SpicyIP Tidbit: ESG sues the Govt. of India & NBA for non-prosecution of Monsanto’s Indian subsidiary

Well, it finally happened. After crying itself hoarse for more than a year over the non-prosecution of Monsanto’s subsidiary Mahyco for alleged bio-piracy of biological resources related to Brinjal, the Bangalore based NGO – Environmental Support Group (ESG) has filed a Public Interest Litigation (PIL) before the Karnataka High Court. In this petition ESG has sued the National Biodiversity Authority, the Union of India, the Ministry of Environment & Forests, the State of Karnataka & the Karnataka State Biodiversity Board. The NGO has also challenged certain provisions of the Biological Diversity Act, 2002 as being unconstitutional and ultra vires the Constitution of India. Reportedly, the Karnataka High Court has issued notice on the petition. 
The main documents can be accessed on the ESG website over here. I’ve also provided the links below: 
On the point of prosecution of Monsanto’s Indian subsidiary (Mahyco), I’ve already covered the main issues involved and my past posts on the topic can be accessed over here, here and here. Like I’ve said before, I don’t think ESG has any case over here. From the evidence on the record it is quite obvious that Mahyco’s involvement in the Bt Brinjal case happened with the blessings of the Department of Biotechnology, Ministry of Science & Technology, Government of India. I don’t think Mahyco needed to take any further permissions when it was amply clear that the Government of India was aware of its research project. Further, like I stated in a previous post, if ESG is serious about prosecuting Mahyco it should, in the interests of being fair, also seek to prosecute the Department of Biotechnology, Cornell University and the United States Agency for International Development (USAID). The reason for this is the simple fact that Mahyco’s research into the development of Bt Brinjal happened under the auspices of the Knowledge Initiative on Agriculture (KIA) which is a bilateral treaty between the Government of India and the U.S. signed during former President George Bush’s visit to India. 
On the remaining issues in its petition, ESG appears to be on firmer ground, especially the non-notification by the NBA of the guidelines to access biological resources under Section 18. 
The constitutional challenge against Section 40 of the Biological Diversity Act, 2000 on the grounds that it delegates un-canalized and arbitrary power to the executive is going to be an uphill climb given the high standards set by High Courts in such constitutional challenges. In any case, this PIL should hopefully force open a much needed debate on the Biological Diversity Act and its draconian provisions.

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  1. Pingback: An initiative to kill the Knowledge Initiative on Agriculture | Spicy IP

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