NBA struggles to frame case against Mahyco in first biopiracy case
In early 2005 when an agreement was signed between India’s leading seed company and two agriculture universities, it was heralded as a breakthrough in genetically engineered food crops in the country. Bt brinjal is a suite of transgenic brinjals (also called eggplant) created by inserting a crystal protein gene (Cry1Ac) from the soil bacterium Bacillus thuringiensis. The company was Maharashtra Hybrid Seeds Company, better known as Mahyco, and the universities were University of Agricultural Sciences (UAS) in Dharwad and Tamil Nadu Agricultural University (TNAU) in Coimbatore.
The public-private partnership was kicked off with a “sublicense agreement” between Mahyco, which is 26 per cent owned by agro-biotech giant Monsanto, and UAS-Dharwad and a material transfer agreement with TNAU. Under the agreements, Mahyco provided the universities with finished or semi-finished domestic GM brinjals to develop insect-tolerant varieties. The universities, which supplied their germplasm to Mahyco, were allowed to further develop the licensed domestic brinjal products to make them suitable for use in their states for subsequent distribution to farmers. However, Mahyco retained intellectual property rights on GM brinjal, stating that “under no circumstance shall the licensed domestic eggplant products be used as parental lines for purposes of production of hybrids”.
Mahyco, along with the universities, accessed brinjal varieties from Karnataka and Tamil Nadu without informing the state biodiversity boards. The varieties accessed in Karnataka were malpur, majari gota, kudachi, udupi, 112 GO and rabkavi, while those from Tamil Nadu were MDU I, PLR I, KKM-1 and CO2.
Five years later, these agreements were scrutinised and Mahyco became India’s first commercial entity to be accused of bio-piracy, or misappropriation, of local germplasm. Section 7 of the Biological Diversity Act (BDA) states that no person or corporate body of Indian origin can “obtain any biological source for commercial utilisation or bio-survey and bio-utilisation for commercial utilisation except after giving prior intimation to the state biodiversity board”.
The irregularity was brought to the notice of the Karnataka Biodiversity Board (KBB) in February 2010 by Environment Support Group (ESG), a charitable trust in Bengaluru. ESG’s complaint said the agencies accessed at least 10 brinjal varieties from Karnataka and Tamil Nadu without seeking prior consent of the National Biodiversity Authority (NBA) and state biodiversity boards.
As per the law, it is mandatory to take prior approval from the community that has been protecting local varieties being accessed. If the communities agree, benefits must accrue to them under the access and benefit-sharing protocol. Leo F Saldanha of ESG says, “Such a rigorous process of appraisal is mandatory to protect biodiversity loss.” No such protocol was followed in the case of Bt brinjal.
In a report to NBA last year, KBB said that Mahyco and its collaborators assessed six local varieties without the board’s approval. But in February 2012, KBB washed its hands of the controversy, saying the matter was under NBA’s purview. NBA is yet to act on the complaint. Talking to Down To Earth, its chairperson Balakrishna Pisupati said, “The filing of complaint is in an advanced stage. There is no law under BDA to refer to, therefore, we are proceeding carefully.” On the role of universities, Pisupati said, “Universities, too, had a role to play and would be investigated.”