The ‘Genetically Modified’ Crops Debate: Contextualising the Concerns of Indian Subcontinent
Recently the farmers’ agitation at the borders of Delhi has brought the spotlight back on Indian agricultural policy. It has led to fierce debates on free market, minimum support price and rural economy. However the debates on ‘genetically modified’ (GM) seed has remained absent from the headlines and has constantly been pushed to the periphery, despite the increasing illegal sale of these seeds by traders and the constant risk of jail terms faced by farmers.[1] The last legally approved GM crop was BT Cotton and since then the only other crop which came close to getting authorization from India’s apex biotech regulator, Genetic Engineering Appraisal Committee (GEAC) was GM Mustard.[2]
Proponents of GM crops advance increased economic utility as the key argument for their existence. However, despite being the principal stakeholder, an analysis of the impact on the average Indian farmer is missing. While much has changed in agriculture in terms of modernisation and trade, the Gross Domestic Product contribution of the agricultural sector has been on the decline. On the other hand, the proportion of population that is dependent on agriculture is still very large in number[3] with nominal or small land holding still being the norm.[4] In this context, this piece attempts to discuss the development of intellectual property rights in seeds and the role of the ‘Global North’ behind the same. It also seeks to highlight how these laws and their implementation have raised concerns for Indian farmers predominantly practising subsistence agriculture, and future policymakers must evaluate the same.
Culmination of Global North’s Interests: Looking back at India’s seed IPR
India’s first intellectual property rights enactment was in 1858 and was subsequently amended in 1911 in order to serve colonial interests.[5] Post-Independence, the need to change the IPR regime was immediately felt and subsequently two committees, namely the Bakshi Tek Chand Committee (1948-1950) and the N.R. Ayyangar Committee (1957-59)[6] , were formed to introduce reforms which were adopted as law in 1970. Some major changes which served public interest were a shorter life of patents[7], compulsory licensing[8], exclusion of food and medicine[9] (including seeds) from scope of intellectual property protection which made them free from corporate control.
At the same time, the decolonization of various nations including India in 1950s led to the movement of New International Economic Order as they recognized the various handicaps it faced in the arena of global trade.[10] While most of the ‘Global North’ especially USA was preoccupied with Cold War, the interests of ‘Global South’ countries were actively promoted through UN Conference on Trade and Development (UNCTAD). UNCTAD later became the principle vehicle in their effort to restructure the world economy over the next decade along with other such as Group of 77, Organization of Petroleum Exporting Countries (OPEC).[11]
While the ‘Global North’ still had had a profound effect on the South particularly through institutions such as International Monetary Fund (IMF) and other associated institutions, it was the rise of the OPEC which alerted the ‘Global North’ Consequently in the 1980s, ‘Global North’ realized the importance of a global trade regulator as “an administrator of Northern discipline upon the South” and this led to the birth of WTO in the Uruguay Round of GATT in 1986.[12] One of the main instruments to carry out this discipline was the ‘structural instrument’ loan of which India was also a recipient in the turbulent political-economic times of 1990s. Unlike a traditional loan, a ‘structural instrument’ loan impacted the economy as a whole with the loan conditional on certain conditions disguised as ‘reforms’. One of the conditions of ‘reform’ was the Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPS), which completely changed the Indian IPR regime by introducing patents on any available invention, whether product or processes, including seeds.
The Indian government introduced these reforms in three different enactments (in 1999, 2002 and 2005) to comply with the TRIPS time limits, introducing product and process patents on seeds.[13] The most important clause was Article 27.3(b) of the TRIPS which put an obligation on the members to “provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof.” Taking the cue from Europe based sui generis system (based on Plant Breeders’ Rights system under the International Union for the Protection of New Varieties of Plants (UPOV) agreement of 1978) which authorised farmers to keep seeds for their own use[14], the Indian government enacted the Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act of 2001. It should be noted that 1991 version of the UPOV agreement did not provide the right of benefit sharing which allows farmers to save, use, exchange, share and sell unbranded seed of protected variety. Further provisions of compulsory licensing have led to some scholars terming the PPVFR as free from private interest.[15]
However, as Professor Cullet points out that while PPVFR is arguably a progressive legislation protecting farmers’ rights, it is only so in theory, and not in practice. This is because the system lacks the required infrastructure and the farmers are largely unaware of their rights.[16] In addition the criterion of protection under PPVFR based on the four parameters of “novelty, distinctiveness, uniformity and stability”[17] is extremely complicated. This renders all indigenous or traditional knowledge systems, especially those in the public domain incompatible with these definitions formulated by ‘Global North’.[18] Thus, these knowledge systems become vulnerable to exploitation from attacks of ‘Biopiracy’.[19] Prominent examples are attempts to patent Turmeric for wound treatment for its antiseptic properties[20] and the use of Neem derivatives to repel insects and pests.[21]
These ‘Biopiracy’ attempts brought into focus the issue of traditional knowledge and eventually led the Convention on Biological Diversity (CBD), which for the first time recognized a nation’s right of sovereignty over its biological and genetic resources. This convention to which India was also a signatory led to the enactment of the Biological Diversity Act of 2002, which had the potential to effectively curtail the problem of biopiracy. However, selective implementation, institutional incapacity, non-usage of power, lack of public awareness as well as exclusion of species from the scope of statutory protection rendered it a ‘toothless tiger’.[22]
Finally, global diplomacy has further created problems wherein on one hand there’s constant pressure on India to comply with the 1991 UPOV agreement[23], while on the other hand there is a constant worry that TRIPS would triumph CBD in case of a dispute between their respective provisions. This is because as TRIPS has support of ‘Global North’ as a block while CBD doesn’t enjoy the same from ‘Global South’. Further, TRIPS constitutes an important part of international trade law regime with extensive dispute resolution mechanisms while CBD only lays down basic principles which are yet to become laws.[24]
Extinct Livelihoods and Return of Imperialism
The current IPR regime in India on seeds has been heavily influenced by the diplomacy and policy adopted by the ‘Global North’. The conception of the present day world trade has greatly influenced the current form of our IPR regime, which disregards subsistence agriculture from its economic agenda. Seed is sacred, saved and exchanged in rural communities. Any restriction on it is alien to their culture and goes against the basis of their livelihood.[25] GM crops have already made farmers shift to monoculture from mixed farming, making them vulnerable to crop failures. This is a disaster for Indian farmers as given their small land holding and poor support facilities such as that of irrigation, even a single failed cropping cycle puts them into the state of depravation. Further, the obsession of policy makers with output leads them to neglect the input demands of these crops. Farmers have to invest heavily in irrigation facilities, pesticides, fertilizers and others supplements without which these ‘high yield’ crops do not grow.[26] Furthermore, to access these facilities, farmers have to secure credit which in turn become debt traps because of crop failures. This results in poverty cycles for the farmers and constant state of deprivation.[27]
In the longer run, our farmers will lose the traditional political control that they used to enjoy over seed since they rely on GM seeds, the reproduction function of which can also be controlled through biotechnology. Further, economies of scale deters new players from entering the seed market and could arguably endanger future food security, which now vests in the hands of entities who own the right over these seeds.[28]
Conclusion: Should we be more alert?
It is no more a secret that the current IPR regime on seeds is the cumulative result of the ‘Global North’s’ agenda to structure the global economy to their advantage. Further, exclusion of traditional knowledge systems and practices of ‘Biopiracy’ lead to a tragedy of ‘anti-commons’[29] which causes the knowledge systems to remain in exclusive control of limited entities. It has already led to extensive rural distress and in the long run could effectively lead to recolonization of the ‘Global South’. Hence, it is imperative to reconceptualise a new IPR regime on seeds which promotes food security, innovation, public welfare and includes protection of community based knowledge.
[1] Parthasarathi Biswas, GM seeds: the debate, and a sowing agitation, The Indian Express (June 12, 2020) <https://indianexpress.com/article/explained/gm-seeds-the-debate-and-a-sowing-agitation-6452999/> accessed 2 January 2021.
[2] Pallava Bagla, India nears approval of first GM food crop, Science Magazine (15 May 2017) <http://www.sciencemag.org/news/2017/05/india-nears-approval-first-gm-food-crop> accessed 2 January 2021.
[3] Philippe Cullet, ‘Revision of the TRIPS Agreement concerning the Protection of Plant Varieties- Lessons from India concerning the Development of a Sui Generis System’ (1999) 2(4) The Journal of World Intellectual Property 617, 630.
[4] Saksham Chaturvedi and Chanchal Agarwal, ‘ Analysis of Farmer’s Rights in the Light of the Protection of Plant Varieties and Farmers’ Rights Act of India’ (2011) 33(11) European Intellectual Property Law Review 708, 711.
[5] BK Keyala, ‘Amended Patents Act: a critique’ (2005) 4(2) Combat Law 1.
[6] Vandana Shiva, ‘Patents: Myths and Realities’ (Penguin Books India, 2001) 135-36.
[7] ibid.
[8] The Indian Patent Act 1970, s 84-85.
[9] The Indian Patent Act 1970, s 2-5.
[10] Walden Bello, ‘Building an Iron Cage: The Bretton Woods Institutions, the WTO, and the South’ in (Sarah Anderson ed., Views from South: the effects of Globalization and The WTO on Third World Countries (2000), 56-58.
[11] ibid.
[12] ibid 61.
[13] Jagjit Kaur Plahe, ‘The Implications of India’s Amended Patent Regime: sTRIPping Away Food Security and Farmers’ Rights?’ (2009) 30(6) Third World Quarterly 1197, 1200-1205.
[14] Philippe Cullet, ‘Intellectual Property Protection and Sustainable Development’ (LexisNexis Butterworths, 2005) 270-284.
[15] Suresh Pal, Robert Tripp and Niels P Louwaars, ‘Intellectual Property Rights in Plant Breeding and Biotechnology: Assessing Impact on the Indian Seed Industry’ (2007) 42(3) Economic and Political Weekly 231, 233.
[16] Cullet, (n 14) 283-84.
[17] The Protection of Plant Varieties and Farmers’ Rights Act 2001, s 15.
[18] Carolyn Deere, ‘The Implementation Game: The TRIPS Agreement and the Global Politics of Intellectual Property Reform in Developing Countries (OUP, 2011) 309-315.
[19] Vandana Shiva, ‘Bioprospecting as Sophisticated Biopiracy’ (2007) 32(2) Signs 307.
[20] Cullet, (n 14) 299.
[21] Cullet, (n 14) 302.
[22] Shalini Butani and Kanchi Kohli, ‘Ten Years of the Biological Diversity Act’ (2012) 47(39) Economic and Political Weekly 15.
[23] Deere, (n 18) 304-309.
[24] Robert Ali Brac de la Perriere and Franck Seuret, ‘Brave New Seeds: The Threat of GM Crops to Farmers’ (Zed Books, 2000) 90, 103-104.
[25] Vandana Shiva and Radha Holla Bhar, ‘An Ecological History of Food and Farming in India Vol.1- Diversity: The Hindustan Way (Navdanya 2001) 167.
[26] Suman Sahai, ‘The Seeds of Discontent’ (2006-07) 33(3/4) India International Centre Quarterly 162.
[27] Vandana Shiva and others, ‘Seeds of Suicide: The Ecological and Human Costs of Globalisation of Agriculture’ (RFSTE, 2002) 71-88.
[28] Suresh Pal, Robert Tripp and Niels P. Louwaars (n 15) 236
[29] Keith Aoki, Neocolonialism, Anticommons Property, and Biopiracy in the (Not-so-Brave) New World Order of International Intellectual Property Protection, (1998) 6 Indiana Journal of Global Legal Studies 11.