The Environment (Protection) Act, 1986, however, does provide penal provision under Section 15, which include fine and imprisonment. But the flagrant violation in the case of Nav Bharat Seed Company, which released an illegal Bt Cotton variety in violation of all prescribed rules and procedures without being punished till date, clearly establishes ineffectiveness of the penal/liability provisions under the regime.  The penal provisions are also not clear with respect to violation of the two guidelines published by the RCGM (DBT).

Other Lacunae in Legal Framework

Govt of India is well aware of the fact that the modern biotech products & processes based on GMOs may pose certain risks to environment and human health if not handled in scientific and cautious manner. This is why it bought the   Rules way back in 1989. However, it failed to recognise the fact that the technology is fast changing and therefore the rules regulating the same need regular updation as well. Moreover, despite being an active participant in formulating the international policies wrt GMOs, it fails to incorporate the same issues in its domestic laws. The 1989 Rules fail to recognise/ take into consideration the following important provisions:

·        Precautionary Principle: The respondent in page 9 said that the Rules incorporate “Precautionary Principle”.
Precautionary principle as embodied in the preamble of CBD says,

“Noting also that where there is a threat of significant reduction or loss of biological diversity, lack of full scientific certainty should not be used as a reason for postponing measures to avoid or minimize such a threat.”

This principle has find its mention in the preamble of Cartagena Protocol on Biosafety as,

“Reaffirming the precautionary approach contained in Principle 15 of the Rio Declaration on Environment and Development.”

Furthermore, the principle has been incorporated in Art 10(6) of the Protocol as

“Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from taking a decision, as appropriate, with regard to the import of the living modified organism in question as referred to in paragraph 3 above, in order to avoid or minimize such potential adverse effects.”

In page 38 of their reply, the respondent claim CBD is not a legally binding instrument. India has ratified the said Convention on 18^th February 1994. It is submitted that in ratifying the Convention, India has committed itself to undertake national and international measures aimed at achieving the objectives of the Convention.

The fact that the existing Rules are not adequate is acknowledged by the Respondents in their own submission on Page.44 of the Counter Affidavit, where they admit constitution of a Task Force to “further streamline the existing regulatory system to make it more efficient, transparent and in consonance with international regulations”. The petitioner contend that in view of the fact that when damage is caused by GEOs, it is likely to be grave and irreversible, the inadequacy of the Regulatory system, the attempt to improve it through constituting a Task Force and the customary delay in implementing new policies, are all at odds with the notion of the Precautionary Principle. The Petitioners plead that the Rules must be amended to incorporate the precautionary principle and best practices in such a way that with respect to unresolved issues or where there is uncertainty, any decision should be held in abeyance, so that the precautionary principle can be exercised to the maximum benefit in order to protect the public interest.