Vol 3. Issue 13
Supreme Court restores ESG PIL exposing regulatory failures causing biopiracy and biodiversity losses
In 2012, ESG filed a PIL (WP 41532/2012) in the Karnataka High Court drawing its attention to systemic failures of the Union Ministry of Environment Forest & Climate Change (MoEF&CC), National Biodiversity Authority (NBA) and State Biodiversity Boards (SBBs) in implementing the Biological Diversity Act, 2002 (BD Act). One major contention was that M/s Monsanto / M/s Mahyco, along with various Indian public universities, had illegally accessed 16 local indigenous varieties of brinjal (eggplant) and turned them into proprietary B.t. Brinjal (India’s first GMO). Following nationwide public hearings, on 9th February, 2010 the then Environment Minister Mr. Jairam Ramesh, ordered a moratorium on the environmental release of B.t. Brinjal. However, this decision sidestepped a major concern that ESG had raised: that M/s Monsanto et al had committed biopiracy by illegally accessing India’s sovereign bioresources.
For over a year thereafter, ESG represented various authorities to ensure this egregious crime would be tackled. Perhaps because it was M/s Monsanto, none of the regulatory authorities were willing to implement the rule of law. ESG then petitioned various Parliamentarians and also Ms. Jayanti Natarajan, who followed Mr. Ramesh as the Environment Minister. In a statement made before the Rajya Sabha on 6th September 2011, Ms. Natarajan confirmed that ESG’s complaint formed the basis for trying M/s Monsanto et al on grounds of biopiracy. Soon after, in the 37th Report of Parliamentary Committee on Agriculture submitted to Parliament on 9th August 2012, NBA, MoEF and also the Genetic Engineering Appraisal Committee were unequivocally criticised (at pages 279-282 of the report) for their continued inaction in tackling possible biopiracy by M/s Monsanto/M/s Mahyco. The Committee also highlighted serious conflict of interest as the Chair of NBA and the GEAC were one and the same person.
Despite all of these efforts, when NBA continued to delay filing a formal criminal complaint against M/s Monsanto et al, ESG was compelled to approach the Karnataka High Court in a PIL in October 2012 (WP 41532/2012). The Court responded with grave concern which is indicative in what then Chief Justice Mr. Vikramjit Sen said in open court: that biopiracy causes massive biodiversity losses, and a key reason is that American corporations aren’t held to account globally, encouraged perhaps by the United States Government not signing the Convention on Biological Diversity. Yet, the country coerces other countries to open up their sovereign bioresources for exploitation by American corporations.
The PIL also raised another serious concern: that Sec. 40 of the BD Act was so worded that it allowed unfettered and unregulated access to India’s sovereign bioresources for commercial exploitation, and entirely exempted listed bioresources from the protection of the act, which results in irreversible losses of very precious bioresources and associated traditional knowledge, including those that have immense value in treating chronic illnesses and supporting natural resources dependent communities.
The case was heard multiple times in the High Court and following written pleadings filed by all parties, the case was listed for final arguments and a decision. Meanwhile, wary of judicial action due to failure to act on ESG’s biopiracy complaint, NBA filed formal criminal charges in court against Monsanto et al. before the JMFC Court, Dharwad in Criminal Complaint No. 579/2012. The accused sought to quash the criminal proceedings by filing CRL P 10002/2013 and CRL P 10003/2013 before the Karnataka High Court which were dismissed on 11th October 2013 order of Justice Mr. A S Pachhapure. The criminal case was set to proceed into trial.
However, in a surprising decision of 2nd December 2013, the Principal Bench of the Karnataka High Court, headed then by Chief Justice Mr. D. H. Waghela, transferred the PIL to the National Green Tribunal overlooking arguments advanced by ESG that Tribunals do not have the power to decide constitutional validity of a statutory provision that is challenged, as was the case in the PIL. Soon after, on 3rd February 2014, the Supreme Court stayed the criminal proceedings.
ESG filed an appeal in March 2014 before the Supreme Court against the Karnataka High Court decision transferring the PIL to NGT. While several benches of the Supreme Court heard this matter over the years, it was only on 22nd November, 2022 – almost 9 years later – that the appeal was heard on its merits and ruled in favour of ESG. This decision now restores ESG’s PIL in the Karnataka High Court and will hopefully help set right grave lapses persisting in the biodiversity conservation systems of India. The stay on the criminal proceedings persist.
Such actions should have propelled MoEF&CC to proactively act to protect India’s biodiversity, bioresources and associated traditional knowledge and rights. Instead, the Ministry has over the past few years worked to systematically dilute this law and other environmental laws as well. All amendments proposed to the BD Act present a scenario of the Government subordinating the nation’s biowealth to reckless profiteering by national and international corporations.
Supreme Court on the commercial cultivation of GM mustard
The Supreme Court is hearing a batch of petitions [WP (C) No. 260/2005: Aruna Rodrigues v. UOI & others and WP (C) No. 115/2004: Gene Campaign v UOI & others] seeking a ban on the commercial cultivation of indigenously developed genetically modified mustard seeds. Appearing for the Petitioners, Advocate Mr. Prashant Bhushan informed the Court that as the GMO crop has already been planted in fields and the seeds have germinated, if the plants are not uprooted immediately, there will be irreversible contamination of all mustard varieties in India. He further implored the Court
to apply the precautionary principle in stopping the release of GM mustard, failing which purity of 5477 varieties of mustard would be at risk of irreversible genetic contamination.
Advocate Sanjay Parikh further pointed out that the widespread use of herbicide-tolerant crops would encourage farmers to spray chemical weed-killers, leaving toxic chemical residue in large amounts on the crops. He argued that the Supreme Court’s own Technical Expert Committee [TEC] had said that these GM crops were not meant for agriculture in the Indian context. Further, the regulatory system under the Genetic Engineering Appraisal Committee (GEAC) which cleared the environmental release of GM Mustard was “horrendous” and riddled with conflict of interest. Taking note of the same, Justice B.V. Nagarathna orally expressed concern on the plight of rural women labourers engaged in de-weeding who will be adversely affected if the government allows commercial cultivation of the GMO crop.
Kenya’s High Court temporarily stops the Kenyan Government’s decision to lift the ban on GMO foods
The Milimani Law Court of Kenya on 28th November 2022 restrained Agriculture and Trade Ministries of Kenya from importing any GMO foods into the country in response to a petition filed by Kenya Peasants League. Kenya is the first East African country to allow the growth and import of GMO crops, which decision now is subject to judicial review.
Water Commons And Lakes
Karnataka High Court stops BBMP from putting up constructions around Mallathahalli lake
The Justice N K Patil Committee’s recommendations, which are part of the final ruling of Karnataka High Court in ESG’s Lakes PIL, unequivocally required State and civic authorities to ensure lakes, kaluves and such other water commons are not sites for commercial development and recreational facilities. Yet, in a truly bizarre development, Karnataka’s Horticulture Minister Mr. Munirathna proposed a toy train, glass house and various other recreational facilities inside Mallathalli lake in Bangalore South. Mr. G. R. Mohan, Advocate, brought up this egregious violation before the Division Bench of the Karnataka High Court composed of Justice Mr. Alok Aradhe and Justice Mr. Viswajit Shetty which is hearing a batch of PILs on lakes protection (WP 38401/2014). On 24th November 2022, the Court directed Bruhat Bengaluru Mahanagara Palike (BBMP – Bangalore’s civic body) “that BBMP shall not lay down the tracks for the toy train within 30 meters from the outer boundary wall of lake in question namely Mallathahalli lake”. It may be recalled that in 2021 the Karnataka Government announced rejuvenation of Mallathahalli lake at a cost of a whopping Rs 81 crore. The lake is spread over an area of 72 acres.
Encroachment and Pollution of Lakes
Over the past year, one lakh sq. ft. of the Gatahalli Lake has been encroached, it is reported. Although some encroachments have been removed, residents allege that the lake is being encroached again to build a swimming pool, open theatre and basketball court for a private apartment project. Despite several complaints by the residents to the Karnataka Tank Conservation and Development Authority (KTCDA), it is reported that no action has been taken.
Similarly, Jogi Kere in Bangalore south is said to be encroached for a private residential layout, and contaminated with inflow of untreated sewage. Bangalore Water Supply and Sewerage Board (BWSSB) upon receiving complaints of contamination, has reportedly responded by stating the lake does not fall under its jurisdiction. This raises the question if BWSSB can exempt itself from responsibility for such pollution? Similar problems are being reported of Lingadheeranahalli lake as well.
Massive Forest Losses As MoEF&CC Claims Forest Cover Is Improving
Destruction of Great Nicobar with MoEF&CC’s approval
Despite raising grave concerns of horrific impact on indigenous communities and irreversible impact on extraordinary biodiversity of the Great Nicobar Island, massive urban and infrastructure development has been proposed here highlighted in our September Issue. The Union Government has since quickly approved environmental clearances to divert 130.75 sq km of heritage forest land. This will devastate the island, which is extremely vulnerable to earthquakes, volcanic eruptions and tsunamis. Shockingly, MoEF&CC believes this unprecedented loss can be compensated by planting trees in the Aravalli Range of Haryana, nearly 2400 kms away and in an arid zone. .
In 2019, the Supreme Court registered a suo motu case [In Re Felling of Trees in Aarey Forest, SMW (C) No. 2/2019], based on a letter sent by law students against the cutting of trees for construction of a metro car shed in Aarey, Mumbai. On 7th October 2009, the Supreme Court stayed the felling of the forest. However, on 29th November 2022, the Court decided to allow Mumbai Metro Rail Corporation Ltd (MMRCL) to pursue its application to locate the Metro shed by seeking permission before the tree Authority.
Diversion of forest land
Karnataka Forest Department alleges that more than 30 resorts and homestays are operating illegally in the Moorkannugudda forest area of Karnataka’s Sakleshpura. Officials claim 1,500 acres of the 7,938.38 acre of forest land has been illegally granted to the resorts by revenue authorities. Similarly, it is reported that since 2019, the Karnataka government has diverted 1,836.31 acres of forest land for various non-forest purposes.
The Karnataka Government decided to expand the State Wildlife Board by appointing Kannada film actor Darshan as its member, even as Chief Minister Mr. Bommai, who chairs the Board, has not found time to hold a meeting for several months now. A key pending decision is to decide the fate of Hesaraghatta grasslands north of Bengaluru – whether to declare it as a conservation reserve under the Wildlife Act, 1972. Now the Chief Minister has directed should be subject to public consultations. It remains to be seen if the Karnataka Forest Department will ensure deeply democratic decision making, or merely turn this exercise into a ritual.
The Hesaraghatta grasslands, one of the last remaining commons around the highly urbanised Bengaluru city, has been a subject of various proposals which would threaten this landscape even when it is in the catchment area of Tippegondanahalli (TG Halli) reservoir, demarcated as a conservation zone. After a petition by various civil society and concerned citizens was submitted to the Karnataka Forest department in 2013, the State Wildlife Board (SBWL) rejected ‘commercial development’ of this region in January 2021. In July 2022, the High Court directed the State Wildlife Board to reconsider its decision approving of the commercialisation of this critical space. Which has not happened yet!
Poor implementation of the Forests Rights Act of 2006
Nomadic Shepherds from Dhangar community in Maharashtra sent over 10,000 postcards to the Chief Minister’s office demanding repeal of the ‘colonial era’ 1927 Indian Forest Act which penalises them for grazing cattle in forest lands guaranteed by the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act of 2006 (FRA).
Due to rejection of claims over forest lands by various states, more than 16 lakh people are facing eviction. During a review meeting in October 2022, the Union Minister of Tribal Affairs asked for utmost importance be accorded to needs of Particularly Vulnerable Tribal Groups and to not reject claims based on frivolous reasons.
National Green Tribunal Judgements
In a significant decision, the National Green Tribunal (NGT) suspended the environmental clearance for 4000 MW coal fired power plant in Veerlapalem Village, Dameracherla Mandal in Nalgonda District, Telangana, which is in close proximity to Amrabad Tiger Reserve. The decision was made on grounds that the project was cleared on the basis of incorrect and insufficient data regarding its environmental impacts. The NGT directed fresh air quality studies, cumulative impact assessment and a new public hearing with regards to change in coal quality. The diversion of forest land for thermal power plants was also prohibited.
In another major ruling, the NGT highlighting the importance of mangrove forests and mudflats, held GMR Holding Pvt. Ltd. responsible for the destruction of mangroves in Kakinada, Andhra Pradesh. The company has been directed to pay compensation following assessment of environmental damage by a competent panel. The decision was made in a PIL filed by EAS Sarma, former Energy/ Power Secretary of India and a local villager.
Climate Change and the 27th Conference of UNFCCC Parties (COP27)
Some 33,449 persons met at the 27th COP of United Nations Framework Conference on Climate Change at the seaside resort city of Sharm El Sheikh in Egypt during 6th – 20th November 2022. The main gain, it appears, is the decision to establish and operationalize a ‘loss and damage fund’ which most vulnerable countries have been demanding for decades now. However, this faint step of progress of this COP is being termed not merely a ‘narrative failure’, wherein responsibilities of the North to fix damage they caused is being shifted to the South which is now losing major ground to restore planetary health based on the principle of Common but Differentiated Responsibility.
As increase in planet’s temperature trundles towards 1.5 C more than pre-industrial levels, the 7th Annual Lancet Climate Report explores the connection between climate and health using 43 indicators, such as the connection between health and heat, the link between climate change and an increase in infectious disease transmission, and the impact of climate change on food insecurity. The report shockingly indicates “Heat-related deaths increased by 68% between 2000 and 2021”.
Meanwhile, a study by Indian Institute of Technology, Gandhinagar finds that the frequency of extreme weather events is projected to rise in India in the future due to climate change; studying data gathered during 1951 to 2020, researchers warn “the fraction of the total population and urban area exposed to sequential extremes will increase rapidly”.
Inconsistencies in application of Land Acquisition Act
By a landmark judgement, the Supreme Court directed communities displaced from their lands in Odisha villages during acquisition for Mahanadi Coalfields Ltd in 1988 will receive compensation based on the Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR). While this led to hopes that the Land Acquisition Act, 1894 will be comprehensively relegated to the dustbins of history, another Bench of the Supreme Court headed has upheld acquisition of land for the Dr. Shivaram Karanth Layout in Bangalore on the basis of the colonial era law leaving impacted communities who are demanding the implementation of LARR in acute distress.
India abstains on key decision regarding International Ivory Trade:
At the recent Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) conference, India abstained from the decision of re-opening international ivory trade – globally banned in 1989. The Wild Life (Protection) Act, 1972 was amended first in 1986 to ban domestic sales of ivory and further amended in 1991 to ban the import of African ivory. Despite being a vocal opponent of the proposal to open ivory trade over the last three decades, India has decided to abstain, rather than oppose, raising questions if this has anything to do with the cheetahs translocated from Namibia. This abstention comes close on the heels of Namibia’s alleged request for support in reversing the ban on global ivory trade.
Transformations to Sustainability
A dozen multi-country research collectives worked on Transformations to Sustainability, sponsored by NORFACE, Belmont Forum, International Science Council amongst others, recently concluded in a conference held at Paris, 15-17 November. The conference showcased a range of interdisciplinary and intersectoral research efforts addressing major environmental concerns. This programme contributes to re-structuring the broad field of sustainability research by placing social science and humanities at the heart of interdisciplinary research in a step change in scale and scope for research programming on this topic.
Leo Saldanha and Bhargavi Rao of ESG participated in this conference representing the Governance of Sociotechnical Transformations project. Leo also participated in a panel discussion titled ‘Pivot and Leap’ held on 17th November discussing key lessons from this complex research process and what it means for transformative action at all levels of society and around the world. The T2S website also features several of ESG’s initiatives such as “Rethinking Cities: Imaginaries to Make Cities Work”.
A planet with 8 billion people
The 8-billion-humans milestone brings both opportunities and challenges, especially for India, which is set to become the world’s most populous nation by 2023. Writing in The Indian Express, UN Secretary-General Antonio Guterres has highlighted some of the challenges the world is facing, saying that “as our human family grows larger, it is also growing more divided.” And “unless we bridge the yawning chasm between the global haves and have-nots, we are setting ourselves up for an 8-billion-strong world filled with tensions and mistrust, crisis and conflict,” Guterres added “a handful of billionaires control as much wealth as the poorest half of the world. The top one percent globally pockets one fifth of the world’s income, while people in the richest countries can expect to live up to 30 years longer than those in the poorest. As the world has grown richer and healthier in recent decades, these inequalities have grown too.”
For India, the yawning gap between the super rich and the poor will serve as a tectonic fault line compounded with massive degradation of environmental qualities. As the Environment Performance Index reports, India is way down at the bottom. India’s position in the rankings comes as no surprise given current trends of projects being approved in eco sensitive zones and the easing of environmental laws and policies to facilitate reckless development.
A report published by Oxfam states that billionaires of this world emit a million times more greenhouse gases than an average person with their investments accounting for 70% of their emissions. Three hundred and ninety three (393) million metric tonnes of carbon dioxide emissions are produced every year by the investments of 125 of the world’s richest billionaires.
Meanwhile, the Karnataka Government in the Global Investors Meet approved proposals of about Rs. 10 lakh crores (US $ 122 Billion), a bulk of which is in the renewable energy sector such as establishment of green hydrogen and green ammonia, as also utility scale solar and wind parks. Much of these MoUs do not result in projects and could come at the cost of dilution of environmental, social and land use standards, and reap very little economic benefit to the people of the region.
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