A farmer gazes at his field in Anad, Kerala, June 2018. Photo: Nandhu Kumar/Unsplash
- The proposed Biological Diversity (Amendment) Bill 2021 encourages a conducive environment for investments and to simplify the patent application process.
- Farmers in India have historically been against any kind of IP rights – whether patents or plant variety protection over seed and planting materials.
- In a confused mix of laws, the government also grants IP rights to BMCs for farmers’ varieties – formed under the Biological Diversity Act – under the PPV&FR Act.
- Yet the 2021 Bill implies that the National Biodiversity Authority can’t provide any terms or conditions for sustainable use, biodiversity conservation or benefit-sharing on a PVP-holder registered under the PPV&FR Act.
The Union environment minister Bhupender Yadav proposed a Bill on December 9, 2021, to amend the Biological Diversity Act 2002.
The Biological Diversity (Amendment) Bill 2021 is currently before a Joint Parliamentary Committee that was constituted on December 20, 2021. The committee held nine sittings from January to April 2022. Its next sitting is scheduled to happen on May 12, 2022, where it is expected to hear oral evidence from the biodiversity management committees (BMCs) of select states.
According to the existing Biological Diversity Act, it is mandatory for local bodies – panchayats, municipalities, etc. – to create BMCs. And according to data from the National Biodiversity Authority, there were 2.76 lakh BMCs across the country as of April 22, 2022.
Under the three-tier system of the Biological Diversity Act, the BMCs are closest to the ground. They are composed of small farmers, livestock keepers, fisher folk and tribal people – to the tune of seven individuals per committee.
Section 41(2) of the Act stipulates that BMCs are intended to be spaces where local communities deliberate on the use of bioresources and associated knowledge within the committee’s territorial jurisdiction. The National Biodiversity Authority and State Biodiversity Boards are required to consult with BMCs before making decisions of their own.
As custodians of the local biodiversity and possessors of the associated knowledge, these local communities are also regarded as the rightful claimants of benefits under the law when companies commercialise their bioresources and/or knowledge.
The proposed Biological Diversity (Amendment) Bill 2021 reveals its biases in the context of rights. Specifically, it explicitly seeks to encourage a conducive environment for collaborative research and investments and to simplify the patent application process. The mention of ‘patents’ in the Bill is not benign.
In July 2021, a Parliamentary Standing Committee undertook a review of India’s IP rights regime. Here, only three officials representing the agriculture sector gave evidence, and asked the government to reconsider patents on seeds.
This goes against the more progressive position that India has maintained at the World Trade Organisation – insisting 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 body’s TRIPS agreement.
Farmers in India have historically been against any kind of IP rights – whether patents or plant variety protection (PVP) over seed and planting materials. Ironically, IP rights are granted to farmers under the category of ‘farmers’ varieties’ (FVs) as laid down in the PPV&FR Act. An FV is a variety which (quoted verbatim):
(i) has been traditionally cultivated and evolved by the farmers in their field; or
(ii) is a wild relative or landrace of a variety about which the farmers possess the common knowledge.
In a confused mix of laws, the government also grants IP rights to BMCs for farmers’ varieties – formed under the Biological Diversity Act – under the PPV&FR Act.
Yet the Bill of 2021 proposes no synergies between the two laws. Instead, the Bill separates them further by suggesting a new Section, 59A, that expressly states:
… this Act shall not apply to any person who has been given any approval or granted any right under any law relating to protection of plant varieties enacted by Parliament to the extent that such approvals or rights given under that Act does not require similar approval under this Act.
In effect, this means that the National Biodiversity Authority under the Biological Diversity Act can’t provide any terms or conditions for sustainable use, biodiversity conservation or benefit-sharing on a PVP-holder registered under the PPV&FR Act – but that it can do so for other IP-right-holders!
The mainstream view is that simply granting IP rights to farmers under the PPV&FR Act will bring them benefits. Reality hasn’t borne this out: farmers’ varieties have not been mainstreamed. The PPV&FR Act has not resulted in any actual cases of benefit-sharing either, even though most varieties registered under that Act are farmers’ varieties.
Responsibilities for farmers’ varieties moving to BMCs
Instead, the seed industry has for many years now been lobbying to get the Union agriculture ministry to take charge of the Biological Diversity Act from the National Biodiversity Authority, and to have seeds exempted from the legal obligations of ‘benefit-sharing’.
The proposed amendment in Section 41(1) of the Biological Diversity Act also intends to expand the responsibilities of the BMCs to conserve farmers’ varieties as well. As mentioned above, this is a specific category of extant planting material registered under the PPV&FR Act.
Under the PPV&FR Act, it is the responsibility of the PPV&FR Authority to both promote and conserve farmers’ varieties. The National Gene Fund constituted under the PPV&FR Act has to meet the expenses “for supporting the conservation and sustainable use of genetic resources including in situ and ex situ collections and for strengthening the capability of Panchayats in carrying out such conservation and sustainable use”.
Conservor farmers and seed keepers are already conserving plant varieties. We need to support their work.
Biological resources and the related knowledge are critical to the lives and livelihoods of millions of the stewards of India’s biodiversity. So it is important to consider if the new proposed amendments breathe life into or undermine BMCs, in turn contributing to, or undermining, as the case may be, India’s agrobiodiversity and the wellbeing of knowledge-holding locals.
The interface between the Biological Diversity Act 2002 and the PPV&FR Act 2001 warrants more attention, towards reinforcing the need for the nodal ministries – of environment and agriculture – to collaborate, instead of being further isolated.
The BMCs before the Joint Parliamentary Committee must present the perspectives of the local communities engaged in agriculture and allied sectors. The amendments process needs to factor in their real concerns.
Shalini Bhutani is a legal researcher and policy analyst based in Delhi; she tracks how trade rules interface with agriculture and biodiversity in the Asian region.