Biodiversity Or Biopiracy?
India's newly passed biodiversity framework legislation comes under criticism and guarded support from leading environmentalists.

December 2002, New Delhi, [IPS] - India's newly passed biodiversity act has come under criticism from leading environmental activists who say the legislation alienates indigenous farmers from their resources and facilitates "biopiracy." When it was passed on Dec 11, Union Environment and Forests Minister T.R. Baalu claimed that the legislation would regulate access to genetic resources and associated knowledge by foreign individuals and institutions and ensure equitable sharing of benefits arising out of the use of resources and knowledge with the country and its people.

He also said the act provided safeguards to protect the interests of local people, growers and cultivators of biological diversity, as well as Indian researchers through a new National Biodiversity Authority (NBA), supported by state level boards and management committees that would regulate access to plant and animal genetic resources. "The NBA's approval will be required before obtaining any form of intellectual property rights on an invention based on a biological resource from India or on a traditional knowledge and it will deal with all cases of access by foreigners," Baalu said.

Indian citizens, companies are allowed free access to biological resources within the country for research purposes but are barred from transferring findings to foreign entities without the NBA's approval. But all these provisions only succeed in burying biodiversity under a mountain of bureaucracy that can only serve to alienate ordinary farmers from their resources while making international biopiracy easier, say leading activists Suman Sahai of the Gene Campaign and Vandana Shiva of the Research Foundation for Science Technology and the Environment (RFSTE).

"By excluding agriculture from the act's purview, global corporations can still gain access to valuable biological resources," said Shiva. But an impoverished local farmer who allows his cow to graze freely on the commons could find himself penalized for inadvertently destroying a herb considered to be a valuable biological resource, she said.

Sahai said the act was weak on the issue of intellectual property rights (IPR). "All that is stipulated is that IPR applications will have to go through the NBA and in its confused way ends up running to the national and international campaigns against patents on life forms." She said because there is no stricture on patents in the bill, the NBA could now actually give permission for someone to take a patent out on a rare species of, say, a turtle or a bee.

In fact, the new law would undo protection against the patenting of life forms contained in earlier path-breaking legislation such as the Plant Variety Protection and Farmers Rights Act (PPVFR) passed last year, though it does recognize breeder's rights which again benefit large seed transnational corporations. Benefits conferred by the PPVFR were afterwards whittled away by cabinet approval, without consulting Parliament of the provisions of the International Union for Protection of New Varieties of Plants (UPOV) of 1978, which legitimizes the interest of global seed giants.

"The area on which the biodiversity act is silent is the very area at the centre of a raging global controversy, in which Indian civil society has been very vocal in protecting local communities from the damage inflicted by patents on biological resources and indigenous knowledge," Sahai said. A reputed scientist herself, Sahai said the act will actually discourage research with its "strong tangles of bureaucratic red tape."

Not only will research proposals now need to be vetted by the NBA but publications will also have to conform to government guidelines causing infinite delays at a time when scholars are already protesting the loss of valuable time because of cumbersome procedures. Local communities, in whose name the legislation was carried out, as Baalu claimed, will actually have no say in the granting of patents on biological material or in deciding what will be 'equitable' when it comes to the sharing of benefits. This will now be decided by bureaucrats in the NBA.

Activists now hope to make use of procedural steps such as presidential assent and notification before any act actually becomes law to undo as much of the damage as possible and these can extend to another six months.

Other experts have been kinder to the act. According to Ashish Kothari of the Pune-based voluntary group Kalpvriksh, while the act could have been stronger it can be a step in the right direction provided clear and stringent rules are now framed under it. Kalpavriksh collaborates with the government on the National Biodiversity Strategy and Action Plan (NBSAP), a two-year project that ends next year and is funded by the Global Environment Facility through the United Nations Development Program.

Kothari conceded that there needs to be "full involvement of the public" if the act is to succeed in its stated aim, but added that the legislation only provided the framework and that it was now up to the government and citizens to use it pro-actively. India has documented over 45,000 species of flora and 75,000 known species of fauna and contains with its borders two of the world's 10 biogeographic zones. The country is one of the world's 12 megacentres of biodiversity.

Contained within the subcontinent are tropical wet evergreen forests, deserts and alpine vegetation and vast coastal systems. Coupled with a corrupt and unaccountable bureaucracy and impoverished local populations, the region is nevertheless the repository of vast traditional knowledge and thus makes for biopirates' delight.

Ranjit Devraj
December 2002