"Impact of Post-TRIPS IP Regime on Indian Agriculture"
THEME Impact of Post-TRIPS IP Regime on Indian Agriculture I n the “century of bio-tech- of the ever-growing popula- while the contribution of the nology”, “As you sow, so tion. Farmers have contributed pubic sector in plant breeding will you reap!” is no lon- immensely to the bio-diversity tends to decrease, private sec- ger the refrain in agriculture. through informal innovation tor investments concomitantly Since time immemorial, the and conservation. have increased. Logically, the customary practice of farm- However, since the 1960s private sector seed industries ers sowing seeds, harvest- there has been a paradigm and plant breeders tend to ex- ing the crops and saving part shift in the agricultural devel- act reasonably viable financial of the harvest for seeds is so opment and research from the returns on their investment much quintessentially typical erstwhile farmers’ lands to the in plant breeding research. of Indian agriculture that to lab-based “top-to-down” mod- Thus, agriculture has come to envisage a different situation el ushering in High Yielding pervade the multilateral trade requires special explanation. Varieties (HYVs), chemical agreements, (euphemistically Farmers’ ingenuous methods fertilisers, pesticides and other promoting “free trade”!) cul- of creating indigenous variet- critical inputs. Thus, with the minating in a clutch of agree- ies of seeds over the centuries onset of the “Green Revolu- ments signed at the time of the have enriched the bio-re- tion”, the MNCs made their establishment of the WTO in sources and ensured the food debut into the manufacture of 1994 mirroring the commer- security and integrity of the seeds, pesticides and fertilisers cial concerns of the MNCs of country immeasurably. These displacing traditional farm- the developed countries. The incremental improvements ers as the prime contributors most notable of these is the over the centuries have con- to the rich bio-diversity. And, Agreement on Trade-Related Aspects of Intellectual Prop- In the 21st century, the Gene Revolution has metamor- erty Rights (aka the TRIPS phosed the agriculture sector with new plant varieties and ter- Agreement) which sets down minator seed technology. The MNCs who fund the Research minimum standards for most and Development in the biotech arena pressurise developed forms of intellectual property countries to frame trade agreements with other nations con- regulation within all member ducive to recouping profitable returns on investments. Thus, countries of the WTO. WTO and other agreements reflect the concerns of MNCs Consequently, agriculture, of developed countries. And India, through “international- which is the main source of trade-agreements-compliant” laws, has pledged our food livelihood of about 65% of the sovereignty, farmers’ needs, traditional knowledge, and eco- Indian population, has been logical diversity by legalising bio-piracy and promoting cor- subjected to radical changes in poratisation of agriculture at the altar of corporate greed. the post-TRIPS period. The recent legislative attempts – viz., the Patent Amendment Dr. Lalitha Sreenath Dr. M.R. Sreenath solidated into varieties with fifty years later, the MNCs Act, 2005, the Protection of The authors are better yields. Thus, conserva- have now come to dominate Plant Varieties and Farmers’ Professors, T. A. Pai tion and sustained develop- the entire agricultural devel- Rights (Denial?) Act, 2002, Management Institute, Manipal, Karnataka. ment of bio-diversity (origi- opment and research with the Geographical Indications of They can be reached at nally nurtured and maintained production of “Genetically Goods (Registration & Pro- firstname.lastname@example.org and sreenath@mail. by the farmers) are necessary Modified Varieties” (GMVs) tection) Act, 1999 and the tapmi.org, respectively to humanity for its long-term of crops. No wonder, the cost Seed Act, 2004 - to become survival. Better plant varieties of research in the area of crop TRIPS-compliant by the In- are needed for ensuring food improvement has become as- dian Government have, in fact, security to satisfy the hunger tronomically expensive; hence, facilitated the corporatisation1 1 Vide http://www.financialexpress.com/fe_full_story.php?content_id=111601.The last revision of GATT ----the General Agreement on Tariffs and Trade (the rules governing international trade) -- requires signatories to the Agreement to open up their markets to imports and to remove their subsidies to farmers if they do not want to face trade retaliation. The Agreement left intact, however, many of the subsidies given to US farmers. Thus, at latest Hong Kong plenary session of WTO Ministerial conference India has reiterated its stand that there would not be any agricultural agreement without special products and special safeguard mechanisms (SSM) which are sine qua non for ensuring livelihood and food security of the millions of Indian farmers. 1178 The Chartered Accountant February 2006 Lamiya Lokhandwala of the Indian agriculture sec- cultural and economic ramifi- in a journal or availability on tor by permitting privatisa- cations that it may have on the a database2 and does not ex- tion of valuable bio-resources developing and Third World tend to traditional knowledge through patents. countries. handed over to generations The two IPRs – Patents The modern IPR pro- through oral traditions. and Plant Variety Protection tection regime runs coun- Further, globalisation of (PVP) – grant exclusive mo- ter to the very basis of In- agricultural trade poses a great nopoly rights over the creation dian agricultural ethos and challenge to the future world (e.g. new plant variety, GM is tantamount to formalising food security. The control of seeds, etc.) for commercial bio-piracy by commercialis- seeds and agricultural research exploitation. While patents ing traditional resources and in a handful of MNCs – Gene granted to inventors provide indigenous knowledge of the Giants – Monsanto, DuPont exclusive monopoly rights native farming communities. and Syngenta, not only ren- over the product for twenty India has already been rudely ders the food security of the years – on the basis of novelty, jolted from its deep slumber world vulnerable in the hands usefulness, and non-obvious- regarding these changes when of these commercial enterprises ness – Plant Variety Protec- two NRIs sought a patent for but may also tend to affect the tion available to plant breeders turmeric for its wound-healing quality and well-being of ev- protect the genetic makeup of properties, which is common eryone with food habits totally a specific plant variety if the knowledge of the entire Indi- dictated by the MNCs to ap- “Novelty - Distinctiveness an populace! Similar tremors pease their “hunger for corpo- - Uniformity – Stability” shook the scientific commu- rate wealth and power”. The (NDUS) criteria are satisfied. nity when basmati, neem and rich nations are adopting any In this globalised world, access Nap-hal wheat were patented. and every type of means – fair to genetic resources, which It is sad commentary on the or foul, to protect their farmers. may generate critical inputs US law of patents that “prior Farmers in the LDCs, whose for pharma-crops and indus- existing knowledge” which de- very economic survival depends trial crops, assume vital signif- bars grant of patent is narrowly on being able to save seeds from icance in view of the political, drafted to denote publication one year to the next, are ruined 2 Vide 35 USC 102 Cf. Art. 54, Convention for the Grant of European Patent and similar is the legislative standard adopted in various other countries in Africa, Latin America and India. February 2006 The Chartered Accountant 1179 by added input costs. Ironically, other multilateral trade agree- clusive proof of the LMOs the community which helped ments. A short appraisal of the transferred being safe for the MNCs develop the new variet- various international instru- bio-diversity of the State and ies of crops are not only denied ments having impact on bio- consumers. The procedure for ownership rights but are also diversity and India’s legislative “Advanced Informed Agree- made to pay royalties for use of reaction would help in the ap- ment” (AIA) covers seeds for their own resources. Apart from preciation of the import of the planting live fish for release, the need to purchase seeds ev- international developments. micro-organisms for bio-re- ery year, they perforce have to UN Convention on Bio- mediation and other LMOs use chemical herbicides and logical Diversity (CBD), intentionally introduced into fertilisers. Uniformity in plant 1992: The first comprehensive the environment; …to enable varieties and mono-cropping instrument on plant genetic A short ap- information-flow to countries world over may also affect the resources was drafted with praisal of to make informed decisions gene pool, perhaps, irreversibly, the objective of ensuring “that the various before agreeing to the import besides rendering food security plant genetic resources of eco- interna- of such organisms into their totally dependent upon the sta- nomic and/or social interest, tional in- country and the establish- bility of the international seed particularly for agriculture, struments ment of the BioSafety Clear- supply industry. Above all, the will be explored, preserved, having ing House “to facilitate the social costs of GM crops and evaluated and made available impact on exchange of information on GM contamination have not for plant breeding and scien- bio-diver- living modified organisms and been addressed effectively to tific purposes”. Some of the sity and to assist countries in the im- cast the burden on the source salient features of this Con- India’s plementation of the Protocol”. of the issue – viz. the bio-tech vention are: legislative International Treaty on industry. 1. Imposition of legal liabil- reaction Plant Genetic Resources, Further, the terminator ity on the member-states would FAO, 2001: Originally a non- technology, which helps in the to ensure the “fair and eq- help in the binding undertaking in 1983, creation of sterile seeds from uitable sharing of benefits” apprecia- based on the well-established GM plants to prevent farm- arising from “the use of tion of the principle that genetic plant re- ers from re-using the seed for traditional knowledge, in- import of sources, as a common heritage future crops, perpetuates a sys- novations and practices”; the inter- of mankind, are to be freely tem that allows the technology and, national available, in 2001, it had to be itself to do the self-policing, 2. Recognition of the “in- develop- galvanised as a legally bind- rather than using laws and le- digenous and local com- ments. ing treaty to be in conformity gal barriers for prevention of munities that embody with the CBD. The Treaty is misappropriation of the tech- traditional lifestyles” as the first of its kind to provide nology. The genetic seed ster- the guardians of biological a legal framework for balanc- ilisation patents maximise seed diversity and its sustain- ing the need for conservation industry profits by destroying able management, and and sustainable use of plant the rights of farmers to save acknowledgement of its genetic resources with a pro- their seeds and breed their own vital significance in “meet- cedure for access and benefit- crops. The policy decisions ing the food, health and sharing, and providing direct benefit the bio-tech industry other needs of the grow- and indirect links to IPR in- and compound the problems ing world population”. struments. It envisions the of the farmers and consumers Cartagena Protocol on grant of a multilateral system by the transfer of the costs and BioSafety, UN Conven- of “facilitated access” to seeds burdens of the new technol- tion on Biological Diversity, and other germ-plasm of 64 of ogy onto them. Thus, corpo- 2000: The Cartagena Proto- the most important food and rate greed has vacuumed away col on BioSafety, supplemen- forage crops, basic to food se- public interest concerns of the tary agreement to the CBD in curity, between member states world as a whole. 2000, is a legally binding in- for research, breeding and crop strument that governs transfer development. The significant International Agreements of living modified organisms provisions of this treaty are affecting Biological from one nation to another. the “Access & Benefit Shar- Diversity The Protocol has the impor- ing” (ABS) provision for those These mind-boggling de- tant “precautionary principle” who commercialise a product velopments have the sanction which enables the importing developed from the multilat- of law in those countries that countries to ban the imports eral system (MLS) to pay an are signatory to WTO and where there is lack of con- equitable share of the benefits 1180 The Chartered Accountant February 2006 arising from the commerciali- from the need to clarify cer- played by the WTO and the sation of that product and the tain provisions in the light of various agreements forming involvement of farmers, their the experiences of the mem- part of GATT in shaping do- communities and countries ber-states. Hence, any country mestic policies for biodiversity in relevant policy discussions wishing to join UPOV can management it becomes easy and decision-making and fur- only do so under the Conven- to comprehend. It covers dif- ther, to participate fully in the tion of 1991. Thus the 1991 ferent fields of intellectual benefits derived from improper Act: property among which patent use of PGRs, including plant 1. Extends breeders’ rights rights are the most important breeding. However, the Treaty to all production and re- from the perspective of the has failed to make internation- production of their va- management of biological re- al provisions for farmers’ rights As indicat- rieties and to species as sources. by squarely placing the onus on ed in the well as general and spe- General Agreement on national governments to do so. preamble cific plant varieties and Tariffs & Trade, 1994: Gen- International Union for to the 1961 also includes so-called eral Agreement on Tariffs and Protection of New Varieties of and 1978 ‘essentially derived variet- Trade was created by the Bret- Plants (UPOV Convention), Acts of the ies’; on Woods meetings that took 1961: The UPOV Convention Conven- 2. Grants breeders exclusive place in Breton Woods, New was first negotiated and ratified tion, the rights to harvested mate- Hampshire in 1944, as an mostly by developed countries. UPOV was rials; economic recovery plan post- The UPOV, an important in- originally 3. Eliminates the distinc- WW II in 1947”. In 1994, strument concerning the man- conceived tion between discovery GATT was again updated agement of biological resources, as a mech- and development of vari- with new obligations upon its provides a legal mechanism for anism for eties; signatories. One of the most the protection of plant varieties the devel- 4. Renders the right to save significant changes made in developed by commercial plant opment of seed as the farmer’s privi- “GATT 1994” was the cre- breeders through the introduc- agriculture lege and has been made ation of the World Trade Or- tion of “plant breeders’ rights”. in addition optional; ganisation (WTO). As many Plant breeders’ rights are a hy- to provid- 5. Limits exceptions to acts as 75 of the GATT members brid form of intellectual prop- ing IP pro- done privately and for and the European Communi- erty rights, which give the seed tection to non-commercial purpos- ties are the founding members industry similar incentives to breeders. es, experiments, and for of WTO as on 1.1.1995. The those offered by patents, with- the breeding and exploi- GATT, as a multilateral agree- out establishing a complete tation of other varieties; ment, is based on the “uncon- monopoly. The glaring flaw is 6. Extends the minimum ditional most favoured nation its failure to address the conse- period of protection from principle.”3 The two crucial quent effect of the IPR regime 15 to 20 years: for trees points worthy of noting are that it advocates on the envi- and vines, the minimum the non-discrimination be- ronment. is of 25 years; tween domestic and imported The UPOV underwent 7. Grants double protection goods and the provision for some revisions in 1972 and to PBR. importing countries to legis- 1978. As indicated in the pre- In the post-TRIPS scenar- late for protection of human, amble to the 1961 and 1978 io, more developing countries animal or plant life and for the Acts of the Convention, it have progressively joined the conservation of exhaustible was originally conceived as a Convention mainly because resources, provided discrimi- mechanism for the develop- the UPOV regime is generally nation and arbitrariness are ment of agriculture in addition held to fulfil the conditions excluded. to providing IP protection to of a sui generis system as re- Agreement on Applica- breeders. In 1991, substantial quired under Article 27.3b of tions of Sanitary and Phy- revisions were effected to the the TRIPS Agreement. tosanitary Measures (SPS UPOV Act, 1978, to take cog- Agreement), 1994: On 15 nisance of the technological WTO Agreements on April 1994, 125 States signed developments and to accord- International Trade in the “Final Act embodying the ingly strengthen the protec- GMOs results of the Uruguay Round tion offered to the breeders in Against the background of multilateral trade nego- a more specific manner apart of the above treaties, the role tiations’’, concluded under the 3 i.e., the conditions applicable to the most favoured trading nation (i.e. the one with the least restrictions) are to apply to all member-states. February 2006 The Chartered Accountant 1181 aegis of the General Agree- tary and phytosanitary (SPS) against non-compliant coun- ment on Tariffs and Trade measures designed to protect tries. The relevant provisions (GATT). This Final Act con- humans, animals, and plants of concern to agriculture pre- tains an “Agreement on the from contaminants, diseases, scribe that though countries Application of Sanitary and and pests. TBTs assume con- are not required to grant pat- Phytosanitary Measures”. The siderable significance for agri- ents for plants and animals aim of the SPS Agreement is cultural exporters in the light they should provide protection to minimise the negative ef- of trade agreements focusing of plant varieties through pat- fects of health restrictions on on reduction of tariffs, import ents or an effective sui generis international trade. To achieve quotas, and other trade barri- system or both. this aim, the animal health ers. Hence, the TBT Agree- TBTs Agreement on Agriculture measures established by coun- ment provides for: assume (AOA), 1994: Despite the Pre- tries to ensure the protection 1. Labelling and documen- consider- amble of the AoA mentioning of human and animal life and tation requirements re- able signif- food security, the legal frame- health should be based on in- lated to food, nutrition icance for work does not lend any cre- ternational standards, guide- claims and concerns, agricultural dence to it. In fact AOA seems lines and recommendations, quality and packaging exporters structured on the quicksand primarily those developed by regulations required; in the light of quixotic belief that ‘fewer the Office International des 2. Regulations imposed for of trade the trade barriers, the easier Epizooties (OIE). The SPS the prevention of decep- agree- the access to food’. Thus, the Agreement also emphasises tive practice, and for the ments fo- AOA proposes to “establish a the need for transparency in protection of human, cusing on pure market-based agricultur- the import health measures plant health or environ- reduction al system” through reduction which States need to enforce ment, etc. should pass the of tariffs, of subsidies for domestic agri- on the assessment of the risks proportionality test of in- import culture5 as well as export ori- to human, animal or plant life ternational trade restric- quotas, ented agriculture while at the or health carried out by other tions; and other same time provides for a com- countries or by international 3. Measures not to discrimi- trade pulsory minimum import of at organisations and may seek nate between imported barriers. least three per cent of the total additional information from products and “like” prod- consumption at the level of a other member countries or ucts of domestic or for- very low tariff. Consequently, from the industry. Lastly, the eign origin. will not the farmers be at the general provisions relating to Agreement on Trade – Re- mercy of international markets dispute settlement contained lated Intellectual Property dominated by a few trans-na- in the Final Act will be appli- Rights (TRIPs), 1994: The tional corporations? cable to disputes arising in the TRIPS Agreement, which health sector. If scientific or was one of the WTO group Position in India technical questions are raised, of treaties, was the result of in- The stringent requirements the WTO panel responsible tense lobbying by the United of TRIPs had the propensity for settling the dispute will be States, EU, Japan and other to cause a deleterious impact able to consult the OIE. developed countries.4 As on Indian agriculture and bio- Technical Barriers to Trade GATT was replaced by the resources. The failure of India Agreement (TBT Agree- WTO, ratification of TRIPs to comply with the 1995 dead- ment), 1994: Technical barri- became mandatory for WTO line led to the declaration by ers to trade (TBTs) constitute membership. Hence, it was the Dispute Settlement Body an effective multi-pronged imperative for any country of the WTO that India was strategy for countries to not seeking easy access to interna- in violation of TRIPs on the only regulate markets, protect tional markets via the WTO complaints of the US and EU. their consumers, and preserve either to provide a strict in- This stricture compelled the natural resources, but also tellectual property regime as hasty enactment of amend- to provide preferential treat- mandated by TRIPs or face ments and new intellectual ment for domestic products as the wrath of the WTO’s dis- property laws to comply with against imported goods. Most pute settlement mechanism the TRIPS requirements. Two TBTs in agriculture are sani- in the form of trade sanctions amendments to the Patent 4 The US strategy of linking trade policy to intellectual property standards was prompted by the pressure of US corporations to make maximising intellectual property privileges the single- most priority of US trade policy. And, infringement by the developing world of IPRs in agricultural products was never considered a major problem! 5 Developed nations, which extend huge subsidy to the farmers in their countries at an average 1 billion dollar per day and make agricultural products cheaper to sell all over the world, are pressurising developing countries to either withdraw or reduce drastically subsidy extended to the farmers in the developing countries. Indian farmers with only a subsidy of .03% and declining public Investment in agricultural economy have been forced to resort to suicide in some states. 1182 The Chartered Accountant February 2006 Act, 1970, both promulgated to develop unique plants to The following are some of the in response to Article 27.3b be covered under patents and main features of the Act: of TRIPS, have raised serious thereby facilitated patenting of 1. Recognition of conserva- controversies and heated de- plants. Besides, extending the tion of biodiversity, sus- bates both nationally and at duration of patent term to 20 tainable use of biological the international level. years after filing, the amend- resources, and equitable Geographical Indications ment expanded the grounds sharing of benefits arising Act, 1999: Though some in- for revocation to include the from such use; ternational treaties – the Par- non-disclosure or wrong dis- 2. Constitution of National is Convention, the Madrid closure of source or geograph- Biodiversity Authority Agreement and the Lisbon ical origin of a biological ma- (NBA), State Biodiversity Agreement – dealt with “indi- terial used in the invention. Boards (SBBs) and Bio- cations of source” and “appel- The Plant Variety Protection diversity Management lations of origin”, for the first & Farmers’ Rights Act, 2002: Committees (BMCs) in time international protection Forced by trade-compulsions, local bodies; was accorded to Geographical India chose to join the UPOV 3. Prior approval of NBA Indications (GIs) by prescrib- despite strong protests of the necessary for foreign na- ing the “minimum standards” farmers and civil societies. tionals/organisations for in TRIPs. By enacting Caught between the devil and obtaining biological re- “GI” in relation to goods, the Geo- the deep sea, the successive sources and/or associated means an indication to iden- graphical governments at the Centre knowledge for any use; tify such goods as agricultural, Indication (during 1994-2001) attempt- 4. Approval of NBA for In- natural or manufactured goods of Goods ed to adopt the sui generis op- dian individuals/entities as originating, or manufactured (Registration tion to balance the needs and for transferring results of in the territory of a country, & Protec- demands of breeders/scientists research with respect to region or locality in that ter- tion) Act, and farming communities. For any biological resources ritory, where a given quality, 1999, unau- the first time in our legislative to foreign nationals/ or- reputation of other character- thorised use history, the PVPFR Act: ganisations; istic of such goods is essentially of a Regis- 1. Recognises farmers as 5. Levy of appropriate fees attributable to its geographical tered Geo- conservators, breeders and royalties on such origin and regarding manufac- graphical and cultivators; transfers and IPRs; tured goods, one of the activi- Indication 2. Constitutes Plant Variet- 6. Sharing of benefits to all ties of either the production or by others is ies Protection Authority concerned parties; of processing or preparation of prohibited. to register plant varieties 7. Measures to conserve and goods concerned takes place in developed by the farmers sustainably use biological India6. By enacting the Geo- also; resources, including habi- graphical Indication of Goods 3. Ensures equitable benefit- tat and species protec- (Registration & Protection) sharing with the farmers; tion, conservation in gene Act, 1999, unauthorised use 4. Allows farmers to retain banks, EIA of all projects of a Registered Geographical their traditional right to which could harm biodi- Indication by others is prohib- sell (locally) seed of any versity, etc.; ited. Through a simple process variety (including pro- 8. Decision-making power of registration, the registered tected varieties of breed- to local communities proprietor or authorised us- ers) that he grows; regarding the use of re- ers have the exclusive use of 5. Protects farmers against sources and knowledge geographical indication in re- bad seeds to be provided within their jurisdiction, lation to goods in respect of by breeders; and negotiations with par- which they are registered for a 6. Grants right to compen- ties who want to use these period of ten years, renewable sation for farmers. resources and knowledge; every ten years. Biological Diversities Act, 9. Development of an ap- Patent (Second Amendment) 2002: India drafted the Bio- propriate legislation or Act, 2002: This amendment logical Diversity Act 2002 as a administrative steps, in- deleted “plants” from the ex- follow-up to the CBD, for the cluding registration, to emptions in the scope of conservation and sustainable protect indigenous and patentability by allowing the use of bio-resources including community knowledge; bio-technological processes habitat and species protection. 10. Governments to declare 6 E.g. Basmati rice, Darjeeling tea, Alphonso mango, Nagpur orange, Hyderabad grapes, Kanchipuram /Pochampalli/ Mysore silk saree, etc. February 2006 The Chartered Accountant 1183 Biodiversity Heritage ganisms and micro-biological 8. Grounds for cancellation Sites, as areas for special process” and the “emergency” of registration that are in measures for conserva- clause – may well turn out to violation of the terms and tion and sustainable use of be “Pandora’s box”. conditions of grant of cer- biological resources, and Seeds Act, 2004: This Act is tificate by the certificate notification of threatened criticised for the anti-farmer holder, misrepresentation species to control their provisions and the open-in- or concealment of mate- collection and use; risks vite to the “foreign bio-pirates” rial facts by the applicant, associated with biotech- to pillage on our traditional non-performance of the nology (including the use knowledge and rich bio-di- seed, prevention of com- of GMOs), to be regulat- versity. There is also the ap- mercial exploitation on ed or controlled through prehension about the misuse the grounds of public in- appropriate means; of the powers vested in the terest to protect public 11. Designation of reposito- agricultural bureaucracy (con- Only order or public morality or ries of biological resourc- stituted under this enactment) producers to protect human beings, es at national and other to harass the farmers. The im- registered animals and plant life and levels; portant provisions that raise with the health or to avoid serious 12. Creation of Funds at local, concerns are: govern- prejudice to the environ- state, and national levels, 1. Only producers registered ment can ment; to be generated from fees, with the government can grow or or- 9. Grounds for exclusion royalties, donations, etc. grow or organise the pro- ganise the of registration of certain However, the notifica- duction of seed; production kinds or varieties of seeds tion of the Biological Diver- 2. Prohibition of all others of seed. include protection of pub- sity Rules, 2004 under the from growing, producing, lic order or public moral- Biological Diversity Act, 2002 drying, threshing, shelling, ity, life and health of hu- has attracted vitriolic criti- ginning, cleaning, grading man, animal and plants cisms from the NGOs that or treating of seeds and or to avoid serious preju- the role of local communities planting materials; dice to the environment, in safeguarding biodiversity 3. Registration in the Na- or contains a technology and traditional knowledge has tional Register of Seeds of which would be harmful become diminutive, and thus, all kinds and varieties of or potentially harmful; the spirit and letter of the Act, seeds necessary for sale for 10. Non-exclusion of seeds has been totally watered down. the purpose of sowing or traditionally used by peas- Patent (Third Amendment) planting by any person; ants from compulsory Act, 2005: This amendment 4. Prohibition of the farmer registration and absence extends the product patent re- from saving, using, ex- of provisions for filing, gime to agro-chemicals, food changing, sharing, or sell- objections before the and biotechnology products, ing his farm seeds and registration and applica- apart from drugs and phar- planting materials; tions for cancellation af- maceuticals. This recognition 5. Conformity of the seed or ter registration enabling of product patents formally planting material to the seed companies to obtain legalises patent monopoly on prescribed minimum limit surreptitiously registra- seeds as the new amendment of germination, physical tion rights on traditionally has not categorically exclud- purity, genetic purity; used seeds; ed seeds developed by novel 6. Registration by any pro- 11. Withdrawal of the State means. Though India had ear- ducer in his name of any from seed certification and lier opted for the sui generis traditional seeds (used by vesting this power with system for protection of plant the peasantry) with even private organisations, in- varieties and had subsequently monopoly rights in per- dividuals or seed produc- put in place, the PVPFR Act, petuity for producing that ing organisations to carry ambiguity in the amended seed; out self-certification; patent law raises the piquant 7. National Register of Seeds 12. Wide powers to seed in- issue of patenting of seeds to be maintained by the spectors to break open any developed by novel means, Registration Sub-Com- container or door of any particularly the transgenic mittee of the Central Seed premises where any kind seeds. Some glaringly inad- Committee as a register of or variety of seed is kept; equate legislative provisions all kinds and varieties of 13. Compensation may be – the definition of “micro-or- seeds; claimed from the producer, 1184 The Chartered Accountant February 2006 dealer, distributor or ven- dor under the Consumer Protection Act, 1986; 14. Weak and inadequate punishment of suppliers of spurious seeds; 15. Diminution of the rights of the states; 16. Division of the states into five geographical zones and representation in the Central Seed Committee for only five states with one each from three out of the five geographical zones of the country on a rotational basis. Conclusion It is apparent from an analysis of the provisions of the “Post-TRIPs laws” that in India, allowing patents on life forms has a direct and substantial impact on many other previously unrelated ar- eas and that new legislations have been developed to ad- dress these issues. It has to be realised, recognised and ap- preciated that biotechnology, when armoured with IPRs, can become a lethal weapon in the hands of a “fistful” of agricultural companies to strip the independence and sustainability of rural farmers sal law is a harsh assault on tional-agreements-compli- in India. Undeniably devel- the developing and LDCs to ant”. However, it remains to oped countries have had the either “adhere or perish”! be seen, despite the constitu- upper hand in negotiations Hence, India should not tion of the National Com- due to their economic power have adopted the UPOV-com- mission of Farmers, if the in contrast to the developing patible plant variety protection Government of India would countries; competency, re- legislation, especially as these be able to effect a paradigm sources and candid greed to legislative initiatives, a priori, shift from “GE Revolution to bargain with in the market amount to TRIPs-plus, creat- Ever-Green Revolution” with and at the negotiating table ing higher standards than re- “water harvesting, soil health are totally skewed in favour quired. The TRIPs Agreement improvement, dissemination of the First World coun- clearly allows each country to of new technologies, infra- tries. To use the trade agree- have its own sui generis system structure development and ments to displace the canon of plant variety protection. It application of science and of international law, which is but a small consolation that biotechnology”7 and farmers recognises the world’s bio- these two laws – PVPFR Act, welfare as the pivotal points resources as a common heri- 2002 and the Seeds Act, 2004 triggering the new model. In- tage of mankind and to im- – have not yet been notified. dia’s agriculture, the backbone pose inequitably the western It becomes imperative to har- of the economy, has to be ro- hegemony of property rights monise the various legislative bust for the nation as a whole jurisprudence as the univer- measures enacted as “interna- to survive and prosper. r 7 As envisaged by the PM in his inaugural address of the 93rd Indian Science Congress, Hyderabad. Vide, Business Line Jan. 4, 2006. February 2006 The Chartered Accountant 1185