Bt Cotton, Bt Brinjal and GM Mustard

In one line

Three Indian episodes, three different endings, and each was decided at a different legal step.

In exam wording: the three principal Indian episodes in the regulation of genetically engineered crops are insect-resistant cotton, which was approved for commercial cultivation and is grown widely; insect-resistant brinjal, for which the Genetic Engineering Approval Committee recommended approval and the Minister then imposed a moratorium after public consultations; and herbicide-tolerant mustard, whose approval has been the subject of continuing proceedings in the Supreme Court; each turned on a different step of the machinery in the Rules of 1989, the first on approval under rules 8 and 10, the second on the exercise of the power at the point of decision, and the third on judicial review of the process.

A caution about how these are usually taught

Each of the three has generated a large literature and a series of orders, and accounts differ on dates and details. This book states the legal step at which each was decided and the provision engaged. It does not recite figures for area planted, yield or income, and it does not state the outcome of proceedings it has not read.

Cotton

What happened. An insect-resistant trait, using genes from a soil bacterium, was introduced into cotton hybrids and approved for commercial cultivation. It became the dominant cotton technology in India.

The legal steps. Approval of the Genetic Engineering Approval Committee under rule 7(1) for import and use, under rule 8 for production with respect to discharge into the environment, and under rule 9(2) for the field trials that preceded it, each being a deliberate release which rule 9(1) otherwise prohibits. Approval under rule 13(2) is for a specified period not exceeding four years at first, renewable for two years at a time.

The legal questions it produced. Two, and both reached the Supreme Court.

The patent question. Whether a nucleic acid sequence conferring the trait is patentable, or whether it is excluded by section 3(j) of the Patents Act 1970, which excludes plants and animals in whole or in any part, other than micro-organisms, and essentially biological processes for the production or propagation of plants and animals. In Monsanto Technology LLC v. Nuziveedu Seeds Ltd. (2019) 3 SCC 381 the Supreme Court set aside a Division Bench order that had decided that question summarily and remanded the suit for trial, holding that it involved complicated mixed questions of law and fact requiring expert evidence.

The price question. Trait fees and seed prices became the subject of price control, which is a competition and price regulation matter rather than a biosafety one, and a student should keep the two apart.

Brinjal

What happened. An insect-resistant brinjal was developed. The Genetic Engineering Approval Committee recommended approval for environmental release. The Minister then held public consultations in several cities and imposed a moratorium, so the release did not proceed.