environmental release/commercial cultivation of HT mustard. Based on the recommendation of the Expert Committee as well as the comments received from DBT and DARE, the Committee recommended the following:

17.3 It is learnt by the petitioners that HT transgenic mustard hybrid DMH-11 seed was sown for seed selection in Kanpur and Bharatpur at the Directorate of Rapeseed and Mustard Research (DRMR). The 301st report of the Department related PSC on Science and Technology, Environment & Forests, titled “Genetically Modified Crops and its impact on Environment” (2017) (“301st Report of PSC”, for the sake of convenience) noted that the Government put on hold the earlier approval given by GEAC to DMH-11 (vide Page 26 of the 301st PSC report/Pg.672, Compilation). This is because in undertaking seed selection, it would be necessary to spray illegal glufosinate on the seedlings, for it is only seedlings which have been successfully engineered for resistance to the herbicide which could be selected for seed production. The concomitant advisory to farmers not to spray would then go meaningless, as the farmers would definitely spray for the short-term gain to kill weeds. In this regard, it is mentioned that planting of HT – Bt cotton and Bt brinjal and other such crops on commercial scale have gone on despite illegal effects of the same.

17.4 It was also submitted that the National Bureau of Plant Genetic Resources (NBPGR) had stated that India has rich biodiversity in mustard. The Indian Gene Banks have 5477 Brassica juncea (“Indian mustard”) accessions, which would all be at the risk of contamination.

17.5 On the recommendations of the TEC as regards HT/GM crops, it was submitted that HT crops being a potent carcinogen may lead to breast cancer. Therefore, the TEC recommended a complete ban on HT crops.

17.6 It was next contended that the first crop given de facto approval by GEAC was Bt cotton, followed by Bt brinjal, in respect of which there was a moratorium vide order dated 09.02.2010 of the Ministry of Science, Environment & Forests. In the case of transgenic mustard hybrid DMH-11 (HT crop), the technical dossier running into thousands of pages was made available for 30 days at the headquarters of GEAC in New Delhi for physical inspection. This was contrary to the earlier process, wherein biosafety dossier as regards Bt cotton and Bt brinjal was put in the public domain on the website of GEAC upon being directed by this Court and whereupon on critical examination of the same by national and international experts, the approval given by GEAC had to be put on hold by the Ministry, as it became apparent that GEAC had not complied with the regulatory mechanism and the biosafety and ERA of Bt brinjal was totally lacking.

17.7 Learned counsel also brought to our notice the following three reports which have discussed in detail the issue of GM crops:

17.8 The deposition of Dr. P.M. Bhargava, Molecular Biologist, Founder Director, CCMB, Hyderabad, appointed as an independent expert on GEAC by this Court vide order dated 13.02.2008, as recorded in the 37th report of PSC, was also read out to us. Similarly, the observations and recommendations of the TEC as regards GEAC being the regulator have been read out to us during the course of the submissions. We shall refer to the relevant portions of these reports a little later.

17.9 It was next contended that although the ubiquitous glyphosate has been used for over four decades as the safest herbicide, glufosinate is acknowledged as more toxic than glyphosate as it kills indiscriminately soil organisms, beneficial insects etc. It was also submitted that neurotoxin can cause birth defects and damage to most plants that it comes into contact with. It is banned in Europe and not permitted in India under the Insecticides Act, 1968 for mustard. It is an organophosphorus compound (toxic to biology) very similar in structure to glyphosate and as weeds become more resistant, they will eventually be resistant to all known herbicides.

17.10 It was lastly submitted that the DBT, Ministry of Science & Technology is an active partner and funder in this venture of HT DMH-11. The DBT directly oversees the regulation of GMOs including HT mustard and houses the Regulators and the RCGM. The conflict of interest in GMO Regulators and relevant Ministry has not been recognised as unconscionable and an ethical breach of public trust doctrine. Attention was drawn to the fact that Prof. Pental himself had been involved in the regulatory oversight of Bt brinjal and there is a tied-in relationship that obscures the line of separation that must be rigorously maintained between the Regulators and the regulated, if stringent norms of GMO risk assessment and biosafety are to be maintained for this hazardous technology. There cannot be a partnership between the Regulator and the Developer which is invested in the HT mustard GMOs. Therefore, the submission was that the environmental release of DMH-11/GM mustard/HT mustard needs to be halted in line with the precautionary principle.

17.11 Learned senior counsel Sri Sanjay Parikh contended that one of the reliefs sought for in the writ petition is for the formulation of a National Policy on GM by a High-Powered Committee till a sound regulatory and monitoring system is put in place and till then there should be a moratorium on release of GM. Although, the Union of India in its counter affidavit, filed in November, 2004, attempted to justify the 1989 Rules, till date, there is no National Policy on GM food and “Inter-Ministerial Task Force” under the Chairmanship of Dr. M.S. Swaminathan, which has submitted a final report, is still under consideration. It was contended that in the absence of a National Policy, the regulatory system, at present, continues to be deficient.

17.12 It was also contended that while transgenic mustard hybrid DMH-11 is an HT crop, the Government of India has proceeded on the basis that it is not an HT crop. The question of the consequences, if transgenic mustard hybrid DMH-11 is indeed an HT crop, remains unanswered. The Union of India in its additional affidavit dated 09.11.2022 has acknowledged that transgenic mustard hybrid DMH-11 possesses HT through the inherited bar gene from both parents, making it fully HT. Yet, the Government asserts that it cannot be officially labelled as such, and therefore, it should not be referred to as a HT crop.

17.13 The crucial inquiry remains regarding the impact of herbicide spraying on a transgenic mustard hybrid DMH-11 field – whether the crop will exhibit herbicide tolerance or succumb to the herbicide. The definition of an HT crop hinges on the introduction of a new trait, in this case, HT via the bar genes in the mustard plant. This trait specifically confers tolerance to the herbicide glufosinate ammonium, as also acknowledged in the approval letter number F.No.C-12013/35/2010-CSIII dated 25.10.2022. That despite GEAC imposing conditions and warning against unauthorized herbicide use, initiating legal action against farmers is impractical, given that farmers may use herbicides believing that DMH-11 is an HT crop. Consequently, the Government is unable to pursue legal action based on this misunderstanding amongst farmers. In the case of HT-Bt cotton, extensively grown nationwide since 2017 along with the unauthorized herbicide glyphosate, the Government has failed to undertake any legal or corrective measures against entities endorsing and facilitating its cultivation. The cultivation of Bt cotton has led to the development of resistance to the Bt toxin, giving rise to robust secondary pests. This, in turn, has resulted in an increased application of pesticides, contradicting the initial purpose of Bt cotton. Consequently, it is doubtful that control over herbicide use and the penalization of farmers employing herbicides will be effective in the case of DMH-11. It was further contended that the potential adverse impacts of using HT crops along with their matching herbicides have to be understood and are enumerated as under:

17.14 It was also contended that GM has never been tested as an HT crop, despite having HT properties and in fact, India does not have any regulatory guidelines and protocols for testing of HT crops. Reliance has been placed on the TEC Report and our attention was drawn to various portions thereof, which we shall consider later. Similarly, reference was made to the 301st Report of the PSC.

17.15 Sri Parikh also submitted that the manner in which the conditional clearance was granted makes apparent the loopholes in the regulatory system. In this regard, it was submitted that on 21.03.2018, a decision was taken by GEAC in its 134th meeting to generate additional data on honey bees and other pollinators on soil microbial diversity. The same was given a go by subsequently after receipt of a letter from Prof. Deepak Pental dated 10.05.2022 and contrary to precautionary principles, it was decided by GEAC in its 147th Meeting dated 18.10.2022 that the field demonstration studies with respect to the effect of GE mustard on honey bees and other pollinators may be conducted post-environmental release. The said decision, besides causing adverse effects on the environment, would also be against the principle of assessing any harmful socio-economic impact in time, i.e., before granting approval.

17.16 Our attention was also drawn to various points regarding conflict of interest, details of which have also been given in the written submissions, which we shall advert to during the course of our discussion.

17.17 It was next submitted that the 1989 Rules are not compliant with the CPB, which was ratified by India on 17.01.2003 and which came into effect on 11.09.2003. This is because the question of liability and redress are not addressed by the 1989 Rules. Sri Parekh noted that the CPB reaffirms the precautionary approach, which is also contained in Principle 15 of the Rio Declaration on Environment and Development. Therefore, the decision of GEAC dated 25.10.2022 that tests with regard to the environmental impact of the release would be done post-release and not prior thereto, violates the aforesaid precautionary principle.

17.18 Finally, it was urged that HT seeds of transgenic mustard hybrid DMH-11 have been sown in five locations and in the absence of a proper and lawful approval of the same, the plants should be uprooted and destroyed immediately, so that no environmental contamination takes place.

17.19 Learned senior counsel, Sri Trideep Pais submitted that the procedure adopted by GEAC in the instant case, culminating in the order dated 25.10.2022, is not in accordance with law. In this regard, it was submitted that GEAC is a Committee which has been constituted under the 1989 Rules and is therefore, a statutory body. The said body cannot further delegate its functions to sub-committees or Expert Committees. Even if the assistance of such sub-committees or Expert Committees is taken, there has to be detailed deliberations of the recommendations made by the said Expert Committees and not simply accepted without any application of mind as has happened in the instant case.

17.20 It was further submitted that the health expert was consistently absent in all the crucial meetings of GEAC, and thereafter, the said expert sent an e-mail simply concurring with the deliberations of GEAC without any application of mind and in the absence of any participation in the deliberations. Consequently, the health aspect in the context of granting approval for environmental release of transgenic mustard hybrid DMH-11 has been totally ignored and kept apart, which is the reason why the petitioners as well as the interveners are pressing for appropriate reliefs on quashing of the decision dated 25.10.2022. In this regard, learned senior counsel drew our attention to the various deliberations of the meetings with reference to the compilation of documents that he submitted.

17.21 Learned senior counsel Sri Pais further submitted that despite the order of this Court dated 12.08.2008 and the earlier order dated 08.04.2008 stating that the primary data pertaining to field trials must be placed in the public domain and on the website of GEAC, there has been absolute non-compliance of the same and as a result, it is neither in the public domain nor placed on record.

17.22 It was further contended that on the reconstitution of GEAC dated 17.07.2022, one of the members, Dr. Geeta Jotwani, was not present in the meeting held on 18.10.2022. GEAC simply approved the agenda Item No.4 on the said date. As already noted on 02.02.2016 in the 1st meeting of the sub-Committee of GEAC, Dr. B. Sesikeran, the Nutrition and Food Safety expert, was absent. The said expert was continuously absent thereafter on 11.04.2016, 20.06.2016 and 11.08.2016 in the meetings of the sub-committee. Learned senior counsel therefore, submitted that GEAC, not having complied with the requisite procedures, has arrived at a decision to grant approval of the environmental release of transgenic mustard hybrid DMH-11 without taking into consideration all aspects of the matter in a comprehensive manner.

17.23 Sri Dhruv Dwivedi learned counsel submitted that the recommendation of the Parliamentary Committee on agriculture has not been considered by GEAC in its proper perspective. Further, the sub-committee of GEAC had recommended that the adverse impacts on honeybees and other pollinators had to be studied prior to the environmental release. However, the said decision was given a go by and it was decided that the said study would be conducted subsequent to the environmental release of DMH-11. This volte-face in the stand of GEAC is without any reason and also not in consonance with the precautionary principles which are relevant in the instant case.

17.24 Dr. Ravindra Chingale learned counsel appearing on behalf of Bharatiya Kisan Sangh as an intervenor, at the outset, submitted that these matters cannot be considered to be an adversarial litigation but wholly in public interest. Therefore, the respondent Union of India would have to adhere to the directions issued and to be issued by this Court in the matter. He further drew our attention to three unstarred questions answered in the Rajya Sabha by Honble Minister of State for Environment. One of them was with regard to Section 22 of the FSSA, 2006, that the Central Government has not yet conducted any study on GM food and therefore, has not issued a notification under the aforesaid provision. In the absence of such a notification, there can be no steps taken having regard to the provisions of the FSSA, 2006. As per Section 2 of the said Act, the Union has declared that the food industry is taken under its control, which is expedient in the public interest in view of Entry 52, List I of the Seventh Schedule of the Constitution. The same shall be considered later.

17.25 He also drew our attention to Section 3(b) of the Patents Act, 1970, which states that an invention, the primary or intended use or commercial exploitation of which could be contrary to public order or morality or which causes serious prejudice to human, animal or plant life or health or to the environment, is not an invention within the meaning of the said Act and therefore, not patentable.

Submissions of the Respondents:

PART-I

18. Sri R. Venkataramani, learned Attorney General, while defending the action of GEAC, contended that the petitioners have raised two concerns, namely, (i) the non-negotiable importance of having credible regulatory procedures, mechanism and institutions which are free from commercial incentives to ensure that proposals for release and use of GM crops and plants are subject to strict scrutiny through well-accepted regimes; and, (ii) all information and materials in relation to the regulatory procedures be made public to ensure participation of the public in order to bring about transparency and informed debate.

18.1 Based on the above contentions, the petitioners have sought that unless certain precautions are taken, the Union of India shall not release GMOs into the environment by way of import, manufacture, use or any other manner. More specifically, the petitioners have sought directions with regard to approval dated 25.10.2022 recommended by GEAC by clearing for environmental release transgenic mustard hybrid DMH-11 following fairly long stages of trial conducted by ICAR, CGMCP; Institute of Microbial Technology, Chandigarh (IMTECH), NIN, Hyderabad, Amar Immunodiagnostics Pvt. Ltd., Hyderabad and Premas Biotech Pvt. Ltd., Manesar.

18.2 It was submitted by learned Attorney General that by order dated 10.05.2012 in Writ Petition (Civil) No.260 of 2005, this Court was pleased to appoint an expert committee (TEC) consisting of technical experts to submit a report with certain terms of reference. TEC submitted an interim report on 07.10.2012 and Union of India raised objections in response to the said report, which were referred to TEC on 09.11.2012. On 30.06.2013, the TEC submitted its final report making certain suggestions. According to the learned Attorney General, the TEC Report goes beyond the terms of reference, to the extreme extent of observing that HT crops are completely unsuitable in the Indian context. But, Dr. Paroda has filed a separate dissenting report raising serious objections to the procedures and deliberations of the TEC that virtually worked with a closed mind.

18.3 It was then submitted that these writ petitions were filed in 2004-2005 respectively and since then, there has been development in the regulatory framework governing the field and the following guidelines and protocols are applicable to the research and testing of GMOs:

18.4 The aforesaid regulatory framework has been developed after the filing of the present petitions and in view of these developments, these petitions have been rendered infructuous. That in view of the adequacy of the current regulatory regime in place, the petitions have lost their efficacy inasmuch there is no challenge to the constitutionality of the statute, rules or executive action and that a writ court cannot embark on a roving and fishing inquiry in a public interest litigation.

18.5 Emphasising that the focus of the writ petition is now confined to the environmental release of transgenic mustard DMH-11, it was submitted that on receipt of the application requesting a trial of DMH-11 to be conducted, approval was given by GEAC on 29.09.2010 and subsequently, approvals were granted to conduct BRL-I and BRL-II trials. Only after several meetings, deliberations and consideration of the reports of the trials, on 18.10.2022, GEAC recommended environmental release of DMH-11 subject to strict conditions and safeguards and accordingly, permission for environmental release of DMH-11 was issued on 25.10.2022.

18.6 It was further submitted that the regulatory requirements are adequate to address all aspects of the concerns voiced by the petitioners and the rules and guidelines are in consonance with the CPB and Codex principles and guidelines on foods derived from biotechnology.

18.7 It was further argued that even the concerns expressed by the TEC Report have since been adequately addressed by the Union of India. The TEC Report was written in the background of the existing regulatory regime, which as noted above, has subsequently been updated. The regulatory regime in place has been strengthened to ensure that a comprehensive, transparent and science-based framework of GM crops is in place for ERA of GM crops. That rigorous risk analysis approach has been applied to ensure the safety of both the environmental and health risks vis-a-vis transgenic mustard hybrid DMH-11 for the past ten years.

18.8 Therefore, learned Attorney General submitted that the scope of adjudication now stands confined to the question of due procedure being followed under the relevant rules and the guidelines and there is no need to traverse beyond this limited inquiry. It was emphasised that the question that should be addressed by this Court would revolve around due processes being followed and deliberations on the varying understandings on applications of science and technology would lie in the domain of the Government alone and mere differences of opinions cannot invite the Courts attention into the evaluation of views and adopting or rejecting any one of them.

18.9 Learned Attorney General then proceeded to argue that the petitioners concern regarding risk with regard to environmental release of transgenic mustard hybrid DMH-11 is purely hypothetical and there is a distinction between a risk which is clearly known and demonstrated and presumption of risk on unproven hypotheses. Even under the precautionary principle approach, a rigid and uncompromising approach is not encouraged insofar as it stifles technological advancement. That the Food and Agriculture Organization (FAO) describes risk assessment as a scientific process consisting of the following steps: (i) hazard identification, (ii) hazard characterisation, (iii) exposure assessment, and (iv) risk categorization. There is also a principle that an analysis of benefit versus risk is undertaken to determine the actions that provide the greatest benefits while encountering the least risk. In the instant case, the procedures adopted for the environmental clearance are argued to be in consonance with the above said steps. To seek judicial scrutiny of the same would, thus, be inappropriate and will amount to dislodging governance responsibility in taking decisions on a consideration of all relevant factors. Therefore, this Court ought not to enter into any evaluation of rival views on the subject of GMOs in general and the issue of environmental release of DMH-11 in particular.

PART-II

I. Overview of the Technology:

18.10 It was contended that the conditional approval was given on 25.10.2022 to the CGMCP, University of Delhi, for environmental release of transgenic mustard hybrid DMH-11 and parental lines bn.36 and modbs 2.99 containing barnase, barstar and bar genes. The object was to create DMH-11 – a hybrid obtained by crossing Varuna bn 3.6 (containing bar, barnase genes) with EH-2 modbs 2.99 (containing bar, barstar genes). The three relevant genes used in the process of creating DMH-11 are as follows: barnase gene which makes the plant male sterile; barstar gene which restores male fertility; and bar gene which confers HT. Presently, Varuna mustard seed contains both male and female parts and is self-pollinating (self-fertilization). It is first made male sterile so that it can be pollinated and crossed with another variety. This is achieved by introducing the barnase gene. Hence, a male sterile Varuna bn 3.6 is created (containing bar, barnase genes). Since Varuna bn 3.6 is male sterile, it cannot self-pollinate to reproduce. For multiplying this parental line, it is crossed with normal Varuna which produces a crop which is 50% Varuna bn 3.6 (male sterile) and 50% normal Varuna (fertile). This progeny crop is then planted in an alternating arrangement with EH-2 modbs 2.99 plants (containing bar, barstar genes). At this stage, herbicide is sprayed at the site which eliminates the fertile (normal varuna) portion of the progeny crop (since it does not have HT) leaving behind the portion of the progeny crop which is male sterile, i.e. Varuna bn 3.6 (since it contains the bar gene which confers HT). This is termed a selection event. The male sterile Varuna bn 3.6 remaining from the progeny crop gets fertilized by the adjacent EH-2 modbs 2.99 crop (which also contains the bar gene and survives the herbicide) and produces the hybrid seed DMH-11.

18.11 Thus, DMH-11 is produced, containing all three genes i .e. barnase, barstar and bar. It is fully fertile since the barnase gene inherited from EH-2 modbs 2.99 restores the male fertility of the resulting hybrid. The bar gene inherited in DMH-11 is of no utility in the hybrid. Its utility is at the selection event, namely, to multiply the male sterile Varuna bn 3.6. This male sterility/restorer system is a highly promising technology which can be used to produce new hybrids with higher yields in future, thereby increasing agricultural output and farmer income.

II. Herbicide Tolerance (HT):

18.12 It was contended that a crop is referred to as an HT variety if its commercial trait is HT, but DMH-11 is not such a crop since the HT trait in DMH-11 is of no commercial utility. In fact, transgenic mustard hybrid DMH-11 is not developed as HT Technology and it is unnecessary to use herbicide in the cultivation of transgenic mustard hybrid DMH-11. In fact, the HT trait is useful only at the selection event during the development phase of the event and is of no utility when the crop is being cultivated by a farmer.

18.13 It was also pointed out that under the EP Act, 1986, and the Insecticides Act, 1968, use of herbicide is, anyway, not permitted in the field for cultivation of transgenic mustard hybrid DMH-11.

III. Yield:

18.14 Learned Attorney General contended that in the BRL-I and BRL-II trials, an increase in per-hectare yield by 25-30 per cent has been demonstrated against national check Varuna and zonal check RL1359. Only after the environmental release of DMH-11, significant clarity would emerge from the trials that are conducted by ICAR. Therefore, environmental release is the first step in a long process of evolution of this technology which will lead to even better hybrids in future.

18.15 According to the learned Attorney General, there is proven use and safety of genes used in transgenic mustard hybrid DMH-11. The three genes, barnase, barstar and bar have more than twenty years of safe history of being in the food chain in GE rapeseed, a sister crop of transgenic mustard hybrid DMH-11. The regulatory authorities in the USA, Canada and Australia have allowed the cultivation of GE rapeseed containing the bar, barnase and barstar genes. Between 1996 – 2003, parental lines and hybrids were released for cultivation in Canada, USA and Australia.18.16 It was submitted that under Rule 4 of the 1989 Rules, the following bodies namely, GEAC, Recombinant DNA Advisory Committee (RDAC), RCGM, IBSC and SBCC have been constituted and the applicable guidelines have been enumerated above.

18.17 Emphasising that the RCGM and GEAC together examine the safety assessment data submitted by the applicant at every step of the regulatory process, the learned Attorney General noted that the regulatory mechanism is completely transparent. All the data, reports, decisions etc. are made publicly available. Therefore, the conditional approval for environmental release prior to commercial release is subject to necessary regulatory and technical oversight and the approval has been granted after following detailed and exhaustive procedure in law, including after considering biosafety data and rigorous scrutiny over a period of twelve years. GEAC considered the application for environmental release only when the applicant had completed three years of BRL Trials (two years of BRL-I trials and one year of BRL-II trials) and a 3251 page dossier containing results of all the biosafety studies was submitted to GEAC and its sub-committees. As per the public consultation process prescribed in the Risk Analysis Framework 2016, the AFES Report was uploaded on the official website of MoEF&CC for inviting comments from 05.09.2016 to 05.10.2016 and about twenty-nine persons personally inspected the complete dossier at the premises and provided their comments.

18.18 It was submitted that in fact, the permission for environment release of transgenic mustard hybrid DMH-11 is granted for following limited purpose:

However, the above is subjected to stringent terms and conditions to ensure environmental safeguards.

18.19 On the TEC Report, learned Attorney General submitted that though HT crops were not a part of terms of reference, the five-member TEC report has referred to the same and recommended against the use thereof in India. The Union of India too had filed objections stating that this recommendation was beyond the scope of terms of references and such a decision must be left to the regulatory system. In any case, the focus in the instant matter is only on DMH-11, which is not an HT crop. According to the learned Attorney General, since 2012, the regulatory regime has been strengthened to ensure that a comprehensive transparent and science-based framework of GM crops is in place for ERA of GM crops.

18.20 Finally, it was contended that mustard is the most important edible oil and seed meal crop of India and at present, 55-60 percent of the edible oil demand is met through imports. It was stated that canola oil is made from GM canola seeds; and soyabean oil largely comprises GM soyabean oil. Thus, the petitioners have voiced unfounded fears of adverse impact of GM crops, even when India is already importing and consuming oil derived from said GM crops. The transgenic mustard hybrid DMH-11 has shown an increase per-hectare yield by 25-30 per cent over the traditional varieties due to exploitation of hybrid vigour. As mustard is one of the highest oil-bearing of oilseeds utilised in India, the domestic production of edible oil would considerably increase if DMH-11 hybrid technology is employed.

Hence, learned Attorney General sought for dismissal of the writ petitions.

Submissions of Learned Solicitor General:

19. Learned Solicitor General Sri Tushar Mehta, while supporting the arguments of the learned Attorney General, at the outset contended that any ban on commercial/public release of GM crops in India will be against public and national interest. 55-60 percent of the edible oil in India is imported and mustard oil is one of the most important edible oils. In order to ensure food security and reduction of foreign dependency, it is necessary to strengthen the plant breeding programmes in India, including use of new genetic technologies such as GE technology.

19.1 Drawing our attention to statistics regarding the demand for total edible oil in India, it was submitted that 55.76 per cent of the total demand of edible oil is made through import, out of which palm oil, soyabean oil, sunflower oil and a small quantity of canola quality mustard oil are being imported. It was contended that owing to increasing population and oil consumption over the years, the imports have significantly increased in India.

19.2 Reiterating that globally around 80 percent of soyabean is GM soyabean variety, it was underlined that the petitioners were only voicing unfounded fears. The transgenic mustard hybrid DMH-11 having shown increased per-hectare yield over the traditional varieties, domestic production of edible oil is bound to rise considerably through the GM variety.

19.3 It was next submitted that competing fundamental rights of different sections of the society would have to be balanced. On the one hand, essential food including edible oil at affordable prices has to be made available, while at the same time, the dependency on import has to be reduced. That owing to the increasing demand for edible oil in India, making available the same at an economic price is a fundamental right of the citizens. Therefore, the production of indigenous edible oil is necessary to meet the increasing demand for such oil. It was argued by the learned Solicitor General that there were certain sections of the population who did not wish that India should be self-sufficient and self-reliant in essential food and instead encouraged importing edible oil, which is not in the interest of the Indian economy.

19.4 It was submitted that the petitioners have failed to satisfy as to how restricting the trials would, in any way, have an adverse impact on the environment or otherwise. The public interest and fundamental rights of the citizens of the country to have the benefit of reasonable price of mustard oil has to outweigh the so-called concerns expressed by the petitioners herein. The learned Solicitor General accused that the petitions have been filed only to arm twist the State and in order to support greater imports of the essential commodities. In this context, it was submitted by him that the Union of India is committed to increasing crop productivity and the income of farmers through development of low input – high output agriculture and making the country self-sufficient in edible oil and grain legumes and that the strengthening of plant breeding programme, including the use of new genetic technologies, is critical for that purpose.

19.5 He noted that an elaborate statutory scheme exists to ensure effective regulatory review for the research, development and commercial use of GE technologies. The petitioners have not, however, pointed out a single flaw on record in the existing statutory regime or its implementation in the trial of DMH-11. Therefore, the writ petitions have to be dismissed with heavy costs. In this regard, reliance was placed on a recent judgment of this Court in the case of Jacob Puliye vs. Union of India, (2022) SCC OnLine SC 533 (“Jacob Puliye”) with special reference to paragraph Nos.21, 22, 62 and 80-81, and three other judgments of this Court, namely, National High Speed Rail Corporation Limited vs. Montecarlo Limited, (2022) 6 SCC 401 (“Montecarlo Limited”), Narmada Bachao Andolan vs. Union of India, (2000) 10 SCC 664 (“Narmada Bachao”) and Uflex Limited vs. Government of Tamil Nadu, (2022) 1 SCC 165 (“Uflex Limited”) to contend that frivolous public interest litigation must be dismissed with heavy costs, particularly, when an interim injunction affects the public interest. This is because, in the instant case, there is no material produced to demonstrate as to how the existing statutory regime relating to GM crops violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or is opposed to any statutory provisions, or is otherwise manifestly arbitrary. Hence, the writ petitions may be dismissed with costs.

Reply Arguments:

20. Sri Prashant Bhushan submitted his rejoinder arguments with reference to the arguments of the learned Attorney General by contending that DMH-11 is a HT Crop, as is evident from the admission of the Union of India in the note submitted by the learned Attorney General himself to the effect that “the presence of the third HT gene (Bar) is essential for hybrid seed production”. Therefore, the presence of the HT gene (Bar) makes DMH-11 an HT Crop. This was also said to be in accordance with the finding of the 2017 PSC Report which stated that transgenic mustard hybrid DMH-11 is an HT Crop.

20.1 It was then pointed out that there is clear evidence on the adverse impacts of such GMOs from other places in the world. In this regard, reference was made to various experts opinions as under:

20.2 It was further submitted that the report titled, “Biology of Brassica Juncea (Indian mustard)” prepared by the MoEF&CC and DRMR, Bharatpur under United Nations Environment Programme (UNEP)/ Global Environment Facility (GEF) supported the regions of South Western China and North Western Himalayas, which constitute two secondary centres where there is enormous diversity in Brassica Juncea forms; that there is evidence for the existence of two geographical races of Brassica Juncea, the Chinese pool and the Indian pool. Further, five countries share nearly 60% of Brassica germplasm holdings led by China (17%) and followed by India (15%), United Kingdom (UK) (10%), USA (9%) and Germany (8%). India presents a rich diversity of rapeseed- mustard group of crops.

20.3 It was next submitted that glufosinate is banned for all other uses except for tea plantations and is specifically banned for use on DMH-11 by farmers; this is because glufosinate causes toxicity which would lead to resistance. However, glufosinate is otherwise available to farmers who have access to it.

20.4 That, the TEC report has pointed to the acute toxicity and health concerns such as carcinogenicity, reproductive and developmental toxicity, and endocrine disruption. That, long term studies show that an exposure to glufosinate would have adverse effects, which may not be evident in short term studies. That, even as per the information made available by Bayer, BASTA containing glufosinate ammonium is neurotoxic and has adverse effect on aquatic life.

20.5 It was reiterated that in the biosafety dossier of HT mustard, the primary data dossier, is, in fact, not in the public domain. The biosafety dossier contains the primary data on the basis of which the AFES Report was prepared. However, the biosafety dossier containing 3251 pages was only available for physical inspection at the MoEF&CC headquarters and in response, petitioners counsel had written to GEAC requesting the dossier to be put on the website so that it could be examined by independent experts. It was replied that in no country with functional regulatory system is the full dossier made available publicly due to reasons of protection of intellectual property.

20.6 That, in fact Dr. P.M. Bhargava, in his critique of the AFES Report, had pointed out that it was not possible to evaluate the statements made in the said Report as the primary data had not been provided in the Report. Therefore, it is all the more necessary that the biosafety dossier be put in the public domain so as to enable independent experts to review the same.

20.7 It was next submitted that no chronic/long term studies have been conducted on HT mustard. It was stressed that the petitioners concern is the irreversible risk of contamination that the country faces, if environmental release of GMOs is permitted in the absence of any chronic studies vis-a-vis human health, livestock, environment, biodiversity etc. It was pointed out that Union of India was silent as to the measures undertaken to ensure non-contamination. The Union of India was also silent about the measures undertaken in respect of labelling of GM foods, in light of the fact that no chronic studies have been commissioned as regards the consumption of GM foods. Also, the Union of India was silent as to the liability of the applicant and GEAC for potential losses to farmers and consumers on account of irreversible contamination.

20.8 In this regard, the TEC Report was referred to, wherein it has been stated that currently eighteen new food crop species, for which applications for field trial have been received in the Indian system, are – cauliflower, cabbage, corn, rice, wheat, tomato, groundnut, potato, sorghum, okra, brinjal, mustard, papaya, watermelon, sugarcane, etc. Also, the growth of GM crop would impact organic food producers and given the difficulties in segregation of GM and non-GM foods, it would be difficult to meet the criteria for organic food. This was said to have potential adverse impact on export of organic food, as the importers would closely examine the conditions under which organic food is being grown and any concern about contamination could lead to an adverse impact and loss of markets for organic food producers.

20.9 It was further submitted that GEAC, the regulator, has failed to deal with the illegal plantation of HT Bt cotton and the same is being grown in the country illegally on commercial basis. In fact, the intervenor in the present proceedings, Shetkari Sangathan, has also been illegally planting Bt brinjal and has been encouraging farmers to do so, and GEAC has failed to check the same.

20.10 It was next submitted that large quantities of GM processed oil was being imported in the form of canola oil sourced largely from GM canola seeds and soyabean oil sourced from GM soyabean seeds. It was argued that this is in violation of the law.

20.11 Section 22 of the FSSA, 2006 prohibits manufacture, distribution, sale or import of any GMO products, except in accordance with the regulations which the Central Government may notify. This has been a subject matter of a judgment of this Court in Writ Petition (Civil) No.173 of 2006, Vandana Shiva vs. Union of India, disposed of on 11.08.2017, wherein it was recorded that there was no notification or regulation allowing any activity in connection with GE and modified food and such activity was permissible only under the regulations framed under Section 22 of the FSSA, 2006. The said writ petition was disposed of by allowing liberty to the petitioner therein to approach this Court again after regulations framed in connection with GE and modified food under Section 22 of the FSSA, 2006, are placed for consideration by the Parliament, in order to test their legality upon constitutional sustainability. However, till date, no notification has been issued by the Union of India.

20.12 In addition, it was pointed out that GEAC in their communication addressed to Directorate General of Foreign Trade (DGFT), dated 23.02.2018, had informed that it had not authorised or approved GM soyabean or any other products derived from GM soyabean seeds for import or cultivation in India. That being the case, it is not known on what basis is GM food being imported to India.

20.13 It was next submitted that there was a failure to undertake any socio-economic risk analysis by GEAC with regard to the failure of Bt cotton in accordance with the CBD and CPB. The need for such an assessment was also highlighted by TEC.

20.14 In this regard, reference was made to Mahyco Monsanto Biotec (India) Private Ltd. vs. Union of India, Writ Petition (Civil) No.12069 of 2015, filed before the Delhi High Court, in which the petitioner therein had challenged the price control order issued by the Union of India under the Essential Commodities Act, 1955 as regards Bt cotton seeds. The challenge is pending before the Delhi High Court. Pertinently, the Ministry of Agriculture and Farmers Welfare, Government of India, in the said case, has stated that the farmers across the country have been financially burdened due to the increasing prices of Bt cotton seeds. They have also to spend on pesticides and other resources to make the crops more pest resistant and high-yielding. This has resulted in escalated expenses and reduced the margin of profit for the farmers.

20.15 It was also brought to our notice that the pink bollworm, a major pest to the cotton crop, has developed resistance in the last two or three years and has worried the farmers who have sown Bt cotton seeds. That, the cotton yields were stagnant in the last five years due to the fact that the technology was used not for yield improvement but only for prevention of loss.

20.16 Referring to Article 14(1)(b) of the Argentina Convention, it was submitted that a duty is cast on the Government of India to assess the impact of its policies and minimize adverse impacts, as India is a signatory to the said convention.

20.17 It was, thus, argued that the 1989 Rules, which are prior in time to the CPB, have to be brought in line with the said protocol. Similarly, the Biological Diversity Act, 2002, casts a duty on the Central Government to protect biodiversity as per Section 36 of the said Act. In this regard, reference was made to the judgment of this Court in Gramophone Company of India Ltd. vs. Birendra Bahadur Pandey, (1984) 2 SCC 534 (“Gramophone Co. of India Ltd.”), and Vishaka vs. State of Rajasthan, (1997) 6 SCC 241 (“Vishaka”), which dealt with the doctrine of incorporation of international law into Indian law and how the same could be read to be part of national law unless they are in conflict with an Act of Parliament.

20.18 Further, any international convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, so as to promote the object of the constitutional guarantee.

20.19 Similarly, reference was made to Nilabati Behera vs. State of Orissa, (1993) 2 SCC 746 (“Nilabati Behera”), wherein the absence of an enacted law to provide for effective enforcement of the basic human right of gender equality was held to give the basis for using international conventions and norms to construe and give meaning to fundamental rights guaranteed under the Constitution of India.

20.20 It was also submitted that the present regulatory system continues to be deficient and therefore, there is a need for putting in place a suitable regulatory system which would work within the framework of its mandate.

20.21 In conclusion, it was submitted that the petitioners were seeking implementation of the recommendations of the TEC. That the TEC Report has been given a go-by by GEAC in consideration of the application made by Prof. Pental, Former Professor of Genetics and Vice-Chancellor, University of Delhi, South Campus, New Delhi. Therefore, the petitioners have sought the aforesaid reliefs.

Points for Consideration:

21. Before framing the points for consideration, we make it clear that this case does not decide the competing claims made in the scientific literature about the desirability of GMOs, their impact on increasing crop yield in the short or long term and other subjects that belong to the domain of scientific and agricultural experts. This Court is not conducting a review or an evaluation of various scientific studies submitted by the petitioners and the respondents on GMOs. This Court does not have the institutional competence and therefore any conclusion raised on that basis would be a futile exercise.

21.1 The purpose of our adjudication is to satisfy our judicial conscience on the subject of critical public interest. We have viewed the matter from the perspective of compliances of the principles of exercise of discretion and use of administrative power in a niche area where opinions of scientists and experts in the field would determine the course of action to be taken in a matter as significant as the steps leading to the decision for environmental release of DMH-11 mustard in an altered technology.

21.2 This case also does not decide on the divergent substantive content and recommendations made by the TEC or GEAC. The ambit of the present case is strictly limited to compliance with constitutional and legal requirements in the decision-making process impugned herein. In light of the aforesaid, and the submissions advanced by learned senior counsel and counsel for respective parties, the following points would arise for our consideration:

Since there is a difference of opinion between the Members of this Bench vis-a-vis the validity of the decision taken for environmental release of DMH-11, from this stage onwards, I propose to opine for myself while my learned brother Karol, J. has prepared his separate opinion.

Legal Framework:

22. Before I proceed further, it would be useful to note that agriculture, including agricultural education and research, protection against pests and prevention of plant diseases, is a State subject enumerated as Entry 14 in List II (State List). Trade and commerce in, and the production, supply and distribution of, inter alia, foodstuffs, including edible oil seeds and oils, is in Entry 33(b) in List III (Concurrent List) of the Seventh Schedule. Rules and regulations made under the EP Act, 1986 are possibly referrable to Entry 97 of List I (Union List) since environment protection has not been specifically mentioned in either List II or List III of the Seventh Schedule, except for forest. For ease of reference, the aforesaid Entries of the Seventh Schedule as well as others are extracted as under:

22.1 Article 48A of the Constitution of India is a Directive Principle of State Policy which speaks about protection and improvement of environment and safeguarding of forests and wild life. Likewise, Article 51A(g) casts upon citizens a fundamental duty to protect and improve the natural environment including forests, lakes, rivers and wildlife. These Articles have to be read in the context of Article 21 of the Constitution, which has been expansively interpreted by this Court to include within its scope and ambit of the right to health and clean environment and ecology. For ready reference, the aforesaid Articles are extracted as under:

x x x

x x x

x x x

23. At this point, it is also observed that Article 21 also encompasses the right to food safety. It is in this context that the FSSA, 2006 has been enacted and I would now advert to the provisions contained therein as well.

23.1 FSSA, 2006 has been enacted pursuant to Entry 52, List I of the Seventh Schedule of the Constitution.

Section 2 of the said Act has declared that it is expedient in the public interest that the Union should take under its control the food industry.

23.2 The Preamble of the FSSA, 2006, inter alia, states that it is an Act to consolidate the laws relating to food and to establish the FSSAI for laying down science-based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption. The following provisions under the FSSA, 2006 could be adverted to:

x x x

x x x

x x x

x x x

x x x

x x x

x x x

x x x

23.3 It would be necessary to refer to Section 22 of the said Act, which deals with GM foods, organic foods, functional foods, proprietary foods, etc. The said Section reads as under:

23.4 Since I am dealing with GE or modified food, it would be useful to note the definition thereof under sub-section (2) of Section 22, which defines it as food and food ingredients composed of or containing GM or engineered organisms obtained through modern biotechnology, or food and food ingredients produced from but not containing GM or engineered organisms obtained through modern biotechnology.

23.5 The Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 (hereinafter referred to as, “the Food Safety Regulations, 2011”) have been framed under Section 92(2)(e) read with Section 16 of the FSSA, 2006 by the FSSAI. In Regulation 2.9.13(1), details regarding mustard (Rai, Sarson) are mentioned as under:

Environment (Protection) Act, 1986 (EP Act, 1986):

24. EP Act, 1986 has been enacted to provide for the protection and improvement of environment and for matters connected therewith. The relevant provisions of the said Act are extracted as under:

1989 Rules:

25. In exercise of the powers conferred by Sections 6, 8 and 25 of the EP Act, 1986 and with a view to protect the environment, nature and health in connection with the application of genetechnology and micro-organisms, the Central Government has framed the 1989 Rules. The said Rules dealing with manufacture, use, import, export and storage of hazardous micro-organisms/GE organisms or cells were notified with a view to protect the environment, nature and health in connection with the application of gene-technology and micro-organisms. These Rules were gazetted on 05.12.1989 and are applicable to Genetically Engineered Organisms (GEOs)/micro-organisms and cells and correspondingly to any substances and products and food stuffs, etc., of which such cells, organisms or tissues thereof form part. The Rules also apply to new gene-technologies, apart from those referred to in clause (ii) and (iv) of Rule 3, and to organisms/micro-organisms and cells generated by the utilisation of such other gene-technologies and to substances and products of which such organisms and cells form part. The conditions under which the Rules are applicable have been stated in sub-paragraph (4) of Rule 2 of the said Rules.

25.1 Rule 3 defines, inter alia, the expressions, “biotechnology”, “gene technology” and “genetic engineering”, which read as under:

25.2 Rule 4 speaks of the competent authorities constituted under the Rules and the said Rule reads as under:

25.3 Rule 5 speaks of classification of micro-organisms or GE products, while Rule 7 deals with approval and prohibitions. The same read as under:

x x x

25.4 Rule 8 deals with production, while Rule 11 deals with permission and approval for food stuffs. The same are extracted as under:

x x x

25.5 The guidelines and grant of approval are as per Rules 12 and 13, which read as under:

Regulatory Framework:

26. MoEF&CC is the nodal ministry for regulation of GMOs including GE plants. 1989 Rules under the EP Act, 1986 provide the statutory scheme for regulation of GE technologies. The 1989 Rules are implemented by the MoEF&CC, the DBT, Ministry of Science & Technology and State Governments.

26.1 The following authorities/committees are created under the 1989 Rules:

(i) Recombinant DNA Advisory Committee (RDAC):

The RDAC is involved in reviewing the developments in biotechnology, both at national as well as international levels, and recommending safety regulations as per the indigenous requirements of our country in recombinant research, use and applications from time to time. The RDACs functions are advisory in nature.

(ii) Genetic Engineering Appraisal Committee (GEAC):

GEAC is the apex body to accord approval of activities involving large scale use of hazardous micro-organisms and recombinants in research and industrial production from the environmental perspective. GEAC is also responsible for granting approvals relating to release of GE organisms and products into the environment, including experimental field trials (BRL-II). This Committee functions as a body under the Department of Environment, Forest and Wildlife for approval of activities involving large scale use of hazardous micro-organisms and recombinants in research and industrial production from the environmental angle delineated under Rule 4.

Rules 7, 8 and 10 of the 1989 Rules state that no research, development, import, export, manufacture, process, use or sale of any GE technology or products/substances derived therefrom can be attempted without the approval of GEAC.

(iii) Review Committee on Genetic Manipulation (RCGM):

The RCGM is established under the DBT and is mandated to monitor the safety-related aspects in respect of on-going research projects and activities and bring out manuals and guidelines specifying procedure for regulatory process with respect to activities involving GEO in research, use and applications, including industry, with a view to ensure environmental safety. The RCGM is the authority for BRL-I trials. This Committee includes representatives of the DBT, Indian Council of Medical Research (ICMR), ICAR, CSIR and other experts in their individual capacity. The Committee may appoint sub groups. This Committee also lays down procedures for restricting or prohibiting production, sale, importation and use of such GEOs of cells as are mentioned in the Schedule to the 1989 Rules.

(iv) Institutional Biosafety Committee (IBSC):

The IBSC is established under the institution engaged in GMO research, to oversee such research and to interface with the RCGM in regulating it.

This Committee is constituted by the research institutions handling micro-organism/GEO. The Committee comprises of the Head of the Institution, scientists engaged in DNA work, a medical expert and a nominee of the DBT. The research institutions handling micro-organisms/GEOs are mandated to prepare, with the assistance of the IBSC, an up to date on-site emergency plan according to the manuals/guidelines of the RCGM and make available copies to the DLC/SBCC and GEAC.

(v) State Biotechnology Co-Ordination Committee (SBCC):

The SBCC plays a major role in monitoring and has powers to inspect, investigate and take punitive action in case of violations of statutory provisions.

This Committee is constituted in the States to periodically review the safety and control measures in the various industries/ institutions handling GEOs/hazardous micro-organisms. It has power to inspect, investigate and take punitive action in case of violations of statutory provisions, through the Nodal Department and the State Pollution Control Board/Directorate of Health/Medical Services. The Committee is chaired by the Chief Secretary of the State Government. The Members of the Committee include Secretaries from the Departments of Health, Agriculture, Industries & Commerce, Forests, Public Works/ Chief Engineer, Public Health Engineering, State Microbiologists and Pathologists, Chairman of State Pollution Control Board. The Secretary, Department of Environment is the Member Secretary of the Committee. The Committee may co-opt other members/experts as necessary.

(vi) District Level Committee (DLC):

The DLC has a major role in monitoring the safety regulations in installations engaged in the use of GMOs/ hazardous micro-organisms and its application in the environment.

This Committee is constituted in the districts to monitor the safety regulations in installations engaged in the use of GMOs/ hazardous micro-organisms and its applications in the environment. This Committee is chaired by the District Collector. The Chief Medical Officer (District Health Officer) is the Member (Convenor). The Members of the Committee include Factory Inspector, a representative from Pollution Control Board, District Agricultural Officer, a representative of the Public Health Engineering Department, District Microbiologists, Pathologist (Technical expert), and Commissioner of Municipal Corporation. The Committee may co-opt other members/experts as necessary.

26.2 According to learned Attorney General, the 1989 Rules are implemented by the aforesaid competent authorities through a series of biosafety guidelines issued from time to time. The Guidelines applicable to GE plants are:

26.3 The research and development (R&D) with respect to GE plants has to be conducted in accordance with the Revised Guidelines for Research in Transgenic Plants, 1998. As per these Guidelines, the experiments conducted on research of transgenic plants are broadly categorized into three categories based on the risk involved, namely, Category I that involves routine Rdna experiments, Category II involving evaluation of transgenic plants in green house/net house, and Category III that pertains to high-risk experiments. These experiments have to be regulated by the IBSC and/or the RCGM, as prescribed in the Guidelines.

26.4 Subsequent to the above experiments conducted under the contained conditions, the confined field trials have to be conducted as prescribed under the Guidelines and SOP for the Conduct of Confined Field Trials of Regulated GE Plants, 2008.

26.5 The initial assessment of an application for a confined field trial begins at the institutional level itself. Based on information generated by the applicant in the laboratory and the greenhouse, an application is made to the IBSC for permission to conduct a confined field trial. The IBSC evaluates the proposal for conducting a field trial and further recommends it to the other Regulatory Authorities. The confined field trials are categorized as under:

The RCGM is the regulatory authority for BRL-I trials and GEAC is the regulatory authority for BRL-II trials, as per the Guidelines for the Conduct of Confined Field Trials of Regulated GE Plants, 2008.

26.6 Applications for environmental release are processed in accordance with Guidelines for the Environmental Risk Assessment (ERA) of GE Plants, 2016.

26.7 The Risk Analysis Framework, 2016 prescribes the Regulatory Agency’s approach to risk analysis. It is based on national and international standards and guidance, including the CPB to which India is a party. In accordance with the Risk Analysis Framework, 2016, assessment of safety of GM plants is a comprehensive process involving subject experts and ensures transparency in the regulatory decision-making process by incorporating stakeholder consultations.

26.8 As per this framework, regulatory agencies seek views from various stakeholders and the steps followed in this consultation process include:

26.9 That in line with the above, the applicant has to follow a clearly laid out step by step process for biosafety data generation from laboratory to field trials, safety tests and submission of application for environmental release. The biosafety data is generated in laboratories and by confined field trials under conditions authorized by the RCGM and GEAC, as per the guidelines and protocols and in recognized laboratories/ institutions/universities.

27. In the context of the crucial role of the regulatory bodies, particularly with regard to food safety and environment, this Court in Writ Petition (Civil) No.202 of 1995 (In Re: T.N. Godavarman Thirumulpad vs. Union of India), order dated 31.01.2024, speaking through Gavai, J. in paragraphs 22-25 and 28-32, has observed as under:

x x x

Constitutional Court and the Environmental Rule of Law:

28. Before I proceed further in the matter, it would be necessary to know the role of the Constitutional Court in matters concerning science and technology and environment. The observations of this Court in the following cases are noted as under:

Public Trust Doctrine:

29. At this stage, I shall refer to certain observations made by this Court in the context of preservation of environment and on public trust doctrine. According to this Court, all environment-related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by strict adherence to sustainable development, without which the lives of the coming generations will be in jeopardy. In M.C. Mehta vs. Union of India, (1991) 2 SCC 353, it was observed that law alone also cannot help in restoring a balance in the biospheric disturbance. Nor can funds help effectively. The situation requires a clear perception and imaginative planning. It also requires sustained effort and result oriented strategic action.

30. This Courts jurisprudence on the right to a safe and healthy environment is a firewall against unscrupulous and unsustainable decision-making. It encapsulates a concomitant duty for the State, as understood in light of Articles 48 and 51A(g) of the Constitution of India. In Charan Lal Sahu vs. Union of India, (1990) 1 SCC 613 (“Charan Lal Sahu”) and Subhash Kumar vs. State of Bihar, (1991) 1 SCC 598 (“Subhash Kumar”), this Court expressly observed that Article 21 includes the right of enjoyment of pollution-free water and air. Virender Gaur vs. State of Haryana, (1995) 2 SCC 577 (“Virender Gaur”) expanded the scope of the right to the effect that a hygienic environment is an integral facet of the right to a healthy life. The right was so construed in terms of the States duty under Articles 48 and 51A(g) to forge policies to maintain ecological balance by taking concrete measures to promote, protect and improve the environment.

30.1 Thereafter, in M.C. Mehta vs. Kamal Nath, (2000) 6 SCC 213 (“Kamal Nath”), it was expounded that the fundamental right to life under Article 21 would take within its breadth a protection against disturbance of basic environmental elements such as air, water and soil. This Court articulated the positive duties of the State to take all necessary measures for the protection and promotion of the environment under the EP Act, 1986 in Indian Council for Enviro-Legal Action vs. Union of India, (1996) 3 SCC 212 (“Enviro-Legal Action”). It was also held that if the Central Government omits to fulfil any of its duties under the Sections 3 and 5 of the EP Act, 1986, this Court could issue appropriate directions to it to take necessary measures.

30.2 Therefore, the right to a safe and healthy environment encompasses a corresponding duty on the State to faithfully implement the environmental statutes and take all necessary measures.

30.3 The substantive concern of the right to environmental protection now also encompasses the adverse effects of climate change. This Court, speaking through Honble Dr. Justice D.Y. Chandrachud in M.K. Ranjitsinh vs. Union of India, 2024 (4) Scale 779 : 2024 INSC 280 (“M.K. Ranjitsinh”) has explicitly recognised that adverse environmental consequences, such as sea level rise, have a disproportionate impact on socially, geographically and economically marginalised classes of citizens.

30.4 The aforesaid elucidation of the right to a safe and healthy environment and the concept of environmental rule of law as applied in the Indian jurisprudential context reveals that the concept is one of the ways of embedding a consciousness about adverse effects on the environment into the sub-structure of the legal framework to inform an environment-protecting legal reasoning. Therefore, environmental legislation such as the EP Act, 1986 and the 1989 Rules ought to be interpreted so as not to infringe the fundamental right to a safe and healthy environment under Article 21. Where there is a choice of statutory construction, this Court would be bound to proffer an interpretation that effectively protects the right to a safe and healthy environment.Precautionary Principle:

31. The essence of the precautionary principle lies in the notion that decision makers should act in advance of scientific certainty to protect the environment. [Source: Andrew Jordan and Timothy O Riordan, The Precautionary Principle in Contemporary Environmental Politics (1995) 4(3) Environmental Values 191, 194]. The adoption of the precautionary principle reflects a paradigm shift from the traditional reactive approach, wherein the environmental regulator responded to apparent environmental hazards. It is a significant shift even from the preventive approach that sought to prevent the environmental damage arising from risks that are bound to actualize in the foreseeable future. On the other hand, the precautionary principle seeks to avoid such future environmental damage which may arise from uncertain eventualities. In other words, the precautionary principle mandates cautiously taking appropriate measures to identify potentially harmful activities even in the face of scientific uncertainty. Precaution, in other words, is the expression of a well-founded fear of the unknown and the unknowable environmental consequences of certain human actions. For a fear to be well-founded, it must emerge from a robust risk analysis of potentially hazardous consequences for environmental health.

32. The 1982 World Charter for Nature first articulated the idea of the precautionary principle in General Principle 11, which postulates the control of activities which might have an impact on nature and the use of the best available technologies that minimize significant risks to nature or other adverse effects. The General Principle 11 recommends a graded approach to varying levels of environmental risks and damage, while instantiating that:

32.1 Thereafter, the principle was enshrined in Principle 15 of the Rio Declaration on Environment and Development 1992, which states:

32.2 It also finds expression in Article 10(6) of the CPB to the CBD, which states that:

32.3 While Section 20 of the National Green Tribunal Act, 2010 exhorts the National Green Tribunal (NGT) to take precaution into account in passing orders, this Courts jurisprudence, as explained below, had long recognized and deepened the precautionary principle.

33. This Court in the following cases has discussed at length the precautionary principle, which are adverted to at this stage.

Analysis and Findings:

34. In light of the aforesaid observations, the PSC Report, 2012 made a range of recommendations. The MoEF&CC responded to each of the recommendations in the Action Taken Report. The pertinent recommendations and the action taken are explained in the table below:

35. Similarly, the PSC Report, 2017 made a range of recommendations. The MoEF&CC responded to each of the recommendations in the Action Taken Report. The pertinent recommendations and the action taken are explained in the table below:

36. I have perused and discussed the contents of the PSC Reports, their recommendations of critical import to the regulatory framework as well as the action taken and observe on the following aspects:

37. My understanding is that GM crops are those crops whose genomes have been modified by the insertion of usually foreign (for example, bacterial) genes through rDNA technology. Such modification serves to incorporate traits into plants that are either absent or rare in their domesticated and/or wild varieties. For instance, Bt cotton is cotton modified with a set of genes (or a gene construct) that codes for the Bt toxin. Bt toxin acts as an insecticide against pink and American bollworms. This specific insecticidal trait is absent in wild as well as domesticated varieties of cotton.

38. According to the petitioners, two traits dominate commercialized gm crops – ht (47 percent of the acreage), and insect resistance or Bt (12 percent). Another 41 percent is under stacked traits, i.e., both HT and Bt HT crops that obviate manual weeding and one can simply spray the corresponding herbicide (glyphosate, glufosinate, and dicamba) on the entire field, and everything other than the HT crop will perish. In theory, the Bt crop reduces the applications of external insecticides. Thus, most of the GM crops commercialized globally, in particular HT and stacked crops, are tailored for the routines of capital-intensive agriculture, i.e., agriculture that relies on monoculture (rather than mixed and intercropping), purchased seeds, fossil fuels, and intensive applications of synthetic chemicals which in effect is not sustainable in the long run.

39. In my view, the controversy in these writ petitions converges upon a foundational aspect, which is, the extent of implementation of the recommendations of the TEC constituted by this Court. Only upon considering this foundational aspect can I proceed to determine the points for consideration. I cannot ignore the TEC Report as suggested by learned Attorney General, for it would result in undermining the earlier orders of this Court, which would be an improper approach in the matter.

39.1 The subject matter of this case is indeed technical, as it involves scrutinising the adoption of a technology that would enable the modification of genomes through the insertion of foreign genes. The aim of the modification is often to craft hybrid varieties that have certain desirable characteristics from the point of view of agricultural productivity, sustainability and resilience.

40. At the outset, learned Attorney General submitted that the TEC Report submitted to this Court goes beyond the terms of reference to the extent of observing that HT crops are completely unsuitable in the Indian context which is not just and proper. Dr. Paroda, also a member of TEC, has filed a separate report raising objections to the TEC report submitted by the majority of the members which could be considered by this Court.

40.1 In the backdrop of identifying the actual controversy in these matters, at the outset, the terms of reference of TEC, inter alia, could be revisited as follows:

40.2 An interim report, and thereafter, a final report were submitted by the TEC. As already noted, the final report was in two parts: the first part of the report was by a majority of five members of the TEC and a separate note was submitted by Dr. R.S. Paroda. Since the views of the majority and the separate note have been recorded hereinabove, I would only discuss whether the TEC did indeed breach the terms of reference.

40.3 A perusal of the terms of the reference reveals an emphasis on four aspects: sequencing; scientific tenability; adequacy of regulatory conditions and availability of technological facilities. The direction of this Court regarding the interim report was specifically to seek recommendations on the desirability of a partial or complete ban on open-field tests and what biosafety protocol ought to be followed and under what conditions.

40.4 It is clear that the terms of reference relate to this Courts concern about the regulatory conditions for the release of GMO crops and the existence, or otherwise, of any gaps in the same. It is discernable that the final recommendations responded to these queries regarding the adequacy of regulatory conditions, biosafety protocols and available technological framework, by recommending various measures to fill the gaps that existed in the regulatory regime at a general level. The first gap, as I understand is that of technical expertise. The TEC inter alia, recommended as under:

Therefore, having regard to the discussion made by it, I find that the TEC did not breach its Terms of Reference.

41. The petitioners herein have sought for implementation of the aforesaid recommendations of the majority by contending that the question of the consequences of transgenic mustard hybrid DMH-11 being an HT crop remains unanswered. This is because the Union of India, in its additional affidavit dated 09.11.2022, has acknowledged that transgenic mustard hybrid DMH-11 possesses HT characteristics. Yet, the Union of India asserts that it cannot be officially labelled as such and therefore, it should not be referred to as HT corp. That transgenic mustard hybrid DMH-11 has never been tested as a HT crop because India does not have any regulatory guidelines and protocols for testing of HT crops, is the contention of the petitioners.

41.1 The petitioners have further countered the stand of the Union of India by submitting as under:

41.2 The petitioners have contended that there is a need for formulation of a national policy of GM crops for the following reasons:

41.3 Per contra, the Union of India urged this Court to not intervene in the matter as the questions involved are highly technical and polycentric in character. This proposition is indeed attractive at a first blush, for it invites the Court to trust the process of the grant of approval for the environmental release of GMOs under the applicable legal regime. But, it is settled law that expert opinion is not beyond the pale of judicial review, especially when there are serious infirmities in the decision-making process, vide Institute of Chartered Financial Analysts of India vs. Council of The Institute of Chartered Accountants of India, (2007) 12 SCC 210 (“Institute of Chartered Financial Analysts of India”).

41.4 In the above backdrop, the points for consideration shall be answered.

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?

42. I have adverted to in detail several meetings of GEAC held with regard to the application submitted by the applicant, namely, CGMCP, University of Delhi (South Campus) on 15.09.2015 seeking approval for environmental release of the GE mustard hybrid DMH-11. This was after conclusion of the closed or confined trials and was accompanied with a dossier of 3285 pages compiling the results of the food and environmental safety studies that were carried out at the time of the confined trials for the environmental release of transgenic mustard hybrid DMH-11, parental lines bn 3.6 and modbs 2.99 containing barnase, barstar and bar genes. In the 125th meeting held on 11.12.2015, GEAC requested the applicant to give a presentation and thereafter on 04.01.2016, a sub-committee was constituted for examination of the dossier.

42.1 The sub-committee held two meetings. After the first meeting, it recommended revision of the biosafety dossier by incorporating additional information regarding certain lacunae or gaps which it had identified and were also identified by the BSU. GEAC decided that if the biosafety dossier is found to be complete in all respects, then the same excluding confidential information, could be put in the public domain for comments. After the first sub-committee meeting, several submissions and recommendations were made which are detailed above. Thereafter, the second sub-committee meeting was held and the sub-committee sought time to analyse and review the revised dossier and results obtained in 129th GEAC meeting held on 20.06.2016. The sub-committee suggested that the AFES report, prepared upon evaluation of biosafety data, be placed on the MoEF&CC website for thirty days to invite comments from stakeholders and the dossier also be made available in GEAC Secretariat for any person interested in studying the same. A total of 759 comments were received between 05.09.2016 and 05.10.2016 and 29 persons personally inspected the dossier at the premises of the MoEF&CC and provided their comments. However, the dossier was not put up on the website of GEAC. This is in fact a violation of the order of this Court dated 08.04.2008 in respect of which contempt petition has been filed.

42.2 On 07.10.2016, this Court recorded the submission of the Union of India that no release of GMOs shall take place till 17.10.2016 because the Government had sought views from the public and upon receipt of such views and objections, the matter was to be considered by a Committee of experts, which process could not be completed by 17.10.2016. However on 11.05.2017, GEAC, in its 133rd Meeting, made the recommendation for the commercial release of DMH-11. However, on 31.07.2017, this Court recorded the submission of the Union of India that the Government has not yet taken a final decision, whether or not to permit the plantation of transgenic mustard hybrid DMH-11, and a final decision with reference to the approval would be taken by the Government in September, 2017. It was also pointed out that the plantation is likely to commence in October 2017. At a subsequent hearing on 22.11.2017, this Court recorded the Union of Indias submission that the Government of India had not yet taken a decision in the matter and that all the representations of the stakeholders would be considered before taking the final decision.

42.3 Thereafter, in its 136th Meeting on 20.09.2018, GEAC reexamined the matter in light of the representations received and on a detailed discussion, agreed that the applicant may be advised to undertake field demonstration on transgenic mustard hybrid DMH-11 in an area of five acres at two to three different locations with a view to generate additional data on honeybees and other pollinators and on soil microbial diversity. Thereafter, in the 137th GEAC meeting held on 20.03.2019, there was a deferment of field demonstration studies on transgenic mustard during the year 2018-19 and it was extended for the seasons 2019-20 and 2020-21. Thus, it is significant to note that GEAC itself had deferred field demonstration studies on transgenic mustard and this was in supersession of the earlier decision taken on 20.09.2018 in the 136th meeting of GEAC wherein the applicant was advised to undertake field demonstration in an area of five acres at two to three different locations. Therefore, till the year 2020-2021, the stage of field demonstration within an area of five acres at two or three different locations had not yet been cleared by GEAC with regard to transgenic mustard hybrid DMH-11.

42.4 When the matter stood thus, Prof. Deepak Pental, on behalf of CGMCP, Delhi University (South Campus), the applicant, vide his letter dated 10.05.2022, wrote directly to the Honble Minister for Environment, Forest and Climate Change seeking acceptance of the recommendations for environmental release of transgenic mustard hybrid DMH-11 made in the 133rd GEAC meeting. The aforesaid letter is extracted as under:

“CENTRE FOR GENETIC MANIPULATION OF CROP PLANT (CGMCP)

UNIVERSITY OF DELHI SOUTH CAMPUS

BENTO JUAREZ ROAD, NEW DELHI-110021, INDIA

Phone : 91-11-24112609, 24116392 Fax: 91-11-24116392

On receiving the said communication, immediately comments were sought from the DBT, DARE and ICAR. On 25.08.2022, the applicant once again made a presentation of the proposal for environmental release of DMH-11 to GEAC at its 146th meeting. At that meeting, GEAC once again constituted another Expert Committee to examine the request letter dated 10.05.2022 with respect to availability of adequate evidence about impact of transgenic mustard on honeybees and other pollinators in order to assess the need for conducting field demonstration studies on honeybees and other pollinators. The reason for constitution of another Expert Committee is not known or forthcoming. This Expert Committee, headed by Dr. Sanjay Kumar Mishra, Scientist H, DBT, Government of India and Co-Chairman, GEAC, held two meetings in September, 2022 and it outrightly recommended environmental release of transgenic mustard hybrid DMH-11. Also, further evaluation was to be carried out as per ICAR guidelines. Thus, the Expert Committee took a dramatically opposite view as compared to GEAC with regard to the field demonstration studies on the effect of GE mustard on honeybees and other pollinators. In the 136th GEAC meeting, it was recommended by GEAC that the same be conducted prior to the environmental release. This Expert Committee, on the other hand, suggested that within two years, post-environmental release under the supervision of ICAR, the effect of GE mustard on honeybees and other pollinators may be studied and a report be submitted to GEAC. For immediate reference, the relevant extracts of the Expert Committee recommendation is extracted as under:

42.5 Further, on 18.10.2022, when the 147th Meeting of the GEAC was convened, as many as seven members communicated their inability to attend the meeting and Dr. Geeta Jotwani, Scientist G at Indian Council of Medica Research (ICMR) did not attend the meeting. Consequently, eight persons remained absent and only fourteen members participated i.e. almost one-third of the GEAC did not attend the crucial meeting, the GEAC took into consideration only the recommendations of the Expert Committee constituted few weeks before which had given its recommendations on 08.10.2022 and noting the same, the recommendations were accepted by pursuing the comments received from DBT and DARE. The above is evident on perusal of the Minutes of the 147th Meeting of the GEAC held on 18.10.2022 as well as the Agenda Item No.4 which concerns the application relating to environmental release made by the applicant. Thus, GEAC simply recommended the environmental release of transgenic mustard hybrid DMH-11 without any deliberation as such, which recommendation was accepted by the Central Government. As a result, the following consequences are noted:

42.6 There is no reason forthcoming as to why GEAC completely changed its stance in the 147th meeting held on 18.10.2022. This resulted in the decision of the Union Government on 25.10.2022 impugned herein. However, it is apparent that the trigger for this volte-face in the stand of GEAC was the letter dated 10.05.2022 written by Prof. Deepak Pental to the Honble Union Minister for Environment, Forest and Climate Change. There is no material put forth for the sudden decision taken by the Union Government on receiving the changed recommendation of GEAC, when earlier, it was submitted before this Court that the Union Government was still deliberating on the matter, which aspect is evident from the orders passed by this Court when in fact field demonstration was also put on hold by GEAC. Such being the position from the year 2018 onwards, all of a sudden environmental release of DMH-11 was approved even in the absence of field trials for conducting studies on the impact of honeybees and other pollinators.

42.7 I observe that a statutory functionary entrusted or authorised to carry out certain functions contemplated under a statute must do so in accordance with law and known procedure. Where a statutory authority exercises its jurisdiction, conferred on it by a statute or rules made thereunder, it has to apply its own mind and the procedures laid, therefore, must be scrupulously followed. (vide V.K. Ashokan vs. Assistant Excise Commissioner, (2009) 14 SCC 85 (paras 52 and 54). Every statutory authority is also bound by the rule of reasonableness and fairness and its action must be free from arbitrariness.

42.8 Moreover, when an authority changes its policy decision, it is expected to give valid reasons and act in the larger interest of the entire community. The persons representing a public body

are expected to discharge their functions faithfully and in keeping with the trust reposed in them. A statutory body, when it acts in terms of a statute, is bound by its action. It cannot supplement or supplant the reasons later on by way of an affidavit. It is well settled that while a power is exercised by an authority, ordinarily the reasons contained in the order should be supported by the material on record. It is absolutely essential that the authority making the order is alive to the material on the basis of which it purports to take the decision. It cannot act mechanically or under an impulse, but after due and proper application of mind. A statutory authority exercising its power does so in trust, only to be exercised for a legitimate purpose and along the settled principles of administrative law. Application of mind is best demonstrated by disclosure of mind by the authority making the order and said disclosure is best done through recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained, is clearly suggestive of the order being arbitrary, hence legally unsustainable.

42.9 The authority cannot neglect to do that which the law mandates and requires doing. It is necessary that an executive or administrative function should be exercised with clarity, so as to enable legal certainty in the decision-making process bearing in mind the requisites for a valid exercise of power.

Public Trust Doctrine:

42.10 The aforementioned curious lapses of procedure and propriety are especially acute because they are in the teeth of the public trust doctrine applicable in the instant case, which holds immense significance when a decision impacting environmental and ecological vitality is impugned. The public trust doctrine enjoins upon the Government to protect the natural resources as well as the environment for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. In M.C. Mehta vs. Kamal Nath, 1996 (9) Scale 141, this Court has observed that there is no reason why the public trust doctrine should not be expanded to include all ecosystems operating in our natural resources. The State is the trustee of all natural resources and the public at large is the beneficiary of the same. The State is, therefore, under a legal duty to protect the natural resources. Similarly, in Lal Bahadur vs. State of U.P., (2018) 15 SCC 407 (“Lal Bahadur”), this Court held that the Government has a duty to protect the environment and the Courts also must bear in mind that in cases concerning environmental governance, it has to discharge its duties by assessing the case on the basis of the material placed before it. This is because matters concerning environmental governance concern not just the living, but also generations to come, which is the basis of the doctrine of inter-generational equity.

42.11 Similarly, in Centre for Public Interest Litigation vs. Union of India, (2012) 3 SCC 1 (“Centre for Public Interest Litigation”), it was observed that the doctrine of equality which emerges from the concept of justice and fairness, must guide the State in determining the actual mechanism for distribution of natural resources. This Court has further observed that every holder of public office by virtue of which he acts on behalf of the State or public body is ultimately accountable to the people in whom the sovereignty vests. As such, all powers so vested in a public officer are meant to be exercised for public good and promoting the public interest. Every holder of a public office is therefore a trustee. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is an antithesis to the decision taken in accordance with the rule of law. This Court had further observed that the public trust doctrine is a part of the law of the land and it has grown from Article 21 of the Constitution of India. This implies that the power vested by the State in a public authority should be used as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact situation of a case.

42.12 It is observed that in the instant case, while the Union of India made a submission before this Court that no final decision had been taken by it regarding the environmental release of transgenic mustard hybrid DMH-11, yet, pursuant to the letter written on behalf of the applicant to the Honble Minister for Environment, the matter moved swiftly possibly “from the top” and GEAC responded by constituting another Expert Committee which gave its recommendation to GEAC as desired.

42.13 Furthermore, while granting permission of the environmental release of transgenic mustard hybrid DMH-11, the condition imposed was that usage of any formulation or herbicide would not be permitted for cultivation in the farmers field and any such use in the farmers field without due approval would attract appropriate legal action under various enactments. There is no indication as to how the use of any herbicide could be prevented, rather, the condition not to use any herbicide was open-ended without having any means to check whether any herbicide would be used in the farmers field pursuant to the environmental release. The adverse effects of use of herbicide were also totally given a go by.

42.14 I also note that on granting permission for the environmental release of transgenic mustard hybrid DMH-11, there was no procedure envisaged for any study or research on the impact on non-target organisms and soil microbes to be conducted prior to the commercial cultivation of transgenic mustard hybrid DMH-11. I find that it was necessary to have requisite studies and research carried out on the experimental environmental release of transgenic mustard hybrid DMH-11, not only prior to the environmental release but, if permitted, subsequently before commercial cultivation of the said crop. I find this to be a serious lacuna under Rule 13(2) of the 1989 Rules.

42.15 Further, any evidence of harmful effects or damage to the environment, nature and health owing to non-compliance of conditions stipulated by GEAC was also left open-ended. While recommending environmental release of transgenic mustard hybrid DMH-11 parental lines bn 3.6 carrying barnase and bar genes, and modbs 2.99 containing barstar and bar genes, it is not clear whether the conditions imposed by GEAC were adequate and sufficient and in the interest of environment, particularly in light of the sub-committees recommendations to GEAC as the same were to be acted upon as the matter was seized by this Court and was being monitored.

42.16 Moreover, I find that GEACs proposal was simply accepted by the MoEF&CC and immediately notified without any further consideration at the level of the Ministry and without having any inter-departmental consultation with the Ministry of Health, MoA and DBT in the Ministry of Science and Technology. It appears that GEAC recommended what MoEF&CC wanted pursuant to Prof. Pentals letter to the Honble Minister himself in May, 2022.

42.17 Also, no consultation was held with the States wherein mustard is grown, although agriculture is a State subject under Entry 14 of List II of the Constitution. The other concerned stakeholders also ought to have been consulted before a decision was taken by the Union of India in terms of the recommendation of GEAC. The Union of India could not have unilaterally acted on such a serious matter without bringing to the notice of the States, particularly in the northern and northwestern States of the country where mustard is being grown. I also record that the States of Bihar, Kerala, Madhya Pradesh, Haryana, Tamil Nadu, Delhi, Andhra Pradesh, Rajasthan, Odisha, West Bengal and Karnataka had earlier expressed reservations against field testing and release of transgenic mustard hybrid DMH-11. In my view, the States cannot be treated as satellites of the Union of India as they have constitutional identity and powers and responsibilities conferred under the Constitution of India and therefore, their views in the matter are of significance, vide S.R. Bommai vs. Union of India, (1994) 3 SCC 1, Para 99 (“S.R. Bommai”), reiterated in State (NCT of Delhi) vs. Union of India, (2018) 8 SCC 501. The consideration of the views of the pertinent States by a regional or national consultation would have made the decision-making process wholesome, as a wider consultation in matters such as the one under consideration would make the decision to be taken less vulnerable to attack and less arbitrary. But the impugned decision of the Union of India, based on a flawed procedure adopted by GEAC at the instance of the applicant, is arbitrary and liable to be interfered with by this Court when it is justified. In these circumstances, the decision of the respondent-Union of India dated 25.10.2022, as well as the recommendation of GEAC dated 18.10.2022, are liable to be set aside.

42.18 Further, no material has been brought before us to point out as to how the decision of GEAC was accepted by MoEF&CC and the recommendation of the environmental release of transgenic mustard hybrid DMH-11 was simply permitted. As discussed hereinabove, the grant of approval by GEAC is governed by Rule13. The said Rule does not contemplate any role for the Ministry of Environment, Forest and Climate Change (MoEF&CC) in the decision-making process. Therefore, the lateral intervention by the said Ministry seriously undermines the credibility and integrity of the decision making as well as the regulatory process. Although the applicant is not a private entity but a Centre in Delhi University (South Campus), the status of the applicant would not matter in arriving at a decision as in the instant case.

42.19 I observe that the principle of public accountability and transparency in State action are applicable to the cases of execution or statutory exercise of power. Every officer in the hierarchy of the State by virtue of his being a public officer/servant is accountable for his decisions to the public as well as to the State. The concept of dual responsibility should be applied in larger public interest and proper governance. In other words, where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. This principle has also been expressed in terms of the Latin maxim expressio unius est exclusio alterius, which means that when a manner is specified for doing a certain thing, then all other modes for carrying out such act are expressly excluded. Vide, Taylor vs. Taylor, (1875) LR 1 Ch D 426 (“Taylor”) and Nazir Ahmad vs. King-Emperor, 1936 SCC OnLine PC 41 : (1935-36) 63 IA 372 (“Nazir Ahmad”). This Court too has applied this maxim in the following cases:

42.20 What emerges from the above discussion is that when a statute contemplates a specific procedure to be adhered to in order to arrive at a desired end, such procedure cannot be substituted by an alternative procedure which is not contemplated under the statute. Further, if an action is to be carried out by way of issuance of a particular statutory instrument on the basis of certain requirements, such action cannot be validly carried out by way of issuance of an instrument when the same is not contemplated under the statute.

42.21 It is also noted that at the crucial 147th meeting of GEAC held on 18.10.2022, there was no representative of the ICMR, Ministry of Health. Hence, the matter was not considered from the paradigm of the adverse effect on the health of human beings and animals as well as on other plants in the event of environmental release. Dr. Geeta Jotwani, Scientist F, ICMR, who did not participate in the meeting of GEAC held on 18.10.2022, simply sent an e-mail to the effect that she had concurred with the recommendation of GEAC even in the absence of knowledge about the deliberations of the GEAC.

42.22 In this regard, I also find that the recommendations of the TEC submitted to this Court have been completely ignored by GEAC, as another Expert Committee was constituted by it pursuant to the letter dated 10.05.2022 submitted by Prof. Pental to the Honble Minister for Environment, Forest and Climate Change. It is also not known whether the TEC report was placed before GEAC as well as the Expert Committee or that they had ever been apprised of the same. I observe that Prof. Pentals letter dated 10.05.2022 to the Honble Minister of Environment, Forest and Climate Change is a classic case of seeking a lateral intervention by the Minister of the Union of India, bypassing what had been decided by GEAC in its 137th meeting held on 20.03.2019. It is clear that pursuant to the intervention of the Ministry, GEAC constituted another Expert Committee and simply accepted its recommendations for the environmental release of DMH-11 hybrid mustard. This was by ignoring all previous deliberation made by GEAC, its sub-committee constituted earlier and its decision to proceed with precaution.

43. Having regard to the aforesaid discussion, I am of the view that the GEAC approval dated 18.10.2022 and the consequent decision dated 25.10.2022 regarding the environmental release of transgenic mustard hybrid DMH-11 is vitiated. I also find that the impugned approval was in gross violation of the principle of public trust.

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:

43.1 I next consider whether the right to safe and healthy environment would be violated by unanticipated adverse effects of the impugned approval for environmental release of DMH-11. While I am cognizant of the submission of the learned Attorney General that the Court cannot go into the nuances of science and technology and give a finding on their merits, at the same time, I do not find substance in his argument that the petitioners apprehensions are only a baseless hypothesis. In the instant case, the complexity of reasonable risk assessment in the context of preserving the right to a safe and healthy environment can be understood with reference to some comparative perspectives.

43.2 Nothing explains this asymmetry better than the subsisting grievance of the petitioners about the failure to make the biosafety dossier, i.e., the primary data on which the AFES report is based, accessible to affected parties, i.e., the farmers, the farm workers, the consumers, other experts in the field and the citizenry at large, thereby, seriously undermining the right to environmental information. This is more so because such denial of access to environmental information is in contravention of the order of this Court dated 08.04.2008 and subsequent order dated 12.08.2008. The order dated 08.04.2008 records that in the absence of toxicity and allergenicity data, the members of the public and the scientists would not be able to make effective representations to the concerned authorities. It was on the solemn assurance of the then ASG – that the said primary data pertaining to field trials will be placed in the public domain and on the website of GEAC – that this Court had disposed of the applications made by the petitioner. There has been absolute non-adherence of the said assurance. I also note that the Reply Affidavit filed by the Union of India had specifically stated that the full dossier could not be made available on the website and that an independent review of such a dossier by members of the public would undermine the credibility of the extant regulatory regime.

43.3 I observe that the right to environmental information comes within the scope of the right to information, which came to be articulated by this court in State of Uttar Pradesh vs. Raj Narain, (1975) 4 SCC 428, para 74 (“Raj Narain”), as the publics right to know every public act that is done by public functionaries subject, of course, to absolute secrecy to be maintained in certain circumstances. It is also a critical aspect of the right to freedom of speech and expression, vide Chief Information Commissioner vs. State of Manipur, (2011) 15 SCC 1 (“Chief Information Commissioner”). Disclosure of information is the rule in our system of open governance, and secrecy is an exception vide S. P. Gupta vs. Union of India, (1981) Supp SCC 87 (para 67) (“S. P. Gupta”). Transparency is critical to preserve the integrity of the decision-making process. Public scrutiny would be crucial to evaluate the putative separation of interests and influence between scientific research and regulatory policy formulation.

43.4 The access to environmental information facilitates ‘meaningful engagement’ and rights-conscious decision-making. The engagement with stakeholders through the participative process inspires confidence in the decision-making process and leads to more sound outcomes which are less vulnerable to legal challenge.

43.5 The presence of sufficient safeguards such as transparency, accountability and public participation wherever permissible within the decision-making process is critical to ensure that regulatory decisions are not made on partial and uncontested scientific evidence. In this context, I take note of the dicta in Harvester Co. vs. Ruckelshaus, 478 F.2d 615, 652 (D.C. Cir. 1973) (“Harvester Co.”), wherein the US Court of Appeal, DC Circuit held that prior to adjudicating difficult technological questions, the judiciary ought to be assured that such questions are first “resolved in the crucible of debate through the clash of informed but opposing scientific and technological viewpoints.” But the approach of GEAC has been quite contrary to the approach explained above. The record shows that on 22.09.2016, various scholars and public activists endorsed an email addressed to the Honble Minister of Environment, Forest and Climate Change raising serious objections to the conduct of the appraisal process, particularly the refusal to disclose the biosafety dossier to the general public. They urged the MoEF&CC to extend the consultation process by another 120 days. In addition to the email, on 24.09.2016, scholars, experts, and eminent citizens sent a letter to the Honble Minister of Environment, Forest and Climate Change, expressing grave concerns regarding GEACs refusal to disclose the biosafety data to the general public, hindering a meaningful exercise of public consultation. These objections initially weighed with GEAC to defer environmental release of DMH-11 in the years 2019-2021. But in the year 2022, things moved with an undue haste and speed and thereby GEAC ignored all precautionary measures suggested by TEC as well as by the sub-committee constituted by it and simply leaf frogged into the impugned decision dated 18.10.2022. This, I find, has adverse legal and environmental consequences.

The other critical right is that of public participation in environmental decision-making.

44. Moving further, learned Attorney General submitted that pursuant to the TEC Report submitted to this Court, several guidelines and a legal framework were put in place. In this regard, I have perused the specific guidance documents issued in the year 2016, said to be in accordance with the CPB, to further strengthen the risk assessment procedure.

The same are discussed as under:

44.1 Given their import to the issue at hand, I limit my analysis to the Risk Analysis Framework, 2016 and the Guidelines for Environmental Risk Assessment (ERA) for Genetically Engineered (GE) Plants, 2016. While one of the stated purposes of the Risk Analysis Framework includes provision of transparency on the use of risk analysis to support decision-making, the continued reluctance to publish the biosafety dossier and respond to concerns about long-term effects by provisioning requisite chronic and transgenerational toxicity studies shows that it is inadequate. The modalities of communicating the RARM plan must be inclusive and transparent. The failure to publish the biosafety dossier on the website reveals a deficiency in the Guidelines for Environmental Risk Assessment (ERA) for Genetically Engineered (GE) Plants, 2016. Furthermore, the failure to furnish cogent reasons for giving a go by to field demonstration studies to study the impact on honeybees also reveals the lack of safeguards against misuse of discretion. With respect to post-release monitoring, I note that the MoEF&CC issued an office order on 10.11.2022 to constitute an Expert Committee of four members for Post Release Monitoring Committee (PRMC). The terms of reference are to visit the growing sites of DMH-11 at least once during each season. However, the term of its functioning is limited to a period of four years from the date of issue.

44.2 Given the fact that the unanticipated consequences of the environmental release of DMH-11 remain in the sphere of uncertainty, I am impelled to construe the failure to undertake necessary measures in light of the TEC and the PSC recommendations and the non-compliance with directions of this Court as a violation of the right to a safe and healthy environment. The violation is particularly serious in light of the benchmarks of environmental regulation prescribed by this Court in T.N. Godavarman.

44.3 The failure to adequately assess health and environmental impact of GM crops seriously infringes upon intergenerational equity as it potentially endangers the ability of future citizens to enjoy the highest attainable standard of health. This Court in State of Himachal Pradesh vs. Ganesh Wood Products (1995) 6 SCC 363 (“Ganesh Wood Products”) had invoked intergenerational equity while taking cognizance of the totally faulty and a myopic approach of the State towards forest management and regulation. This Court held that mechanically granting approvals for manufacturing katha by felling khair trees was contrary to public interest involved in preserving forest wealth, maintenance of environment and ecology and considerations of sustainable growth and inter-generational equity. This Court reasoned that the present generation has no right to deplete all the existing forests and leave nothing for the next and future generations and therefore, the approvals were vitiated. This Court also emphasized that the obligation of sustainable development mandates proper assessment and monitoring so that forest industries function in a balanced manner.

44.4 The States obligation to ensure intergenerational equity was also invoked while directing the preparation of appropriate management plans for regulating the use of fragile coastlines vide Indian Council for Enviro-legal Action vs. Union of India (1996) 5 SCC 281.

44.5 In view of the aforesaid discussion, I am of the view that the decision to grant approval for environmental release of transgenic mustard hybrid DMH-11 violates the right to safe and healthy environment under Article 21 of the Constitution of India because the safeguards which were necessary to be taken prior to the grant of the approval have not been taken in the instant case.

Consequently, directions have been issued in the succeeding paragraphs.

Re: Point No.3: Whether GEACs 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:

45. As discussed earlier, the precautionary principle is one of the doctrinal foundations of Indian environmental law. The principle is an instance of distillation of ecological wisdom. Given the fact that genetic engineering has made what was inconceivable a reality, precaution is the need of the hour. For billions of years, each living organism would exchange DNA with others of its kind. Genetic engineering transcends this natural principle by combining genes sourced from widely different species and transferring genes between organisms that had no natural possibility of interbreeding. Scientific research of such a novel nature must therefore happen under supervision and in a manner that inspires public confidence.

45.1 It is said that the regulatory regime should recognize sufficiently the limits of scientific knowledge, and adopt a wider system-based interdisciplinary analysis. A diversity of expert opinions ranging from the disciplines of biotechnology, environmental law, ethics, sociology, agriculture, and sustainable economics should engage in open and public dialogue. Such an open dialogue is necessary in order to mitigate the possibility of regulatory agencies and applicants exaggerating the benefits of a proposed technology or diluting the rigours of environmental safety or health standards.

46. Having regard to the conclusions of the TEC, I find that the apprehensions of the petitioners that HT crops would exert a highly adverse impact over time on sustainable agriculture, rural livelihoods, and the environment are not unfounded. It is reasonable to infer that there is a potential of loss of species of indigenous mustard crop, as India is the centre of origin and diversity, which fact cannot be doubted. The concerns about the impact on other beneficial organisms, such as honeybees, earthworms etc. are also well-founded and serious. As per the precautionary principle, those activities which may disturb nature shall be proceeded only upon ex-ante assessment of their consequences. Such a sound risk and impact assessment is also a binding obligation under Article 14(1)(b) of the CBD and Article 26 of the CPB. Therefore, GEAC is duty bound, both under domestic and international law, to sanction long-term chronic and intergenerational studies, as recommended by the TEC. The reluctance to conduct such studies would risk the health of future generations as well as the farmers right to conduct their agricultural activities in the most suitable manner. In this regard, it would be pertinent to quote the paragraph 28 of the 301st Report of PSC as under:

47. There are considerable concerns that the HT GM technology depends on huge chemical spraying. In this regard, learned counsel Dr. Ravindra Chingale brought to my notice the three unstarred questions raised before the Rajya Sabha on 15.03.2021, 22.03.2021 and 08.12.2022 (the latest being after the decision taken by GEAC and the MoEF&CC for environmental release of transgenic mustard DMH-11 hybrid). Law courts under Section 57(4) of the Indian Evidence Act, 1872, can take judicial notice of the course of proceedings of the Parliament. The answering of parliamentary questions is a part of the conduct of business of the Parliament. Therefore, no question about its admissibility under Section 74, the Indian Evidence Act, 1872 would arise.

For ease of reference, the said questions and answers are extracted as under:

GOVERNMENT OF INDIA

MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE

RAJYA SABHA

UNSTARRED QUESTION No.2118

TO BE ANSWERED ON 15.03.2021

Commercial cultivation of GM crops and foods made from GM ingredients

ANSWER

***

GOVERNMENT OF INDIA

MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE

RAJYA SABHA

UNSTARRED QUESTION No.2931

TO BE ANSWERED ON 22.03.2021

Genetically Modified seeds

ANSWER

***

GOVERNMENT OF INDIA

MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE

RAJYA SABHA

UNSTARRED QUESTION No.222 TO BE ANSWERED ON 18.12.2022

Conferment of herbicide tolerance to genetically modified mustard

ANSWER

47.1 It is needless to observe that taking note of the said questions and answers so as to appreciate the stance of the Government at the particular point of time would be in line with the constitutional scheme in general and the Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha) (Rajya Sabha Rules).

47.2 On a reading of the above, it is clear that the stand of the MoEF&CC before the Parliament has been as follows:

47.3 Having given my anxious consideration to the report of the TEC and the PSCs, I am convinced that the ability to conduct robust risk assessment hinges upon the availability of indigenous and independent studies and research. It follows that conclusions about safety assessment and ecological impact cannot be transplanted from research conducted in a foreign context. Crucially, the recommendation of Expert Committee constituted by GEAC in the year 2022 after Prof. Pentals letter to the Honble Minister of Environment, which is the basis of GEACs impugned approval, is entirely premised upon foreign studies and research and not on indigenous research or studies. This, I find, is a serious omission, on the part of GEAC in not applying its mind to research studies to be conducted within the country as India has a unique biodiversity and a socio-economic structure of society which is directly related to land holdings and conduct of agricultural operations.

47. 4 It is also noted that Dr. Sanjay Kumar Mishra, Scientist H, DBT, New Delhi, who is one of the members of GEAC (Co-Chairman), was made Chairman of the Expert Committee constituted by GEAC in the 146th meeting which was held pursuant to the letter written by Prof. Deepak Pental on behalf of the CGMCP, University of Delhi (South Campus) to the Honble Minister of Environment. The crucial portions of the recommendations have been extracted above.

On a reading of the same, it is evident that the Expert Committee has made its recommendations on the opinion of the DBT and the DARE which are bodies within the Ministries of the Government. They are not independent scientific bodies. Therefore, the Expert Committee could not have relied upon the opinion of the DBT and the DARE. Also, based on the examination of scientific evidences available globally, and as per the recommendations of concerned Ministries, it was observed by the Expert Committee that it was unlikely that the bar, barnase, and barstar system would pose an adverse impact on honeybees and other pollinators. What is the pertinent scientific evidence available globally or in other countries and how the said evidence was co-related to all the concerned issues of contemporary relevance under Indian scenario, has not been explained. That the Expert Committee has been swayed by the opinion of the DBT and the DARE is opponent. DBT opined that, “it seems likely that there were no major deviations in the behaviour of honeybees when compared among the transgenic and non-transgenic comparator lines. GEAC may consider its recommendations of the 133rd meeting on the environmental release of GE mustard.” The aforesaid opinion is contrary to what was expressed by the sub-committee constituted by the GEAC when the matter was being considered prior to the 133rd meeting. DARE opined that, “GEAC may consider exempting additional studies on the impact of GM mustard hybrid DMH-11 containing the bar, barnase, and barstar genes on honey bees and honey as decided in its 136th meeting and the recommendation of the 133rd meeting of GEAC may be considered.” There is no reason expressed as to why GEAC should exempt additional studies on the impact of transgenic mustard hybrid DMH-11 on honeybees and honey as decided in 136th meeting. In other words, the Expert Committee has recommended what exactly was required by the applicant i.e. to give effect to the recommendations of the 133rd meeting of GEAC.

47.5 In fact, the constitution of Expert Committee in the year 2022 itself is an eye-wash, inasmuch as the Ministry of Environment required the report of the so-called Expert Committee in order to approve the application given by CGMCP, University of Delhi (South Campus), which is contrary to the stand of GEAC in its earlier meetings. The report of this Expert Committee therefore was tailor-made and “suitable” in order that GEAC could accord approval to the application submitted by CGMCP. As already observed, the Expert Committee relied upon scientific evidence available globally and not based upon the agro-ecological realities in India. Therefore, not much credence can be given to the recognition of this Expert Committee which was the basis of the decision/recommendation dated 18.10.2022 made to MoEF&CC.

47. 6 Next, I have perused the conditions imposed by GEAC while according approval to CGMCP, University of Delhi (South Campus), the applicant. It is apparent that the precautionary principle has been seriously undermined in Condition VI and VII that have been prescribed by GEAC for the impugned release. Although Condition VII prohibits farmers from using any formulation of herbicide in the fields, it is unclear how such a prohibition would be enforced. Given the nature of the DMH-11 which according to the petitioners has HT characteristics, the impact upon non-target organisms and beneficial organisms could be seriously detrimental to agrarian ecology. The proposed conditions for approval are neither adequate nor feasible to limit these consequences. I observe that GEAC has failed to take into consideration the precautionary principles while approving the environmental release of the transgenic mustard DMH-11 hybrid.

48. Wisdom lies in precaution. As the upholder and protector of constitutional wisdom and values, this Court has no option but to hold that the decision-making process for the grant of approval for the environmental release of DMH-11 has violated the precautionary principle. Reiterating Vellore Citizens and A.P. Pollution Control Board, this Court in RFSTE, noted that the position of the precautionary principle is well-entrenched in our jurisprudence and would govern the law of the land in light of Articles 47, 48A and 51A(g) of the Constitution. Thereafter, in T. N. Godavarman Thirumulpad vs. Union of India, (2006) 1 SCC 1, this Court applied the precautionary principle while directing that all precautionary measures must be taken when forest lands are diverted for non-forest use.

48.1 Karnataka Industrial Areas Development Board vs. C. Kenchappa, (2006) 6 SCC 371 (“C. Kenchappa”) is another case where this Court applied the precautionary principle to emphasize on the requirement of carrying on an impact assessment and obtaining necessary environmental clearance before execution of an industrial activity. It was directed that, in future, before acquisition of lands for development, the consequence and adverse impact of development on the environment must be properly comprehended and the lands be acquired for development so that they do not gravely impair the ecology and environment.

48.2 The precautionary principle was pressed into service in Democratic Youth Federation of India vs. Union of India (2011) 15 SCC 530 (“Democratic Youth Foundation of India”) to ban the use of the endosulfan pesticide until a court-appointed committee conducted a risk assessment of the same. It was also applied in Hospitality Association of Mudumalai vs. In Defence of Environment & Animals, (2020) 10 SCC 589 (“Hospitality Association of Mudumalai”) where it was held that:

48.3 Furthermore as noted above, this Court gave an expansive scope to the application of the precautionary principle beyond adjudicatory orders to any decision, administrative or commercial ought to be made by the Government or private parties in anticipation of serious environmental harm. In Pragnesh Shah vs. Dr. Arun Kumar Sharma, (2022) 11 SCC 493 (“Pragnesh Shah”), it was explained that the precautionary principle requires the State to act in advance to prevent environmental harm from taking place, rather than by adopting measures once the harm has taken place. In deciding when to adopt such action, the State cannot hide behind the veil of scientific uncertainty in calculating the exact scientific harm by observing as under:

48.4 Relying upon H.P. Bus-Stand, this Court held that actualising the framework of environmental rule of law requires that the courts cannot be stupefied into inaction due to scientific uncertainty but must take decisions to protect the environment based on whatever information is available.

48.5 Recently this Court in M.K. Ranjitsinh while considering protection of the Great Indian Bustard and the Lesser Florican both kinds of birds which are on the verge of extinction, observed as under:

48.6 In this context, I would also like to refer to the relevant Articles of the Cartagena Protocol on Biosafety to the Convention on Biological Diversity which specifically deals with living modified organisms to mean any living organism that possesses a novel combination of genetic material obtained through the use of modern biotechnology (Article 3g) as well as Articles 15 and 16 of the said Protocol which deal with risk assessment and risk management respectively. It is necessary to refer to the said Articles as India is a signatory to the said Protocol and Convention.

I may further refer to the Convention on Biological Diversity and particularly, on Article 8(g) which states that each contracting party shall, as far as possible and as appropriate establish or maintain means to regulate, manage or control the risks associated with the use of release of living modified organisms resulting from biotechnology which are likely to have adverse environmental impacts that could affect the conservation and sustainable use of biological diversity, taking also into account the risks to human health.

48.7 It is too late in the day to even entertain the proposition that the protection of our natural environment and ecology is not a constitutional imperative. The evolution of the right to a safe and healthy environment and the concomitant duty of the State to uphold public trust and abide by inter-generational equity and the precautionary principle in environmental regulation is the bedrock of environmental constitutionalism. The environmental rights regime is a product of decades of environmental litigation by civil society, social movements, affected communities and the general citizenry. In that sense, environmental constitutionalism is a facet of transformative constitutionalism touching upon the socio-economic lives of citizens. In other words, the affected communities must have a substantive role in environmental governance.

48.8 While this court in T.N. Godavarman has crystallised the role of environmental regulators and the Executive arm of the State since it mandates adequate technical capacity and effectiveness so as to attain optimal environmental performance, a weak regulatory regime can render environmental rights illusory. At the same time, technical capacity and effective regulation cannot be realised without democratic engagement, dialogue and deliberation. The aspiration of transformative environmental governance cannot be realised merely through an effective bureaucracy and sound technical expertise. Environmental democracy and environmental rights are two sides of the same coin. In this regard, the facts of this case shed light on the salience of the legislative role in preserving environmental democracy.

48.9 Environmental decision-making in a rapidly changing climate requires healthy contestation of alternative worldviews, interests and rights. Only through such contestation can a fine and sustainable balance between development and the environment be arrived at. The Department-related Parliamentary Standing Committees and other legislative committees discharge important functions. In the context of the environment, these committees are mandated to scrutinise public issues from multiple perspectives, appreciate available evidence, consult experts and the members of the affected communities and thereafter render a principled and considered report. Open and transparent deliberation on expert knowledge increases accountability and acts as a safeguard against conflict of interest but not a closed door decision making process.

48.10 Consequently, I hold that the approval dated 18.10.2022 and consequent decision dated 25.10.2022 for environmental release of transgenic mustard hybrid DMH-11 violate the precautionary principle inasmuch as there has been no determination made, as to, whether, transgenic mustard hybrid DMH-11 is a HT crop and if so, the nature of risk that would be caused by the said plant to the environment including other plants as well as to human beings and animals. The deliberations have not focussed inter alia, on the aspects of biosafety, risk assessment, soil health, micro-biology and socioeconomic aspects etc. Moreover, the recommendations of the TEC and Parliamentary Standing Committees Reports on Agriculture and on Science and Technology, Environment and Forest have not been considered. Consequently, directions have been issued in the succeeding paragraphs.

Conclusion:

49. In view of the aforesaid discussion and findings, I conclude as under:

50. Consequently, I issue the following directions:

The aforesaid directions have been issued by me bearing in mind, Articles 14 and 21 of the Fundamental Rights; Article 48A of the Directive Principles of State Policy of the Constitution as well as the statutory framework applicable to the controversy under consideration.

51. The writ petitions are disposed of in the aforesaid terms and the civil appeal does not survive for any further consideration and hence stands disposed of.

The contempt proceedings are dropped without expressing any opinion on the merits of those petitions.

Per Sanjay Karol J.

Table of Contents

Preface

Procedural History

Statutory Framework

Issues for Consideration

Conditional Approval of the GEAC

Precautionary Principle

Conclusions & Directions

1. I have perused the erudite opinion of my sister, Honble Mrs. Justice B.V. Nagarathna. However, I am unable to agree with the findings, conclusions so drawn and certain directions given, therefore I deem it appropriate to pen down my independent opinion and issue directions.

Preface

2. The present lis concerns 6 petitions: 3 Writ Petitions (W.P. (C) No. 115 of 2004; W.P. (C) No. 260 of 2005 and W.P. (C) No. 840 of 2016), 2 Contempt Petitions (Contempt Petition (C) No. 295 of 2007 and Contempt Petition No.6 of 2016) and 1 Civil Appeal (Civil Appeal No. 4086 of 2006).

3. In the batch of Writ Petitions, under Article 32 of the Constitution of India, the lead matter was filed in 2004 (W.P. (C) No.115 of 2004) praying for issuance of the Writ of Mandamus to the Respondents directing them to:

4. Writ Petition (C) No.260 of 2005 came to be filed seeking the following directions to the Union of India:

5. Writ Petition (C) No.840 of 2016 was filed seeking a Writ of Mandamus or direction to the effect of:

6. Contempt Petition (C) No.295 of 2007 was filed alleging contempt of orders of this Court dated 22.09.2006, 08.05.2007 and 01.08.2007. Contempt Petition (C) No.06 of 2016 was filed alleging contempt of orders of this Court dated 15.02.2007, 08.05.2007, 08.04.2008 and 12.08.2008. These orders come to be discussed in the foregoing paragraphs.

7. Civil Appeal No.4086 of 2006 came to be filed against order of the Appellate Authority dated 08.10.2003, dismissing the appeal filed by the Appellant in Appeal No.2 of 2002, whereby the approval granted to Bt Cotton dated 05.04.2002 was assailed.

8. This Court is often presented with situations where two competent interests call upon it to undertake a balancing act which is akin to threading a needle or, in other words, undertake a task of considerable difficulty. This case is one such task. On the one hand, is a group of concerned, informed individuals and organisations apprehensive about the potential impacts of new technology on the environment, agriculture, health and other socio-economic parameters; and on the other, is the government/competent authority batting for a cautious but optimistic approach furthering scientific and agricultural development, underscoring its importance in line with growing concerns of food security, population, economics and other matters of national interest.

9. The former argues the dangers of unpredictability, unknowability of the effect of human intervention in seed production and otherwise pushes for the adoption of a precautionary approach while the latter insists on a stand which is not governed by fear of the unknown and the importance of backing scientific advancement and adventures, exploring its positive aspects and their integration into human society. This Court now hangs in the balance, upon being asked to adjudicate these prima facie well founded concerns and interests which are ostensibly at variance with one another.

10. Throughout this judgment, certain terms will form the mainstay of the discussion, and adequate understanding of which, is imperative for arriving at a just conclusion. At the core, the question revolves around genetically modified organisms, their regulation and release into the environment. For ease of understanding, some of those terms are defined at the outset.

10.1 Genetically Modified Organisms (hereinafter referred to as GMOs) have been defined by the World Health Organisation (WHO) as follows:

10.2 GMOs, for our purposes, have two types- Bt (Bacillus thuringiensis) [a preparation of a bacterium (Bacillus Thuringiensis) often modified by genetic engineering for use as a biopesticide against insects and especially lepidopteran larvae[1]], and Ht (Herbicide Tolerant). [Herbicide-tolerant crops can be produced by either insertion of a “foreign” gene from another organism into a crop, or by regenerating herbicide-tolerant mutants from existing crop germplasm.[2]]

10.3 Genetic Engineering Approval[3] Committee (hereinafter referred to as GEAC) is a committee constituted under The Manufacture, Use, Import, Export And Storage Of Hazardous Micro Organisms Genetically Engineered Organisms Or Cells Rules, 1989 (hereinafter referred to as 1989 Rules) which are in turn framed under the Environment Protection Act, 1986 (hereinafter referred to as EPA, 1986) responsible for approval of proposals relating to release of genetically engineered organisms and products into the environment including experiment Field trials.

10.4 Review Committee on Genetic Manipulation (hereinafter referred to as RCGM) is a committee under 1989 Rules tasked with monitoring the safety related aspects in respect of on-going research projects and activities involving genetically engineered organisms/hazardous microorganisms.

Procedural History

11. This Court has been actively engaged since 2004, with regard to the trial of GMOs, which is the subject matter at hand. Over the intervening years, this Court has issued a slew of orders and accordingly, in the subsequent paragraphs, I have traced the brief history of them.

11.1 On 29.03.2004, notice was issued in the matter. Thereafter, on 01.05.2006, this Court directed that the field trials of GMOs shall be conducted only with the express approval of the GEAC. On 22.09.2006, it was directed that the GEAC will withhold approvals until further orders of this Court and it was suggested to the Union of India, that they should consider associating independent experts in the GEAC.

11.2 On 13.10.2006, this Court granted permission to plant the newly developed DMH-11 (Mustard) for experimental purpose in specifically identified fields. Thereafter, on 15.12.2006, the attention of this Court was drawn to Clause (23) of the Convention on Biological Diversity, which recommended that there is inadequate basis to assess the potential risks of genetic use technologies due to which the use of products involving this technology or field testing should not be approved till there is appropriate scientific data, in accordance with the precautionary principle. Taking note of this, the Court directed the GEAC to consider the impact of field testing being carried out.

11.3 On 15.02.2007, this Court recorded the submission of the Union of India that within 6 weeks, it would bring on record the implications and the biological results of the field tests being conducted.

11.4 Thereafter, on 08.05.2007, the Union of India sought modification of the order dated 22.09.2006 whereby further approvals by GEAC were halted. This Court allowed the GEAC to consider applications for use of Bt Cotton varieties for commercial use, subject to the usual conditions imposed provided that the GEAC verifies the creation of any toxicity with the use of varieties of Bt Cotton. It further directed the GEAC:

11.5 On 01.08.2007, this Court recorded the submission of the learned Additional Solicitor General, that allergenicity and toxicity tests have been conducted on Bt Cotton and the information would be put on the website of the GEAC.

11.6 On 08.04.2008, the Petitioners sought modification of order dated 08.05.2007, to the effect that the distance between fields must depend on the nature of the crop. Further, the Petitioners contended that the validated protocol for field testing should be 0.01%. This Court directed the GEAC to examine both these issues and recorded the submission of the learned Additional Solicitor General that the data qua Bt brinjal and Bt cotton has been put on the website of the GEAC.

11.7 On 12.08.2008, the Petitioners raised objection to noncompliance of Order dated 08.04.2008, thereafter, this Court directed the Union of India to file proof regarding compliance of the said order.

11.8 Pertinently, vide Order dated 10.05.2012, this Court appointed a Technical Expert Committee (hereinafter “TEC”) to look into various issues raised in the pleadings before the Court and submit a report within 3 months. The members of this Committee were: 1. Prof. VL Chopra; 2. Dr. Imran Siddiqui; 3. Dr. PS Ramakrishna; 4. Prof. PC Chauhan; 5. Prof. PC Kesavan and 6. Dr. B Siva Kumar. Vide this Order, the Court also granted TEC the liberty to file an interim report, in case the final report is not prepared within the abovementioned time period. The terms of reference and the report of the TEC will be discussed in detail in the discussion which follows.

11.9 The interim report of the TEC was received by this Court on 07.10.2012. Vide order dated 09.11.2012, the Union of India was directed to file its objections to the interim report, with the TEC itself for consideration. Furthermore, in place of Prof. VL Chopra, Dr. Rajendra Singh Paroda was appointed as a member of the Committee. On 23.08.2013, this Court acknowledged receipt of the final report of the TEC.

11.10 Thereafter, on 07.10.2016, the Union of India submitted that no release of GMOs will be made till 17.10.2016 since the Government has sought views from the public and on receipt of such views, they will be considered by a committee of experts. On 22.11.2017, when this matter was taken up for consideration, the Union of India apprised the Court that it had not taken a final decision, on the issue of plantation of GM Mustard and that all stakeholders shall be considered before taking a final decision.

11.11 Coming to the present timeline, on 18.10.2022 the GEAC granted conditional approval for conducting trials of DMH-11/GM Mustard. The same was communicated to the applicants on 25.10.2022. In terms of the above developments, the Petitioners have handed over updated prayers in Court seeking:

Statutory Framework

12. At the outset, it is imperative to discuss the statutory framework relating to GMOs. The Seeds Act enacted by the Legislature in 1966, notified on 29.12.1966, regulates the quality of seeds for sale and other connected matters. S.3 of this Act, created the Central Seed Committee to advise the Government on matters relating to the said Act. S.4 mandates creation of the Central Seed Laboratory and State Seed Laboratory. S.7 regulates the sale of certain varieties of seeds, which have been so notified.

13. The Insecticides Act, 1968 was enacted to regulate the use of insecticides with a view to prevent risk to human beings or animals. S.4 of this Act, constitutes the Central Insecticides Board to “advise the Central Government and State Government on technical matters arising out of the administration of this Act.” S.5 constitutes a Registration Committee, to “register insecticides after scrutinising their formulae and verifying claims made by the importer or the manufacturer, as the case may be, as regards their efficacy and safety to human beings and animals.”

14. The EPA, 1986 was enacted with a view to improve the environment and its protection mechanisms.

15. The 1989 Rules were enacted by the Central Government under the EPA, 1986 with a view to protecting the environment, nature and health, in connection with the application of gene-technology and micro-organisms.

16. In furtherance of the United Nations Convention on Biological Diversity, which has been ratified by India, The Biological Diversity Act, 2002 came to be introduced into the statute book. The aim and objective of this Act is to provide for conservation of biological diversity and its sustainable use. S.36 of this Act directs the Central Government to take measures for protection of biological diversity, its resources and habitats from environmental degradation and neglect.

17. The Food Safety and Standards Act, 2006 is aimed at laying down science based standards for articles of food and to ensure availability of safe and wholesome food for human consumption. S.22 provides that no person shall manufacture, distribute or import any genetically modified articles of food or other articles of food enumerated therein.

Issues for Consideration

18. I have heard extensive arguments on both sides, Mr. Sanjay Parikh, Mr. Trideep Pais, learned senior counsel, learned Advocates-on-Record Mr. Prashant Bhushan and Dr. Ravindra Chingale for the Petitioners and, Mr. R. Venkatramani learned Attorney General, Mr. Tushar Mehta learned Solicitor General and Ms. Preeti Kumari for the Respondents. The judgment proposed by my esteemed colleague, Honble Mrs. Justice B.V. Nagarathna, records in detail the submissions advanced by all the learned counsel and so, for the sake of brevity I avoid doing the same. Principally, following issues are to be considered :

Here, it stands clarified that sub-issues/ancillary aspects to the above questions, have been dealt with as the opinion progresses.

Conditional Approval of the GEAC

19. The pressing challenge raised by the Petitioners, is the decision of the GEAC to conditionally approve environmental release of transgenic mustard, DMH-11 on varied grounds granted to the applicant namely the Centre for Genetic Manipulation of Crop Plants (CGMCP), University of Delhi, New Delhi. This Centre was set up to undertake research on genetic engineering and molecular breeding of oilseed brassicas[4]. Before adverting to the challenges made, this Court must note the timeline leading up to the impugned approval.

20. On 29.09.2010, in the 103rd GEAC Meeting was where for the first time approval was granted for BRL-I level trials at 3 locations, namely, Krishi Vigyan Kendra, Kumher, Bharatpur, Rajasthan; Agricultural Research Station, Navgaon, Alwar, Rajasthan; Agricultural Research Station, Sriganganagar, Rajasthan. The Committee also approved the conduct of crossibility studies and limited seed production within the institutional research farm located at Jaunti village and Bawana, Delhi respectively. Thereafter on 21.09.2011, the GEAC granted further approval to conduct environmental safety studies on DMH-11. In the 121st meeting dated 18.07.2014, BRL-II trials in respect of DMH-11 were approved at different locations subject to submission of NOC from the State Government.

21. In the 126th Meeting of the GEAC, on 04.01.2016, a subcommittee was constituted to further deliberate on the issues raised during deliberations of DMH-11. This was followed by the GEAC on 11.05.2017, examining the report of this sub-committee and recommending the proposal for environmental release of DMH-11 with terms and conditions for further approval by Competent Authority. In the next meeting on 21.03.2018, the GEAC re-examined its decision to grant permission for environmental release of DMH-11 and advised the applicant to undertake field demonstration studies on GM Mustard to generate additional data.

22. On 20.09.2018 in its 136th meeting GEAC approved the application and the protocols for conduct of field demonstration studies on honeybees and other pollinators prepared by University of Delhi and ICAR-AICRP on honeybees at two locations up to 5 acres in each location namely PAU, Ludhiana and IARI, New Delhi and, for conduct of two field studies to assess hybrid seed efficiency and for maintenance of male sterile barnase line bn 3.6.

23. This brings us to the 146th Meeting of GEAC held on 25.08.2022, wherein pursuant to a presentation by the applicant, the GEAC constituted a committee to examine availability of adequate evidence about impact of transgenic mustard on honeybees and other pollinators to assess the need for conducting field demonstration studies.

24. On 18.10.2022, the 147th Meeting of the GEAC was held wherein it considered the report of the Committee and recommended environmental release of DMH-11. Thereafter on 25.10.2022, a letter was issued to the Applicant stating that the environmental release of genetically engineered mustard/DMH-11 has been recommended. The following conditions, amongst others, were imposed on this release:

Judicial Review of the Impugned Decision

25. The challenges raised by the Petitioners to this decision can be summarised as follows:

25 (a) 1. At the outset, I must consider, the scope of judicial review to be exercised in such matters. This Court in the case of N.D. Jayal v. Union of India (3-Judge Bench) [5], which related to the safety of dams, observed that:

25 (a) 2. Furthermore, this Court in the case State of NCT of Delhi v. Sanjeev (2-Judge Bench) [6] elaborated on when judicial review should be exercised vis-a-vis decisions of the Government. It was observed:

25 (a) 3. The scope of this judicial review of administrative action was also discussed by this Court in Jagdish Mandal v. State of Orissa (2 – Judge Bench) [7]. In this case, the Court held that the purpose of judicial review is to check whether the decision has been made lawfully and not as to whether such decision is sound or not.

25 (a) 4. This Court in Villianur lyarkkai Padukappu Maiyam v. Union of India, (3-Judge Bench) [8] observed that:

25 (a) 5. In Academy of Nutrition Improvement v. Union of India, (2-Judge Bench) [9] where the challenge to iodised salt was made and it was reiterated that:

25 (a) 6. A similar view was taken in Lafarge Umiam Mining (P) Ltd. v. Union of India (3-Judge Bench) [10], wherein this Court observed:

25 (a) 7. Recently in Jacob Puliyel v. Union of India and Ors.[11] (2-Judge Bench), while considering the vaccination policy due to COVID-19, this Court reiterated the scope of judicial review with policy decisions of the executive. Arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. Relying on Delhi Development Authority v. Joint Action Committee, Allottee of SFS Flats (2-Judge Bench)[12], this Court explained that a policy decisions can be subject to judicial review (a) if it is unconstitutional; (b) if it is dehors the provisions of the Act and the regulations; (c) if the delegatee has acted beyond its powers of delegation; (d) if the executive policy is contrary to the statutory or a larger policy. It was further stated:

25 (a) 8. A perusal of the above decisions makes clear two important factors. It is evident that judicial review so far as economic or policy matters is concerned is circumscribed but at the same time it is also apparent that the scope of the possibility of the Courts intervention has been expanded over time. The generally accepted yardstick would be that the merits of a decision are ordinarily not examined to accommodate the possibility of a better alternative nor does it scuttle the governments ability to achieve the best outcome through trial and error but at the same time if any of the decisions made are such that the vires of the process would be affected or in other words, that the decision taken is compromised in regard to the manner in which it was arrived at, then, the Courts would be within terms to exercise its jurisdiction of judicial review.

25 (a) 9. Keeping in mind the above standard of judicial review, I now proceed to examine the first issue at hand.

25 (a) 10. Adverting to the first contention, the Petitioners have sought to place reliance on the judgment of this Court in Kantha Vibhag Yuva Koli Samaj Parivartan Trust v. State of Gujarat (2-Judge Bench) [13], wherein this Court while considering the functions of the NGT observed:

25 (a) 11. This decision has come to be followed by this Court in Singrauli Super Thermal Power Station v. Ashwani Kumar Dubey (2-Judge Bench)[14].

25 (a) 12. Keeping in view of the above, what this Court must examine is whether in the appointment and acceptance of the recommendation of the expert committee, the GEAC has delegated its core function, in view of the 1989 Rules.

25 (a) 13. Under the 1989 Rules, the GEAC functioning as a body under the Department of Environment, Forests and Wildlife has been made responsible for approval of proposals relating to release of genetically engineered organisms and products into the environment including experimental field trials. Therefore, the primary function that has been given to the GEAC, is this process of granting approvals. The composition of this Committee, along with representatives from different departments of the executive, has to include three outside experts in individual capacity.

25 (a) 14. On a perusal of the timeline for conditional approval of DMH-11, the GEAC has constituted a sub-committee and expert committee respectively, in its 126th and 146th meeting, with a specific purpose on each occasion. In my considered view, this cannot be said to be delegating its core function.

25 (a) 15. In Kantha Vibhag Yuva Koli Samaj (supra), which the Petitioners place reliance on, the body involved, i.e., the NGT exercises judicial functions, which is clearly distinct from the GEAC which is responsible for granting approvals for the release of GMOs and not performing any quasi-judicial function. Therefore, it cannot be said that the exposition in the above case, applies squarely to the case at hand.

25 (a) 16. Furthermore, in the said decision, it was explicitly stated in paragraph 22 that “expert committees may be appointed to assist the NGT in the performance of its task and as an adjunct to its fact-finding role”. In my view, this is squarely, the function performed by the sub-committee/expert committee constituted by the GEAC, i.e., assistance in granting approvals.

25 (a) 17. The present factual circumstance is not a case, where the approval process itself has been delegated to the sub-committee/expert committee. A specific purpose was set out for the committee, on which a report was submitted back to the GEAC. Illustratively, the mandate of the expert committee may be referred to, the relevant extract is as under:

25 (a) 18. It is evident from the above extract that the expert committee was constituted for a limited purpose and was only a part of the larger decision-making process. On the perusal of said report and other materials, the impugned decision came to be passed.

25 (a) 19. As submitted on behalf of Union of India, a Constitution Bench of this Court in State of U.P. v. Batuk Deo Pati Tripathi (5-Judge Bench)[15] expounded that:

25 (a) 20. This decision was followed in Khargram Panchayat Samiti v. State of West Bengal (2-Judge Bench)[16], wherein it was observed:

25 (a) 21. Applying the above observations of this Court, would mean that the power of the GEAC, to grant approvals, necessarily carries with it the power to regulate the manner, in which the approvals are so granted. The mere absence of a specific statement in the 1989 Rules allowing assistance of expert committees, would not preclude the GEAC from doing so, in furtherance of its main objective.

25 (a) 22. Reference must also be made to the decision of this Court in Inspector General of Registration v. K. Baskaran (2-Judge Bench)[17], wherein after consideration of a number of judgments concluded as under:

25 (a) 23. Therefore, in view of the above conspectus, the decision of the GEAC cannot be said to be vitiated by delegation.

25 (b) 1. Another challenge that has been laid by the Petitioners to the impugned decision, is non-application of mind. In my considered view, this submission does not stand.

25 (b) 2. The expert committee appointed in the 146th meeting of the GEAC dated 25.08.2022, submitted its report and a reading of the same would show that a barnase/barstar proteins introduced in GE Mustard are not novel to honeybees and thus they do not discriminate between GE and non GE canola, it further relied on data collected from Canada and Australia. Pursuant to which it recommended the environmental release of GE Mustard. The conditional approval granted vide letter dated 08.10.2022 of the MoEFCC shows that the approval so granted was on the basis of multiple documents and not only the comments of the expert committee, as alleged by the Petitioners. Considering the importance of the issue, the potential magnitude of its (the decision of the GEACs) impact, it was found prudent by the decision-making authority to call for the comments of the Department of Biotechnology (received on 01.08.2022) and the Department of Agricultural Research and Education (received on 30.07.2022), which are departments under their respective Ministries. It would be apposite to briefly advert to their mission, roles, responsibilities and mandates.

25 (b) 3. Taking in consideration all the above aspects, one cannot possibly fault the GEAC in asking for the opinion and understanding of these two departments. Having so received their comments, an expert committee within the GEAC was formed to evaluate the presence/absence of sufficient literature regarding the effect of GM crops on honeybees, exemption from further trial for which, was sought by the applicant. This Committee then, also considered such comments and gave its finding, in conformity with the mandate given to it.

25 (b) 4. Also, it is to be noted that the conditional release of DMH-11 was made subject to several conditions including, among others, that the MoEFCC/GEAC may impose further conditions as may be necessary. Such conditions include the revocation of approval in case adverse impact is shown on environment or human health; it is made subject to other statutory clearances including the clearance from Food Safety and Standards Authority of India, Seeds Act. Additionally, it imposes certain obligations on the applicant including obligation to inform regulatory bodies as soon as any adverse impact is shown; obligation to submit annual/seasonal report of the yield etc. to the GEAC.

25 (b) 5. Therefore, the contentions that the primary function of the GEAC has been delegated to the expert committee and that it was granted without application of mind is sufficiently contravened by record. In that view of the matter, the conditional approval of DMH-11 granted by the GEAC, is upheld as being independent, reasoned and in consonance with the rules.

Constitutionality of the 1989 Rules

26. The Petitioners have also laid challenge to the constitutional validity of the 1989 Rules on the ground that they are violative of Article 14 and Article 21 of the Constitution of India. The primary prong of this attack is that the constitution of the GEAC, in the submission of the Petitioners is lopsided with bureaucratic influence with the same being evidenced by the top three positions therein being occupied by such persons. Before delving into the substance of the challenge, it would be apposite to appreciate certain pronouncements of this Court wherein such challenges were adjudicated.

26.1. In the landmark case of E.P. Royappa v. State of T.N. [18] (5-Judge Bench), this Court while dealing with Article 14 and Article 16 observed that :

26.2. On similar lines, in State of T. N. & Ors. v. Ananthi Ammal[19] (3-Judge Bench) this Court observed:

26.3. Furthermore, in State of A.P. v. McDowell & Co., [20] (3-Judge Bench), this Court observed that the restrictions on the lawmaking power of legislatures is similar to those under the Federal Constitution of the United States of America. The two grounds on which a law made by the Parliament or the legislature can be struck down are – (1) lack of legislative competence; and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no third ground. It held:

26.4. In Onkar Lal Bajaj v. Union of India[21] (2-Judge Bench), it was held:

26.5. In S M & T Consultants v. S.Y. Nawab (2-Judge Bench)[22] this Court reiterated the principle given in Delhi Science Forum v. Union of India (3-Judge Bench)[23] wherein it was observed:

26.6. In order to declare a legislation violative of Article 14 of the Constitution of India, arbitrariness on the part of the legislature should, ordinarily, be manifest arbitrariness, as has been held by this Court in Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group (2-Judge Bench)[24].

26.7. Similarly, in A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy, (2-Judge Bench)[25], this Court held that substantive unreasonableness should be shown in the statute itself in order to declare it ultra vires the Constitution. It has been held that

26.8. The principle that to declare an Act ultra vires under Article 14, the Court must be satisfied in respect of substantive unreasonableness in the statute itself stood reiterated by this Court in State of T.N. v. K. Shyam Sunder (3-Judge Bench)[26].

26.9. Recently, this Court in Association for Democratic Reforms & Anr v. Union of India & Ors. (5-Judge Bench)[27], while relying on Dharam Dutt v. Union of India (2-Judge Bench)[28] extensively discussed this principle. It held as follows:

26.10. A perusal of the judgments referred to supra shows two primary grounds upon which the validity of a legislation or, in our case Rules made under a legislation, may be put to challenge. One is legislative competence and the second is manifest arbitrariness. The former is not an aspect of challenge. In view of S.6 (rules to regulate environmental pollution), S.8 (persons handling hazardous substances to comply with procedural safeguards) and S.25 (empowers the Central Government for making rules to carry out the purposes of the EPA) of the EPA 1986, 1989 Rules were made to protect the environment, nature and health, in connection with the application of gene-technology and micro-organisms.

26.11. The latter, that is manifest arbitrariness, has been recognized as a ground upon which a legislative enactment can be judicially reviewed. [See: K.S. Puttaswamy v. Union of India (5-Judge Bench) [29] and Madras Bar Association v. Union of India & Anr. (3-Judge Bench)[30]] Equally, it is to be noticed that in Indian Express Newspaper v. Union of India (3-Judge Bench)[31] it was stated that subordinate legislation can be challenged on any ground available against the plenary legislation. In other words, the distinction between subordinate and plenary legislation is erased when it comes to a challenge under Article 14 of the Constitution of India.

26.12. In Khoday Distilleries Ltd. v. State of Karnataka (3-Judge Bench)[32], this Court held :

26.13. In Shayara Bano v. Union of India & Ors. (5-Judge Bench)[33], RF Nariman J., while dissenting with the majority, observed :

26.14. Neither in the limited pleadings made before this Court nor in the extensive oral arguments advanced was the point of the rules being allegedly manifestly arbitrary, addressed adequately. On an independent analysis, I am unable to find any of the aspects of manifest arbitrariness to have been met, much less on the ground that bureaucratic influence taints the functioning of the GEAC. This aspect further stands amplified herein, later.

27. On a further count, this challenge, in my view fails. The 1989 Rules present a well-rounded mechanism to deal with GMOs and their introduction into fields of common usage.

27.1. Rule 4 of the 1989 Rules provide for the six different competent authorities to oversee the research and regulations in the field of GMOs, whose functions are elaborated herein.

27.2. Rule 7 of the 1989 Rules deals with approval and prohibitions.

27.3. Rule 10 states that except with the approval GEAC, no substances and products containing genetically engineered organisms or cells or microorganisms shall be produced, sold, imported or used.

27.4. Rule 12 provides for guidelines wherein person who applies for approval under the Rules 8-11 is obligated to submit information and make examinations or cause examinations to be made to elucidate its case, including examinations according to specific directions and at specific laboratories. Before obtaining the approval, it is his responsibility to make available an on-site emergency plan to the GEAC. Further, an obligation is imposed upon the person to whom an approval has been granted, to notify the GEAC of any change in or addition to the information already submitted.

27.5. Rule 13 provides for grant of approval and the same is reproduced herein:

27.6. Rule 14 deals with general supervision of GEAC in the implementation of the terms and conditions laid down in connection with the approvals accorded by it and such supervision could be carried out through the SBCC or the State Pollution Control Boards/DLC or through any person authorised in this behalf.

27.7. Rule 15 deals with penalties which can be imposed. It reads as:

27.8. Rule 19, as noted above, provides for mechanism of appeal from the decision of GEAC.

27.9. The above extracted rules, as is evident lay down a clear mandate for functioning in respect of approvals that are to be granted by the GEAC. All aspects of immediate relevance are covered thereunder, i.e., the monitoring of safety regulations, preparing on-site emergency plans, research, inspection, release, penalties, use and approval with respect to GMOs/hazardous microorganisms/cells. The existence of various committees with certain, specified responsibilities, their composition; the providing of procedure for the most essential function which is the grant of approvals; appeals on being dissatisfied therefrom (grant or denial) shows that each body within the Rules has a role to play and the fate of an application is not solely in the hands of one body. In none of these Rules could I find even the slightest hint of manifest arbitrariness. None of the parts of the Rules can be said to be irrational, capricious or without adequate determining principle, on the contrary, as displayed, a clear rationale is discernible.

27.10. In particular, the primary ground of challenge by the Petitioner as noticed above must be addressed. To do so, notice must also be taken of the Union of Indias submission that it is mandatory for all expert/members/Government officials of GEAC and RCGM to sign a declaration of independence, confirming that they have no involvement or financial interest in the development, promotion or commercialisation of GM/transgenic crops. Members are also required to inform the RCGM and GEAC in case they have a conflict of interest, in such cases, the member involved does not participate in the deliberations. It has to be said that the composition of one of the Committees framed under the Rules allegedly suffering from some infirmity is not sufficient ground in the least, to vitiate the Rules on the whole. At the same time, it is also recognised that the GEAC is the apex body and its constitution therefrom assumes importance. Therefore, if the Petitioners had any qualms about its members, their objections should have been limited only thereto. As a secondary aide, a sweeping submission has been made that the 1989 Rules violates the Precautionary Principle however, how that is so is yet unclear.

27.11. Adverting particularly to the composition of the GEAC, the relevant rule reads as under:

27.12. It is evident that the top position in the GEAC is occupied by a person of the rank of Additional Secretary to the Government of India and the Vice Chairman is the member of the Department of Biotechnology, however, other members such as in Clause (iii) while being Government employees, possibly are still members working in specialized departments whose knowledge and expertise would be relevant to the functioning of GEAC. Expert members are those who are directors/heads of eminent institutions as also others in individual capacity. The GEAC is also given the freedom to co-opt other members as and when may be required. The constitution of this Committee itself ensures that bureaucrats, in stricto senso, do not outweigh the presence of experts therein.

27.13. The Petitioner(s) contend that since the experts made part of the process, are members of Government bodies, therefore, they arguably would be unfit to be appointed. Conversely, it is averred by the Union of India that there exists a three-tier safety assessment process which involves around 60 experts most of whom are external experts from public sector institutions and universities. The effect of accepting the submission of the Petitioner(s) would mean that a person of science, by being a member simpliciter of the Government body, would be discounted as an expert. In other words, the effect would be that working for the Government is made equal to a curse, for experts who otherwise would have been inducted to the GEAC without batting so much as an eyelid.

27.14. Additionally, nowhere in the Rules can it be seen that the Chairman of the GEAC or any other bureaucratic member possesses any additional power in the functioning of the body, nor has it come on record that without the Chairman or any other Government member, the quorum with which a decision is to be reached, is incomplete.

27.15. As such, challenge to the 1989 Rules, as a consequence of the above discussion fails.

Precautionary Principle

28. I now proceed to examine, the second principle issue, which is as to whether in view of the precautionary principle, a complete ban on Ht crops is warranted or if not, what are the suitable directions that are required to be given by this Court?

TEC

28.1. Before discussing the precautionary principle, the view of the TEC appointed by this Court must be brought on record when probing the issue at hand. As discussed above, vide Order dated 10.05.2012, this Court appointed a TEC with 6 members. The terms of reference (hereinafter referred to as Tor) given to the TEC were:

28.2. The interim report of the TEC was received on 07.10.2012. In this interim report the TEC stated:

28.3. The final report of the TEC was received by this Court thereafter, wherein it was stated:

28.4. After the above observations and discussion, the TEC answered the terms of reference in the following manner:

28.5. As noted above, the TEC consisted of six members, with Dr. Rajendra Paroda substituting Prof. VL Chopra on 09.11.2012 which is post submission of the interim report, the findings of which have been noted above.

28.6. Unable to agree with the conclusions of the majority, Dr. Paroda submitted his dissent to the final report of the majority, alleging various lapses in the decision-making process. Those lapses, as pointed out are:

28.7. While these lapses pointed out by Dr. Paroda pertained to procedural aspects of the TEC however among other minor differences, twin substantial differences in respect of a) conducting field trials which the former recommends continuation in the interest of scientific development and the latter recommends against given numerous regulatory lacunae; and b) the former does not oppose the development of HT crops while the latter, once again in view of the lacunae, bats for a wholesale ban.

28.8. Dr. Paroda recommended that there should be development of comprehensive guidelines for Environmental Risk Assessment (ERA) with consultation with all stakeholders and the general public. A full time Risk Assessment Unit with permanent staff consisting of a multidisciplinary team of scientists should be established. National Agriculture Research System (NARS) should lead agronomic performance testing and release of GM varieties/hybrids in line with the National Seed Policy while making use of already existing procedures under AICRP.

28.9. He was further of the view that the proper evaluation of a Genetically Engineered plant is scientifically not tenable in a contained greenhouse and confined field testing is the right option for a realistic evaluation of any GE plant. Each confined field trial must be monitored by a site specific monitoring committee. A well-designed case-to-case postrelease monitoring system must be put in place to address specific post-release issues identified during the event approval by GEAC. RCGM and GEAC should review isolation distances for confined field trials and suitability of additional measures. Research projects must be funded by DBT, ICAR and relevant arm of the Government. Accredited laboratories must be notified for detection of GM crops. The regulatory authorities should develop a system of examining papers or reports about the adverse effects of GM crops and communicate the same to public. Special fund allocation is desirable for the purpose of creating public awareness.

28.10. I am not inclined to accept the objections raised by the Petitioners, for consideration of the report of Dr. Paroda. Given that the substance in issue is scientific in nature, the minority report cannot be ignored entirely. After perusing both the reports, while there are certain differences, one also finds substantial similarities. They may be noted:

28.11. With respect to the objections raised by the Union of India, to the TEC report, that the TEC went beyond its scope, a perusal of the recommendations made, juxtaposed with the Tor, one finds that the latter are largely within the scope of the question that had been put to them. The TEC has confined itself only to issues relevant to answering Tors.

28.12. As discussed earlier, in Kantha Vibhag (supra), this Court observed that:

28.13. The above observations make it abundantly clear that this Court is not bound by the conclusions reached by its own expert committee. The report of the expert committee is important for the court to be apprised of the technical aspects of a particular dispute by independent experts. For a court or tribunal to rely entirely on the report of an expert committee would be improper as this would amount to the court abdicating its own adjudicatory function and replacing its wisdom with that of the expert committee.

Parliamentary Standing Committee Reports

29. There are two reports of Parliamentary Standing Committees on this issue. The first one being, the 37th Report of the Committee on Agriculture (2011-2012) titled Cultivation of Genetically Modified Food Crops – Prospects and Effects dated 09.08.2012. The Committee considered oral and documentary evidence, thereafter made the following observations:

29.1. At this stage, the Petitioners have placed reliance on the 301^st Report of the Parliamentary Standing Committee on Science and Technology, Environment and Forest titled “Genetically Modified Crops and its Impact on Environment” dated 25.08.2017.

29.2. In response to the above reports, the Union of India has submitted a compliance chart, stating that most of the lacunae that has been pointed out by the Committees, has been complied with and that the present regulatory system is in consonance with international standards and safeguards, to ensure that the precautionary approach is complied with. Another argument that has been put forth on behalf of the Union of India is that these reports are from the year 2012 and 2017, respectively and thereafter, in the past 7 years, the scientific research has come a long way.

29.3. The evidentiary value of such reports is no longer res integra and was clarified by a Constitution Bench of this Court in Kalpana Mehta v. Union of India (5-Judge Bench)[34]. Dipak Misra, CJI (as he then was), observed:

29.4. The detailed discussion on the value of Parliamentary Committee reports as undertaken by the Constitution Bench sheds light by holding that there is no bar in taking into consideration such reports under Article 32 or Article 136 of the Constitution of India. At the same time, it has been observed that they are not to be taken as conclusive proof of fact and the Court in performing its adjudicatory functions has to decide on the basis of materials before it, however the latter should not be taken to mean that credit of such report is impeached.

29.5. The question at hand is the adequacy of the assessment and approval procedures for GM Crops. The task of this Court, is therefore to examine whether the impugned procedures rise to the level of a violation of fundamental rights. This is a legal determination to be made by this Court, based on all materials placed before it and a wholistic view of the matter. Even if the TEC and parliamentary standing committees have found certain issues with the procedures governing GM crops, that cannot automatically lead to the conclusion that gaps in the impugned procedures result in a violation of Part III of the Constitution of India and must be invalidated or that the impugned action be stalled. Therefore, I now proceed to examine, whether the gaps pointed out in the abovementioned reports, would reach the threshold of violating the precautionary principle and in that view of the matter, what directions must be given.

Scope of Precautionary Principle

30. The genesis of the precautionary principle in India can be traced back to the decision of this Court in Vellore Citizens Welfare Forum v. Union of India (3-Judge Bench)[35], wherein it was held that the precautionary principle is an essential feature of the principle of sustainable development. It went on to explain the precautionary principle in the following terms:

30.1. This principle over the years, has been developed further and recognised as an integral part of the Indian Constitution. Recently, in Hospitality Association of Mudumalai v. In Defence of Environment & Animals (3-Judge Bench)[36], this Court reiterated that the precautionary principle forms part of the Constitution of India under Articles 21, 47, 48 and 51-A(g). The requirement placed on the Government under the precautionary principle to “anticipate, prevent and attack the causes of environmental degradation” was emphatically reiterated.

30.2. This Court has clarified that a precautionary approach, is not one which is opposed to development. In N.D. Jayal (Supra) while relying on Vellore Citizens’ Welfare Forum (supra) and M.C. Mehta v. Union of India (3-Judge Bench)[37], emphasis was laid on sustainable development. This Court observed that the balance between environmental protection and developmental activities could only be maintained by strictly following the principle of “sustainable development”. This is a development strategy that caters to the needs of the present without negotiating the ability of upcoming generations to satisfy their needs. The strict observance of sustainable development will put us on a path that ensures development while protecting the environment, a path that works for all people and for all generations. It is a guarantee to the present and a bequeath to the future. All environment-related developmental activities should benefit more people while maintaining the environmental balance. This could be ensured only by strict adherence to sustainable development without which the life of the coming generations will be in jeopardy.

30.3. The necessity to strike a balance between development and ecology was reiterated by this Court in Karnataka Industrial Areas Development Board v. C. Kenchappa (2-Judge Bench)[38] wherein it was observed:

30.4. In Electrosteel Steels Limited v. Union of India and Ors. (2-Judge Bench)[39] while dealing with ex-post facto environmental clearances, this Court observed that the Court cannot be oblivious to the economy or others dependent on a project, if the project in question complies with environmental considerations.

30.5. Recently, in NHAI v. Pandarinathan Govindarajulu (3-Judge Bench)[40], it was observed:

30.6. A similar approach was taken in Rajeev Suri v. DDA (3-Judge Bench)[41] wherein judicial review of the Central Vista Project was sought. The majority, in this case, observed:

x x x

x x x

30.7. In M K Ranjitsinh & Ors. v. Union of India and Ors. (3-Judge Bench)[42], the need for adopting a nuanced approach, balancing two environmental goals, i.e., fighting the climatic crisis as also protection of wildlife ecology was underscored in following words:

Additional Guidelines

31. We must also, at this point, make references to the guidelines that have been brought by the Union of India, to supplement the existing framework:

32. It is in this background, having taken note of and considered the law, the relevant documents and all other essentialities, that the challenge raised by the Petitioners must be seen.

33. The conditional approval, leading to field trials for DMH-11 is in line with a developmental approach, of a scientific temper. The same has been supplemented with conditions imposed by the expert body, to facilitate mitigating measures qua the environment, which I have discussed above.

34. While examining the propriety of the conditional approval granted by the GEAC (to DMH-11) qua the precautionary principle, it becomes essential to look to the past orders of this Court, in these petitions, in order to understand the position taken, thus far, qua the activities of this body.

34 .1 As the above referred orders point out, throughout the entire process of field testing, being taken stock of, at regular intervals by the Court, it has not, even for a moment doubted the authority of the GEAC and its ability to function properly. Repeatedly, it has been emphasised that the GEAC, being the apex body would be responsible for taking all precautions/adopting safeguards and ensuring that no contamination takes place in planting of GM seeds.

34 .2 In one of the orders referred above, it has been noted that 91 field trials were underway at one point. In the extensive arguments made by the Petitioners, not even a single negative instance could be pointed out to show that the field trials impacted the agriculture, environment, biodiversity negatively or irrevocably. Furthermore, as pointed out by the Union of India, trials of DMH-11 have commenced in 6 out of the 8 sanctioned locations (seeds have been planted) and no adverse change therein has been reported thus far. The fears, raised by the Petitioners, therefore, are not substantiated by any negative occurrence.

34 .3 The members of the GEAC under the 1989 Rules, are experts in their relevant fields. The approval has come, as discussed above, in consonance with the relevant statutory framework. Furthermore, adequate safeguards have been included in the approval itself, in accordance with the precautionary principle. There is an additional ground, upon whose anvil, the decision to grant conditional approval as also the general introduction of GMOs into the sphere of common consumption, which has been sought to be banned by the present petitions, has to be weighed.

35. Whether or not the State allows or disallows the scientific experimentation of a particular kind of crop, particularly when the Central Government is the primary authority entrusted with such function, is a decision squarely within their domain and the role of the Courts therein is circumscribed to the violation of fundamental rights; manifest arbitrariness; conflict with any other law and/or other grounds of similar nature.

36. In reference to public interest, in this particular context, Article 48 of the Directive Principle of the State Policy (hereinafter referred to as DPSP) would be instructive in order for the concerned branch of the Government to frame policy and take steps in this regard being whilst being entirely in line with the Constitution of India which undoubtedly is the source of all power, legitimacy and is the ultimate guide for all actions. It states that there shall be an endeavour to organise agriculture on modern and scientific lines. State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat (7-Judge Bench)[43], observed:

37. A wholistically aware adoption of GMOs into agriculture appears to be in furtherance of this goal. The phrase wholistically aware may require some exposition. What this means is that while GMOs are brought into the agricultural scene and eventually made available for commercial use, it should be so done keeping in mind the essentiality of preserving naturally occurring seeds, ensuring that all other factors such as health, socio-economic impact, environmental/biodiversity impact, accessibility to farmers, proper control and marking of such modified crops etc. would be required to be in place.

38. In continuation to the above, reference has also to be made to Article 51A(h) of the Constitution of India which imposes a fundamental duty upon all in the following terms:

38.1 This Court in AIIMS Students’ Union v. AIIMS (3-Judge Bench)[44] observed:

38.2 Similarly, in Charu Khurana v. Union of India (2-Judge Bench)[45] , this Court observed:

39. The Union of India has submitted that comprehensive risk assessment qua GMOs cannot be done at the initial research stage and all consultations cannot take place for each application on GM crops at an early stage. It was further submitted that toxicology studies are varied on product by product basis, as per international best practices and therefore toxicity studies are undertaken as per guidelines on a case-by-case basis.

40. The experimentation in respect of GMOs, i.e. field trials, lab testing etc. would be in line with the development of a scientific temper along with the precautionary principle which has found its place within Article 21 of the Constitution of India. Field trials are a significant step in the development of crop varieties as the data representing the plants response to a particular agro-ecological environment can be collected only when such plant is grown outside in confined field trials. 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. This would be essential to developing appropriate biosafety mechanisms as well.

41. The judgments referred above recognise fundamental duties as an important guide to interpretation of the Constitution, which obviously would apply to the understanding of Article 21 as well. In Ramlila Maidan Incident, In re (2-Judge Bench)[46], the interdependency of the three parts of the constitution was highlighted by Swatanter Kumar J. (as he then was) in the following words:

42. The development of scientific temper is to be read with another limb of the DPSPs and Fundamental Duties enshrined in the Constitution that is Article 48A and Article 51A(g) respectively which speaks of protection of the environment. As already noticed above, these three parts forming the heart and soul of the Constitution have to be read as a whole and as such any and all considerations of modernising agriculture or building a scientific temper would also be required to necessarily consider and abide by the duty to protect the environment.

43. It is also to be noted that, similar to when a legislative body enacts a legislation there is a presumption of constitutionality unless proven otherwise, similarly, a policy decision when taken by the competent authority enters the fray of enforcement with a presumption in its favour of being in public interest, unless otherwise shown, demonstarted and proven to be among other grounds, manifestly arbitrary. This presumption extends, subject of course to just exceptions, to the authority having considered duties as discussed above in framing policies for GMOs.

44. It must be kept in mind that India is a global agricultural powerhouse and from an economic standpoint, rural India is still largely dependent on agriculture. This court has stated in Electrosteels (supra) that the Court cannot be oblivious to the economy. Therefore, informed agricultural policy decisions must be viewed in that conspectus, which is to further and supplement Indias development, growth and self-sustenance. The relevance of such policy decisions being that, for instance, as submitted by the Union of India, India has been dependent on imports to meet more than half of the edible oil demand [55.76%, 155.33 Lakh Tonnes (2022-23) – Rs.1,15,000/- crores in 2020-21]. Therefore, in my view, the use of GM technology has to be seen in this backdrop.

45. On numerous occassions, this Court has reiterated the view discussed in the preceding paragraphs.

45.1 This Court in State of U.P. v. Abhay Nandan Inter College[47] (2-Judge Bench) observed:

45.2 In State of Punjab v. Khan Chand[48] (5-Judge Bench), KK Mathew J. dissenting, observed:

45.3 On similar lines, in Central Inland Water Transport Corpn. v. Brojo Nath Ganguly[49] (2-Judge Bench) this Court observed:

45.4 In Premium Granites v. State of T.N[50] (2-Judge Bench), it was observed:

45.5 In the well-known, Narmada Bachao Andolan v. Union of India[51], (3-Judge Bench), this Court held:

45.6 Therefore, on this ground, interference by this Court would only be justified if it can be proven that the effect of such a decision standing would be detrimental to the public, against its interest and would ultimately impact the enjoyment of fundamental rights guaranteed by the Constitution, to a degree which would be impermissible. As has been demonstrated in the preceding paragraphs, that threshold cannot be said to have been breached.

46. In view of the entire conspectus above, the field testing of DMH-11, pursuant to the conditional approval of the GEAC, with sufficient safeguards and precautions, ought to continue and cannot be said to be violative of the precautionary principle and therefore, the constitutional challenge thereto, fails.

47. Two additional aspects need to be clarified. Pursuant to the above discussion, when I consider the prayer made on behalf of the Petitioners, it is clear that whether or not there should be a complete ban on Ht crops is not something this Court can issue a direction on. Such a decision has to be taken, keeping in view the opinion of various experts who have the knowledge and ability to comprehend scientific literature on the point as also the views of those persons specifically tasked with taking decisions in such matters. Courts, only on the basis of material placed on record or the indirect understanding passed on to it through counsel, is not in a position to take an informed decision. If such a decision is taken, it would be completely foreign to the standards of judicial review as discussed above, for it is not within the Courts purview to undertake cost benefit analysis of a policy decision of the executive.

48. The aspect of India being a centre of origin or diversity qua mustard was laid considerable emphasis on by the learned counsel for the Petitioners, however this, in my considered view, is another prayer with which this Court cannot do justice by returning or not returning a finding. Counsel on both sides supplied research material to support their own stand which argued contrarian viewpoints in this regard and so, it would be best if minds equipped to undertake detailed studies to come to a conclusion, would be the ones to decide this important issue.

Conclusions & Directions

49. In view of the above discussion, the conclusions arrived at in the discussion above are that:

50. In view of the above, I deem it appropriate to give the following directions:

50.1. Field trials of DMH-11, shall continue in strict consonance with the conditions imposed. The Union of India and statutory authorities shall continue to strictly monitor the same. In case of any adverse change in circumstances, the decision for field trials can be reviewed.

50.2. GEAC to ensure that the conditions mentioned in the conditional approval of DMH-11 are strictly complied with by the applicant in letter and spirit.

50.3. The GEAC to take into account all environmental factors before granting future approvals and make an endeavour to have specifically designated farms for field testing, in collaboration with the Union of India.

50.4. All studies conducted and received while granting such approvals, to be uploaded on the website of the GEAC in a time-bound manner, in accordance with the mandate of law. The GEAC to ensure public participation in this process and wider publicity of the same to be facilitated.

50.5. That apart, wider publicity should also be given to GMOs in general, enabling people to take a decision in regard thereto, keeping in view all factors and specifications.

50.6. All decisions to be taken in regard to GMOs should endeavour to strictly follow “wholistically aware” approach which takes the preservation of naturally occurring seeds hand in hand with popularising Genetically Modified seeds.

50.7. The condition imposed in this Courts order dated 08.05.2007 in respect of 200 meters distance being maintained between fields hosting GM crops versus those wherein regular seeds are planted, has to be strictly maintained.

50.8. The Post-Release Monitoring Committee be provided with adequate infrastructural and administrative facilities to closely monitor the field testing.

50.9. The Union of India may consider constituting a special cell under the MoEFCC to monitor all studies being undertaken with respect to GMOs.

50.10. Before commercial release of DMH-11 and other GMOs in the future, specific testing on their impact on human health must be conducted prior thereto.

50.11. The GEAC or any other body, possessing sufficient expertise, duly notified by the government, to consider conducting independent studies on GMOs to ascertain the veracity of the data submitted by the applicant(s) so as to ensure that the approval so granted are bolstered by independent data informing such decision.

50.12. The Union of India should consider implementing a national, all-encompassing policy in respect of GMOs so as to ensure a streamlined approach to this important issue. Connected thereto, is the setting up of infrastructure including laboratories with state of the art facilities, to aid the interplay of biotechnology and agriculture and the advancement thereof.

50.13. Union of India to ensure strict compliance qua labelling of GM foods, in accordance with the Food Safety and Security Act.

51. Before parting with the present lis, I lament the delay with which the present writ petition has come to be disposed. The genesis of this case was 20 years ago from the present day. The detrimental effect of such prolonged litigation was noted by this Court in Rajeev Suri (supra) wherein it was observed:

52. The above proposition resonates with the present case. Unfortunately, despite the national and public interest involved, this case remained pending for two decades, which must lead to introspection on both sides of the bench.

53. I would like to place on record appreciation for all the counsel for taking us through the voluminous record and providing us with detailed hand-outs on the case file, which are purely a substance of their hard work.

54. The writ petitions are dismissed and disposed of in terms of the above judgment. The contempt petitions stand closed in the above terms. The Civil Appeal stands disposed of in light of the above. Pending applications, if any, stand disposed of.

ORDER

1. On the following aspects, there is consensus on the Bench:

2. We issue the following directions:

3. Having regard to the difference of opinion expressed by us on the decision of the GEAC and MoEF granting conditional approval for environmental release of DMH-11, the Registry shall place the matter before Honble the Chief Justice of India for constituting an appropriate Bench to consider the said aspect afresh.