The Union environment minister says that a comprehensive bill to protect India's biodiversity is on the anvil. But whether it can be a timely, effective measure that give farmers and tribals right over their biological knowledge, remains to be seen.
WHEN UNION environment minister Kamal Nath announced he would introduce in the budget session of Parliament in February comprehensive legislation for biodiversity conservation, many people were pleasantly and otherwise surprised. Officials of the Union ministry of environment and forests (MEF) were among those taken unaware by the minister's announcement on December 23, 1993, before the parliamentary consultative committee attached to his ministry. A senior MEF official argued the time frame was improbable because "the complexity of any such bill precludes any tight timetable".
Nath dismissed such objections. Refuting media reports that the bill would primarily institutionalise curbs on germplasm exports, he told Down To Earth, "I want an umbrella act that will allow us to implement all aspects of the Convention on Biodiversity (CBD). This will be an empowering act under which we will have subordinate legislations, one of which will be on regulation of trade in germplasm."
Nath appears to have been motivated by the coming into force of the CBD on December 29. Countries that signed the convention are required to "develop national strategies, plans or programmes for the conservation and sustainable use of biodiversity".
But recent developments indicate Nath may be too late because invaluable knowledge of Indian biodiversity and stocks of germplasm may have already flowed out of the country in the name of scientific cooperation.
The major opportunity for this seems to have been provided by genetic collaboration agreements with the US. There have been major investments by the US Plant Genetic Resources (PGR) project in India. The $23.95-million project between the US Agency for International Development (USAID) and the National Bureau of Plant Genetic Resources (NBPGR) launched in 1992 has become an almost free-flowing channel for germplasm from India to the US because of lack of any regulation.
USAID officials contend the main purpose of the project is to help NBPGR collect, evaluate, quarantine, conserve and exchange plant germplasm with other national and world centres. Says a USAID official, "While tapping newer resources is important, of equal concern is developing and utilising plants that survive in varied climatic and stress conditions. Wide variability occurs in India, which makes the country an obvious choice for pioneering work in plant genetic resources."
Though India has free exchange of crop genetic resources in programmes with other countries and international gene banks, in the case of the PGR project, the catch is that American scientists have been allowed "joint exploration" in India.
Reveals an NBPGR scientist, "At least some of the gene stock that has been, or is in the process of being transferred, is exclusive to India." Thus, the entire gene stock of cucumber held by the NBPGR has been transferred to US gene labs. Gene collection agencies all over the world categorise cucumber as native to India. More important, conservation of cucumber gene stock was unknown outside India until 1992.
USAID is also interested in acquiring India's citrus gene stock, primarily because of the economic value of citrus fruit cultivation in that country (See table). Says S K Sinha, director of the Indian Agricultural Research Institute (IARI), "Citrus genes are invaluable for genetic research because it is commonly believed that all cultivated species in the world originated in India".
USAID officials admit, "We want a joint team of scientists to go to the northeast and identify citrus species and collect germplasm." But faced with restrictions on the movement of foreigners in the northeast, USAID has been pressing the NBPGR for the transfer of the coveted genetic material from the latter's own collection. Rana admits his institution is under heavy pressure, but says categorically, "NBPGR has not passed on the citrus material to the US despite repeated requests."
In contrast, USAID officials assert they are "optimistic of the deal coming through". And, sounding an ominous note, a US embassy official said, "With the CBD coming into force, Indian institutions will have to work out terms of exchange because outright denial of access to any gene stock will not be possible."
There are other sources of bio-security tensions as well. USAID had wanted one of the four proposed "quarantine centres" for gene stock conservation to be set up at Port Blair in the Andaman and Nicobar Islands. It argued the location would be conducive for research on pests and pathogens acquired from abroad without the risk of their spreading to mainland crops.
But the Indian government objected to this on the grounds that "the island does not have requisite infrastructure." However, Indian Council for Agricultural Research (ICAR) sources listed the problem of security as one of the reasons. According to IARI scientists, the Andamans are one of the few remaining undisturbed biosphere reserves in the country.
Meanwhile, non-governmental organisations and voluntary associations are becoming increasingly involved in the documentation of genetic resources and knowledge. Though some see this as promoting in situ conservation, the fact is that most of the documentation is done through external funding in which reciprocal access to information operates. Says Thomas Mathew, who is involved in a World Wide Fund for Nature (WWF) biodiversity conservation project in the eastern Himalaya and Western Ghats, "In the present state, several sources of leaks, from a simple gardener to scholars on university fellowship to organised formal projects, are possible."
And sure enough, the name USAID has begun to crop up even in such exercises. USAID is putting up a large-scale in situ biodiversity conservation project by involving NGOs, which will throw up an exhaustive database on genetic resources and knowledge. According to USAID sources, a feasibility report has just been completed and an action plan will soon follow.
When confronted with the prospect of increasing involvement of donor agencies in documentation of genetic resources, Nath said, "Such activities and knowledge are now in the public domain and easily accessible. Something will have to be done. We will have to give protection where the knowledge is proprietary."
But when Nath sent out a note on December 12 to expedite the process of drafting such a law, officials and experts concerned propositioned that legislation with a more narrow scope may be in order. "Our advice was to focus on a few aspects on which our legislations are weak or silent, such as the regulation of germplasm trade," says a senior official.
Says Chatrapati Singh of the Delhi-based Centre for Environmental Law (CEL), who is advising the MEF on legal aspects of the bill, "The range of issues to be covered is immensely diverse and cannot be brought within the purview of a single umbrella act. The legal changes would also require better coordination between ministries dealing with natural resources."
For this purpose, review committees have been constituted. The MEF will coordinate with state governments and the CEL will take up legal and intellectual property related aspects. Scientific research and cooperation will be looked after by a group headed by T N Khoshoo, ex situ conservation will be reviewed by the ICAR, the department of biotechnology, and the Council For Scientific and Industrial Research and in situ conservation by the Botanical Survey of India and the Zoological Survey of India. Once the reports of these agencies come through, the matter will be taken up with the state governments, NGOs and experts before preparing the draft bill.
One of the major responsibilities of the review committees will be to bring into line nearly 700 existing state and Union laws. The complexity of the problem has elicited alternative suggestions from some experts who argue that a more fruitful approach may be to recognise and register the contribution of indigenous communities that conserve and sustain biodiversity over generations. Madhav Gadgil, professor of ecology at the Indian Institute of Science in Bangalore, calls for proprietary rights for traditional knowledge.
Says Anil Gupta of the Indian Institute of Management in Ahmedabad, who is involved in documentation of traditional knowledge in Gujarat and Rajasthan, "Communities have sustained our genetic pool and the knowledge about it and therefore it is crucial that this knowledge is recognised and protected." Gupta argues for a legal framework to compensate grassroot innovators and traditional knowledge holders. The CBD states in Article 8(j) that national legislation must preserve and promote knowledge and innovations of local communities and share with them benefits from such knowledge.
But legal advisers to the MEF object on grounds of difficulty in converting traditional rights into legal rights. Says Singh, "Traditional knowledge cannot be a legal entity." But proponents of rights to people argue there is way around. According to Gupta, the provision in CBD on prior informed consent should be applied at the community level. Under this, a country prospecting germplasm in another country will have to inform the host country about its intent.
Gupta's group has developed a registration system in which all information is coded along with the full description of the innovator and other knowledge holders. This system is expected to establish a de facto right of precedence to establish who has got the information first and plug the scope of piracy.
However, such imagination seems to have escaped the MEF officials. When Down To Earth queried them about aspects of intellectual property rights related to CBD, they were prone to pass the buck to the ministry of agriculture, which is coming up with a legislation to protect farmers' rights and plant varieties in anticipation of the General Agreement on Tariffs and Trade regime. Says an agriculture ministry official, "We are consulting the MEF to divide the area of responsibility, but our interest lies primarily in cultivated plant variety. Clearly, this attitude is insufficient given the importance of wild species in the agricultural economy in India and the world" (See box).
While talking to Down To Earth, Nath appeared desperate to speed up the drafting of the legislation. "I realise that the time to find comprehensive and adequate solutions is short." Whether the drain on the country's genetic wealth will continue unchecked before such legislation is framed is still a moot question.
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