THE BIODIVERSITY ACT: AN ACT TO PROTECT BIOPDIATES

The present draft is very similar to the one the Swaminathan Committee drafted during Mr. Soz's tenure as Environment Minister.   We had critiqued the Swaminathan Committee's draft on grounds that it failed to

a) give legal shape to the inalienable rights of local communities to their biodiversity in the form of seeds, medicinal plants, fish and animal diversity.

b) implement article 8(j) of the Convention on protection of indigenous knowledge and innovation in such a way that it could act as a countervailing force to TRIPs and prevent the biopiracy of basmati, neem, pepper and hundreds of other aspects of our indigenous knowledge and heritage

c) implement article 14 of Convention on Biological Diversity (CBD) to regulate and avoid activities that have adverse impact on biodiversity, and article 19.3 which specifically addresses the potential negative impact of genetically engineered organisms on biodiversity.

The need for having legal protection of indigneous knowledge and regulating and minimising the adverse impacts of economic activity on biodiversity is highlighted by the case of the basmati patent on the one hand and the epidemics of farmers suicides on the other.

The basmati patent has highlighted the need to have biodiversity laws which

a) protect our indigenous innovation as symbolised in the breeding of varieties such as basmati by Indian farmers.

b) protect our farmers from threats posed by patents based on biopiracy which would give corporations like RiceTec exclusive rights to "make" and sell basmati.

Without legal protection given to collective cumulative knowledge and innovation embodied in biodiversity as in the case of basmati, companies like RiceTec will continue to patent our resources and knowledge. Without such legal recognition of collective, community rights to innovation, India will have no means to prevent corporations like RiceTec from establishing a monopoly on basmati production and basmati trade.

The very weak Article 12 on benefit sharing in the present draft is useless in the context of the basmati patent. Are we going to be satisfied having thousands of our fanners pushed out of basmati production and our export trade destroyed by RiceTec while RiceTec gives us a few thousand dollars to ensure that a few farmers grow Indian basmati for use for future breeding by RiceTec?

As I have argued in the briefing paper prepared for the IV Conference Parties of the CBD at Bratislava, this paradigm of "benefit sharing" is in reality enabling global corporations to steal the loaf and then begging them for the crumbs.

We need a biodiversity law that keeps the biodiversity loaf in the hands of Indian people. Retaining the right to the loaf, and not being satisfied with crumbs after the loaf has been stolen includes the articulation and defense of the biodiversity rights of the people of India. It also includes the duty of the government to prevent the destruction of biodiversity on which the ecological and economic security of two thirds of India is based.

The recent spate of suicides in Andhra Pradesh is intimately linked to the spread of monocultures of introduced varieties, their vulnerability to pest attacks and the high rates of indebtedness due to pesticide purchase. In WarangaL, as hybrid cotton displaced mixed crops to cover 90 per cent of the acreage, farmers use of pesticide increased by 700 per cent, creating debts of Rs. 40.000 - Rs. 80,000.  Such vulnerability of farmers will accelerate as indigenous crops and diverse cropping patterns are displaced by genetically engineered crops such as Monsanto's cotton. An implementation of Article 14 and Article 19.3 is a necessary element in any law aimed at biodiversity conservation in the Indian context. Without it, millions of species will be pushed to extinction and; 'millions of farmers will be pauperised and driven to suicides.

The present draft has all the above deficiencies but adds some new ones. The first serious negative aspect introduced in the present draft is the exclusion of extracts and products of -biological resources which have undergone chemical alterations during and/or after extraction as byproducts of biological resources. This exclusion nullifies any attempt to prevent biopiracy since most patents based on biopiracy of indigenous knowledge are based on a minor-tinkering in methods of extraction. The exclusion is in effect an implementation of a law to protect biopiracy.

The second serious deficiency in the present draft is the new articles 27-30 which take all decisions related to biodiversity beyond the normal justice system and provide government bureaucrats total immunity before the law. For eg. Article 27 states,

No suit, prosecution or legal proceeding shall lie against any officer or other employee of the Central Government or the State Government for anything which is done in good faith in pursuance of this Act or the Rules made thereunder.

Article 28 states

No court shall take cognizance of any offence under this Act except on a complaint made by the Central Government or any authority or officer authorised in this behalf by that Government. and Article 30 states,

No civil court shall have jurisdiction to entertain any suit or proceeding in respect of anything done, action taken or order/direction issued by the Central Government or the State Government or the authorities in pursuance of any power conferred by or in relation to its functions under this Act.

The Research Foundation has filed two public interest litigations related to Biodiversity laws in the Supreme Court to ensure that the Government acts in the public interest while drafting new laws. Evidently, Article 27-30 on immunity for bureaucrats is an attempt to become free of accountability to citizens through the courts for the protection of citizen rights. If the present draft would become law, no community or citizen or public interest group could defend people's rights or hold a bureaucrat accountable for abetting and promoting acts of biopiracy and biodiversity destruction. In other words, the bureaucracy of the Environment Ministry would like to have powers to sell and destroy our national wealth without being accountable to Indian people or the Indian courts.

An unaccountable bureaucracy is a threat to democracy and people's rights under any context.  When the immunity of the bureaucracy is combined with the power and immunity of global corporations to pirate and usurp the resources and knowledge of people, it becomes a threat to the very survival of people. The people of India are better off without a Biodiversity Act than an Act like the present one which protects and provides immunity to the Biopirates and their partners in the government machinery. It seems that for the government in power Swadeshi implies handing over our biodiversity wealth and our intellectual heritage to global corporations- for global trade. The "Swadeshi" Biodiversity Draft Act is an attempt to end all- citizens rights and citizens freedom in the area of biodiversity and knowledge. It is an attempt to establish the rule of biopiracy and the rule of biopirates.