·         Liability: The Respondents seem to have confined their understanding of liability solely to penalties for non-compliance. The larger and far more critical issue of liability for damage (possibly irreversible) caused by the negative effects of foreign genes on agro-biodiversity and crop plants, and hence on the livelihood of small farmers and food security of the nation, have not been understood or accommodated. The respondent in the Counter (page 39) has rather taken the excuse that even though the protocol has come into force on 11^th September 2003, various instruments such as “Liability and Redress”, “Handling, Packaging, Transportation and Identification”, “Compliance”, etc. are under negotiation and would take about 2-4 years for its final adoption. Once our country has ratified the BSP, the required change should be immediately reflected in the regulatory regime. If that is not done, like the dumping of hazardous waste, our country will become a ground for testing and dumping of varieties of GEOs, which will seriously, damage our rich bio-diversity.

·        Prior Informed Consent: It is reiterated here that there is no provision in the Rules for obtaining prior informed consent from farmers/gram sabhas / gram panchayats where field trials are conducted or with respect to other practices associated with genetic engineering. According the 73^rd and 74^th Amendments, participation of Gram Sabhas / Gram panchayat and other Local self-governing Bodies in most kinds of decision-making is mandatory.

·        Transparency: There is nothing in the Rules of 1989 that mandates transparency. It does not constitute a requirement under the Rules, which makes the Rules arbitrary, inadequate with respect to transparency and availability of information. The respondent contended in its reply (pg.31) that various reports, decisions of GEAC and other relevant information has been put on to website of the Ministry of Environment and Forest. It may be pointed out here that this information is restricted to the process of Bt cotton approval and release and subsequent reports. Moreover, since the scope of this writ petition goes far beyond Bt Cotton, to the Rules of 1989, it may be pointed out that there is nothing on the website that lays out the process and protocols that the regulatory system will follow in order to asses the safety and desirability of every GMO. Thus there exists a complete non-transparency in the decision-making procedure. The Rules do not require them to be made public and this is one lacuna, which cannot be rectified through guidelines but must be addressed through amendment of Rules.

Furthermore, it may be pointed out here that in Annex. III to the Biosafety Protocol, it is laid down that the Risk Assessment should be carried out in a scientifically sound and transparent manner. It is also stated that all the information related to the method used in the Risk Assessment should be made available to the public. Under the Rules it is neither made mandatory nor has it been practiced to make the decision making process a transparent one. The process of Risk Assessment is not laid down in the Rules.

·      Monitoring Mechanism: The Rules of 1989 do not provide for an adequate monitoring mechanism and hence leave lot of scope for contamination of non-GEO crops by GEO crops even when Rules as such are followed. In the absence of a statutory monitoring requirement, even if the GEAC imposes certain terms and conditions while approving any application, whether such terms are followed at the ground level is not ensured. Though the “District Level Biotechnology Committees” are made responsible for monitoring the implementation of the Rules, the Rules do not give any direction as to how the monitoring is to be carried out. The Rules do not provide any mechanism to carry on the monitoring nor makes it mandatory to consult experts in this field. The Rules, therefore, fail to ensure proper monitoring which is vital for public safety. 

·       Accountability: The Rules neither make the GEAC nor any other Committees, accountable for their actions as well as inactions. The Rules do not provide for making public the data from the field trials ad the rational for decision-making. Nor do they provide for an annual review of regulatory process to judge the efficacy and performance of the regulatory agencies. They do not even hold these committees accountable to the Parliament by requiring an annual report of the decisions taken on GMOs to be submitted to the Parliament.

·        Penal Provisions: The Rules fail to provide any penal provisions for the non-compliance of any of the statutory provisions or an order by the person responsible for handling the GMOs. Penalties are provided under Rule 15,