Gene Campaign & Anr. v. Union of India & Ors.
vidhipandit.com/case/sc-2024-7-1847-2142
Headnote — Supreme Court Reports (editorial summary, not part of the judgment)
Issue for consideration
Genetic Engineering Appraisal Committee (GEAC), a body under the Department of Environment, Forest and Wildlife, in its 147th meeting held on 18.10.2022, recommended environmental release of transgenic mustard hybrid, Dhara Mustard Hybrid-11 (DMH-11), which was accepted by the Central Government on 25.10.2022. The issues for consideration were: (1) Whether GEAC approval dated 18.10.2022 and the consequent decision dated 25.10.2022 for the environmental release of DMH-11 was in accordance with law; (2) Whether the decision to grant approval for environmental release of DMH-11 violated the right to safe and healthy environment under Article 21 of the Constitution; and (3) Whether GEAC’s grant of approval dated 18.10.2022 and the decision dated 25.10.2022 for environmental release of DMH-11 violated the precautionary principle.
Catchwords
Genetically Modified Organisms (GMO) – Judicial Review of the decision taken by the bodies concerned in the matter of GMOs –
Held
Is permissible. Genetically Modified (GM) crops – Directions issued to evolve a National Policy with regard to GM crops in the realm of research, cultivation, trade and commerce in the country in consultation with all stakeholders, such as, experts in the field of agriculture, biotechnology, State Governments, representatives of the farmers, etc. and to be given due publicity – Ministry of Environment, Forest and Climate Change (MoEF&CC) to conduct a national consultation with the aim of formulating the National Policy – State Governments shall be involved in evolving the Policy – Respondent – Union of India to ensure that all credentials and past records of * Author
Reporter's headnote (continued) and case details
(Writ Petition (Civil) No. 115 of 2004)
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Digital Supreme Court Reports any expert who participates in the decision-making process should be scrupulously verified and conflict of interest, if any, should be declared and suitably mitigated by ensuring representation to wide range of interests – Rules in this regard may be formulated having a statutory force – In the matter of importing of GM food and more particularly GM edible oil, the respondent shall comply with the requirements of s.23 of FSSA, 2006, which deals with packaging and labelling of foods – Food Safety and Standards Act, 2006. Genetically Engineered (GE) Crop – Transgenic mustard hybrid (DMH-11) – Decision of GEAC and MoEF granting conditional approval for environmental release of DMH-11 – Challenge to, on grounds of procedural abnormalities in approval; violation of right to safe and healthy environment; and violation of precautionary principle – Difference of opinion between Hon’ble Judges – Per Nagarathna, J., held, approval and consequent decision for environmental release of transgenic mustard hybrid DMH-11 violated the precautionary principle inasmuch as no determination was made, as to, whether, transgenic mustard hybrid DMH-11 is a Herbicide Tolerant (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 did not focus inter alia, on aspects of biosafety, risk assessment, soil health, micro-biology and socioeconomic aspects etc. – Moreover, recommendations of Technical Expert Committee (TEC) set up by Supreme Court and Parliamentary Standing Committees’ Reports on Agriculture and on Science and Technology, Environment and Forest were not considered – Recommendations of GEAC as well as decision taken by respondent-Union of India with regard to approving environmental release of transgenic mustard hybrid DMH-11 were vitiated and hence, quashed – Per Karol, J., held, the question of ban on HT crops is not warranted in view of the precautionary principle and it is a decision squarely within the domain of policy – Composition of GEAC was in accordance with the Rules, to which the challenge of constitutionality, has failed, and in the absence of any change in the Rules, no fault can be found with the same – Decision of GEAC to grant conditional approval is not vitiated by non-application of mind, or any other principle of law, on part of the body, which itself is an expert body – Matter to be placed before Hon’ble Chief Justice of India for constituting appropriate Bench to consider said aspect afresh – Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro-Organisms, Genetically Engineered Organisms or Cells, 1989 [framed under ss.6, 8 and 25 of Environment (Protection) Act, 1986] Held [per B.V. Nagarathna, J.]: 1.1. 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 – All the previous deliberations and decisions of GEAC as well as the recommendations and suggestions of the sub-committee to GEAC were given a go by and totally ignored – The deferring of the field demonstration between the years 2018 to 2021, which was for valid reasons, was also ignored – 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 – 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. [Paras 42.5 and 42.6] 1.2. 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 farmer’s field and any such use in the farmer’s 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 farmer’s field pursuant to the environmental release – The adverse effects
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Digital Supreme Court Reports of use of herbicide were also totally given a go by – 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. [Paras 42.13 and 42.15] 1.3. Moreover, GEAC’s 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. [Para 42.16] 1.4. 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. [Para 42.17] 1.5. Further, no material has been brought 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 – The grant of approval by GEAC is governed by Rule 13 – 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. [Para 42.18] 1.6. 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 – 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. [Paras 42.20 and 42.21] 1.7. Recommendations of the Technical Expert Committee (TEC) submitted to this Court have been completely ignored by
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GEAC – 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 – 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 – The impugned approval was in gross violation of the principle of public trust. [Paras 42.22 and 43]
2. The failure to conduct chronic and trans-generational studies to study the impact on human health is a significant omission within the risk assessment process in the instant case – The asymmetry between probable benefits and adverse consequences cannot be adequately counter-balanced by economic or policy safeguards because of the serious and irreversible public and environmental health effects if such consequences occur – 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 – 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 – 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. [Paras 43.1(iii), 44.1, 44.3 and 44.5] 3.1. 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. [Para 45]
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3.2. Having regard to the conclusions of the TEC, 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 Convention on Biological Diversity (CBD) and Article 26 of the Cartagena Protocol on Biosafety (CPB) – Therefore, GEAC is duty bound, both under domestic and international law, to sanction long-term chronic and inter-generational 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. [Para 46] 3.3. The ability to conduct robust risk assessment hinges upon the availability of indigenous and independent studies and research – 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, which is the basis of GEAC’s impugned approval, is entirely premised upon foreign studies and research and not on indigenous research or studies – This 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. [Para 47.3] 3.4. It is apparent that the precautionary principle has been seriously undermined in Condition VI and VII 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 – GEAC failed to take into consideration the precautionary principles while approving the environmental release of the transgenic mustard DMH-11 hybrid. [Para 47.6] 3.5. 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. [Para 48.7] 3.6. 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 – 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 – 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. [Paras 48.8 and 48.9] Held [per Sanjay Karol, J.]:
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1. 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 – The decision of the GEAC cannot be said to be vitiated by delegation – GEAC had constituted a sub-committee and expert committee respectively, in its 126th and 146th meeting, with
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Digital Supreme Court Reports a specific purpose on each occasion – This cannot be said to be delegating its core function – The present factual circumstance is not a case, where the approval process itself has been delegated to the sub-committee/expert committee – The conditional approval of DMH-11 granted by the GEAC, is upheld as being independent, reasoned and in consonance with the rules. [Paras 25(a) 23, 25(a) 21, 25(a) 14, 25(a) 17, 25(b) 5].
2. 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. [Para 29.5]
3. 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. [Para 35]
4. 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 plant’s response to a particular agroecological 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. [Para 40]
5. Similar to when a legislative body enacts a legislation there is a presumption of constitutionality unless proven otherwise, 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, demonstrated and proven to be among other grounds, manifestly arbitrary – This presumption extends, subject of course to just exceptions, to the authority having considered duties in framing policies for GMOs. [Para 43]
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6. Interference by this Court would only be justified if it can be proven that the effect of 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 – That threshold cannot be said to have been breached – The field testing of DMH11, 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. [Paras 45.6 and 46]
7. 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, for it is not within the Court’s purview to undertake cost benefit analysis of a policy decision of the executive. [Para 47]
Case Law Cited In the judgment of B.V. Nagarathna, J. Hanuman Laxman Aroskar v. Union of India [2020] 1 SCR 1030 : (2019) 15 SCC 401; Himachal Pradesh Bus-Stand Management & Development Authority v. Central Empowered Committee [2021] 1 SCR 344 : (2021) 4 SCC 309; Vellore Citizens’ Welfare Forum v. Union of India [1996] Supp. 5 SCR 241 : (1996) 5 SCC 647; A.P. Pollution Control Board v. Prof. M.V. Nayudu [1999] 1 SCR 235 : (1999) 2 SCC 718; M.C. Mehta v. Union of India [2004] 3 SCR 126 : (2004) 12 SCC 118; V.K. Ashokan v. Assistant Excise Commissioner [2009] 4 SCR 331 : (2009) 14 SCC 85; M.C. Mehta v. Kamal Nath [1996] Supp. 10 SCR 12 : 1996 (9) SCALE 141; Lal Bahadur v. State of U.P. (2018) 15 SCC 407; Centre for Public Interest Litigation v. Union of India [2012] 3 SCR 147 : (2012) 3
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SCC 1; S.R. Bommai v. Union of India [1994] 2 SCR 644 : (1994) 3 SCC 1; State (NCT of Delhi) v. Union of India [2018] 7 SCR 1 : (2018) 8 SCC 501; Parbhani Transport Cooperative Society Ltd. v. Regional Transport Authority Aurangabad [1960] 3 SCR 177; Dipak Babaria v. State of Gujarat [2014] 2 SCR 71 : (2014) 3 SCC 502; Kameng Dolo v. Atum Welly [2017] 5 SCR 114 : (2017) 7 SCC 512; Tahsildar, Taluk Office, Thanjore v. G. Thambidurai [2017] 4 SCR 1 : (2017) 12 SCC 642; Union of India v. Charanjit S. Gill [2000] 3 SCR 245 : (2000) 5 SCC 742; T.N. Godavarman Thirumulpad (104) v. Union of India [2008] 6 SCR 321 : (2008) 2 SCC 222; Municipal Corporation of Greater Mumbai v. Ankita Sinha [2021] 10 SCR 1 : (2022) 13 SCC 401; State of Uttar Pradesh v. Raj Narain [1975] 3 SCR 333 : (1975) 4 SCC 428; Chief Information Commissioner v. State of Manipur [2011] 13 SCR 505 : (2011) 15 SCC 1; S.P. Gupta v. Union of India (1981) Supp SCC 87; State of Himachal Pradesh v. Ganesh Wood Products [1995] Supp. 3 SCR 477 : (1995) 6 SCC 363; Indian Council for Enviro-legal Action v. Union of India [1996] 2 SCR 503 : (1996) 5 SCC 281; Research Foundation for Science Technology National Resource Policy vs. Union of India [2005] 1 SCR 115 : (2005) 10 SCC 510; T. N. Godavarman Thirumulpad v. Union of India [2005] Supp. 3 SCR 552 : (2006) 1 SCC 1; Karnataka Industrial Areas Development Board v. C. Kenchappa [2006] Supp. 2 SCR 362 : (2006) 6 SCC 371; Democratic Youth Federation of India v. Union of India (2011) 15 SCC 530; Hospitality Association of Mudumalai v. In Defence of Environment & Animals [2020] 10 SCR 273 : (2020) 10 SCC 589; Pragnesh Shah v. Dr. Arun Kumar Sharma [2022] 8 SCR 154 : (2022) 11 SCC 493; M.C. Mehta v. Union of India (1991) 2 SCC 353; Charan Lal Sahu v. Union of India [1989] Supp. 2 SCR 597 : (1990) 1 SCC 613; Subhash Kumar v. State of Bihar [1991] 1 SCR 5 : (1991) 1 SCC 598; Virender Gaur v. State of Haryana (1995) 2 SCC 577; M.C. Mehta v. Kamal Nath [2000] Supp. 1 SCR 389 : (2000) 6 SCC 213; Indian Council for Enviro-Legal Action v. Union of India [1996] 2 SCR 503 : (1996) 3 SCC 212; M.K. Ranjitsinh vs. Union of India [2024] 3 SCR 1320 : 2024 (4) Scale 779 : 2024 INSC 280 – relied on. State of Bihar v. Murad Ali Khan [1988] Supp. 3 SCR 455 : (1988) 4 SCC 655; Kalpana Mehta v. Union of India [2018] 4 SCR 1 : (2018) 7 SCC 1; Jacob Puliye v. Union of India [2022] 3 SCR 471 : (2022) SCC OnLine SC 533; National High Speed Rail Corporation Limited v. Montecarlo Limited [2022] 12 SCR 810 :
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(2022) 6 SCC 401; Narmada Bachao Andolan v. Union of India [2000] Supp. 4 SCR 94 : (2000) 10 SCC 664; Uflex Limited v. Government of Tamil Nadu [2021] 7 SCR 571 : (2022) 1 SCC 165; Vandana Shiva v. Union of India [Writ Petition (Civil) No.173 of 2006, Supreme Court decision dated 11.08.2017]; Gramophone Company of India Ltd. v. Birendra Bahadur Pandey [1984] 2 SCR 664 : (1984) 2 SCC 534; Vishaka v. State of Rajasthan [1997] Supp. 3 SCR 404 : (1997) 6 SCC 241; Nilabati Behera v. State of Orissa [1993] 2 SCR 581 : (1993) 2 SCC 746; In Re : T.N. Godavarman Thirumulpad vs. Union of India [2024] 1 SCR 1194; Institute of Chartered Financial Analysts of India v. Council of The Institute of Chartered Accountants of India [2007] 6 SCR 1127 : (2007) 12 SCC 210 – referred to. Mahyco Monsanto Biotec (India) Private Ltd. v. Union of India [Decision of Delhi High Court in Writ Petition (Civil) No.12069 of 2015] – referred to. Nazir Ahmad v. King-Emperor, 1936 SCC OnLine PC 41 – referred to. Pepper (Inspector of Taxes) v. Hart, 1992 UKHL 3 (HL); Taylor v. Taylor, (1875) LR 1 Ch D 426; State of the Netherlands (Ministry of Economic Affairs and Climate Policy) v. Stichting Urgenda, 19/00135 dated 20.12.2019; Fadeyeva v. Russia [2005] ECHR 376 : (2007) 45 EHRR 10; Harvester Co. v. Ruckelshaus, 478 F.2d 615, 652 (D.C. Cir. 1973) – referred to. In the judgment of Sanjay Karol, J. N.D. Jayal v. Union of India [2003] Supp. 3 SCR 152 : (2004) 9 SCC 362; State of NCT of Delhi v. Sanjeev (2005) 5 SCC 181; Jagdish Mandal v. State of Orissa [2006] Supp. 10 SCR 606 : (2007) 14 SCC 517; Villianur Iyarkkai Padukappu Maiyam v. Union of India [2009] 9 SCR 225 : (2009) 7 SCC 561; Academy of Nutrition Improvement v. Union of India [2011] 8 SCR 680 : (2011) 8 SCC 274; Lafarge Umiam Mining (P) Ltd. v. Union of India [2011] 7 SCR 954 : (2011) 7 SCC 338; Jacob Puliyel v. Union of India and Ors. [2022] 3 SCR 471; Khargram Panchayat Samiti v. State of West Bengal [1987] 2 SCR 1207 : (1987) 3 SCC 82; Inspector General of Registration v. K. Baskaran [2020] 11 SCR 345 : (2020) 14 SCC 345; Karnataka Industrial Areas Development Board v. C. Kenchappa [2006] Supp. 2 SCR 362 : (2006) 6 SCC 371; Electrosteel Steels Limited v. Union of India and Ors.
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[2021] 14 SCR 863 : (2023) 6 SCC 615; NHAI v. Pandarinathan Govindarajulu (2021) 6 SCC 693; Rajeev Suri v. DDA [2021] 15 SCR 283 : (2022) 11 SCC 1; M K Ranjitsinh & Ors. v. Union of India and Ors. [2024] 3 SCR 1320 : 2024 SCC Online SC 570; State of U.P. v. Abhay Nandan Inter College [2021] 10 SCR 693 : (2021) 15 SCC 600; State of Punjab v. Khan Chand [1974] 2 SCR 768 : (1974) 1 SCC 549; Central Inland Water Transport Corpn. v. Brojo Nath Ganguly [1986] 2 SCR 278 : (1986) 3 SCC 156; Premium Granites v. State of T.N. [1994] 1 SCR 579 : (1994) 2 SCC 691 and Narmada Bachao Andolan v. Union of India [2000] Supp. 4 SCR 94 : (2000) 10 SCC 664 – relied on. State of U.P. v. Batuk Deo Patil Tripathi [1978] 3 SCR 131 : (1978) 2 SCC 102 – followed. Delhi Development Authority v. Joint Action Committee, Allottee of SFS Flats [2007] 13 SCR 811 : (2007) 4 SCC 737; Kantha Vibhag Yuva Koli Samaj Parivartan Trust v. State of Gujarat [2022] 1 SCR 1006; Singrauli Super Thermal Power Station v. Ashwani Kumar Dubey [2023] 10 SCR 440 : (2023) 8 SCC 35; E.P. Royappa v. State of T.N. [1974] 2 SCR 348 : (1974) 4 SCC 3; State of T. N. & Ors. v. Ananthi Ammal [1994] Supp. 5 SCR 666 : (1995) 1 SCC 519; State of A.P. v. McDowell & Co. [1996] 3 SCR 721 : (1996) 3 SCC 709; Onkar Lal Bajaj v. Union of India [2002] Supp. 5 SCR 605 : (2003) 2 SCC 673; 5 M & T Consultants v. S.Y. Nawab (2-Judge Bench) [2003] Supp. 4 SCR 187 : (2003) 8 SCC 100; Delhi Science Forum v. Union of India [1996] 2 SCR 767 : (1996) 2 SCC 405; Bombay Dyeing & Mfg. Co. Ltd. (3) v. Bombay Environmental Action Group [2006] 2 SCR 920 : (2006) 3 SCC 434; A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy [2011] 14 SCR 1 : (2011) 9 SCC 286; State of T.N. v. K. Shyam Sunder [2011] 11 SCR 1094 : (2011) 8 SCC 737; Association for Democratic Reforms & Anr v. Union of India & Ors. [2024] 2 SCR 420; Dharam Dutt v. Union of India [2003] Supp. 6 SCR 151 : (2004) 1 SCC 712; K.S. Puttaswamy v. Union of India [2018] 8 SCR 1 : (2019) 1 SCC 1; Madras Bar Association v. Union of India & Anr. [2021] 5 SCR 791 : (2022) 12 SCC 455; Indian Express Newspaper v. Union of India [1985] 2 SCR 287 : (1985) 1 SCC 641; Khoday Distilleries Ltd. v. State of Karnataka [1995] Supp. 6 SCR 759 : (1996) 10 SCC 304; Shayara Bano v. Union of India & Ors. [2017] 9 SCR 797 : (2017) 9 SCC 1; Kalpana Mehta v. Union of India [2018] 4 SCR 1 : (2018) 7 SCC 1; Vellore Citizens
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Welfare Forum v. Union of India [1996] Supp. 5 SCR 241 : (1996) 5 SCC 647; Hospitality Association of Mudumalai v. In Defence of Environment & Animals [2020] 10 SCR 273 : (2020) 10 SCC 589; M.C. Mehta v. Union of India [2003] 3 SCR 925 : (2002) 4 SCC 356; State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat [2005] Supp. 4 SCR 582 : (2005) 8 SCC 534; AIIMS Students’ Union v. AIIMS [2001] Supp. 2 SCR 79 : (2002) 1 SCC 428; Charu Khurana v. Union of India [2014] 12 SCR 259 : (2015) 1 SCC 192; Ramlila Maidan Incident, In re: [2012] 4 SCR 971: (2012) 5 SCC 1 – referred to.
Books and Periodicals Cited In the judgment of B.V. Nagarathna, J. Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, (Lexis Nexis, 24th Edn. 2011, p.37.] and Justice G.P. Singh, in Principles of Statutory Interpretation (14th Edn.) – referred to. In the judgment of Sanjay Karol, J. Merriam Webster dictionary https://www.merriam-webster.com/ dictionary/Bt; https://www.du.ac.in/index.php?page=centre-for- genetic-manipulation-of-crop-plants – referred to.
List of Acts Food Safety and Standards Act, 2006; Environment (Protection) Act, 1986; Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro-Organisms, Genetically Engineered Organisms or Cells, 1989; Constitution of India; United Nations Convention on Biological Diversity (CBD), 1992; Cartagena Protocol on Biosafety.
List of Keywords Genetically Modified Crops; Genetically Modified Organisms; Transgenic mustard hybrid; Dhara Mustard Hybrid-11; Environmental release; Conditional approval; Right to safe and healthy environment; Public Trust doctrine; Precautionary principle; Judicial Review; National Policy; Biosafety; Biological Diversity; Genetic Engineering Appraisal Committee (GEAC); Ministry of Environment, Forest and Climate Change (MoEF); National consultation; Procedural abnormalities in approval; Herbicide Tolerant (HT)
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Digital Supreme Court Reports crop; Technical Expert Committee (TEC); Parliamentary Standing Committees’ Reports; Field trials; Trans-generational studies; Risk assessment; Genetic engineering; Ecological impact; Environmental constitutionalism; Environmental governance.
Case Arising From CIVIL ORIGINAL/APPELLATE/INHERENT JURISDICTION: Writ Petition (Civil) No. 115 of 2004 (Under Article 32 of The Constitution of India) 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 and Contempt Petition (Civil) No. 6 of 2016 In Writ Petition (Civil) No. 260 of 2005
Appearances for Parties Trideep Pais, Sanjay Parikh, Sr. Adv., V. Shyamohan, Ms. Priyam Cherian, Ms. Anshika Bajpai, Ms. Gargi Sethi, Prashant Bhushan, Rahul Gupta, Ms. Aparna Bhat, Ms. Karishma Maria, Advs. for the Petitioners. R. Venkataramani, Attorney General for India, Tushar Mehta, Solicitor General, Ms. Aishwarya Bhati, A.S.G., R. Bala, Sr. Adv., Mrs. Anil Katiyar, Gurmeet Singh Makker, Devashish Bharuka, Nishesh Sharma, Ms. Archana Pathak Dave, Ketan Paul, Mayank Pandey, Ms. Sonali Jain, Ms. Sunita Singh Chuhan, Hitesh Kumar Sharma, Akhileshwar Jha, Amit Kumar Chawla, Virendra Mohan, Ms. Niharika Dewivedi, Ajay Mishra, Anil Kumar Mishra-i, S. Hariharan, Jitendra Mohan Sharma, Raman Yadav, Abhishek Kumar Pandey, Kartikay Aggarwal, Chitvan Singhal, Dr. N. Visakamurthy, Dr. Arun Kumar Yadav, Abhay Kumar, Amrish Kumar, Devashish Bharukha, Atulesh Kumar, Mrs. Preeti Rani, Rajat Nair, Narendra Bahadur Tiwari, N. Narasimha Murthy, Kumari Nidhi Tripathi, Mrs. D. Bharathi Reddy, Ms. Prity Kumari, Ravindra Sadanand Chingale, Dr. Ravindra Chingale, Ashish Sonawane, Ms. Deeplaxmi Matawankar, Ms. Sumbul Ausaf, Bonny Mehra , Dhruv Dwivedi, Kushal Sharma, Pranav Sachdeva, Krishna Kumar, B. Vinodh Kanna, Advs. for the Respondents.
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Judgment
Judgment / Order of the Supreme Court
Judgment Sanjay Karol J. Table of Contents*
Preface ...................................................................................... 3 Procedural History ................................................................. 10 Statutory Framework .............................................................. 17 Issues for Consideration ......................................................... 27 Conditional Approval of the GEAC ....................................... 28 Judicial Review of the Impugned Decision ....................... 32 Constitutionality of the 1989 Rules .................................. 51 Precautionary Principle .......................................................... 72 TEC ................................................................................... 72 Parliamentary Standing Committee Reports ...................... 91 Scope of Precautionary Principle .................................... 106 Additional Guidelines ........................................................ 113 Conclusions & Directions ..................................................... 140
11. I have perused the erudite opinion of my sister, Hon’ble 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
22. 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).
* Ed. Note: Pagination as per the original Judgment.
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33. 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: i. Bring the Rules for Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms, Genetically Engineered Organisms or Cells, 1989, in consonance with Articles 14, 19, 21, 38, 47, 48, 48A read with 51-A(g) of the Constitution of India and in alternative, declaration of the above rules as unconstitutional. ii. Set-up a High Power Committee to formulate a National Policy on genetically engineered organisms through a multi-stakeholder consultation process. iii. Observe a moratorium on various trials/approvals concerning genetically engineered organisms, particularly for which India is a Centre of Origin/Diversity till the Rules are amended and a sound regulatory and monitoring system is put in place.
44. Writ Petition (C) No.260 of 2005 came to be filed seeking the following directions to the Union of India: i. To not allow any release of GMO’s into the environment by way of import, manufacture, use or any other manner unless the following precautions are taken. (a) A protocol for all the required bio-safety tests of the GMOs proposed to be released is prepared by the GEAC after processes of public notice and public hearing. (b) The GMO has been subjected to all the required bio-safety tests, prepared on the basis of the required Biosafety tests on the basis of the above protocol, by agencies of independent expert bodies, and results of which have been made public. ii. To ban the import of any biological organism, food or animal feed unless they have been certified and labelled to be GM free, by the exporting country. iii. To put in place rules to ensure that it shall be compulsory for any dealer or grower selling GMOs to label them as such.
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55. Writ Petition (C) No.840 of 2016 was filed seeking a Writ of Mandamus or direction to the effect of: i. Quashing the Notice dated 05.09.2016 issued by Union of India inviting comments from stakeholders and general public within 30 days as being violative of Article 14 and Article 21 of the Constitution of India. ii. The process adopted by GEAC as arbitrary and violative of Article 14 and Article 21 of the Constitution of India. iii. Union of India to frame appropriate procedural guidelines for appraisal of application seeking environmental release under Rules for Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms, Genetically Engineered Organisms or Cells, 1989.
66. 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.
77. 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.
88. 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.
99. 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
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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.
1010. 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: “Genetically modified organisms (GMOs) can be defined as organisms (i.e. plants, animals or microorganisms) in which the genetic material (DNA) has been altered in a way that does not occur naturally by mating and/or natural recombination. The technology is often called “modern biotechnology” or “gene technology”, sometimes also “recombinant DNA technology” or “genetic engineering”. It allows selected individual genes to be transferred from one organism into another, also between nonrelated species.” 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 larvae1], 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]
1 Merriam Webster dictionary https://www.merriam-webster.com/dictionary/Bt 2 https://extensionpubs.unl.edu/publication/g1484/html/view#target2
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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
1111. 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
3 The name of GEAC, Genetic Engineering Approval Committee, stands substituted by Genetic Engineering Appraisal Committee vide Gazette Notification dated 22.7.2010.
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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: a. To take sufficient precautions to see that the trials are not causing any contamination to the cultivation of neighbouring fields. b. Distance of at least 200 meters to be maintained from the neighbouring fields having the same type of cultivations. c. Names of scientists and other details of the person responsible for all aspects of the trial should be recorded with 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.
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11.7 On 12.08.2008, the Petitioners raised objection to non- compliance 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:
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i. Complete ban on Ht Crops. The decision of GEAC to approve release of DMH-11 is violative of Article 14 and Article 21 of the Constitution of India being vitiated by non-application of mind. ii. The overall process of risk assessment must be in conformity with the Cartagena Protocol on Biosafety. iii. Stakeholder participation, socioeconomic considerations, societal impact and sustainability should be incorporated in the risk assessment process at an early stage. iv. Studies must be conducted by the Regulatory Body itself and the regulator must not depend solely on the data provided by the applicant itself. v. The Biosafety Dossier containing results of these studies must be published on the website of the GEAC. vi. Confined Field Trials should be only in isolated conditions to prevent any contamination in ICAR institutes/State Agricultural Universities. vii. No Genetically Modified Crops should be permitted where India is the centre of origin or diversity. viii. There should be chronic toxicity testing in terms of long- term exposure before declaring those crops safe. ix. State of the art bio-regulatory systems must be set up in collaboration with countries having the necessary expertise in socio-economic risk assessment. Statutory Framework
1212. 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.
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1313. 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.”
1414. The EPA, 1986 was enacted with a view to improve the environment and its protection mechanisms. i. Under the definition Clause, S.2, certain terms require reference: “(a) “environment” includes water, air and land and the inter- relationship which exists among and between water, air and land, and human beings, other living creatures, plants, micro-organism and property; (b) “environmental pollutant” means any solid, liquid or gaseous substance present in such concentration as may be, or tend to be, injurious to environment; (c) “environmental pollution” means the presence in the environment of any environmental pollutant; x x x (e) “hazardous substance” means any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plant, micro-organism, property or the environment; (f) “occupier”, in relation to any factory or premises, means a person who has, control over the affairs of the factory or the premises and includes in relation to any substance, the person in possession of the substance;” ii. S.3 of the Act empowers the Central Government to undertake wide-ranging measures for the protection and improvement of the environment. S.3(2) lays down the matters wherein such measures are to be exercised. Some pertinent areas are:
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“….. (vi) laying down procedures and safeguards for the prevention of accidents which may cause environmental pollution and remedial measures for such accidents; (vii) laying down procedures and safeguards for the handling of hazardous substances; (viii) examination of such manufacturing processes, materials and substances as are likely to cause environmental pollution; (x) inspection of any premises, plant, equipment, machinery, manufacturing or other processes, materials or substances and giving, by order, of such directions to such authorities, officers or persons as it may consider necessary to take steps for the prevention, control and abatement of environmental pollution; (xi) establishment or recognition of environmental laboratories and institutes to carry out the functions entrusted to such environmental laboratories and institutes under this Act;” iii. S.5 empowers the Central Government to issue directions to any person for the purposes of the Act, and such person will be bound to comply with such directions. iv. S.6 further provides the Central Government with the power to make rules for the matters enumerated in S.3. Particularly, the following have been expressly laid down in S.6(2), amongst others: “… (b) the maximum allowable limits of concentration of various environmental pollutants (including noise) for different areas; (c) the procedures and safeguards for the handling of hazardous substances;
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(d) the prohibition and restrictions on the handling of hazardous substances in different areas;” v. S.7 prohibits the discharge of environmental pollutants in excess of the standards as may be prescribed under S.3. S.8 provides that those persons handling hazardous substances shall not do so except in accordance with the procedure and safeguards prescribed in respect thereto. vi. S.10 empowers the Central Government or any person empowered under it with the power of entry and inspection at all reasonable times, for the following purposes: “(a) for the purpose of performing any of the functions of the Central Government entrusted to him; (b) for the purpose of determining whether and if so in what manner, any such functions are to be performed or whether any provisions of this Act or the rules made thereunder or any notice, order, direction or authorisation served, made, given or granted under this Act is being or has been complied with; (c) for the purpose of examining and testing any equipment, industrial plant, record, register, document or any other material object or for conducting a search of any building in which he has reason to believe that an offence under this Act or the rules made thereunder has been or is being or is about to be committed and for seizing any such equipment, industrial plant, record, register, document or other material object if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act or the rules made thereunder or that such seizure is necessary to prevent or mitigate environmental pollution.” vii. S.11 empowers the Central Government or any person empowered under it with the power to take samples of air, water, soil or other substances and lays down detailed procedure to be followed for this purpose.
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viii. S.12 permits the Central Government to establish and recognise laboratories or institutes to carry out functions enumerated for such laboratories which have to be notified in the gazette in accordance with S.12(2). ix. S.25 empowers the Central Government to make rules for carrying out the purposes of the Act. In particular, under S.25(2): “(a) the standards in excess of which environmental pollutants shall not be discharged or emitted under section 7; (b) the procedure in accordance with and the safeguards in compliance with which hazardous substances shall be handled or caused to be handled under section 8; x x x (e) the form in which notice of intention to have a sample analysed shall be served under clause (a) of sub section (3) of section 11; (f) the functions of the environmental laboratories, the procedure for the submission to such laboratories of samples of air, water, soil and other substances for analysis or test; the form of laboratory report; the fees payable for such report and other matters to enable such laboratories to carry out their functions under sub-section (2) of section 12;”
1515. 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. i. Rule 2 specifies the application of these rules. Clause 2 specifies that “These shall apply to genetically engineered organisms micro-organisms and cells and correspondingly to any substances and products and food stuffs, etc. of which such cells, organisms or tissues hereof form part.” ii. Rule 3(3) defines Gene Technology as “the application of the gene technique called genetic engineering, include self-cloning and deletion as well as cell hybridisation.”
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iii. Rule 3(4) defines Genetic Engineering as “the technique by which heritable material, which does not usually occur or will not occur naturally in the organism or cell concerned, generated outside the organism or the cell is inserted into said cell or organism. It shall also mean the formation of new combinations of genetic material by incorporation of a cell into a host cell, where they occur naturally (self-cloning) as well as modification of an organism or in a cell by deletion and removal of parts of the heritable material.” iv. Rule 4(4) of the aforesaid rules, provide for setting up of the GEAC as a body under the Department of Environment, Forests and Wildlife, for approval of proposals relating to release of genetically engineered organisms and products into the environment, including experimental field trials. These proposals are to be examined from the environmental angle. Other committees therein, the membership of the GEAC and other aspects will come to be discussed in the foregoing paragraphs. v. Rule 7 prohibits any import, export, manufacture, process or use of genetically engineered organisms except with the approval of the GEAC. It also provides that genetically engineered organisms for the purpose of research are only allowed in areas notified by the Ministry of Environment and Forests for this purpose under the EPA, 1986. vi. Rule 9 empowers the GEAC to grant special approval for deliberate release of genetically engineered organisms. vii. Rule 10 extends the requirement of approval of GEAC to all substances and products that contain genetically engineered organisms. viii. Rule 13 provides for stipulation of terms and conditions while granting approval including terms and conditions as to the control to be exercised by the applicant, supervision, restriction on use, the layout of the enterprise and as to the submission of information to the State Biosafety Co-ordination Committee (hereinafter referred to as ‘SBCC’) or to the District Level Committee (hereinafter referred to as ‘DLC’). It lays down the time period for GEAC approval (cannot exceed 4 years) and specific criteria wherein the GEAC can revoke approval
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granted for a genetically engineered organism. Rule 14 gives an authority to GEAC for supervising the implementation of the conditions laid down while granting approval. ix. Further, Rule 15 provides for penalties imposed for non- compliance of orders. The DLC or SBCC is empowered to take actions against person who is responsible for non-compliance. In situations which require immediate interference, DLC or SBCC could take action even without issuing any order or notice. DLC or SBCC are also empowered to take samples for a more detailed examination of organisms and cells and for these purposes, these Committees could take assistance from any Government authority. x. Rule 18 grants the GEAC and other committees, the power to carry out inspections. xi. Rule 19 allows for appeal from the any decision made by the GEAC or the SBCC to the Appellate Authority (as may be appointed by the Ministry of Environment, Forests and Climate Change (hereinafter referred to as ‘MoEFCC’) within 30 days of such decisions.
1616. 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.
1717. 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
1818. 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,
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Mr. Tushar Mehta learned Solicitor General and Ms. Preeti Kumari for the Respondents. The judgment proposed by my esteemed colleague, Hon’ble 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 : a. Whether the conditional approval of DMH-11 by the GEAC is vitiated be it by arbitrariness/delegation/non-application of mind or any other principle of law? b. Whether in view of the precautionary principle, a complete ban on Ht Crops is warranted or if not, the suitable directions that are required to be given by this Court? 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
1919. 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.
2020. 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.
4 https://www.du.ac.in/index.php?page=centre-for-genetic-manipulation-of-crop-plants
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2121. In the 126th Meeting of the GEAC, on 04.01.2016, a sub-committee 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.
2222. 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.
2323. 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.
2424. 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: i. The approval is for 4 years and renewable for two years at a time based on compliance report pursuant to Clause 13 of the 1989 Rules. ii. A Post-Release Monitoring Committee would be constituted by GEAC consisting of 2 subject matter external experts who will visit the growing sites of the approved biological material. iii. The Applicant shall provide detailed step by step testing procedures to the GEAC.
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iv. Usage of any formulation of herbicide is not permitted for cultivation in farmers’ fields under any situation. v. Commercial use of DMH-11 hybrid shall be subject to Seeds Act, 1966. vi. It is mandatory that all seed packets of DMH-11 and subsequent hybrids derived from the technology should be appropriately labelled indicating the contents including the name of the transgenes, physical and genetic purity etc., in English, Hindi and vernacular language(s). Judicial Review of the Impugned Decision
2525. The challenges raised by the Petitioners to this decision can be summarised as follows: a. The GEAC could not have delegated its function to a sub-committee/expert committee, since it is not within the scope of the 1989 Rules. b. Further, in any case, that the GEAC has not independently applied its mind to the report of its expert committee and has not considered other independent scientific reports. 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: “…This Court cannot sit in judgment over the cutting edge of scientific analysis relating to the safety of any project. Experts in science may themselves differ in their opinions while taking decisions on matters related to safety and allied aspects. The opposing viewpoints of the experts will also have to be given due consideration after full application of mind. When the Government or the authorities concerned after due consideration of all viewpoints and full application of mind took a decision, then it is not appropriate for the court to interfere. Such matters must be left to the mature wisdom of the Government or the implementing agency. It is their forte. In such cases, if the situation demands, the
5 [2003] Supp. 3 SCR 152 : (2004) 9 SCC 362
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courts should take only a detached decision based on the pattern of the well-settled principles of administrative law. If any such decision is based on irrelevant consideration or non-consideration of material or is thoroughly arbitrary, then the court will get in the way. Here the only point to consider is whether the decision-making agency took a well-informed decision or not. If the answer is “yes”, then there is no need to interfere. The consideration in such cases is in the process of decision and not in its merits.” (Emphasis supplied) 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-à-vis decisions of the Government. It was observed: “16. If the power has been exercised on a non-consideration or non-application of mind to relevant factors, the exercise of power will be regarded as manifestly erroneous. If a power (whether legislative or administrative) is exercised on the basis of facts which do not exist and which are patently erroneous, such exercise of power will stand vitiated. (See CIT v. Mahindra and Mahindra Ltd. [(1983) 4 SCC 392 : 1983 SCC (Tax) 336 : AIR 1984 SC 1182]
17. The court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient. x x x x
21. In other words, to characterise a decision of the administrator as “irrational” the court has to hold, on material, that it is a decision “so outrageous” as to be in total defiance of logic or moral standards. Adoption of “proportionality” into administrative law was left for the future.
6 [2005] 3 SCR 151 : (2005) 5 SCC 181
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22. These principles have been noted in the aforesaid terms in Union of India v. G. Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S) 1806]. In essence, the test is to see whether there is any infirmity in the decision-making process and not in the decision itself. (See Indian Rly. Construction Co. Ltd. v. Ajay Kumar [(2003) 4 SCC 579 : 2003 SCC (L&S) 528].” (Emphasis supplied) 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 Iyarkkai Padukappu Maiyam v. Union of India, (3-Judge Bench)8 observed that: “167. In the matter of policy decisions and economic tests the scope of judicial review is very limited. Unless the decision is shown to be contrary to any statutory provision or the Constitution, the Court would not interfere with an economic decision taken by the State. The court cannot examine the relative merits of different economic policies and cannot strike down the same merely on ground that another policy would have been fairer and better. …
169. It is neither within the domain of the courts nor the scope of judicial review to embark upon an inquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Wisdom and advisability of economic policy are ordinarily not amenable to judicial review. In matters relating to
7 [2006] Supp. 10 SCR 606 : (2007) 14 SCC 517 8 [2009] 9 SCR 225 : (2009) 7 SCC 561
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economic issues the Government has, while taking a decision, right to “trial and error” as long as both trial and error are bona fide and within the limits of the authority. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts.
170. Normally, there is always a presumption that the governmental action is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the court by proper and adequate material. The court cannot lightly assume that the action taken by the Government is unreasonable or against public interest because there are a large number of considerations, which necessarily weigh with the Government in taking an action.” (Emphasis supplied) 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: “…. courts should not rush in where even scientists and medical experts are careful to tread. The rule of prudence is that courts will be reluctant to interfere with policy decisions taken by the Government, in matters of public health, after collecting and analysing inputs from surveys and research. Nor will courts attempt to substitute their own views as to what is wise, safe, prudent or proper, in relation to technical issues relating to public health in preference of those formulated by persons said to possess technical expertise and rich experience.” (Emphasis supplied) 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:
9 [2011] 8 SCR 680 : (2011) 8 SCC 274 10 [2011] 7 SCR 954 : (2011) 7 SCC 338
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“119. The time has come for us to apply the constitutional “doctrine of proportionality” to the matters concerning environment as a part of the process of judicial review in contradistinction to merit review. It cannot be gainsaid that utilisation of the environment and its natural resources has to be in a way that is consistent with principles of sustainable development and intergenerational equity, but balancing of these equities may entail policy choices. In the circumstances, barring exceptions, decisions relating to utilisation of natural resources have to be tested on the anvil of the well-recognised principles of judicial review. Have all the relevant factors been taken into account? Have any extraneous factors influenced the decision? Is the decision strictly in accordance with the legislative policy underlying the law (if any) that governs the field? Is the decision consistent with the principles of sustainable development in the sense that has the decision-maker taken into account the said principle and, on the basis of relevant considerations, arrived at a balanced decision? Thus, the Court should review the decision-making process to ensure that the decision of MoEF is fair and fully informed, based on the correct principles, and free from any bias or restraint. Once this is ensured, then the doctrine of “margin of appreciation” in favour of the decision-maker would come into play.” (Emphasis supplied) 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
11 [2022] 3 S.C.R. 471 : 2022 SCCOnline SC 533 12 [2007] 13 SCR 811 : (2007) 4 SCC 737
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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: “22. This Court in a series of decisions has reiterated that courts should not rush in where even scientists and medical experts are careful to tread. The rule of prudence is that courts will be reluctant to interfere with policy decisions taken by the Government, in matters of public health, after collecting and analysing inputs from surveys and research. Nor will courts attempt to substitute their own views as to what is wise, safe, prudent or proper, in relation to technical issues relating to public health in preference to those formulated by persons said to possess technical expertise and rich experience. Where expertise of a complex nature is expected of the State in framing rules, the exercise of that power not demonstrated as arbitrary must be presumed to be valid as a reasonable restriction on the fundamental right of the citizen and judicial review must halt at the frontiers. The Court cannot re-weigh and substitute its notion of expedient solution.” 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 Court’s 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 government’s 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.
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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: “16. Sections 14 and Section 15 entrust adjudicatory functions to the NGT. The NGT is a specialized body comprising of judicial and expert members. Judicial members bring to bear their experience in adjudicating cases. On the other hand, expert members bring into the decision-making process scientific knowledge on issues concerning the environment. In Hanuman Laxman Aroskar v. Union of India (2019) 15 SCC 401, a two- Judge Bench of this Court noted that the NGT is an expert adjudicatory body on the environment. The Court held: “133. The NGT Act provides for the constitution of a tribunal consisting both of judicial and expert members. The mix of judicial and technical members envisaged by the statute is for the reason that the Tribunal is called upon to consider questions which involve the application and assessment of science and its interface with the environment…
134. NGT is an expert adjudicatory body on the environment.”
17. The NGT does not have a dearth of ‘expertise’ when it comes to the issues of environment.
18. Section 15 empowers the NGT to award compensation to the victims of pollution and for environmental damage, to provide for restitution of property which has been damaged and for the restitution of the environment. The NGT cannot abdicate its jurisdiction by entrusting these core adjudicatory functions to administrative expert committees. Expert committees may be appointed to assist the NGT in the performance of its task and as an adjunct to its fact-finding role.” (Emphasis supplied)
13 [2022] 1 SCR 1006 : 2022 SCC Online SC 120
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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.
14 [2023] 10 SCR 440 : (2023) 8 SCC 35
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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: “…In accordance with the decision taken in the aforementioned meeting of the GEAC, the Expert Committee has been constituted to examine the claim of CGMCP, University of Delhi in respect of 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 honeybees and other pollinators.” 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: “10… The power to do a thing necessarily carries with it the power to regulate the manner in which the thing may be done. It is an incident of the power itself and indeed, without it, the exercise of the power may in practice be fraught with difficulties which will frustrate, rather than further, the object of the power. It is undoubtedly true that the rules framed for prescribing the manner in which a power may be exercised have to be truly regulatory in character.” (Emphasis supplied) 25 (a) 20. This decision was followed in Khargram Panchayat Samiti v. State of West Bengal (2-Judge Bench),16 wherein it was observed:
15 [1978] 3 SCR 131 : (1978) 2 SCC 102 16 [1987] 2 SCR 1207 : (1987) 3 SCC 82
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“5…. It had earlier been laid down by a Constitution Bench in the case of State of U.P. v. Batuk Deo Pati Tripathi [(1978) 2 SCC 102 : 1978 SCC (L & S) 147] that a power to do a thing necessarily carries with it the power to regulate the manner in which the thing may be done. The High Court failed to appreciate that the power to grant a licence for the holding of a hat or fair under Section 117 of the Act necessarily carries with it the power to specify a day on which such hat or fair shall be held. Such power to specify a day must be held to be a power incidental to or consequential upon the principal power of issuing a licence under Section 117 of the Act for holding of a hat or fair. The Rules or the absence of it do not detract from the substantive power conferred by a statute.” (Emphasis supplied) 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: “14. The following principles can thus be culled out from the decisions of this Court: (i) A statutory functionary exercising a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report, as that is the ordinary mode of exercise of any administrative power; (ii) If a statutory authority empowers a delegate to undertake preparatory work, and to take an initial decision in matters entrusted to it, but retains in its own hands the power to approve or disapprove the decision after it has been taken, the
17 [2020] 11 SCR 345 : (2020) 14 SCC 345
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decision will be held to have been validly made if the degree of control maintained by the authority is close enough for the decision to be regarded as the authority’s own; (iii) Even in cases of sub-delegation, so long as the essential function of decision-making is performed by the delegate, the burden of performing the ancillary and clerical task need not be shouldered by the primary delegate and it is not necessary that the primary delegate himself should perform the ministerial acts as well; and (iv) Practical necessities or exigencies of administration require that the decision-making authority who has been conferred with statutory power, be able to delegate tasks when the situation so requires.” (Emphasis supplied) 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 GEAC’s) 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.
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Department of Biotechnology under the Ministry of Science and Technology: “Mission …The Department shall provide services in the areas of research, infrastructure, generation of human resource, popularization of biotechnology, promotion of industries, creation of centers of excellence, implementation of biosafety guidelines for genetically modified organisms and recombinant DNA products and biotechnology-based programs for societal benefits. Bioinformatics is a major mission to establish an information network for the scientific community, nationally and internationally. Mandate … • Promote large scale use of Biotechnology • Support R&D and manufacturing in Biology … • Serve as Nodal Point for specific International Collaborations • Establishment of Infrastructure Facilities to support R&D and production … • Evolve Bio Safety Guidelines, manufacture and application of cell based vaccines • Serve as nodal point for the collection and dissemination of information relating to biotechnology.” (Emphasis supplied) Department of Agricultural Research and Education under the Ministry of Agriculture “About the Departments … DARE provides the necessary government linkages for the Indian Council of Agricultural Research (ICAR),
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the premier research organisation for co-ordinating, guiding and managing research and education in agriculture including horticulture, fisheries and animal sciences in the entire country. With over 97 ICAR institutes, 53 agricultural universities, 6 Bureaux, 18 National Research Centres, 25 Project Directorates, and 89 All India Coordinated Research Projects spread across the country this is one of the largest national agricultural research systems in the world. Mission Interfacing agricultural research and technology, higher education and frontline extension initiatives with institutional, infrastructural and policy support for sustainable growth of agriculture. Major Functions • To look after all aspects of the agricultural research and Education (including horticulture, natural resources management, agriculture engineering, agricultural extension, animal science, economic statistics and marketing and fisheries) involving coordination between the central and state agencies. • To attend all matters relating to Indian Council of Agricultural Research. • To attend all matters concerning the development of new technology in agriculture, horticulture, natural resources management, agriculture engineering, agricultural extension, animal science, economic statistics and marketing and fisheries, including such functions as plant and animal introduction and exploration and soil and land use survey and planning. • International co-operation in the field of agricultural research and education including relations with foreign and international agricultural research and educational institutions and organizations, including
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participation in international conferences, associations and other bodies dealing with agricultural research and education and follow-up decisions at such international conferences etc. • Fundamental, applied and operational research and higher education including co-ordination of such research and higher education in agriculture including agro forestry, animal husbandry, dairying, fisheries, agricultural statistics, economics and marketing.” (Emphasis Supplied) 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.
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Constitutionality of the 1989 Rules
2626. 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 : “In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and
16. Mala fide exercise of power and arbitrariness are
18 [1974] 2 SCR 348 : (1974) 4 SCC 3
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different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.” (Emphasis supplied) 26.2. On similar lines, in State of T. N. & Ors. v. Ananthi Ammal19 (3-Judge Bench) this Court observed: “7. When a statute is impugned under Article 14 what the court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject which derives its authority from another source can be referred to, if its provisions have been held to be reasonable or have stood the test of time, only for the purpose of indicating what may be said to be reasonable in the context...” (Emphasis supplied) 26.3. Furthermore, in State of A.P. v. McDowell & Co.,20 (3-Judge Bench), this Court observed that the restrictions on the law-making 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: “43. … The main criticism against the ground of substantive due process being that it seeks to set up the courts as arbiters of the wisdom of the legislature in enacting the particular piece of legislation. It is enough for us to say that by whatever name it is characterised, the ground of invalidation must fall within the four corners of the two grounds mentioned above. In other words, say, if an enactment is challenged as violative
19 [1994] Supp. 5 SCR 666 : (1995) 1 SCC 519 20 [1996] 3 SCR 721 : (1996) 3 SCC 709
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of Article 14, it can be struck down only if it is found that it is violative of the equality clause/equal protection clause enshrined therein. Similarly, if an enactment is challenged as violative of any of the fundamental rights guaranteed by sub-clauses (a) to (g) of Article 19(1), it can be struck down only if it is found not saved by any of the clauses (2) to (6) of Article 19 and so on. No enactment can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that the court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds, viz., (i) unreasonableness, which can more appropriately be called irrationality, (ii) illegality and (iii) procedural impropriety.” (Emphasis supplied) 26.4. In Onkar Lal Bajaj v. Union of India21 (2-Judge Bench), it was held: “27. Article 14 guarantees to everyone equality before law. Unequals cannot be clubbed. The proposition is well settled and does not require reference to any precedent though many decisions were cited. Likewise, an arbitrary exercise of executive power deserves to be quashed, is a proposition which again does not require support of any precedent. It is equally well settled that an order passed without application of mind deserves to be annulled being an arbitrary exercise of power. At the same time, we have no difficulty in accepting the proposition urged on behalf
21 [2002] Supp. 5 SCR 605 : (2003) 2 SCC 673
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