Leo F. Saldanha and Bhargavi S. Rao

When Kaveri Seeds of India registered a variety of hybrid corn that it developed with the Indian Plant Registry, a move that would potentially provide the company with intellectual property rights over this plant product, it was surprised by legal opposition from Pioneer Overseas Corp., a subsidiary of DuPont, which claimed this was a case of gene piracy. The gene line of the plant sought to be registered by Kaveri is claimed to be identical to the one Pioneer developed in its Iowa lab. This case once more establishes the rigour with which corporations defend their claims over their products. Corporate success, it appears, is based on the capacity to defend ownership of its products.

Corporations must equally rigorously comply with legal provisions that protect biodiversity protected as public commons, it would follow. This would involve absolute compliance with national and international legal regimes that protect biodiversity. In the case of India, this would involve rigorous compliance with the Biological Diversity Act, 2002, an enabling legislation enacted in compliance with India’s obligations under the Convention on Biological Diversity, 1992.

Monsanto’s compliance with Indian law has been called into question with its recent attempts to commercially release India’s first GMO food product. Along with its subsidiary Mahyco (in which Monsanto holds over 30% equity), and in collaboration with USAID and Cornell University fronted by Sathguru Consultants (Sathguru) as part of the ABSP II project, the US agribiotech giant accessed a dozen varieties of brinjal (eggplant) that are endemic to India during 2005, in a maiden attempt to develop B.t. Brinjal. Local collaborating institutions involved were University of Agricultural Sciences, Dharwar (Karnataka), Tamilnadu Agricultural University (Coimbatore) and Indian Institute of Vegetable Research, Lucknow (Uttar Pradesh). Mahyco took its patented B.t. gene product and inserted these into the brinjal varieties in its labs, and gave out packets of these seeds to local collaborating institutions to run field trials through 2009, under the supervision of the Genetic Engineering Approval Committee (GEAC) governed by the Ministry of Environment and Forest and Indian Department of Biotechnology. The product was approved for commercial release by GEAC in October 2009 in the face of widespread public protests against releasing GMO foods in India.

Yielding to public pressure, then Indian Environment Minister Jairam Ramesh stayed the decision. He then held a series of Public Hearings on this issue, which was participated by thousands across the country, to eventually order a moratorium on the environmental and commercial release of Bt Brinjal in February 2010. In so doing he acceded to the widely held scientific and public position that not enough was known about the potential health and environmental impacts of GMO foods – largely relying on the Precautionary Principle to formulate this decision.

During the Bangalore Public Hearing held by Minister Ramesh, the authors of this note/article submitted a detailed petition explaining how the entire process by which Monsanto/Mahyco and its collaborators accessed and genetically modified brinjal varieties endemic to India was in criminal violation of the Biological Diversity Act. The Minister acknowledged this submission in his moratorium decision in the first footnote, but only to ridicule it as a “wholly unjustified controversy.” He curiously mixed his reasoning with another submission that raised concerns over the careless manner in which the Ministry had a few months before de-listed 190 plants from the purview of the Act, if they were “normally traded commodities” (NTC). In so doing, the Minister not only sidestepped a major allegation of biopiracy against Monsanto and others in accessing brinjal varieties totally illegally, but also proceeded to trivialise an equally alarming situation of de-listing plants from the protection accorded by the Biodiversity Act if they were NTC. Subsequent research by ESG, confirmed by IUCN, has revealed that at least 15 plants so listed are critically endangered and should never have found their way into this list.

Disappointed with such trivialisation of critical concerns relating to corporate biopiracy by the highest custodian of India’s biodiversity protection laws, the authors filed a complaint under the Act before the Karnataka Biodiversity Board (KBB) and independent regulator National Biodiversity Authority (NBA) soon after. The Board rigorously investigated the case, issued notices on all accused institutions, conducted workshops and hearings, visited the UAS Dharwad to investigate its role and sought repeatedly advise from the NBA on how to proceed, considering that foreign companies were involved. The NBA, in stark contrast, did nothing for over a year and half. The complainants had no option but to publicly campaign for appropriate action by the regulator. This campaign also reached the Parliament and several questions were raised about what action was being taken on the basis of our complaints. The NBA finally decided in June 2011 that it would investigate the allegations of biopiracy against Monsanto/Mahyco, a decision that was made public only in August. Soon after, the following statement was also made by current Indian Environment and Forest Minister Jayanti Natarajan on 5th September 2011 in the Rajya Sabha (the House of Elders in India’s Parliament):

National Biodiversity Authority (NBA) has received a complaint from M/s. Environment Support Group, an NGO on the alleged violation by M/s. Mahyco / M/s. Monsanto and their collaborators for accessing and using the local brinjal varieties for development of Bt Brinjal. NBA has decided to proceed as per law against the alleged violators on the basis of reports of the State Biodiversity Board for accessing and using the local brinjal varieties without prior approval of the competent authority”

What can we expect now?

Clearly this is not the only case of biopiracy in India. Jairam Ramesh himself admitted in a convention on biodiversity in September 2010 that “biopiracy is one of the biggest threats and concerns for India.” Shockingly though, the biopiracy case against Monsanto/Mahyco is indeed India’s very first being tackled since NBA was set up in 2003. A troubling aspect here is that most agencies that monitored and finally cleared the B.t. Brinjal product in October 2009, were all working under the ambit of the MoEF, but chose not to insist compliance with the Biological Diversity Act. The case assumes importance not merely for the crime committed by Monsanto/Mahyco and their collaborators, but also to enquire into why several government regulatory bodies, and the NBA in particular, chose to look away from this crucial aspect of compliance.

The Act requires that when any foreign (including that of a non-resident Indian) or Indian individual, corporate body, association, etc. is involved in accessing India’s biodiversity for any use (defined in the Act as research or commercial utilization or bio-survey and bio-utilisation, including genetic modification) prior approval is required from NBA when foreigners are involved, and of the appropriate State Board in the case of Indians. Each of these regulatory authorities is required to process applications to access India’s biodiversity in consultation with Biodiversity Management Committees constituted under India’s local elected Panchayats (rural) and Nagarpalika (urban) bodies. A decision is taken then based on the Access and Benefit Sharing regime, that extends monetary and other benefits to local benefit-claimers – communities who have protected local varieties for generations.

Clearly, Monsanto/Mahyco knew the existence of this law, considering that it is amongst the most aggressive companies in taking law suits to defend its products and heavily funds a special legal cell protect its rights. It even has a policy that bravely states “Why Does Monsanto Sue Farmers Who Save Seeds?” Why then did Monsanto not care to comply with India’s biodiversity laws whose intent it is to protect India’s biodiversity?

When officially investigated, answers have varied from Monsanto claiming it was not aware of the need to comply with India’s Biological Diversity Act, and to the Universities claiming that the law does not apply to them at all as they are publicly funded. Sathguru, speaking for USAID and Cornell, has claimed that the intent is to provide pro-poor varieties of brinjal. Neither Monsanto nor Sathguru has acknowledged their intent to commercially exploit the products, that the agreements so vividly reveal.

Billions of dollars in agri-biotech exploration are at stake now considering that the moratorium on B.t. Brinjal, followed by this complication with criminal violation of biodiversity protection laws, is not an easy one to wriggle out of. India’s major votary of biotechnology Kiran Majumdar recently stepped up in support of Monsanto and such other violators when she tweeted: “We urgently need to revamp the Biodiversity Bill in India – what were the authors thinking when they drafted? Just realized what a Draconian Biodiversity Bill we have legislated – it will kill innovation in the Biotech sector in India. The Ministry of Environment prohibits any plant material from being researched without paying royalties to the GOI – the gist”

Majumdar’s frustration is shared by many in the corporate sector who appear to value profit over behaving with corporate responsibility and protecting biodiversity.

Leo F. Saldanha and Bhargavi S. Rao are with the Environment Support Group based in Bangalore, India, and are co-complainants in the case of biopiracy against Monsanto/Mahyco. They can be contacted at leo@esgindia.org and bhargavi@esgindia.org . More details on this ongoing effort can be accessed at http://www.esgindia.org.