# Gene Campaign & Anr v. Union of India & Ors

- **Citation:** 2024 INSC 545
- **Court:** Supreme Court of India
- **Decided:** 2024-07-23
- **Bench:** B.V. Nagarathna, Sanjay Karol
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/gene-campaign-anr-v-union-of-india-ors-38075
- **Pages:** 296

## Headnote

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.
Headnotes†
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
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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 con

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[2024] 7 S.C.R. 1847 : 2024 INSC 545
Gene Campaign & Anr.
v.
Union of India & Ors.
(Writ Petition (Civil) No. 115 of 2004)
23 July 2024
[B.V. Nagarathna* and Sanjay Karol,* JJ.]
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.
Headnotes†
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
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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
[2024] 7 S.C.R.
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Gene Campaign & Anr. v. Union of India & Ors.
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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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
[2024] 7 S.C.R.
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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 wellfounded 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,
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Gene Campaign & Anr. v. Union of India & Ors.
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.]:
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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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
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Gene Campaign & Anr. v. Union of India & Ors.
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]
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]
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1856
[2024] 7 S.C.R.
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[2024] 7 S.C.R.
1857
Gene Campaign & Anr. v. Union of India & Ors.
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In the judgment of Sanjay Karol, J.
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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
[2024] 7 S.C.R.
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Gene Campaign & Anr. v. Union of India & Ors.
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-forgenetic-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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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.
[2024] 7 S.C.R.
1861
Gene Campaign & Anr. v. Union of India & Ors.
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
1.
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
2.
The present lis concerns 6 petitions: 3 Writ Petitions (W.P. (C) No.
115 of 2004; W.P. (C) No. 260 of 2005 and W.P. (C) No. 840 of 2016),
2 Contempt Petitions (Contempt Petition (C) No. 295 of 2007 and
Contempt Petition No.6 of 2016) and 1 Civil Appeal (Civil Appeal
No. 4086 of 2006).
* Ed. Note: Pagination as per the original Judgment.
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3.
In the batch of Writ Petitions, under Article 32 of the Constitution of
India, the lead matter was filed in 2004 (W.P. (C) No.115 of 2004)
praying for issuance of the Writ of Mandamus to the Respondents
directing them to:
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.
4.
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.
[2024] 7 S.C.R.
1863
Gene Campaign & Anr. v. Union of India & Ors.
5.
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.
6.
Contempt Petition (C) No.295 of 2007 was filed alleging contempt
of orders of this Court dated 22.09.2006, 08.05.2007 and 01.08.2007.
Contempt Petition (C) No.06 of 2016 was filed alleging contempt of
orders of this Court dated 15.02.2007, 08.05.2007, 08.04.2008 and
12.08.2008. These orders come to be discussed in the foregoing
paragraphs.
7.
Civil Appeal No.4086 of 2006 came to be filed against order of the
Appellate Authority dated 08.10.2003, dismissing the appeal filed by
the Appellant in Appeal No.2 of 2002, whereby the approval granted
to Bt Cotton dated 05.04.2002 was assailed.
8.
This Court is often presented with situations where two competent
interests call upon it to undertake a balancing act which is akin to
threading a needle or, in other words, undertake a task of considerable
difficulty. This case is one such task. On the one hand, is a group
of concerned, informed individuals and organisations apprehensive
about the potential impacts of new technology on the environment,
agriculture, health and other socio-economic parameters; and on the
other, is the government/competent authority batting for a cautious but
optimistic approach furthering scientific and agricultural development,
underscoring its importance in line with growing concerns of food
security, population, economics and other matters of national interest.
9.
The former argues the dangers of unpredictability, unknowability of
the effect of human intervention in seed production and otherwise
pushes for the adoption of a precautionary approach while the latter
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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.
10. Throughout this judgment, certain terms will form the mainstay of
the discussion, and adequate understanding of which, is imperative
for arriving at a just conclusion. At the core, the question revolves
around genetically modified organisms, their regulation and release
into the environment.