In an unprecedented, though much delayed, decision, the National Biodiversity Authority of India (NBA) has decided to initiate legal action against M/s Mahyco/Monsanto and their collaborators for accessing and using local brinjal varieties in developing Bt Brinjal without prior approval of the competent authorities. The official resolution giving effect to this decision was taken in the NBA's meeting of 20th June 2011, the minutes of which were released only on 11 August 2011. The decision of the NBA reads as follows:
“A background note besides legal opinion on Bt brinjal on the alleged violation by the M/s. Mahyco/M/s Monsanto, and their collaborators for accessing and using the local brinjal varieties for development of Bt brinjal with out prior approval of the competent authorities was discussed and it was decided that the NBA may proceed legally against M/s. Mahyco/ M/s Monsanto, and all others concerned to take the issue to its logical conclusion.” (Emphasis supplied)
[Official copy of these minutes may be accessed here.]
The “alleged violation” referred to by NBA is based on a complaint filed by Environment Support Group before the Karnataka Biodiversity Board on 15 February 2010 (Copy of the complaint is enclosed as Annexure A). Subsequently, the Board thoroughly and systematically investigated the matter and submitted in its 28 May 2011 letter to NBA that “six local varieties for development of Bt Brinjal” have been accessed in Karnataka by M/s Mahyco/Monsanto and their collaborators “without prior approval from State Biodiversity Board/National Biodiversity Authority”. Furnishing a variety of documents in support of its contention, the Board has sought “further action” by the Authority on the basis of ESG's complaint. (Emphasis supplied). [A copy of the Board's letter along with its annexures is enclosed as Annexure B. ]
NBA subsequently sought “legal opinion” and decided to “proceed legally” against all involved in this case of biopiracy and “take the issue to its logical conclusion”. This should involve, as per law the Biological Diversity Act, initiation of criminal prosecution of key representatives of M/s Mahyco/Monsanto, University of Agricultural Sciences-Dharwar, Tamil Nadu Agricultural University-Coimbatore, Sathguru Management Consultants Pvt. Ltd. (representing the consortium involving United States Agency for International Development and Cornell University-USA) and others, for fundamentally violating Sec. 4 and related provisions of the Biological Diverstiy Act.
ESG's complaint specifically charges these agencies for criminally accessing at least 10 varieties of brinjal in Karnataka1 and Tamil Nadu2 without in any manner seeking prior and informed consent from the National Biodiversity Authority, State Biodiversity Boards and applicable Local Biodiversity Management Committees as required. Such a rigorous process of appraisal is mandatory to protect loss of biodiversity due to misuse or overuse, theft of biodiversity and to secure biodiversity from contamination when transgencis are involved. In addition, the law mandates that when biodiversity is to be accessed in any manner for commercial, research and other uses, local communities who have protected local varieties and cultivars for generations must be consulted and if they consent benefits must accrue to them per the internationally applicable Access and Benefit Sharing Protocol.
Clearly aware of these laws that were fully in operation when Monsanto and its collaborators initiated research in developing Bt Brinjal in 2005, they deliberately chose to sidestep conformance with this critical legislation. When tackled by the Board during the investigation, Mahyco in its letter dated 25 June 2010 to the Board has categorically stated that it is “not in violation of any of the provisions of the Act” and claimed that the Bt Brinjal was developed by University of Agricultural Sciences, Dharwad. On its part the University has claimed in its letter dated 17 May 2011 that it has secured all permissions from various government departments, but does not produce any evidence of clearance under the Biodiversity Act. The extent to which Monsanto is dismissive of India's biodiversity protection laws is evident from a press release made by Dr. Usha Barwale Zehr, Joint Director, Research of Mahyco who claimed that “The Genetic Engineering Action Committee (GEAC), which is going to meet a 19 member Expert Panel on April 27, 2011, may accept the proposal for introduction of Bt Brinjal in the country.”3 Thus completely belittling biodiversity protection laws of India in which offences are cognisable and non-bailable.
Keeping all this in view, the NBA must work with the State Biodiversity Boards to initiate criminal proceedings against Mahyco/Monsanto and others in strict conformance with the law. Pending this process administrative propriety demands that NBA must suspend action on all applications by any of the agencies involved in biopiracy seeking access to any biological resource of India. This would imply that NBA must stop processing Monsanto's application for accessing two varieties of Indian onions (A copy of their access application is annexed at Annexure C). In addition we demand that NBA and its supportive regulatory agencies such as the State Biodiversity Boards and Biodiversity Management Committees must immediately ramp up their capacities to ensure that such acts of biopiracy become a thing of the past.
1The varieties accessed in Karnataka are: Malpur Local, Majari gota, Kudachi local, Udupi local, 112 GO and Rabkavi local.
2The varieties accessed in Tamilnadu are: MDU I, PLR-I, Kkm-1 and CO2.
3GEAC to decide on Bt Brinjal at April 27 meet with Expert Panel, Friday, April 22, 2011 by Manjushee Naik, Mumbai, FnBNews, accessible at: http://fnbnews.com/article/detnews.asp?articleid=2970§ionid=1