GM Mustard: All eyes on SC

The Supreme Court will on September 26 hear final arguments on the “conditional approval” given by the Government of India for the ‘environmental release’ of herbicide-tolerant GM mustard. This is the first GM food crop to have been approved in India. Bt brinjal, which also received regulatory clearance in October 2009, was put on an indefinite moratorium by the then Union government in February 2010.

Is GM mustard a herbicide-tolerant (HT) crop?

That’s one of the issues the top court will look into, given that the bacterial ‘bar’ gene inserted in both parental lines and inherited by the hybrid seed confers tolerance to glufosinate, a toxic herbicide. The simple question to ask the Union government, which is denying that this is a HT crop, is whether the GM mustard plant will survive if sprayed with glufosinate.

This then directly draws the court into an earlier, un-adjudicated matter of the court’s own independent technical experts recommending a ban on HT crops in India. Clearly, the unanimous recommendation of a body appointed on consensus by the court is binding, even if an industry-supported sixth expert appointed into the Technical Experts Committee (TEC) upon an impleading party’s recommendation gave a dissenting report. The five independent experts in the TEC included two nominated by the government.

This TEC also responded to a specific order of the court on May 10, 2012, in addition to its agreed-upon Terms of Reference -- the court asked the TEC whether there should be a ban, partial or otherwise, upon conducting open field tests of GMOs. Apart from recommending a complete ban on all HT crops (which is not different from recommendations for this type of GMOs from other high-level committees in India), the Supreme Court-appointed TEC has also recommended that field trials for commercial release of
GM crops for which India is a ‘Centre of Origin’ or ‘Centre of Diversity’ should not be allowed. India is a ‘Centre of Diversity’ for mustard.

At another level, GM mustard hybrid yield claims are questionable, and the Union government itself admits in its submissions to the court that there is no yield advantage. Numerous non-GM hybrids already exist in the market for farmers in India. Hybrid technology availability, as well as large-scale adoption of non-GM hybrid seed in mustard crop, has however not brought down India’s edible oil imports. This is because India’s edible oil imports are being spurred by the food industry’s demand for cheap oil like palmolein oil, whereas India is self-sufficient when it comes to mustard oil. Meanwhile, farmers are making huge losses even with record production of mustard as prices are often significantly lower than the MSP announced. It is noteworthy that globally, the best yields in rapeseed mustard are in countries which use non-GM hybrid technology, not GM technology.

Apart from adjudicating on the court-appointed TEC recomm-endations, another question that the Supreme Court will have to look into is whether the regulatory appraisal of GM mustard was rigorous and as per statutory rules and guidelines.

On this front, apart from the petitioners pointing to a plethora of regulatory violations, civil society groups have put out detailed evidence-based reports to showcase a number of illegalities with regard to regulatory appraisal.

The very fact that the full biosafety dossier of GM mustard has not been published on the regulator’s website is a violation of Supreme Court and Central Information Commission orders on the subject. There has been no health expert, independent or otherwise, involved in GM mustard safety appraisal. Not only have many of the safety evaluation tests been done by the very applicant for approval, but even the test protocols were evolved by the applicant itself, Delhi University!

Conflict of interest is apparent in other ways, too.

A comparison of the testing done for assessing biosafety of Bt brinjal with the tests done for GM mustard clearly shows that a number of tests were not done with GM mustard though it is herbicide-tolerant. In fact, India’s regulatory regime does not have test protocols and guidelines laid down for HT crops.

The approval process and conditions, too, are untenable. In the case of Bt brinjal, the then Union Environment Minister wrote to various state governments and elicited their views and analyses. For HT GM mustard, the ‘environmental release’ approval came without consulting state governments.
Worse, explicit objections and resistance from numerous states were ignored, despite the fact that both agriculture and health are state subjects as per the Constitution.

The conditions in the approval letter issued to the crop developer seek to criminalise farmers, in case they use glufosinate on this HT mustard. In reality, these penal clauses that the regulator is threatening farmers with are legally untenable and cannot be applied against farmers, under either the Insecticides Act (Section 38) or under the Environment Protection Act.

In Rabi 2022, the Union government grabbed seeds from a private applicant of GM mustard and clandestinely and hastily planted them in eight locations, despite an undertaking given in writing to the Supreme Court in 2017 that it would first place its decision on record and would not deliver a fait accompli.

The guidelines for ‘testing’ that were applied are only technical guidelines of the Indian Council for Agriculture Research, and not the statutory guidelines of the Environment Protection Agency that seek to prevent contamination. This is on the pretext that ‘environmental release’ had already been approved. It is a state of de-regulation delivered as a fait accompli. State governments are not able to use any statutory tool when there is an outright violation of the constitutional schema.

It now falls upon the Supreme Court to pronounce its verdict on herbicide-tolerant GM mustard, after weighing the adverse impacts of an HT crop on the environment, on India’s rich mustard diversity, on human health, on food safety, on the livelihoods of farmers, including organic farmers, on poor female agricultural workers, beekeepers and honey exporters, and also based on the fact that numerous alternatives exist for increasing oil production in India.

(The writer is with the Alliance for Sustainable & Holistic Agriculture (ASHA-Kisan Swaraj)