On August 24, it was reported that the former Union Agriculture Minister, Sharad Pawar, had written to the Prime Minister recommending that he intervene to remove an existing rule that requires a no-objection certificate (NOC) from the relevant state government before field trials for genetically modified (GM) crops may be permitted. Pawar argued that the requirement of obtaining consent from state governments had become a “socio-political process rather than an objective, science-based process of rigorous evaluation at the state level” (emphasis added).
Whether or not one sides with Pawar’s view that the regulatory regime on GM crops ought to be eased, there are two fundamental problems with the statement that he offers in justification. The first assumes that the influence of social and political factors on a decision-making process that will have an impact on thousands of livelihoods and the natural environment is somehow inappropriate and undesirable. The second, which is a corollary of the first, is an unshakeable belief in the ability of science to be neutral and to guide us to the ‘correct’ decision.
Pawar is not the first to call for a strictly technocratic approach to the regulation of GM crops. Given the vocal opposition of the Rashtriya Swayamsevak Sangh and its affiliates to GM crops, the present Government has had to fend off allegations that it was bowing to political pressure by putting field trials of GM crops on hold; instead, it has taken pains to emphasise that scientific expertise remains the dominant consideration in the decisions it makes about GM crops.
Even the Supreme Court SC, which does not usually shy away from intervening in complex, technical matters (especially those relating to the environment), characterised the issue as a ‘scientific question’ and one that it did not have the technical expertise to resolve. This was in the context of public interest litigation where the SC was asked to impose a ban on the release of genetically modified organisms GMOs at least until a more well-developed regulatory framework was in place.
The Parliamentary Standing Committee on Agriculture (PSC) as well as the Technical Expert Committee (TEC) appointed by the SC in this case both depart from this science-only approach. In its 37th report published in August 2012, the PSC emphasises the need to take into account the socio-economic impacts of GM crops on farmers; similarly, the TEC, while recommending a moratorium on field trials until a more robust regulatory system is put in place, suggests that socio-economic considerations explicitly be made a part of the risk assessment process.
The grant of an effective veto to state governments by the UPA Government in the wake of the Bt Brinjal controversy is in some sense, recognition of the fact that scientific assessments of biosafety cannot trump all other considerations. However, the lack of an appropriate framework under which this NOC may be granted leaves it open to the charge of politicisation. There are no guidelines or restrictions on the basis of which States may make their decisions—although some have cited concerns about farmers’ rights to seeds while refusing trials, Madhya Pradesh denied permission in November 2014 on the grounds of its own assessment that there was no conclusive evidence to rule out the adverse impact that GM crops might have on human health and the environment. In effect, this rendered the risk assessment conducted by the Genetic Engineering Appraisal Committee within the Union Ministry of Environment, Forests and Climate Change redundant.
Overestimating costs, underestimating benefits
The decision-making process of the state governments becomes even more suspect because of their failure to put in place formal procedures for public participation as well as consultation with relevant statutory bodies, such as the State Biodiversity Boards set up under the Biological Diversity Act, 2002. This failure has been criticised by the Union Ministry of Agriculture in its action taken report submitted in March 2014 in response to the PSC report. Returning to the preoccupation with science and rationality, the Ministry criticises the use of ‘ad-hoc and reactive mechanisms guided by emotions and impulses’ as the basis for the exercise of the state governments’ decisions.
This compulsion to eliminate arbitrariness in decision-making inevitably comes up uncomfortably against the need to provide appropriate weight to non-scientific and non-technical factors. Regulators the world over struggle to find common metrics through which scientific, economic and social considerations can be set off against one another. In the United States of America, this has taken the form of a particularly narrow kind of cost-benefit analysis to which all environmental, health and safety regulations must be subjected before they can be passed.
This form of cost-benefit analysis reduces the benefits anticipated from cleaner air, safer roads or greater biodiversity to monetary terms in order to determine whether these benefits justify the costs of imposing more stringent environmental and public health standards. Although this kind of analysis is undertaken under the guise of technical objectivity, it has come under attack for the problematic assumptions that it makes about the manner in which people place an economic value on fundamentally unquantifiable goods like human life and the environment.
US scholars Frank Ackerman and Lisa Heinzerling in their book, Pricing the Priceless: Cost-Benefit Analysis of Environmental Protection, carefully describe some of the absurdities caused by this kind of economic reductionism. For example, they point to an instance where the value of children’s lives saved by car seats was calculated by estimating the time required to fasten the seats and then multiplying this by the actual or notional hourly wage of their mothers! Although this tool is touted as a precise and neutral way to determine how much regulation we need, the ease of capturing ‘costs’ and discounting ‘benefits’ (especially those that are anticipated only in the future) has made it the tool of choice of free-market advocates in the US who argue for an ever-shrinking regulatory role for the government.
Europe has perhaps been more successful at acknowledging that decisions about health and the environment are as much choices that societies make on the basis of cultural factors as they are choices about economic costs and benefits. In fact, Sheila Jasanoff, Pforzheimer Professor of Science and Technology Studies at the Harvard Kennedy School skilfully explains, in Designs on Nature: Science and Democracy in Europe and the United States, how different societies receive, understand and construct scientific knowledge in markedly different ways. The same scientific risk assessment about the same GM crop may elicit completely opposite responses in different societies.
Recognising this, the European Commission announced in April this year that the Member States of the EU would have greater flexibility in prohibiting or restricting the use of GMOs within their territories, despite the GMOs having received authorisation at the EU level. This power (which had already been granted to Member States regarding the cultivation of GMOs) has to be exercised on legitimate grounds, other than a risk to human or animal health or the environment, since this would already have been rigorously analysed by EU bodies. Some of these might include environmental or agricultural policy objectives, town and country planning, land use, socio-economic impacts, and that wonderfully catch-all provision, public policy.
Science + economics
However, the perception of science as a neutral arbiter remains. In 2008, the EU invited contributions from its Member States on the socio-economic implications of GMOs in order to develop a set of scientific and technical indicators that would represent these implications more precisely, and therefore permit a science-based assessment. This compulsion to pigeonhole socio-economic factors into scientific categories is an indication of how keen the EU is to avoid the charge of a politicised regulatory process.
The debate in India on regulatory tools and techniques is not as evolved (and perhaps consequently, not as contentious) as it is in the US and EU. The regulation of GMOs represents a good opportunity to rethink the role of public participation and non-technical knowledge in environmental regulatory discourse in general. This is especially crucial given that there are doubts about the integrity of the production of technical knowledge itself. Environmental Impact Assessment reports, prepared by consultants hired by project proponents themselves, are notoriously biased. Even the credibility of supposedly ‘expert’ committees may be called into question, as demonstrated by the recent rejection of the High-Level Committee report on environmental laws by the Rajya Sabha Parliamentary Standing Committee on Science, Technology, Environment and Forests.
This is not to discount the vital role that both science and economics ought to play in environmental regulation. India’s command-and-control style laws are in urgent need of an empirical analysis of their effectiveness. An evidence-based approach is essential to design flexible regulatory instruments that encourage technological innovation. Nevertheless, we need to learn from the experience of the US and the EU, where socio-cultural considerations are often drowned out because of their inability to speak the unemotional language of technocracy.
In the context of GMOs, there are at least three ways in which to ensure that socio-economic factors are incorporated without paralysing the regulatory process in the manner that Pawar complains of and without waiting for Parliament to revive the Biotechnology Regulatory Authority Bill. First, extensive consultative mechanisms ought to be institutionalised as an integral part of the risk assessment process and not after scientific opinions have already been submitted. Second, the Biological Diversity Act ought to be amended to allow State Biodiversity Boards a greater say in the consent granted by state governments. Finally, judicial review of decisions releasing or restricting GMOs can provide valuable initial guidance on balancing competing considerations. Courts ought to take this opportunity to articulate the scope of the precautionary principle which is triggered when there is precisely the lack of scientific certainty that the regulation of GMOs presents.
The Human DNA Profiling Bill 2015 is a good example of the attempted use of science as a shield against accusations about the infringement of privacy and liberty. As a society, we need to play a more active role in interpreting science and challenge its ownership by government and technocratic elites.
Dhvani Mehta and Yashaswini Mittal are Senior Resident Fellow and Research Fellow respectively at the Vidhi Centre for Legal Policy, New Delhi, an independent think tank doing legal research and assisting government in making better laws. Views expressed are the authors’ alone.