Justice Sujata Manohar on how the Biotechnology Bill is fundamentally flawed
IN THE last few years, regulatory systems across the board have been undergoing an overhaul to fit the needs of a new era. Likewise, new laws are being chalked out to meet new needs, and several are receiving flak owing to the loopholes and regressive grounds on which these have been drafted. The relatively more recent one to regulate modern biotechnology is one such case.
This year marks 10 years of commercialisation of Bt cotton, the only commercially cultivated genetically modified (GM) crop in India. Yet there is no effective regulatory mechanism in place to assess their necessity or the long term safety of GM crops, especially food crops, their impact on health, nor a balance sheet being drawn up of benefits versus detriment.
Earlier in June 2004, the Task Force on Application of Biotechnology in Agriculture, led by MS Swaminathan, recommended the setting up of an ‘autonomous, statutory and professionally-led National Biotechnology Regulatory Authority’ (NBRA) that would have ‘two separate wings — one dealing with food and agricultural biotechnology, and the other with medical and pharmaceutical biotechnology.’ The previous drafts of a biotechnology legislation have fallen short of its intended outcomes more than once, and following several rounds back and forth, it has been renamed as the BRAI (Biotechnology Regulatory Authority of India) and is being brought back to Parliament, once again in a far from satisfactory state.
Proposed by the Ministry of Science and Technology, the draft BRAI Bill, 2011 does not justify a new legislation, when effective changes in the existing framework — the 1989 Rules issued by the Ministry of Environment and Forests — could well be made. In fact, its handling by the Ministry of Science and Technology alone without the association of other ministries dealing with food, agriculture or health is itself a cause for concern.
An assessment titled ‘BRAI Bill: A Threat to Our Food And Farming’ by Supreme Court lawyer Ritwick Dutta ,brought out recently by Greenpeace, underscores that given the serious and possibly irreversible risks genetically modified organisms are associated with, the overall focus of a regulatory regime of this nature should be based on a precautionary approach/principle. In the current draft, however, the approach is adaptive, going on the assumption that modern biotechnology is to be considered necessary and a fait accompli. India is a signatory to the Cartagena Protocol, which means we are under the obligation to ensure that our domestic laws are in compliance with the provisions of the Protocol. While the preamble of the Bill mentions this obligation, it fails to reflect it in letter and spirit.
This piece of legislation also circumvents the RTI Act, 2005 curtailing bio-safety information to the public, and safeguarding the interest of commercial entities over larger public interest. Given that the RTI already has provisions for safeguarding information pertaining to ‘commercial confidence, trade secrets or intellectual property’, this clause is not only unnecessary but one which completely disregards larger public interest. Likewise, public participation in decision making has been restricted to only once at the time of the final decision. Since the effects of biotechnology are far reaching, and there is little public confidence in GMOs owing to growing concerns from across the world, public participation in decision making should be made mandatory.
As regards food safety, doctors have sounded warnings and aware consumers across the world are rejecting GM foods. Down to Earth magazine says that genetically modified food is even banned at a canteen of the biggest GM seed producer, Monsanto. The Granada Group, which runs the canteen, says, ‘We have taken the above steps to ensure that you, the customer, can feel confidence in the food we serve.’ A Monsanto spokesperson said that this was done because the firm believes in choice. For the consumers in India to have the choice, it is necessary that all products using GM crops should mandatorily state on the package that GM crops are a part of the ingredients. This entails compulsory packaging and proper monitoring. This is not feasible in a country where most food is sold unpackaged.
The essential role of the state governments in such vital decision making is now proposed to be reduced to a recommendatory capacity, as specified under Clause 35 of the Bill, despite the fact that agriculture is a state issue. One of the key roles of BRAI is to consider applications for initiating research, transport, import and use or manufacture of GMOs. Moreover, a significant number of these applications would be forwarded by the Department of Biotechnology housed under the Ministry of Science and Technology. When the promoter is also the regulator, there is potential for an inherent conflict of interest.
ONE OF the key parameters based on which Bt brinjal was put on a moratorium in 2010, was the absence of independent, long-term tests. This has been completely overlooked in the BRAI. Given the inherent, irreversible and potentially adverse effects of GMOs, these criteria should be made a requisite before taking a decision to introduce GM crops. Jairam Ramesh had wisely stated that India should adopt such technologies as genetic engineering only where alternatives do not exist.
Finally, whether a GMO should be considered for environmental release or not should be based on the Polluter Pays Principle ensuring absolute liability for harm to the environment. The manufacturer and the promoter should compensate victims of pollution as well as pay up for restoring the environment in case of damage. The resistance that GM crops have faced in other countries from consumers and farmers, environmentalists, human rights activists and even from governments, makes India’s enormous seed market of prime interest to GM seed corporates. The contention that high costs of patented Bt cotton seeds and false representations regarding their performance have contributed to increasing debts and despair of farmers needs to be investigated, and severe penalties affixed. Similarly the health and environmental impacts need to be studied. There is no necessity to rush through a Bill that has the potential to empower a small group of persons to clear genetically modified crops which could irreversibly impact consumer health, the economics of small farmers and the environment.
There is little doubt that the Bill needs to be redrafted before being considered for tabling in the Parliament, and for which widespread consultations with all the relevant stakeholders by a broad-based committee should be done as a priority.
Justice Sujata Manohar is a former Supreme Court judge. The views expressed here are personal.