The Supreme Court of India delivered a split verdict in the long-running challenge to the Union Government's approval for environmental release of genetically modified mustard variety DMH-11, in Gene Campaign v. Union of India. A two-judge Bench of Justice B.V. Nagarathna and Justice Sanjay Karol reached diametrically opposite conclusions — Justice Nagarathna quashed the approval granted by the Genetic Engineering Appraisal Committee (GEAC), while Justice Karol upheld it subject to conditions. The 1:1 split necessitates referral to a larger bench for resolution.
Background
The petition, originally filed in 2005, challenged the regulatory clearances for commercial cultivation of GM mustard (Dhara Mustard Hybrid-11 or DMH-11), which would become India's first genetically modified food crop if approved for environmental release. The GEAC, functioning under the Environment (Protection) Act, 1986 and the Environment (Protection) Rules, 1989, had granted conditional approval for the environmental release of DMH-11.
The petitioners — environmental organisations and farmer groups — contended that the approval process suffered from fundamental deficiencies, including inadequate environmental impact assessment, insufficient biosafety testing, and failure to apply the precautionary principle in a context involving irreversible ecological consequences. The Union Government and the developer institution defended the scientific rigour of the assessment and the regulatory competence of the GEAC.
Key Holdings
Justice Nagarathna (quashing the approval):
Precautionary principle violated: The approval for environmental release of a GM food crop, where the consequences are potentially irreversible, required the most rigorous application of the precautionary principle. The existing environmental assessment was found to be inadequate in scope and methodology.
GEAC process deficient: The approval process did not adequately address concerns regarding gene flow to related species, long-term soil ecology impacts, and the effect on biodiversity in mustard-growing regions. These gaps rendered the approval premature.
National policy absent: Justice Nagarathna observed that India lacks a comprehensive national policy framework for GM crops, and that piecemeal approvals in the absence of such a policy framework do not serve the public interest.
Justice Karol (upholding the approval):
Scientific assessment sufficient: The multi-stage regulatory evaluation conducted by expert bodies including the GEAC represented a competent scientific determination that the Court should not lightly disturb.
Conditional approval appropriate: The approval, being conditional and subject to biosafety monitoring and regulatory oversight, provided adequate safeguards against the risks identified by the petitioners.
National GM crop policy directed: Both judges concurred that the Union of India must formulate a comprehensive national policy on GM crops, to be developed in consultation with all stakeholders including state governments and farmer organisations, with a four-month timeline for national consultations.
Implications for Practitioners
The split verdict ensures that the legal status of GM crop approvals in India remains unsettled pending the larger bench hearing. For agri-biotech companies and regulatory advisors, this means continued uncertainty regarding the commercial viability of GM food crop development programmes in India.
Environmental lawyers should note the divergent standards applied by the two judges regarding judicial review of scientific determinations by expert regulatory bodies. Justice Nagarathna's approach — subjecting the GEAC's assessment to intensive substantive review — represents a departure from the traditional deference to expert bodies, while Justice Karol's approach maintains the conventional standard of limited judicial intervention in scientific matters.
The unanimous direction to formulate a national GM crop policy provides a concrete deliverable that practitioners and civil society organisations can monitor and engage with, regardless of the ultimate outcome on the substantive question before the larger bench.