Supreme Court mulls over GM mustard and its many implications, and the need for a precautionary approach

The infirmities in the procedures adopted by the regulators in appraising and clearing the safety and efficacy of GM mustard are at the core of the petitions before the Supreme Court.

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“SO what happens to the Bar gene in the GM mustard plant after the seed production phase is over?”, asked Justice B.V. Nagarathna astutely of the Attorney General for India (‘AG’), R. Venkataramani, on December 1. A division bench of Justices Dinesh Maheshwari and Nagarathna was listening to the Union Government argue that the genetically modified (‘GM’) mustard in question, developed by the Centre for Genetic Manipulation of Crop Plants (‘CGMCP’) of the Delhi University is not a Herbicide Tolerant (‘HT’) GM crop, amongst other pleadings.

The AG was forced to admit that the Bar gene does not go away from the modified mustard plant and remains there; he, however, argued that farmers are being advised not to use herbicide when they grow the GM mustard hybrid, and that if farmers do, penal provisions of at least two statutes will be attracted. The Union Government was also pleading that while GM mustard may have the Bar gene in it, which does confer herbicide tolerance trait to the mustard plant after genetic engineering of the plant, the crop applicant does not intend to commercialise that trait, and therefore, it is not Herbicide Tolerant.

The Bar gene is a bacterial gene that confers the ability in a crop plant to withstand toxic weedkillers (glufosinate, in this case) which will kill wanted plants in the field, but not the main crop which has been genetically modified. On the other hand, the petitioners were presenting a strong case resting on the fact that GM mustard is indeed a Herbicide Tolerant crop with the Bar gene expressing itself strongly in the parental lines as well as the hybrid offspring, and that the Supreme Court-appointed original Technical Expert Committee (‘TEC’) had recommended a ban on all HT crops in India.

The response to Justice Nagarathna’s question is at the crux of the arguments unfolding in three petitions related to the matter at the Supreme Court. The court’s understanding of the implications of GM mustard with its herbicide tolerance trait will most probably determine the outcome of the adjudication on the matter. The Bench’s remarks about ancestral women being at the forefront of domestication of wild plants, and initiating cultivation leading to human settlements and evolution of various civilisations, was sharply perceptive about the socio-economic implications of herbicide tolerant crops. The bench’s observations about the loss of employment for poor rural women who take up manual de-weeding, which not only gives them income but also fodder, uncultivated nutritious greens and medicinal herbs, was reflective of the socio-economic considerations that should drive India’s regulatory decision-making around GM crops.

Also read: Who moved my seed? Decoding the Monsanto dispute

Is GM mustard an herbicide tolerant crop?

Whether GM mustard is a herbicide tolerant crop or not is linked to the fact that certain strong recommendations had emerged from a Supreme Court-appointed TEC in these petitions. It was in May 2012 that the court appointed a six-member TEC.

It is worth noting that three of the experts were nominated by the petitioners and three by the Union Government, after a meeting on March 15, 2011 between both parties wherefrom minutes were submitted to the court. When one of the government-nominated experts, biotechnologist, geneticist, agriculturalist Dr. V.L. Chopra declined to join the Committee, the court passed a clear order on August 6, 2012 that the rest of the TEC should go ahead since no prejudice is being caused because of the vacancy.

The court also asked the TEC to provide an interim report if it cannot submit its final report within the stipulated time of three months:

“In the event and for any reason whatsoever, the Committee is unable to submit its final report to the Court within the time stipulated in this order, we direct that the Committee should instead submit its interim report within the same period to the Court on the following issue: “Whether there should or should not be any ban, partial or otherwise, upon conducting of open field tests of the GMOs? In the event open field trials are permitted, what protocol should be followed and conditions, if any, that may be imposed by the Court for implementation of open field trials.”

The TEC did submit an interim report dated October 7, 2012. Here, the TEC recommended a moratorium on field trials of HT crops until an independent committee comprising of experts and stakeholders has examined and assessed the potential impact of HT technology and its suitability in the Indian context.

However, by the time the TEC gave its final report in June 2013, it had strengthened its position on HT crops and stated that “the conclusion of the TEC is that HT crops would most likely exert a highly adverse impact over time on sustainable agriculture, rural livelihoods and environment. The TEC finds them completely unsuitable in the Indian context”. In the Corrigendum to the final report, issued in July 2013, the TEC corrected its earlier statement and added, “the TEC finds them completely unsuitable in the Indian context and recommends that field trials and release of HT crops not be allowed in India (emphasis added).

As the petitioners’ advocates Prashant Bhushan and Sanjay Parikh argued, it is not just the court-appointed TEC which recommended against HT crops in India, but other high level committees too, including Parliamentary Committees. It is against this backdrop that the government’s attempts at hiding the Herbicide Tolerant nature of GM mustard should be viewed.

The Bar gene is a bacterial gene that confers the ability in a crop plant to withstand toxic weedkillers (glufosinate, in this case) which will kill wanted plants in the field, but not the main crop which has been genetically modified.

Here, only the science matters and not the description of the genetically modified crop as given by the applicant. Even if the CGMCP has described GM mustard only as a hybridisation technology with pollination control achieved through the insertion of three bacterial genes of bar, barnase and barstar, the reality remains that the Bar gene, which has actually been doubly enhanced in its expression in this case, confers herbicide tolerance to the genetically modified mustard. It is therefore a crop with HT trait present when farmers grow the crop, whether or not they are being advised to use a herbicide with GM mustard.

In India, the reality is that crisis-laden farmers are not waiting for any recommendations or advisories from departments, nor is pesticide usage as per registration-time protocols. The usage is driven by unscrupulous commercial interests where industry’s frontline dealers become the main source of extension advice to farmers. The reality of large areas of illegal herbicide-tolerant cotton being grown by farmers right now was brought to the attention of the bench by the petitioners’ advocates.

Also read: A Nation for Farmers: Part III

This illegal proliferation of HT cotton includes illegal marketing and usage of unapproved GM seeds as well as unapproved weed-killers like glyphosate on cotton crop. The failure and incapabilities of statutory regulatory regimes related to gene technologies, of pesticides as well as seeds is reflected in the case of HT cotton spread, and even a PMO-appointed Field Inspection and Scientific Evaluation Committee (FISEC) with all its findings and recommendations could not stop HT cotton illegal spread. In such a context, any conditional approval of a Herbicide Tolerant GM mustard by GEAC is contestable in that the conditions can only remain on paper. The implications of herbicide usage were already deliberated by the TEC, and therefore, its clear ban recommendation.

“Good science versus bad science” – TEC ban recommendation is beyond the Terms of Reference of TEC, contends the Union Government – no, it is squarely within the scope of the TEC’s terms, argue petitioners

Afraid of the court adopting the TEC’s main recommendations of a ban on HT crops, on genetic modification in crops for which India is the Centre of origin/diversity and a 10-year moratorium on Bt food crops, the Union Government is arguing on two counts – one, that the TEC overstepped the mandate given to the committee; two, that the last member appointed to the committee on November 9, 2012, agricultural scientist Dr. R.S. Paroda, has given a report in favour of GM crops including HT crops. The AG also contended that in science, there is nothing like majority and minority view. The AG gently challenged the bench on whether it is going to make a value judgement on what is good science or bad science here.

The petitioners, on the other hand, are contending that the TEC was very much in its mandate since the court specifically asked it about banning of open air trials of GMOs, which are the first step in considering the environmental release of a GMO in the first instance, and that Dr. Paroda is associated with a lobby group that is industry-funded and not an independent expert.

Even if the CGMCP has described GM mustard only as a hybridisation technology with pollination control achieved through the insertion of three bacterial genes of bar, barnase and barstar, the reality remains that the Bar gene, which has actually been doubly enhanced in its expression in this case, confers herbicide tolerance to the genetically modified mustard. It is therefore a crop with HT trait present when farmers grow the crop, whether or not they are being advised to use a herbicide with GM mustard.

The court in this case has been seized with matters related to conflict of interest, and therefore, had appointed Indian scientist, writer, and administrator Dr. P.M. Bhargava, and agronomist, agricultural scientist, plant geneticist, administrator and humanitarian. Dr. M.S. Swaminathan as independent experts into the GEAC, as court observers. The petitioners are reminding the Court that even two members nominated by the Union Government as its experts participated in giving a unanimous recommendation of ban on HT crops along with three nominated-experts of petitioners.

Precautionary principle

The Petitioners in the cases are also resting their case on a precautionary approach to transgenic technology, especially in a food crop that is widely consumed all over India. The Cartagena Protocol on Biosafety, to which India is a signatory, in its very Objective in Article 1, states:

“In accordance with the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development, the objective of this Protocol is to contribute to ensuring an adequate level of protection in the field of the safe transfer, handling and use of living modified organisms resulting from modern biotechnology that may have adverse effects on the conservation and sustainable use of biological diversity, taking also into account risks to human health, and specifically focusing on transboundary movements.” (emphasis added)

The petitioners have cited numerous judgements in India’s jurisprudence that rest on the precautionary principle. It is worth noting that the Union Government’s decision to impose an indefinite moratorium on Bt brinjal in February 2010 also rested heavily on the adoption of a precautionary approach by the then Union Environment Minister, Jairam Ramesh.

Flowing along with these views, the bench asked the Union Government in strong terms, “Are you saying that we will be doomed if we don’t grow this GM mustard in India?”, to which responses are yet to come from the government. The petitioners have already contended that India is self-reliant when it comes to mustard oil production and demand, that we already have non-GM hybrids in the country on offer for farmers, that the best yields are in countries which have opted for non-GM hybrid techniques in rapeseed/canola, and that there are numerous other technologies and policy incentives by which mustard production and productivity can be improved.

The petitioners have challenged the yield increase claims of the crop applicant, the regulator and the Union Government, and have presented elaborate data on how testing and data has been manipulated to show an yield advantage to GM mustard hybrid when it does not actually exist.

Procedural lapses and infirmities that directly impact rights of citizens

The AG insisted in the hearings that the petitioners have not raised any deficiencies and lapses in the Rules, regulations, procedures and processes of regulation.

One of the petitions (W.P. 115/2004) argues that GEAC, after being renamed in 2010 as Genetic Engineering Appraisal Committee from being a Genetic Engineering Approval Committee, does not have the authority to approve the environmental release of a GMO. This is evident from the fact that GEAC’s own Minutes referred to another ‘competent authority’ approving GM mustard, when it gave a green signal for the first time in May 2017, whereas the October 25, 2022 approval letter to GM mustard was signed by the Member Secretary of GEAC. The absence of socio-economic considerations in India’s appraisal system was also raised by them.

The Union Government violated its own undertakings in the court that it will not deliver any fait accompli in the matter of GM mustard, whereas planting has taken place in six locations already.

Petitioner Ananthasayanan in another petition (W.P. (C) 840/2016) which is more specific to GM mustard regulatory processes, has highlighted the fact that no (independent) health expert has participated in the sub-committee processes adopted by GEAC, even as he challenged the very formation of sub-committees by the GEAC, since the 1989 Rules of the Environment Protection Act, 1986 do not permit the same.

The hiding of the entire biosafety dossier of GM mustard from independent public scrutiny despite Supreme Court and Central Information Commission orders were raised in this petition. The infirmities in the procedures adopted by the regulators in appraising and clearing the safety and efficacy of GM mustard are at the core of this petition.

In the latest intervention application filed in this case, the issue of state governments taking a policy position against GM mustard and other GMOs is also highlighted, in addition to the fact that the Union Government violated its own undertakings in the court that it will not deliver any fait accompli in the matter of GM mustard, whereas planting has taken place in six locations already.

What lies ahead

The court has already observed that while it cannot go into the core matters of science and technology involved in the creation of GM mustard, it is cognisant of the fact that GM technology is a living irreversible technology, and that it has to decide on its own the TEC’s recommendations.

The bench indicated that it is not just technical issues of environmental and health safety that it is interested in, but also socio-economic repercussions. It pointed to the Union Government that no arguments have been proffered about why GM mustard’s hasty approval and planting is essential for the country and how the country will be doomed without this. It is unclear whether the bench would be interested in the fact that despite clear oral instructions on December 3 that the Union Government should not precipitate matters and should maintain status quo, GM mustard planting has taken place thereafter.

It is expected that the exercise of precautionary principle will be dwelled upon in the next hearings.

The Leaflet