Biological Diversity Patent Plant Variety Protection

Pest Policy: Confusion, Capture or a Fetish for the Foreign?

Policy-making is curious business. Particularly when it comes to technology. How else does one explain the following conundrum confronting our agro-biotech landscape?

One the one had, the government appears more or less convinced that BT cotton (patented technology belonging to Monsanto) has developed pest resistance (against the pink Bollworm) and does not work anymore. And yet on the other, it wants this patented technology to disseminate widely in a cheaper and more accessible manner to the poor farmer. Forcing one to ask: If the technology does not work against pests, why advocate for its wider adoption? And yet this precisely is what the Maharastra government is seeking to do, if a recent news item is to be believed.

I extract as below:

“In the wake of pesticide-related deaths of farm workers in Vidarbha, the state government has written to the Centre asking it to denotify the Bt cotton seed strain Bollgard II (BG II), pointing out that it was no longer resistant to the pink bollworm pest. This is the second letter the state has sent to the Centre this year on the failed pest resistance of the genetically modified seed.

“We have written to the Centre to denotify BG II from the Bt cotton category due to loss of its efficacy against the pink bollworm,” said state agriculture secretary Bijay Kumar. The state has suggested the seed be downgraded to a hybrid, which will lead to a drop in its price.” If BG II is denotified, it may result in a reduction in price from the present around Rs 800 a packet to Rs 400 a packet. Farmers can use the money saved in meeting the additional cost of plant protection,” said Kumar.”

This comes close on the heels of a show cause notice issued by the Ministry of Commerce to Monsanto asking why its patent should not be revoked, since it was no longer “effective” against pests. As I’d noted in an earlier editorial in the Hindu:

“The DIPP proceeding is a particularly interesting one, given that Section 66 of the Patents Act has been invoked, an exceptional provision that provides for revocation on grounds that the patent is “mischievous to the state or generally prejudicial to the public”. The key contention appears to be that the patent is no longer effective, given the pest resistance that developed over time. A ground not likely to pass muster with a court of law, given the rather high bar for invoking Section 66. Quite apart from the fact that it appears a tad bit paradoxical that while one wing of the government (the Ministry of Agriculture) has recently issued a draft notification qualifying GM technology as an industry “standard” that must mandatorily be licensed on FRAND (Fair, Reasonable and Non-Discriminatory) terms to as many seed companies as possible, another one (DIPP) insists that the technology is useless!”

Is this just plain policy level confusion or a concerted attempt at getting the better of Monsanto? A concert orchestrated by the government in consultation with seed companies? A regulatory capture of sorts, if you will? Only time will tell. But this much appears clear. None of the parties involved in these legal skirmishes give two hoots about the poor farmer, in whose name they all speak.

We all love to hate Monsanto. But if we care about the rule of law, then we must take issue with this blatant subversion of the policy process. A tad bit hypocritical to agitate against the government when it flouts the rule of law by snatching away our precious freedoms (right to speech etc), and yet remain silent when it flouts the same rule against parties that we love to hate.

As I noted earlier: “Whatever be our personal predilections against GMOs, it is a matter of deep concern that government agencies appear to be flouting the rule of law with impunity.”

This sector must be regulated in a transparent and thoughtful manner and not through “abusive law-making” processes designed to favour one set of stakeholders in what is otherwise a private commercial dispute.

In the end however, I’m still left wondering as to why our government insists on putting all of its eggs in one BT cotton basket? Why aren’t we encouraging a diverse range of crops and crop varieties? Here again, as I’d noted in the Hindu opinion piece:

“Shouldn’t our government be encouraging a diversity of approaches in Indian agriculture, entailing both GM technology and the more traditional processes that have stood the test of time? More so, when nature has taught us time and again that the best of technologies can never really match up to the wisdom of an innate evolutionary process.”

I was recently introduced to “black” rice from Manipur. And found it extremely nutritious and nutty. So tasty that it does not really need any spicy curry to relish it with. Better still is the fact that it boasts a whole host of medicinal properties, including serving as a potential cure for cancer.

We have many such varieties (including my personal favourite Navara from Kerala), but are slowly losing out on this diversity owing to our mad rush to monoculture and homogenise. Apparently, from more than 100,000 varieties in the 1970’s, we are now down to around 6000!

We need to nurture and nourish our biological diversity and promote a plurality of approaches. Unfortunately our colonized mindset still means we tend to favour the foreign over native indigenous breeds. When, much like our street dogs ((paradoxically called the “pariah”), the indigenous could well turn out to be most robust of the lot.

As this article rightly notes: “Nature must truly be baffled that we seek to annihilate what has survived and flourished, while we nurture and conserve what can be artificially created.”

Will be able to transcend our fetish for our foreign? But more importantly, will we stand up for the rule of law…and denounce regulatory capture wherever and whenever they crop up? (no pun intended). Only time will tell!

ps: Image from here.

Shamnad Basheer

Prof. (Dr.) Shamnad Basheer founded SpicyIP in 2005. He's also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof. Amartya Sen. Professional History: After graduating from the NLS, Bangalore Prof. Basheer joined Anand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Later, he was the Honorary Research Chair of IP Law at Nirma University and also a visiting professor of law at the National Law School (NLS), Bangalore. Prof. Basheer has published widely and his articles have won awards, including those instituted by ATRIP, the Stanford Technology Law Review and CREATe. He was consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also served on several government committees.

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