A farmer gazes out at his field, Anad, Kerala, June 2018. Photo: Nandhu Kumar/Unsplash
- The proposed Biological Diversity Amendment Bill (2021) encourages investments and simplifies patent application processes.
- India’s farmers have been against any form of IP rights in the past, whether it be patents of plant varieties protection or seed and material protection.
- 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 cant provide any terms or conditions for sustainable use, biodiversity conservation or benefit-sharing on a PVP-holder registered under the PPV&FR Act.
Bhupender Yadav, Union environment minister, proposed a Bill to amend the Biological Diversity Act 2002 on December 9, 2021.
The Biological Diversity (Amendment) Bill (2021) is currently before a Joint Parliamentary Committee, which was formed on December 20, 2020. The committee met nine times between January and April 2022. The next sitting of the committee is scheduled for May 12, 2022. It will hear oral evidence from selected biodiversity management committees (BMCs).
The existing Biological Diversity Act makes it mandatory for local bodies panchayats and municipalities to have BMCs. BMCs can be created. According to the National Biodiversity Authority data, there were 2.76 lakhBMCs throughout the country as of April 22, 20,22
The BMCs are the closest to the ground under the three-tier system in the Biological Diversity Act. They include small farmers, livestock keepers as well as fisher folk and tribal people. Each committee has seven members.
Section 41(2) of Act states that BMCs are spaces where local communities can discuss the use of bioresources within their territorial jurisdiction. Before making any decisions, the National Biodiversity Authority (NBA) and State Biodiversity Boards (SBBs) must consult with BMCs.
These local communities are the custodians and possessors local biodiversity and knowledge. They are entitled to benefits under the law if companies commercialise their bioresources or knowledge.
The proposed Biological Diversity (Amendment) Bill 2020 reveals its biases in relation to rights. It aims to promote collaborative research and investments as well as simplify the patent application process..The Bill mentions patents.
In July 2021, a Parliamentary Standing Committee Undertook a reviewIndia’s IP rights regime. Only three representatives of the agriculture sector provided evidence and asked the government for reconsideration on 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 bodys TRIPS agreement.
Indian farmers have always been opposed to any type of IP rights, including patents for plant variety protection (PVP), seed and planting materials, or patents for seed and other 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 refers to a variety that (quoted in full):
(i) has been cultivated and adapted by farmers in their fields for centuries; or
(iii). A wild relative or a landrace of a variety that the farmers know well.
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.
However, the Bill of 2021 proposes to separate them further by suggesting a new Section, 59A. This expressly states: Instead, the Bill proposes to separate them further by introducing a new Section, Section 60A, which expressly states that:
This Act shall not be applicable to any person who has been granted any approval or granted any rights under any law relating the protection of plant variety enacted by Parliament, except to the extent that such approvals and rights are not subject to similar approval under this Act.
In effect, this means that the National Biodiversity Authority under the Biological Diversity Act cant 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. This is not the case. Farmers varieties are not 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 farmer varieties moving to BMCs
Instead, the seed industry has been lobbying for many years to get the Union agriculture minister to take over the Biological Diversity Act from National Biodiversity Authority and to have seeds exempted form the legal obligations of benefit sharing.
The amendment proposed in Section 41(1) to the Biological Diversity Act will also expand the responsibilities of BMCs to preserve farmers varieties. 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 already conserve plant varieties. We need to support their efforts.
The lives and livelihoods that millions of stewards of India’s biodiversity depend on biological resources and related knowledge. It is therefore important to consider whether the proposed amendments will breathe life into BMCs or harm them. In turn, this could contribute to or undermine India’s agrobiodiversity or the wellbeing of knowledge-holding communities.
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 that are presented to the Joint Parliamentary Committee should reflect the views of local communities involved with agriculture and allied sector. Their real concerns must be considered in the amendment process.
Shalini BhutaniA Delhi-based policy analyst and legal researcher, she studies the interplay between trade rules and agriculture in the Asian region.
