A NEW PUBLIC INTEREST LITIGATION THREATENS THE FUTURE OF CROP GENETIC ENGINEERING IN INDIA
C Kameswara Rao
Foundation for Biotechnology Awareness and Education
The Environment Support Group (ESG), Bangalore, and Dr Leo Saldanha, a full time coordinator and Trustee of the ESG, have filed a public interest litigation (PIL, Writ Petition No. 41532/2012) in the High Court of Karnataka, against a) the National Biodiversity Authority (NBA), b) the Union Ministry of Environment and Forests (MoEF), c) the State of Karnataka, and d) the Union (Government) of India. The rallying point is the Biological Diversity Act, 2002 (18 of 2003, BDA), but other Acts were also invoked.
The Petitioners of the WP charged the Respondents with various commissions and omissions against national interest, and so violated law. Among several charges made, the major issues are:
a) ‘the Respondents, individually and collectively, have abysmally failed to discharge their constitutional and statutory duties with regard to biodiversity protection in India, specifically with regard to setting up and evolving institutional mechanisms essential to regulate use and access of bioresources and associated knowledge’,
b)’Section 40 of the Biodiveristy Act, 2002 and the Notification relating to Normally Traded Commodities’ (NTCs) issued by the MoEF on ‘October 26, 2009, cannot be sustained in law’, and
c) the NBA ‘has blindly ignored the egregious biopiracy of various local varieties of Indian brinjal by national and international corporations and public institutions and has consequently violated several Fundamental Rights and legal guarantees’.
The reliefs the Petitioners prayed for are:
a) Issue a writ or appropriate order in the nature of writ declaring section 40 of the BDA, to be illegal and contrary to the Principle outlined in the Article 14 of the Constitution of India;
b) Issue a writ in the nature of certiorari to quash the Notification issued by MoEF under Section of 40 of the BDA, dated October 26, 2009;
c) Issue a writ of mandamus directing the NBA to frame regulations and issue guidelines regulating access to and use of biological resources and associated knowledge to be based on fair and equitable benefit sharing as provided for in Sections 3,4, 6 and 21 as mandated under Section 18(1) of the BDA;
d) Issue a writ of mandamus directing the Central Government, viz., the Respondents MoEF and the Union (Government) of India, to make mandatory environment, biodiversity and social impacts assessments based on the Principle of Prior and Informed Consent, prior to and as a basis for decision-making relating to grant of access to any project which is likely to have an adverse effect on biological diversity and associated knowledge, as provided for in Section 36(4) (i) of the BDA;
e) Issue a writ of mandamus directing the NBA to institute a mechanism for public consultation and consent based on the Principle of Prior and Informed Consent before granting any clearances as per the BDA;
f) Issue a writ of mandamus to ensure that the Respondents perform their statutory duties under the BDA, with regard to existing cases of biopiracy and direct the NBA to regularly report progress of the investigations and prosecutions made to this Honourable Court from time to time;
g) Issue a writ of mandamus to the Respondents to establish appropriate institutional structures, procedures and norms in conformance with the Panchayat Raj Act, 1991, Nagarapalika Act 1992 and Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 for access, benefit sharing and the use of bioresources and associated knowledge, and also in advancing biodiversity conservation and protection; and
h) Pass any order in the nature of writ as this Honourable court deems fit to grant in the interest of equity and justice.
The interim prayers made are:
a) Pending disposal of the WP, the petitioners pray that the Honourable Court be pleased to stay the operation of the Notification issued by the MoEF on October 26, 2009;
b) Further, the Petitioners pray this Honourable Court to direct the Respondents not to accord any clearances as per the BDA, to any individual party who has allegedly violated the provisions of the said Act, during the pendency of the case; and
c) Pass any other order, direction or relief that it may deem fit in the best interests of justice, fairness and good conscience.
Clothed in legalese the text of the WP, 41 Annexures and the prayers appear complex and intimidating. Among several, the more important issues are:
a) The developers of Bt brinjal are guilty of biopiracy for using brinjal germplasm without the prior permission of the NBA and the NBA is guilty of not prosecuting them for biopiracy as demanded by the activists, and so both have violated legal responsibilities; and
c) Section 40 of the BDA reads “Notwithstanding anything contained in this Act, the Central Government may, in consultation with the National Biodiversity Authority, by notification in the Official Gazette, declare that the provisions of this Act shall not apply to any items, including biological resources normally traded as commodities”. The Petitioners claim that Section 40 is unconstitutional as it gives unbridled and arbitrary powers to the Government and so should be struck down, as also the order of the MoEF of October 26, 2009, issued under Section 40 of the BDA, exempting certain species, including brinjal, from the purview of the BDA, as they are’ normally traded as commodities’.
This WP will cause a lot of serious problems for all R & D not only for crop genetic engineering but even conventional agricultural research as any species or variety can be interpreted as native germplasm and that its use should be permitted by the NBA, which would mean by the activists, opening up another avenue for corruption. When the prior permission of the NBA was not taken, the charge of biopiracy would be invoked. The charge of biopiracy is actually incumbent upon the use of biological resources and/or associated knowledge without fair and equitable benefit sharing, which applies only to the use of some biological resources, but the activists see every use as biopiracy, which would hinder all R & D in agriculture.
While the WP is now only against the organs of the government, it affects all those involved in crop genetic engineering. All the contentions in WP can be challenged basing on other over-riding national and international provisions which were misinterpreted by the Petitioners to suit their arguments. It is necessary that the WP and the misinterpretation of official provisions are made widely known so that those who are developing other corps would be aware of what risks they are likely to face. It is important that we all act collectively to overcome the problem, irrespective of whether it affects us at this moment. It is also necessary that at least the Tamil Nadu Agricultural University, Coimbatore, the University of Agricultural Sciences, Dharwad, MAHYCO and ABLE-AG, who are directly and immediately affected by the WP implead before the HC of Karnataka and pray for its dismissal. It would add strength if others also join in this effort.
Inept handling of the petitions in the Supreme Court (SC) against crop genetic engineering in the country have brought in several hurdles, such as, a) a 200 meter separation distance between GE and non-GE crops, which is impracticable and wholly unnecessary for any crop in cultivation, b) a 0.001 per cent level of detection of transgenic proteins which is impossible to comply with in most labs and under field conditions, c) legitimized dubious expertise in modern agricultural biotechnology through nomination of an observer to the GEAC, d) made it politically opportunistic to trash global and national scientific expertise and experience to impose a moratorium on Bt brinjal e) provided credence to a wholly one-sided report of the Parliamentary Standing Committee on Agriculture, and f) a Technical Expert Committee (TEC) appointed by the SC which recommended a 10 year ban on all field trials including the currently ongoing ones (though this was not accepted by the SC), and scientifically unjustified battery of biosafety tests. We do not yet know what problematic recommendations would come in the final report to be submitted by the TEC in the near future. All of this will mean a virtual ban crop genetic engineering in the country, which is the prime objective of the activists. It would be catastrophic to ignore the threat from the current WP.
It may seem that the WP’s thrust is only Bt brinjal. If charges like biopiracy of brinjal are allowed to be upheld, users of germplasm of all other crops, even in conventional agricultural research, would face the risk of legal action. The HC has to decide on the sustainability of Acts and Sections challenged. But we need to provide evidence that the charges made against technology and product developers are baseless and pray for the dismissal of the WP. The relevant issues will be addressed separately in the subsequent articles.
January 15, 2013