This month, a New Delhi based non-profit organization filed a Public Interest Litigation in the Supreme Court of India asking that the rules pertaining to genetically modified organisms be radically amended so that the constitutionally guaranteed rights of every citizen to life, health and a safe environment are ensured. Gene Campaign's PIL also asks for setting up a High Power Committee to formulate a National Policy on Genetically Modified Organisms (GMOs) through a multi-stakeholder consultation process.

Dr. Suman Sahai, President, Gene Campaign, says they took this action since all attempts by Gene Campaign to engage in a dialogue with the policy makers failed to produce any response nor was there any move to listen to stakeholder concerns. Gene Campaign has been asking for greater transparency and participation in the decision-making on GM crops. The NGO's principal concern has been the lack of technical competence, transparency and accountability in the policymaking and regulatory bodies, which could have damaging consequences in a new technology area like GM crops.

That many countries involved with GM crops have been going through a review of their GM policies and systems of regulation and oversight in the light of new evidence is now well-known. "India must do the same", says Sahai.

India's current regulations are based on rules developed in 1989. Since then many international instruments such as Agenda 21 (1992), the UN Convention on Biological Diversity (1992), the Biosafety Protocol (2001), the UNEP Technical Guidelines on Biosafety (1995) and UNIDO Code of Conduct for the Release of Organisms into the Environment (1991) and the International Treaty on Plant Genetic Resources (2001) have been developed, signed or ratified by the international community.

"These international instruments have certain provisions that are not reflected in current regulations. For instance, the Biosafety Protocol provides for public participation in the decision making process concerning genetically modified organisms. India has signed and ratified this protocol but our regulatory system does not have any window whereby public can participate. Neither is there an systematic opportunity for the public to obtain relevant information (like field trial data) so that they are well informed to participate", says Ujjwal Kumar, policy analyst at the Gene Campaign.

On the other hand, many countries such as the UK, Australia and New Zealand have recently revised their regulatory mechanisms. Regional initiatives like adoption of OAU Model Legislation on Safety in Biotechnology, 2001 are also examples of countries’ response to recent international developments. The Indian environmental groups engagement with New Delhi to revisit its regulatory regime has "fallen on deaf years", says Suman Sahai.

To engage the government in a dialogue, Gene Campaign organized a National Symposium in November 2003 at New Delhi. But the recommendations that emerged from a multi-stakeholder national symposium were rebutted point by point by the Department of Biotechnology. " The Symposium was unanimous that India needs a comprehensive national policy on GM technology and its applications. However, the Department of Biotechnology (DBT) has stated that there is no need for such a policy. Furthermore, contrary to the participants’ view that the present regulatory regime is outdated and that a new statutory, independent National Biotechnology Regulatory Authority must be established, the DBT has stated that the present functioning of the regulatory system has been well accepted", Ujjwal Kumar points out.

But the DBT is not the only stakeholder within the Government that ought to have views on bettering the regulatory system. "Unfortunately, at present DBT is acting as if it is their sole responsibility. So far, the Ministry of Environment's Genetic Engineering Approval Committee (GEAC) has not said anything on the recommendations", comments Kumar.

Gene Campaign has approached the Supreme Court to seek relief in the interest of public health, environmental safety and livelihood security of farmers, and to request the Supreme Court to adjudicate on the question of developing a competent and transparent system to oversee GM crops in the country. The major grounds raised in the PIL are:

• That the rules of 1989 are arbitrary and unconstitutional, specially violative of Article 21 of the Constitution of India, which guarantees the right to life.

• That the regulatory agencies set up under the rules of 1989 lack technical competence, and the system is devoid of transparency, and accountability. There is also no public participation, nor any provisions for ensuring it. The rules themselves are deficient in dealing with potential environmental, health and socio-economic risks posed by the GMOs to the Indian people;

• That the rules do not incorporate principles and provisions under various international instruments, such as the Biosafety Protocol, Convention on Biological Diversity etc., which India has signed / ratified;

• That most countries, including developing countries, are setting up new regimes or revising the existing ones in light of the latest international developments, and that India should also do the same.

Petitioning the Supreme Court as the gateway of last resort is an approach being taken by many civil society groups in India. Faced with a governing system that does not respond to ecological, human rights and transparency concerns as quickly it may in other matters, many NGOs eventually knock the doors of the Supreme Court. But it is one thing for the Supreme Court to adjudicate on questions of a Constitutional nature in specific matters that arise from conflicts of interest in an otherwise functional regulatory system. Some would regard the situation with regard to state of our environmental regulations to be a failure in the responsivess of the governance process itself.

"The higher judiciary in India has the primary responsibility to judge whether or not Government’s actions or omissions violate the Constitution. The SC and HCs have been already directing the executive to act in lines of the spirit of the Constitution, and that is protection of fundamental rights. In the present case, not having an effective regulatory regime hampers people’s fundamental right to health and a clean environment. Public participation in decision making on subject matters like environment and health is also a fundamental right of people under Article 21. Seen in that light, the Supreme Court is empowered to direct the Indian Government to bring the Rules of 1989 in consonance with the Constitution of India," argues Kumar.

"Also, the current rules also do not incorporate various principles of environmental jurisprudence (such as polluter-pays principle and inter-generational equity) that the Supreme Court has upheld in the past as part of the Articles 21 and 14", he adds.

The PIL has asked the Court to direct the government to observe a moratorium on all permissions, approvals and trials concerning GMOs, particularly of crops for which India is a Centre of Origin/ Diversity. The petitioner has also pleaded that until the rules are amended and a regulatory and monitoring system put in place, no commercial cultivation should be allowed.