Environmental Support Group (ESG), a NGO headquartered at Bangalore has levelled serious charges of violation of India’s Biological Diversity Act (BD Act), against Mahyco, (26% of which is owned by Monsanto) and its collaborators – the University of Agricultural Sciences, Dharwad (UAS) & Sathguru Management Consultants (P) Ltd., which was acting as a co-ordinator on behalf of USAID and Cornell University. The ESG website accessible over here has done an admirable job of making sure that all the necessary documents used as the basis of their complaint are freely accessible to everybody.
As per S. 3 of the BD Act, foreign companies or citizens seeking to access biological resources in India are required to take the prior approval of the National Biological Authority while Indian citizens and companies are only required to intimate, not seek approval, of the State Biological Authorities’ for carrying out similar functions. As per Section 5(1) no approvals are required in the case of collaborative research between Indian and foreign parties provided that such collaborative research projects are approved by the Central Government and conform to guidelines issued by the Central Government. In the present case the guidelines were published by the Ministry of Environment in the Official Gazette only on the 8th of November, 2006. (These guidelines are available over here.)
In its complaint to the Karnataka Biodiversity Board, ESG has alleged the following violations by the three parties:
(i) That when the Central Government formulated and issued guidelines on the 8th of November, 2006 the three parties failed to approach the NBA, under S. 18, for approval and clarification on the guidelines. ESG also states that the three parties should have intimated the Karnataka Biodiversity Board, under S. 7 of the Act, of their intent to access biological resources within its jurisdiction. Under the BD Act, 2002 accessing biological resources in the country in violation of the Act can attract penal sanctions.
(ii) The second allegation pertains to the alleged violation of S. 41(2) of the BD Act, 2002. ESG states in its complaint that S. 41(2) requires the permission of not only the NBA and the State Board but also local biodiversity authorities and since such permission was not taken, the local communities who developed the biological resources were deprived of their right to benefit from the commercial gains that would be made by the three parties.
On the basis of the above allegations, ESG ‘demanded’ that the Karnataka State Board conduct a full-fledged inquiry and initiate criminal proceedings against all the above parties. ESG also provides a link to the Minutes of the NBA meeting on the 20th of June, 2011 which states that the NBA is going to initiate legal action against Mahyco and it collaborators for using local brinjal strains to develop the Bt Brinjal without prior approval of the NBA.
A. The counterpoint from Mahyco & its collaborators: ESG has also provided on its website scanned copies of the replies received by the Karnataka State Board from Mahyco and its collaborators on the issues raised by ESG. These replies are available over here.
The replies by these three parties are rather vague and don’t really rebut strongly any of the issues raised by ESG. At the most they provide a detailed factual background to the tripartite agreement and the Government of India’s involvement in the project. Both UAS and Sathguru have clarified that the Agricultural Biotechnology Support Project – II, managed by the Cornell University to transfer technical know-how to India, has the Department of Biotechnology, Government of India as one of its partners. The implication therefore being that the Government of India had complete knowledge of the program from the beginning. This is further confirmed by the website of Cornell University over here.
B. The possible legal roadblocks to ESG’s allegations: The weakness of both the allegations is explained below:
(i) The first allegation pertaining to the violation of the Central Govt.’s guidelines published under S. 5(3)(a) appears to be rather weak since the collaboration agreement under dispute was entered into with blessings of the Department of Biotechnology therefore implying that the Central Government approved of the project thus fulfilling the conditions of S. 5(3)(b). Since the conditions of S. 5(3)(b) are fulfilled, the conditions of the BD Act, 2002 are fulfilled and there is no violation of the law. Further, projects such as this are now officially a part of the Central Government’s agricultural policy especially in the context of the Indo-U.S. Knowledge Initiative on Agriculture which kicked off in 2006.
(ii) The second part of the first allegation pertaining to violation of S. 7 i.e. non-intimation to the Karnataka Biodiversity Board also may not stand in a Court of law since S. 7 clearance is required only in cases pertaining to ‘commercial utilization’ and the present tripartite agreement under dispute does not state that it has commercial goals. The focus of the agreement seems to be centred on technology transfer to the Indian partner. However I will concede that more information is required to decide this point.
(iii) The third allegation on the violation of S. 41(2) of the BD Act, 2002 is quite weak, since that provision requires the NBA and the State Boards, and not the applicant, to consult with local biodiversity management committees while taking any decision relating to the use of biological resources and knowledge associated with such resources. Therefore only the NBA can violate S. 41(2) and not UAS, Mahyco and Sathguru.