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Policies Toward GM Crops In India cont.,

As innovative and ambitious as these provisions for financial compensation to farmers might be, they have not gone far enough to satisfy India’s most determined critics of UPOV-style plant variety protection. In 1998, India’s activist Research Foundation for Science, Technology and Ecology (RFSTE) headed by Vandana Shiva, who is an internationally known opponent of GM crops, the green revolution, and all other market-led scientific advances in Indian agriculture. RFSTE proposed an alternative Biodiversity Rights and Protection Bill that would give local farming communities not just financial compensation but actual property rights over the crop varieties to which their traditional on-farm breeding efforts had made contributions. The Bill specifies that local communities would share these property rights with the Central Government of India so that private companies suspected of seeking to pirate away valuable genetic materials would not be able to approach local communities separately to gain access to these materials on unequal terms (Cullet 1999). The intent of this proposal was to reject any movement in India toward a western-style IPR system in the area of plant genetic resources; when the Government persisted with its PVPA approach, RFSTE initiated a public interest litigation action (PIL) against the Government.

The issue of GM crops only adds new complication to this already intense internal debate in India over plant variety IPRs. In 1998, when the Monsanto Company of the United States purchased a 26 percent share of India’s own Maharashtra Hybrid Seeds Company Limited (Mahyco), a Monsanto executive was quoted in the Indian press saying "We propose to penetrate the Indian agriculture sector in a big way. Mahyco is a good vehicle." (The Economic Times, New Delhi, April 26, 1998). Opponents of transnational corporations within India took this as a direct challenge, and began directing harsh criticism at all of Monsanto’s GM crop technologies, especially the "terminator gene" patent it had recently acquired, which was presented as a direct threat to the tradition of seed saving in India. It was Monsanto’s misfortune that word of this new gene use restriction technology (GURT) reached India just at the time limited trials of Mahyco's Bt cotton were being authorized for the first time. A Canadian based NGO, the Rural Advancement Foundation International, or RAFI, spread the alarm that Monsanto's terminator gene might be turned loose in India. Local NGOs opposed to international companies and non-traditional farm technologies were thus mobilized easily against GM crops. In November 1998, a local political leader in Karnataka state who had previously gained attention by attacking both the Cargill seed company and a Kentucky Fried Chicken restaurant in Bangalore, staged for the media a brief attack on some of Mahyco’s Bt cotton field trials. Soon thereafter local communist party leaders in Andra Pradesh pressured the Chief Minister into calling for an end to the Mahyco Bt cotton field trials underway there as well.

Gene use restrictions technologies had not yet been inserted into GM crops anywhere let alone the Bt cotton being tried out in India, but this issue made Monsanto and Mahyco easy targets for NGO and opposition party criticism. The mere existence of a terminator gene patent seemed to confirm suspicions that international seed companies were seeking to take away from India’s farmers their traditional right to replicate seed on their own farms. In India, 92 percent of all wheat seed planted is home grown, and 88 percent of paddy rice seed. NGOs and globalization critics feared that India's small farmers would be pressured by Monsanto or Mahyco into purchasing expensive GURT seeds, only to discover too late that they had to keep purchasing them year after year. The same argument could have been made against conventional non-GM hybrid seeds, which are currently used and repurchased annually by small as well as large farmers in India growing maize, sorghum (jowar), millet (bajra), sunflower, cotton, and vegetables, but the terminator technology was far more inviting as a proxy for criticizing profit-making foreign companies. Monsanto announced in the fall of 1999 that it was not going to commercialize the technology, yet by then the damage was already done, including damage to the Government's continuing efforts to move the PVPA law through Parliament.

Enactment of the PVPA in India was also made more difficult by links to the TRIPs agreement in WTO. Many of the same groups who saw IPRs for plants as the opening wedge for external corporate domination of India also feared the WTO, which is often criticized in India as an instrument used by rich countries to bully poor countries. Under the TRIPS agreement India was technically obliged to change its patenting system from processes to products, and to have a plant variety protection law in place by January 2000, but this deadline came and went without parliamentary action.

Prospects for eventual Parliamentary passage of some version - probably a weakened version - of the Government’s PVPA bill were nonetheless strong in 2000. The National Democratic Alliance government sent its most recent version of the bill to Parliament for approval in December 1999, just before its January 2000 WTO deadline for TRIPs compliance. It was then referred to a thirty-member joint committee of both Houses which redrafted the bill so as to strengthen its farmers' rights provisions, by recommending that appeals be heard not by the High Courts but by a specially formed tribunal. The delays continued, but WTO was unlikely to criticize India for not having a PVPA in place so long as the delay seemed to reflect the slow movement of democratic procedures.

This failure of India through 2000 to set in place any formal IPR protections for plants was not, however, the principal reason that GM crop technologies were not yet in use by farmers. Because of the size of India's commercial seed market, private international companies have at times been eager to bring GM technologies into the country even in the absence of IPR guarantees. Their preferred means for doing this has been to seek to introduce hybrid varieties, which carry their own inherent biological protections against seed saving and replanting. It has not so far been a corporate unwillingness to bring valuable proprietary GM crops into India that has kept this technology out of farmers' hands. India's weak IPR policies do, however, place some limits on what international private companies are willing to do, as well as on what India's own breeders have an incentive to do. Because of weak IPRs, private companies do not like to conduct advanced research in India labs. In its Bt cotton venture the Monsanto company conducted no plant transformations within India itself; instead it brought in hybrid cotton seeds that had already been transformed abroad. Nor did not begin field trials until it owned a secure share of a local corporate partner that had been entrusted to do the backcrossing. A Belgian biotechnology firm, Plant Genetic Systems, was almost as cautious when it decided to bring its transgenic "seedlink" technology into India, to develop an improved brassica (mustard). It invested an initial US$1 million in a joint venture with a trustworthy local private sector partner, Pro Agro, and even so it limited its transfer of transgenic materials to local Indian hybrids only.

If India wishes to partner with foreign companies to secure access to GM technologies for plants other than hybrids (for example, glyphosate resistant soybeans), passage of a credible plant variety protection law will be critical. Up to a point, bilateral contracts can be used to compensate for a weak internal IPR law, yet without at least a UPOV 1978 plant breeders rights system in place, India’s public sector researchers risk being passed over as unsafe technology development partners by the more dynamic international private sector. Guarding India’s own nationally managed germplasm accessions from private appropriation could also become more difficult, public registration strategies notwithstanding. For these reasons India's Council for Scientific and Industrial Research (CSIR) has been campaigning for a stronger IPR and patenting system in India, in agriculture as well as in other sectors.

In the longer run, IPR guarantees even stronger than those contained in the current draft PVPA may be necessary if India wishes to keep pace in GM science. The draft PVPA has been criticized by the private seed companies as unattractive for their purposes in several respects. The draft PVPA lays a basis (in Chapter X) for compulsory licensing after three years to meet "the reasonable requirements of the public for seeds." It creates a registration process open to delay and challenge which could add another three years to the already long time period (currently 6-7) years required in India to get a new seed variety completely de-regulated and eligible for commercial release. And by embracing the UPOV 1978 standard the PVPA does not provide scientists with sufficient incentive to innovate at the molecular level, since protection of GM varieties may not be extend to included essential derivations from those varieties. The President of India’s private Seed Association, while a supporter of the PVPA, has stated his view that it "does not provide sufficient protection for bioengineered plants." (Selvarajan, Joshi, and O’Toole 1999, p. v). Private seed companies would of course prefer product patents as the best means to encourage innovations in biotechnology, but Indian scientists working at the molecular level inside the national research system also want stronger standards; they would prefer the UPOV 1991 standard over the weaker UPOV 1978 standard contained in the current draft PVPA .

Without a plant variety protection law formally in place, India as of 2000 must be classified as taking a preventive stance toward GM crops in the IPR area, and even after the draft PVPA is eventually enacted India's posture in this area will be no more than precautionary. Still, it has been India's biosafety policies, not its IPR policies, that have most conspicuously slowed down the nation's GM crop revolution.

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