A farmer looks out over his field in Anad, Kerala, June 2018. Photo: Nandhu Kumar/Unsplash
- The proposed Biodiversity (Amendment) Act 2021 promotes an enabling environment for investment and simplifies the patent application process.
- Farmers in India have always been opposed to any kind of IP rights – whether patents protecting plant varieties or seeds and seedlings.
- In a convoluted mix of laws, the government also grants BMCs IP rights to agricultural varieties – formed under the Biological Diversity Act – under the PPV&FR Act.
- However, the 2021 Law implies that the National Biodiversity Authority cannot set conditions for sustainable use, biodiversity conservation or benefit-sharing for a plant variety right holder registered under the PPV&FR Law.
Union Environment Minister Bhupender Yadav presented a bill amending the Biodiversity Act 2002 on 9 December 2021.
The Biodiversity (Amendment) Act 2021 is currently before a Joint Parliamentary Committee, which was constituted on 20 December 2021. The committee held nine meetings from January to April 2022. Its next meeting is scheduled for May 12, 2022. It is expected to hear oral evidence from selected states’ Biodiversity Management Committees (BMCs).
Under the existing Biodiversity Law, it is mandatory for local bodies – panchayats, municipalities, etc. – to set up BMCs. And according to the National Biodiversity Authority, as of April 22, 2022, there were 2.76 lakh BMCs nationwide.
According to the three-tier system of the Biodiversity Act, the BMCs are closest to the ground. They are made up of small farmers, ranchers, fishermen and tribal people – up to seven people per committee.
Section 41(2) of the Act states that BMCs are to be spaces where local communities deliberate on the use of bioresources and related knowledge within the territorial jurisdiction of the committee. The National Biodiversity Agency and State Biodiversity Boards must consult with the BMCs before making their own decisions.
As custodians of local biodiversity and holders of related knowledge, these local communities are also considered beneficiaries under the law when companies commercialize their bioresources and/or knowledge.
Proposed Biodiversity (Amendment) Act 2021 reveals its bias in the context of rights. In particular, it expressly aims to promote a favorable environment for joint research and investment and to simplify the patent application process. The mention of “patents” in the bill is not benign.
In July 2021, a Parliamentary Standing Committee conducted a review of India’s intellectual property rights regime. Here, only three agricultural sector officials testified, urging the government to reconsider patents on seeds.
This is at odds with the more progressive position that India has taken at the World Trade Organization – which insists that the Patents Act 1970 (which excludes seeds from patentability) and the Protection of Plant Varieties and Farmers’ Rights Act (PPV&FR Act) 2001 both comply with the institution’s TRIPS agreement.
Farmers in India have always been opposed to any kind of IP rights – be it plant variety protection (PVP) patents or seeds and seedlings. Ironically, farmers are granted IP rights under the category of “Farmer Varieties” (FVs) as set out in the PPV&FR Act. An FV is a strain that (quoted verbatim):
(i) traditionally grown and developed by farmers on their territory; or
(ii) is a wild relative or landrace of a variety of which farmers have common knowledge.
In a convoluted mix of laws, the government also grants BMCs IP rights to agricultural varieties – formed under the Biological Diversity Act – under the PPV&FR Act.
However, the 2021 bill does not propose synergies between the two laws. Instead, the bill further separates them by proposing a new Section 59A that specifically states:
…this Act shall not apply to any person who has been granted any permit or right under any Act for the Protection of Plant Varieties enacted by Parliament, to the extent that such permits or rights granted under this Act do not require a similar permit under this Act.
Indeed, this means that the National Biodiversity Authority cannot provide conditions for sustainable use, biodiversity conservation or benefit-sharing under the Biodiversity Act to a plant variety right holder registered under the PPV&FR Act – but it can do so for other right holders!
The general view is that simply granting IP rights to farmers under the PPV&FR Act will bring them benefits. Reality did not confirm this: the farmers’ varieties were not enforced. Also, the PPV&FR Law has not resulted in any actual cases of benefit-sharing, although most of the varieties registered under this Law are agricultural varieties.
Responsibilities for converting agricultural varieties to BMCs
Instead, the seed industry has been campaigning for many years for the Union Department of Agriculture to adopt the Biodiversity Act from the National Biodiversity Agency and exempt seeds from statutory benefit-sharing obligations.
With the proposed amendment to Section 41, Paragraph 1 of the Biodiversity Act, the responsibilities of the BMC should also be expanded to include the conservation of varieties by farmers. As mentioned above, this is a specific category of existing planting material registered under the PPV&FR Act.
According to the PPV&FR Law, it is the responsibility of the PPV&FR Authority to both promote and preserve the farmers’ varieties. Established under the PPV&FR Act, the National Genetic Fund must provide spending “to support the conservation and sustainable use of genetic resources, including in situ and ex situ collections, and to strengthen the ability of panchayats to undertake such conservation and sustainable use ” wear.
Conservation farmers and seed growers are already conserving plant varieties. We must support their work.
Biological resources and associated knowledge are critical to the lives and livelihoods of millions of Indian biodiversity stewards. Therefore, it is important to consider whether the new proposed changes breathe life into BMCs or undermine them, which in turn contributes to or undermines India’s agrobiodiversity and the well-being of knowledge-based indigenous people.
The interface between the Biodiversity Act 2002 and the PPV&FR Act 2001 deserves more attention in order to reinforce the need for the co-operation of the node ministries – for environment and agriculture – rather than to be further isolated.
The BMCs before the Joint Parliamentary Committee must present the perspectives of local communities involved in agriculture and related sectors. The change process must address their real concerns.
Shalini Bhutani is a legal scholar and political analyst based in Delhi; She follows how trade rules interact with agriculture and biodiversity in Asia.