NOTE: There are so many heroes in India's struggle against the imposition of GM crops. This article points to those often unsung heroes who have fought regulatory capture via the courts.

EXTRACT: This limited success of civil society would not have been possible but for the sustained efforts of two petitioners and their counsel to seek the Supreme Court's intervention at every stage in order to make the government accountable.
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COVER STORY: Legal struggle
V. VENKATESAN in New Delhi
Frontline, Volume 27 - Issue 05 :: Feb. 27-Mar. 12, 2010
http://www.frontline.in/stories/20100312270501400.htm

(INDIA'S NATIONAL MAGAZINE from the publishers of THE HINDU)

*Two petitions in the Supreme Court against GM food help make the government accountable.

When Jairam Ramesh, Union Minister of State (Independent Charge) for Environment and Forests, announced his decision not to go ahead with the commercialisation of GM (genetically modified) brinjal, the concerned sections of civil society felt a huge sense of relief. This limited success of civil society would not have been possible but for the sustained efforts of two petitioners and their counsel to seek the Supreme Court's intervention at every stage in order to make the government accountable.

The two petitioners and the vociferous demand from sections of civil society succeeded in getting the Central government to delay its decision on the issue. The move is by and large perceived to be in the public interest. Media reports about the Supreme Court's intervention had created a huge awareness, particularly among State governments, about the safety aspects of GM crops.

The first writ petition was filed by Gene Campaign, a research and advocacy organisation that has, since 1993, been working to empower local communities to retain control over their genetic resources. Its convener, Suman Sahai, a geneticist, returned to India from Germany in 1989 after abandoning her teaching career in order to generate awareness about globalisation and its threat to food and livelihood security. The Campaign has worked in 17 States, conducting over 400 district- and village-level meetings over the years.

In 2003, the Campaign organised a national conference on the "Relevance of GM technology to Indian agriculture and food security". The participants included the full range of stakeholders from industry, research and academia, farmers, political leaders, students and concerned citizens. They made 20 recommendations by consensus and sent them to the Department of Biotechnology (DBT), which rejected them without discussion.

In 2004, the Campaign filed a public interest petition in the Supreme Court, seeking improvements in the regulatory system for genetically modified organisms (GMOs). It urged that unless the regulatory systems were demonstrably more competent, transparent and responsive to public concerns, there should be a moratorium on the commercial release of GM crops.

Specifically, the petition asked the court to direct the Central government to bring in consonance with the Constitution the Rules for Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms, Genetically Engineered Organisms or Cells, 1989. It demanded that the Rules be declared unconstitutional in the event of the government failing to do so.

In October 2006, acting on its application, the court directed the release of technical data relating to such crops.

Even as the court was hearing Gene Campaign's writ petition, it admitted a writ petition from Aruna Rodrigues, from Mhow, Madhya Pradesh.

Aruna Rodrigues was an unlikely gene campaigner. Having worked in England and Kuwait as a development economist for two decades, she returned to India in 1996 to launch a business enterprise to produce and sell solar electricity. Her interests ranged from climate change to nutrition. The health aspects of biodiversity soon drew her attention. Realising that it was a major problem, she looked into it in far more detail.

She found that in Gene Campaign's petition, there was a gap in terms of scientific evidence before the court. She filed her writ petition in 2005 through her counsel, Prashant Bhushan. P.V. Satheesh from Hyderabad and Rajeev Baruah from Mhow, both specialists in organic farming, and Devinder Sharma, a policy analyst based in New Delhi, joined her as co-petitioners. In her petition, Aruna Rodrigues pointed out that the prevailing practice involved a clear conflict of interests: the test results were not available for public scrutiny and most of the testing was done by the biotech company that had a commercial interest in the approval of the GMO.

She told the court that even for technologies that had been tried and tested and found to be far safer than genetic engineering, for instance, hydroelectric projects, the statute mandates a public notice and public hearing before an environmental impact assessment (EIA) is completed.

Precautionary Principle

In her petition, she invoked other equally important grounds to challenge the government's policy. The release of GMOs into the environment without a protocol and a transparent, independent, credible and publicly accessible system of testing them for biosafety and environmental hazards was, she said, a violation of the precautionary principle laid down by the apex court in an earlier case.

The principle makes it mandatory for the government to assess environmental risks, warn potential victims of such risks and behave in ways that prevent or mitigate such risks. It puts the onus on the developer to show that an action is environmentally benign.

She argued that any release of GMOs into the environment without the requisite scientific testing for biosafety concerns would be unconstitutional. Such indiscriminate releases would violate the fundamental right to health and environment under Article 21 of the Constitution, she said. The Supreme Court has held in a number of cases that the right to life under Article 21 includes the right to a healthy and safe environment.

The Supreme Court has also held that international treaties signed by India can be read into the country's domestic law provided they are not in conflict with any statutory provisions. The United Nations Convention on Biological Diversity (CBD), 1992, requires that the contracting parties regulate or manage domestically the risks associated with the use and release of LMOs (Living Modified Organisms) resulting from biotechnology, introduce appropriate procedure to require impact assessment of proposed projects that are likely to have significant adverse effects on biodiversity, and allow public participation in the procedure where appropriate.

Further, Article 19(3) of the CBD urges parties to consider the need for and modalities of a protocol setting out appropriate procedures for the safe transfer, handling and use of LMOs that may have an adverse effect on the conservation and sustainable use of biodiversity. India is a signatory to the CBD, and since its provisions are not in conflict with but in aid of domestic laws, India is bound by its provisions, Aruna Rodrigues argued in her petition.

India is a signatory to the Cartagena Protocol, the binding international agreement on biosafety. The protocol aims to ensure adequate levels of protection in the field for safe transfer, handling and use of LMOs that may have adverse effects on the conservation and sustainable use of biodiversity.

The protocol stipulates, under Article 2(2), that parties must ensure that the development, handling, transport, use, transfer and release of LMOs is undertaken in a manner that prevents or reduces risk to biodiversity.

Article 10(6) of the protocol stipulates that lack of scientific certainty owing to insufficient scientific information and knowledge regarding the extent of potential adverse effects shall not prevent the contracting party from taking an appropriate decision, to avoid/minimise potential adverse effects.

The Cartagena Protocol also stipulates that parties shall consult the public in decision-making processes regarding LMOs and make all relevant decisions available to the public. Further, Article 21(6) of the protocol stipulates that information about a summary of the risk assessment cannot be made confidential.

India is required not only to put such a safety protocol in place but also to ensure that such a protocol will mandate openness, transparency and public participation.

Aruna Rodrigues' petition pointed out that the decision to release GMOs in India without public access to information regarding the kind of safety tests conducted, and the results of the tests and an opportunity to the public to critique the tests was a violation of this provision of the Cartagena Protocol.

In addition, she pleaded that a labelling mechanism of GM food and GM products be put in place. She urged the court to direct the government to ban the import of any biological mechanism, food or animal feed unless it has been tested, certified and labelled GM-free.
Interim Orders

After hearing the petitions, the Supreme Court gave significant interim orders. On May 1, 2006, a Bench directed that field trials of GMOs shall be conducted only with the approval of the Genetic Engineering Approval Committee (GEAC). However, apprehending indiscriminate approvals by the GEAC, Aruna Rodrigues, through an interim application in 2006, prayed that field trials for all GM products be stopped. The court was not inclined to do this, but it directed the GEAC to withhold approvals until it issued further directions after hearing all concerned. The court asked the government to consider associating independent experts with the GEAC. Before suggesting the names of such experts for the purpose, the government should ask prospective candidates whether they were being funded directly or indirectly by the biotech industry, the court said in its order, making it clear that conflict of interest of members was unacceptable.
Field testing

The court directed the GEAC to examine in detail the impact of the field test being carried out on the basis of the expert opinion. On February 15, 2007, the court asked the Centre to file a report on the implications and biological results of the field tests. This was in response to a revelation by the petitioners that in 91 varieties field tests were going on without sufficient precautions being taken on contamination of plants of similar species in neighbouring fields.

The court directed the GEAC to ensure that there was a distance of at least 200 metres between the trial fields and other fields cultivating the same crop.

The court lifted its freeze on further approvals by the GEAC on May 8, 2007, as regards Bt cotton. The GEAC sought the court’s permission to consider approvals for other GM crops.

The court asked the Ministry of Environment and Forests (MoEF) to invite Dr P.M. Bhargava, molecular biologist and founder Director, Centre for Cellular and Molecular Biology, Hyderabad, and the renowned agricultural scientist M.S. Swaminathan, to its meetings before granting approvals. These two invitees would have the liberty to express their views to the committee before a final decision was taken, the court said.

The court, however, permitted the GEAC to consider any application presented to it in accordance with the law and take appropriate decisions after considering all aspects, including biosafety. Anyone aggrieved by the decision of the GEAC could appeal to the Appellate Committee, it said.

The court permitted the GEAC to put out on its website its guidelines for granting approvals. The court was apparently not convinced by the arguments that GEAC approvals might become a fait accompli and that the process of remedying wrong approvals was fraught with risks.

In the written submissions to the court in 2009, Prashant Bhushan cautioned that non-compliance with the court’s orders by the regulators meant that India faced de facto deregulation of GM crops.

He pointed out that at no time in the last two years had any tests been conducted to determine the extent of contamination in India despite a decade of GM field trials of virtually all agricultural food crops. Yet, the GEAC claimed, without any proof to back up such a claim, that there was no contamination because sufficient precautions had been taken.

There were no laboratories in India that could perform the required tests to an internationally accredited standard, he claimed. Thus far, validated test protocols had not been announced, nor had sequence information been provided to civil society groups to enable independent testing of plant material/seeds, along with permission to send samples abroad to institutions that test, he said.

He brought to the notice of the court appraisals made by two well-known independent scientists, Seralini and Judy Carmen. They had stated that Bt brinjal was not safe for release and regulatory approval for it had to be withheld on health and environmental grounds; that field trials continued unabated without biosafety tests being conducted in disregard of the 'Rules' and the orders of the court, which made the field trials illegal; and that the GEAC took no cognisance of any safety concerns in the matter of field testing, let alone rigour to avoid health hazards and contamination.

Prashant Bhushan's written submissions show that Bhargava has stated that no GM crop has been adequately tested for environmental, human and animal safety before their release by the regulator. This fact can be attested to from the GEAC’s minutes themselves: "At every stage there is a bias if not deceit all the way. I am only looking at the data provided by the GEAC itself," Bhargava has said.

Independent institution

The proposal that India must establish an independent publicly funded institution for GMO testing and appraisal has been accepted by the Supreme Court. Such an institution must be capable of undertaking all the tests that are required both targeted and non-targeted approaches to GMO testing to an internationally accredited standard.

It must be fully operational, independent of any conflict of interest in its staffing and autonomous in its functioning (secure from government interference).

Until such time as this institution is fully functional with the required certification, the environmental release of any GMO must be put on hold, Prashant Bhushan submitted to the court.

The GEAC has accepted, in principle, Bhargava’s proposal for the need for such an institution (minutes of the GEAC's 85th meeting). Bhargava has also provided a blueprint for such an institute at the request of the GEAC. While the Centre's response to this proposal is not clear, it has rejected Bhargava's other proposal duly endorsed by Prashant Bhushan for a National Centre for Assessment of GMOs.

During the last hearing on January 19, 2010, Prashant Bhushan alleged that at various places, open-field testing resulted in the contamination of ordinary plants with GM plants. He argued that such testing should be done only within the greenhouse so that contamination could be avoided. Counsel for Gene Campaign, Sanjay Parekh, told the court that the rules for these experiments were not adequate and the norms were not framed properly.

The court has asked the Centre to file its response to these issues.