Rooting for Sustainable Agriculture and Food Security Through Improved Regulatory Governance in India

Abstract

‘Zero hunger’ as a sustainable development goal requires macro-level multisectoral innovation in any regulatory setting. This is more so in the case of India, which grapples with poverty, famine, shortage in food supply and massive hike in prices of basic foodstuffs. In this chapter, I critically analyse the recent Indian efforts to overcome challenges posed by the pervasive problem of food insecurity and discuss the issues that India must overcome to position itself in a low-hunger bracket globally. In that I elaborately reflect on whether the prevailing food distribution system is being reformed to achieve aims of creating sustainable food systems through action-oriented policies. Further I contend that agroecological practices in comparison to the intellectual property-centred industrial model are the more sustainable approach in the longer run. However, the high concentration of firms in the sector seems to often create an imbalance, since capitalist tendencies outweigh the presence of any competition in the market. I argue that this imbalance has specifically led to regulatory failure in the Indian context by exemplifying the litigations concerning ag-biotech gene patents held by Monsanto. Thus, improved oversight through better understanding of the long-term goal of regulation in light of the food-health-climate nexus is the need of the hour. Preserving gene diversity, traditional farm practices and adapting to sustainable ways that aid regulatory governance in India is the plausible way to create a hunger-free future, as envisaged in UN Food and Agriculture Organisation’s definition of food security.

1 Introduction

Food security exists when all people, at all times, have physical and economic access to sufficient, safe and nutritious food to meet their dietary needs and food preferences for an active and healthy life. – 1996 World Food Summit Plan of Action, UN FAO.¹

To reduce, no later than 2015, the number of undernourished people to half the present (1996) level was a promise made at the World Food Summit after much deliberation.² Around 12 years later, on June 19, 2009, over one-sixth of humanity was, more than ever before, reported as ‘undernourished’ by the United Nations’ Food and Agriculture Organisation (UNFAO).³ This was also the first time in world history that the official figures had climbed above 1 billion.⁴ Severe shortage in food supply and massive hike in prices of basic foodstuffs were identified as the primary reason for undernourishment.⁵ A phase of institutional reform followed, and new metrics for calculating hunger were employed.⁶ The last report released by UNFAO upon the lapse of the timeline for achieving the millennium development goals in 2015, indicated that the proportion of undernourished people in the developing regions, fell by almost half since 1990, from 23.3% in 1990–1992 to 12.9% in 2014–2016.⁷ Such assertions notwithstanding, the World Food Price Index was found spiking from 201.4 in 2008 to 229.9 in 2011 and more recently to 163.5 in October 2018.⁸ Food prices have only continued to remain volatile over the years,⁹ and India, the highest exporter of rice in the world,¹⁰ grapples with food insecurity still.

The promise made in 1996 has been rechristened as one of the sustainable development goals (SDGs) to be achieved by the year 2030.¹¹ Newer policies and regulatory measures ought to have been designed to achieve the ‘zero hunger’ goal by then. It is worthwhile to consider whether this goal-shifting will help resolve the problem of hunger or at least make it manageable for countries such as India. These concerns constitute the main premise of this chapter.

Pragmatically speaking, a hunger-free future, as envisaged in the definition above, requires innovation in food regulation overall. From regulating innovation in food production techniques (farming and seed cultivation) to innovation that safeguards the produce from contamination (due to reasons of ecological imbalance or human-activity), while ensuring adequate supply and successful distribution through innovative government strategy, food security as a development goal requires macro-level multisectoral innovation in any regulatory setting. For instance, at the national level, strategies employing subsidies or what is referred to as expenditure tax credits to innovative firms, specifically tailored national intellectual property (IP) policy that benefits important sectors and activities that foster collaborative partnerships between public and private firms for effective distribution, characterize policies that are vital catalysts for achieving the goal.

In a similar vein, aiming for skill enhancement and job creation in over 25 sectors (including agriculture), the Indian government launched the ‘Make in India’ initiative in the year 2014.¹² As a result, national strategies integrating employment for farmers and approaches to tackle their vulnerability via climate adaptation, social protection and disaster risk reduction were called for. Since food systems account for 30% of human-caused greenhouse gas emissions,¹³ emphasis on shifting to the low-carbon economy as the low-cost path to long-term international competitiveness and environmental sustainability as per the Cartagena Dialogue¹⁴ now constitutes positive action points at the policy level. These efforts may well mark the beginning of a trend to address the food-health-climate nexus and remedy the problem of uninformed and ineffective policy.¹⁵ It thus, becomes imperative to take a closer look at the regulatory challenges faced by India and the solutions that it has been subscribing to as part of its mandate to realize this sustainable development goal. Prominent in such analysis emerges the tale of violations in the ag-biotechnology sector, and its deleterious effects on food security in India. In this chapter, I will critically analyse the recent Indian efforts to overcome challenges posed by the pervasive problem of food insecurity and discuss the regulatory challenges that India must overcome to position itself in a low-hunger bracket globally.

The discussion in the chapter is structured into three main parts, wherein, the first part elaborates on the aims of creating ‘sustainable food systems’; second part compares agroecological practices with the IP-centred industrial model from a sustainability lens; the third part ponders on the problems emerging from the trend of relying on genetic engineering for production of food and agriculture in India; and the concluding section summarizes the views advanced by emphasizing the importance of effective regulation to address the aspirational goals of food security. Admittedly, ‘right to food’ may just be the starting point to regulatory implementation, thus newer approaches that compliment it are also suggested to achieve an improved food future for India.

2 Sustainable Food Systems: An Ideal Approach

Availability, accessibility and adequacy remain recurring concerns while developing policies to achieve ‘zero hunger’. Climate change and land limitations are also emerging as critical factors that compound the problem of food insecurity at a global scale. Notably, ‘[i]ncreasing food insecurity is likely to intensify debates about patenting of seeds and plant variety protection, fueling calls for compulsory licensing provisions akin to those used to provide access to life-saving medicines in developing countries’.¹⁶ With a population of over 1.35 billion, India can achieve food security only through measured proactive steps.

Interestingly, India was the ninth largest exporter of agricultural products in 2017, and the sector constitutes a share of 13% of total exports of the country.¹⁷ However, incidence of poverty contributes to the persistence of food insecurity at the domestic level. Additionally low nutritional quality of food has led to increase in stunting and wasting of large sections of the population.¹⁸ A historical understanding of the regulatory framework to counter these challenges can help shed light on the reasons behind the government action, which allows for an opportunity to scrutinize them objectively.

2.1 Food Distribution as a Policy: The Why’s and How To’s for India

Food security has always featured as an important component of the agricultural policy. Regulatory reforms in the sector came about as a measure to counter the disastrous impact of the Bengal Famine of 1943.¹⁹ The Indian public distribution system (PDS) was designed to address the consequent inequality.²⁰ However, the scheme was found to aid distribution of food grains to urban areas mostly and was later revamped in 1992 to specifically include remote areas of India. The revamped PDS was further replaced by the targeted PDS (TPDS) in 1997. TPDS focused on distribution of food grains to the impoverished in every area – urban and remote – of the country. The categorization was done in terms of the household income, i.e., households below the poverty line (BPL) would constitute the beneficiaries of the scheme. Foodstuffs were made available at subsidized rates for the BPL category.

In order to support the poorest of the poor, in the year 2000, a new scheme Antyodaya Anna Yojana (AAY) introduced further subsidies for the extremely marginalized BPL households. These schemes along with the other welfare schemes (OWS) especially the wheat-based nutrition programme and midday meal provisions were consolidated as a common policy goal. Finally, the ‘right to food’ as a legal entitlement was incorporated within the newly enacted National Food Security Act (NFSA) in September 2013.²¹ The coverage under the NFSA has been delinked from poverty estimates and is based on officially reported consumption expenditure of households.²² A further change in categorization of beneficiaries distinguished between the priority households (including all BPL and some above the poverty line (APL) beneficiaries) and the AAY households under the TPDS. Each AAY household is entitled to 35 kilogramme of food grains per month, while priority category beneficiaries are entitled to 5 kilograms of grains per person per month. The issue price is fixed as rice, 3 INR; wheat, 2 INR; and coarse grains, 1 INR per kilogramme by the central government, and no price-fluctuations would be experienced for at least 3 years.²³ It has been noted that the issue price has remained unchanged since 2013,²⁴ but objective reports evaluating the claims of marked improvement in food security at the household level are unavailable.

The aforementioned schemes have been operationalized through the centralized procurement undertaken by the Food Corporation of India (FCI) and the decentralized procurement facilitated by authorized agencies which hold and distribute grains in certain remote regions of the country.²⁵ The FCI procures food grains from farmers at the minimum support price (MSP) predetermined by the Cabinet Committee on Economic Affairs based on the recommendations of the Commission for Agricultural Costs and Prices (CACP).²⁶ These grains are stored and accounted according to operational stocks that are distributed under the TPDS and OWS and the food security stocks that are utilized to meet shortfalls and supply inadequacies.²⁷ According to the NFSA, changes to the issue price can be made by the central government on the condition that in no event does the issue price exceed the MSP. Also, in order to counter problems of availability due to a lean season or to stabilize market prices, the central government can direct the FCI to release food stock at predetermined minimum issue price in the domestic market under the Open Market Sales Scheme (OMSS) or have State trading enterprises and private agencies export the grains.

Despite these, food security self-sufficiency at the national level remains illusionary due to implementation failure.²⁸ It is my view that the regulatory framework would be efficient once the relation between the regulation and the risk it seeks to avoid is clearly gauged. Risk posed due to food security can be better tackled when the informational gaps that contribute to the continuity of the social problem are ascertained. An independent body of specific domain experts – a plurality of knowledgeable minds – that can be brought together and funded to study existing data sets as a multi-sectoral problem, identify areas for research, depute teams for data collection, analyse data so collected based on prevalent indices in that discipline, conduct stakeholder consultations and present findings supported by policy prescription for effective implementation and compliance. Such ‘openness’ in regulatory decision making, can effectuate relevant research to plug the gaps, provide objective evaluation, generate public awareness and build trust in the system through a practicable roadmap for a nourished and healthy India. In essence, failure to effectively distribute can be checked by means of an enforcement structure akin to ‘responsive regulation’ making agencies accountable for improving the food distribution effects.²⁹ A new policy wing, the National Institution for Transforming India (NITI) or ‘Niti Aayog’ which came into existence in 2014, is the main body currently undertaking all policy evaluations.³⁰ Being a government-funded think tank that was institutionalized after replacing the erstwhile Planning Commission instituted in 1950, Niti Aayog may not be considered independent. Effective policy formulation and implementation deserves intermittent and objective evaluation for the purposes of growth and consistency.

2.2 Sustainable Agriculture for Practicable Food Security: The Law and Policy of It

The price of key staples for world food supply will increase 70–90% by 2030, relative to 2010 prices, before the effects of climate change.³¹ In order to meet the domestic demands of the consumers in 2050, agriculture in India is required to grow annually at nearly 3% to keep pace with the rising populations.³² One way to ensure such growth is to incentivize adoption of ‘sustainable agriculture’ as a matter of practice.

The ‘successful management of resources for agriculture, to satisfy the changing human need while maintaining ecological balance by avoiding depletion of natural resources’ is referred to as ‘sustainable agriculture’ in India.³³ Building sustainable food systems has been undertaken as part of the National Mission for Sustainable Agriculture (NMSA), which is one of the eight missions introduced under the National Action Plan on Climate Change (NAPCC) by the government on June 30, 2008.³⁴ It focuses on four main areas, namely, (i) dryland agriculture, (ii) risk management, (iii) access to information and (iv) use of biotechnology.³⁵ The aim is to make appropriate adaptation and mitigation strategies for combating climate change-related effects on Indian agriculture and thereby warranting food security and enhancing ecological sustainability. Integrated farming practices and agroforestry techniques are detailed in operational guidelines and are to be monitored through progress reports periodically. While the aims of the mission are noble and can contribute towards knowledge sharing of sustainable practices, there is no express compliance requirement for it. Thus the mission may be understood as a nudge towards adopting sustainable agriculture.³⁶ With increased stakeholder engagement at the grass-root level, it could very well transform into an effective responsive regulation qualified with appropriate mandates and deliverables in the longer run.

A conjoint reading of Articles 39, 43 and 47 which feature as Part IV of the Indian Constitution denoting the Directive Principles of State Policy recognizes the ‘right to adequate food’ as a legislative mandate.³⁷ Accordingly, all citizens have the right to adequate means of livelihood, for which the State shall endeavour to provide a decent standard of life for everyone and raise levels of nutrition and improve public health as among its primary duty. Furthermore, India became State party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1979 by way of accession – recognizing everyone has a right to […] be free of hunger.³⁸ It is also obligated as a signatory to the Universal Declaration of Human Rights (UDHR) to take measures so that ‘everyone has a right to standard of living adequate for the health and well-being […] including food, clothing, medical care and necessary social services’.³⁹ With 48% of children under the age of 5 being stunted, 43% being underweight and 7 out of every 10 children between 6 and 59 months are reported anaemic,⁴⁰ India is challenged with a crisis of malnourishment and requires strategic action. Sustainable agriculture may well be the path for India to confer food security in a practicable way by minimizing social inequality and poverty⁴¹ through sustained State action.

2.3 Regulatory Aims, Efforts and Challenges

Institutional credit to the agriculture sector is targeted at Rs. 11 lakh crores (~ US$ 172.93 billion) for 2018–2019 in the Union Budget.⁴² The total allocation for the rural, agriculture and allied sectors in 2017–2018 – Rs. 1,87,223 crores, which is 24% higher than the previous year.⁴³ The interlinked challenges of production, equity and resilience need thorough systemic reform so that the future will not be one of zero-sum competition between States, resource grabs by powerful elites and ecological collapse. In that light, building a sustainable bio-economy expects that disciplines of science, law and policy intertwine and help identify a nexus between food, health and climate justice especially to close prevailing inequalities between developing agrarian economies such as India, and other developed economies.

The following sections discuss regulatory aims, efforts and challenges posed to the Indian government followed by suggestions for a possible way forward.

2.3.1 UNFAO CPF for India: New Aspirations for Zero Hunger

The UNFAO Country Programming Framework (CPF) for India envisions a strong involvement from national stakeholders, both the private and the government sector.⁴⁴ The main policy-making wing of the government, NITI Aayog’s 7 year National Development Agenda, the medium-term 3 Year Action Agenda as well as the Union Budget contain overarching framework for the agriculture sector and enhancing farmers’ income and wellbeing in the main.⁴⁵ The aim is to double the farmers’ income in a period of 5 years by effectuating efficient solutions and ensuring equity in a sustainable manner.⁴⁶ Since the IFPRI Global Hunger Index in 2014, India has focused on community development as a means for capacity building. As per the 2015–2017 CPF, ‘[t]he areas that [will be]… prioritised are sustainable agricultural development, food and nutritional security, transboundary cooperation that includes India’s contribution to global public goods… and climate change as cross-cutting issues wherever they are applicable’.

In order to combat climate change, the goal for UNFAO and India is to increase the community capacities to adapt farming patterns by applying strategies that will help minimize the effects of climate change in India.⁴⁷ Furthermore, newer schemes for knowledge sharing through digital networks (e-Krishi Samvad) have been introduced in May 2017,⁴⁸ similar projects for improved access to irrigation (Pradhanmantri Gram Sinchai Yojna (PGSY)) implemented, and farmers motivated to adopt sustainable and organic farming (Paramparagat Krishi Vikas Yojna (PKVY)). Moreover, to improve sales of the agricultural produce and allow for network benefits among farmers, all Agriculture Produce Marketing Committees were unified to create an Electronic National Agricultural Market (eNAM) in April 2016.

3 Agroecological Practices Versus IP-Centred Industrial Model

Increased drought, soil salinity, pests and disease, adaptation to climate change in many agricultural regions may require stress-tolerant plant varieties. Thus genetic engineering and plant breeding as an approach for increasing the availability and adequacy of global food supplies has become prevalent. IP privileges can help attract investment in R&D of new plant varieties (PV) that would enable adaptation. Recognizing a market opportunity, companies have begun marketing GM plants that are tolerant to a variety of stress factors such as abscisic acid, which is a hormone that regulates plant growth, discovered in 2009 under the Bayer Climate Program.⁴⁹

While IP is often considered necessary for innovation, it is my view that it is never sufficient by itself to catalyse it. A competitive environment is quite necessary as well. Otherwise, over time any monopolist would have fewer incentives to innovate further⁵⁰ and may abuse the IP privilege. On that note, I look at the possible impact of adopting IP-centred agriculture instead of the sustainable alternative.

3.1 Impact of Adopting Proprietary Plants and Seeds: An Overview

Instant or current impact	Long-term impact
Supra-competitive returns for many years along with yield improvements	At the expense of biological diversity as herbicides and pesticides are sprayed over genetically altered crops
Short-term bump in yield, pressures other farmers to adopt it as well as to compete in the short term	Dependent on fertilisers and are water-intensive
Slow the adoption of approved but environmentally (unsound) technologies, e.g. technologies such as GM seeds, synthetic fertilisers and pesticides and purchase of economically costly staples	Erosion of indigenous knowledge – such as manuring and compost for soil replenishment
Rapid price escalation	Excessive pricing has been observed and fined

Dependency on high-tech seeds by farmers in India, due to the instant gains, has been historically evidenced.⁵¹ They have in turn added to the regulatory woes while governing food security in India.

3.1.1 Capitalism and Competition Concerns

There exists high degree of concentration in the agriculture sector on a global scale. China National Chemical Corporation acquiring Syngenta,⁵² and more recently Bayer, the world’s second largest agro-chemicals concern, taking over Monsanto, which is the world’s largest Seed and Genomics Company exemplify it.⁵³ Reportedly, DuPont, Limagrain, Monsanto and Syngenta control over 50% of global seed sales, and three firms, Archer Daniels Midland, Bunge and Cargill, control 90% of global grain trade.⁵⁴ Incidences of anticompetitive behaviour and wilfully subverting operation of free markets have been proven to cause inflated prices to purchasers or depressed prices to suppliers in several markets.⁵⁵ These instances have severe negative effects on food security.

Increasing number of farmer suicides and poor seed sector governance are interlinked in India.⁵⁶ The average farmer grapples with concerns related to income as well as basic livelihood, and these factors are magnified with further concentration through mergers and acquisitions. The fear that the acquisitions would further limit the number of sellers of seeds, chemicals, machinery and equipment from whom they have to buy, and also limit the number of customers for crops and livestock to whom they can sell, is pervasive. Thus, much depends on the government action through responsive regulation that will alleviate these fears by reforming systems that play the crucial role in reinvigorating the whole demand-supply affecting the agricultural produce in India.

3.1.2 Seed Regulation and GMOs in India

Crops involving the introgression of certain genes of Bacillus thuringiensis (naturally occurring bacteria) commonly referred to as Bt technology altered crops have been particularly controversial in India. Let us take the example of Monsanto, which was able to enter the Indian seed market due to the 1988 Seed Policy imposed by the World Bank,⁵⁷ requiring the government to deregulate the seed sector in favour of private players. This seed policy resulted in Indian companies being locked into joint ventures with Monsanto. Eventually, the ‘common heritage principle – promotion of free exchange of seeds amongst farmers’ was replaced with the corporate’s dominance as the IP right holder, and open pollinated seeds came to be replaced by hybrids in the market.⁵⁸ Cotton now had to be cultivated as a monoculture, and this increased vulnerability to pests, disease and drought and crop failure.⁵⁹ A stark increase in pesticide use on farms was noted.⁶⁰ Eventually the bollworm became Bt resistant.⁶¹ However, Monsanto continued to push public resources to make the genetically modified seeds through public-private partnerships.⁶²

The world’s largest cotton producer and second-biggest cotton exporter, next only to China,⁶³ the India case study on food regulations requires an understanding of the Bt cotton controversy, typically as a top-down approach with grave consequences. The field trials for Bt cotton were not done in accordance to the legal procedure and were in violation of the Environment Protection Act at the time. The unauthorized large-scale, multicentric, open-field trials of Bt cotton in 40 locations spread across 9 States in India,⁶⁴ while initializing crops to GM technology has been criticized as regulatory failure.⁶⁵ The contamination due to the trials is said to have severely compromised food safety by negatively impacting the entire food chain and overall health of consumers in India.⁶⁶

Monsanto violated the Rules for the Manufacture, Use, Import, Export and Storage of Hazardous Micro-organisms, Genetically Engineered Organisms or Cells, 1989 (notified under the Environment Protection Act, 1986),⁶⁷ by failing to seek approvals from the authorized government body, namely, the Genetic Engineering Appraisal Committee (GEAC) prior to importing over 100 grams of cottonseeds containing the MON531-Bt gene into India through its Indian subsidiary company, Mahyco, in 1995 for conducting the large-scale open-field trials.⁶⁸

These field trials were conducted without following the evaluation protocol and exposed the environment to biosafety risks and genetic pollution. Further no postharvest management of transgenic plants or disposal precautions as required by the Biosafety Guidelines, 1994, was observed.⁶⁹ The infected fields were replanted with food crops in less than a year, and the food chain was irreversibly plagued by GMOs that were unverified and potentially unsafe for both health and environment. The integrity of the genetic engineering regulatory procedures was questioned by a public interest litigation (PIL) filed before the Supreme Court of India in 1999.⁷⁰ This led to a temporary ban on the field trials until the GEAC could satisfactorily confirm that the safety to human health and environment was guaranteed.

Meanwhile, former US President Bill Clinton’s India visit in March 2000 culminated on a high note, when despite the pending PIL Monsanto’sBt cotton was handed the necessary biosafety approval by the Department of Biotechnology (DBT). Furthermore the procedural rules were amended such that the RCGM under DBT was now empowered to approve multilocational small-scale field trials for a total of 20 acres up to 1 acre each.⁷¹ A classic case of regulatory capitalism in action,⁷² Monsanto’s transgenic seeds found their way into the Indian farms despite several pending trials at the time and eventually replaced indigenous cultivars with hybrids as a result of self-pollination.⁷³ Easy provisions of micro-credits from local banks and at times distribution of free samples for initial plantation were incentives designed to establish Monsanto’s seed sales in India. Thus farmers became GM seed-dependent and incurred debt to overcome increasing input costs of seed purchase, water and pesticides. Low yield or at times no returns resulted in severe life stresses for farmers in several regions of agrarian India. Overtime the Bt cotton production significantly declined causing an uproar of identity politics and public outcry.

3.1.3 Litigation Concerning Ag-Biotech (Gene) Patents in India

Monsanto was granted patent on second-generation Bt gene technology (licensed under the trademark Bollgard II variety), which increases resistance of the cotton seeds against the bollworm, a pest of the lepidopteran species on March 20, 2009.⁷⁴ Mahyco Monsanto Biotech (India) Ltd., a joint venture company, issued sublicenses to Indian breeders and seed companies to develop varieties introgressed with Bt gene technology.⁷⁵ The breeders would pay a technology licensing fee to Monsanto and sell the genetically modified seed varieties to farmers, who were charged retail prices. Without any patent on the first generation of the Bt gene technology, Monsanto had to lower the technology licensing fee for the breeders to enjoy benefits of market entry. However, Monsanto was found to be charging excessively for its patented version of the technology later.⁷⁶ With the retail price of the seeds escalating, the State governments passed price control legislation to ensure seed affordability.⁷⁷ To sidestep these regulatory hurdles, Monsanto proceeded with filing a patent for the second-generation Bt gene technology and was granted exclusive rights to commercialize and price it for specified period of 20 years. The breeders were now paying higher royalty accounting for the ‘trait value’ and ‘technology license fees’, and subsequently profits from sale of seeds were unstable due to the State law. Thus conflicts arose. Non-payment of royalty by the eight Indian seed companies (or breeders) led to the termination of their license agreements. Series of arbitration proceedings⁷⁸ and patent infringement suits⁷⁹ were also instituted by Monsanto. The Indian seed companies led by Nuziveedu Seeds Limited have countered the court action by questioning the validity of Monsanto’s patent and the legal basis for charging royalty rates that are higher than the government fixed rate under the Cotton Seeds Price Control Order (CSPCO), 2015.⁸⁰ The single judge of the Delhi High Court held the patent to be prima facie valid but directed that the royalty rate be aligned to the CSPCO⁸¹ rate. An appeal was preferred, and the Division bench of the High Court summarily held that Monsanto’s invention was ineligible under Section 3(j) of the Indian Patent Act, 1970. The provision, that excludes plants from patent eligibility in India.⁸² This decision was appealed before the Apex Court.

Meanwhile, several attempts at fixing the licensing fee through specialized price control orders for regulating the cotton seed industry nationally has been made. These include: appeal for standardization,⁸³ and seeking enhancement in the supply of the patented technology through applications for compulsory licensing.⁸⁴

On May 18, 2016 a new set of licensing and formats for GM technology agreements guidelines were issued with a fixed rate of royalty.⁸⁵ These guidelines required Monsanto’s Bollgard II to be considered as a ‘standard essential patent,’ thereby stating among other things that ‘all patentees of GM technology [are] to offer technology on fair, reasonable and non-discriminatory (FRAND) basis to any seed company willing to pay Monsanto, a government mandated royalty’. Drafted under clause 5(8) of the CSPCO,⁸⁶ these guidelines were later withdrawn as they were held to be ultra vires the scope of the Essential Commodities Act, 1955.

To add to the fiasco, State government of Andhra Pradesh and the Department of Industrial Policy and Promotion (DIPP), which functions under the Ministry of Commerce and Industry, sought for outright revocation of Monsanto’s patent, on the grounds of it being mischievous and prejudicial to public interest (Section 66 of the Indian Patent Act, 1970).⁸⁷ Furthermore, the State government of Andhra Pradesh urged that the central government invoke powers under Section 92 of the Patent Act and issue a compulsory license for making Monsanto’s seed available at reasonable prices, as it was charging excessive royalties. The declaration of a compulsory license under Section 92 is made only in cases of national emergency or in case of extreme urgency or public noncommercial use. Therefore, such a compulsory license would not only interfere with the freedom to contract norms but also strengthen the provision as an enforcement mechanism or competition remedy within the patent regime.

Finally, based on the reference received from the Ministry of Agriculture and a complaint by the Indian seed company (Nuziveedu Ltd), Monsanto’s licensing practices were subject to competition scrutiny in India.⁸⁸ A prima facie case of abuse of dominant position and restrictive licensing practices has been established as well.⁸⁹

More recently, on January 8, 2019 the Apex Court decided the aforementioned commercial dispute between Monsanto and Nuziveedu Seeds Ltd.⁹⁰ The question of patent validity has been reverted back to the trial court for a full-fledged hearing, while the license arrangements with the Indian seed companies have been revived on the condition that royalty be paid as per the CSPCO rates. Thus Monsanto’s patented seed can be used by the Indian companies to develop the plant varieties upon fulfilment of the royalty condition.⁹¹ Clarity on the legality of ag-biotech patents in India will be gained once the question of validity is settled in the near future. That will also allow deliberation on the necessary regulatory robustness needed to minimize risks associated with the working of such ag-biotechnology products and processes as well as their overall impact in the long run.

3.1.4 Other Noteworthy Developments

Another significant example in terms of regulating use of Bt technology for developing GM food in India is that of ‘Bt Brinjal’. The gene modification claims to make the plant pest resistant. Indian farms were affected as a result of pollen drift from Bangladesh. The Ministry of Environment and Forest (MoEF) ordered for a moratorium in 2010 calling for a better understanding of the impact of such pollen drift – safety studies to assess impact on environment as well as human health and for eco-labelling practices.⁹² Despite the safety concerns, the increase in price of the seeds in Bangladesh was noted to be almost three times more, and no seed saving was registered.⁹³ With reduced price of pesticides, the GM seed sales were offset. The crop losses to pests were found to be fewer, while the crop yield from the Bt plant was disappointingly lower than expected.

Learning from the Bangladeshi experience, the government of India called for consultations on the Bt brinjal adoption. The mandate was to develop institutional structures and capacity to ensure safety to the environmental and human health, farmers’ and consumers’ rights and inclusive decision-making for GM crops. However, not a single attempt has been made in this direction since the consultation.⁹⁴

However, GM mustard – Dhara Mustard Hybrid (DMH-11)⁹⁵ which has been developed by scientists at Delhi University for a project that is part-funded by the Department of Biotechnology, a division of the Science Ministry – has come to be the first transgenic food crop to be allowed for commercial cultivation in India. The GEAC after conducting a safety study cleared it to be commercially cultivated for 4 years. However, independent safety study has been requested by citizen groups which have led to a stay on the introduction pending re-release and evaluation of the study. The Supreme Court is awaiting the status report from the centre⁹⁶ on the matter. Thus, the issue of GMOs is likely to continue testing the workings of the existing regulatory framework in India.

4 Conclusion

With a paucity of studies that validate the impact of GM crops on human health, regulation in this area has been problematic for India.⁹⁷ Moreover the current trend of stronger IP favours a regime where the industrial style of agriculture – one which promotes dependency on synthetic chemicals and monoculture production models – thrives. Monocultures are ill-suited for traditional models of farming dependent on diverse crop varieties and traditional techniques.⁹⁸ Apparently, from more than 100,000 varieties of rice during the 1970s in India, only 6000 varieties are available today.⁹⁹ Gene diversity requires a diversity of knowledge forms. The sector calls for a greater understanding of the relation between regulation and risk, since collective well-being is at stake.

With the Intergovernmental Panel on Climate Change (IPCC) Special Report 2018, informing that the planet is likely to die sooner than later,¹⁰⁰ ignoring the cumulative risks of regulatory failure in addressing food insecurity, poor nutritional health and climate change is no more a black swan event but a definite certainty.¹⁰¹ Failure to acknowledge the nature and magnitude of harm is not an option anymore. In order to avoid terrible hindsight, the Indian bio-economy requires serious attention and proactive action from all quarters of government and citizenry.

It serves to question at this point, how far science at its self-reflective best can go to create a case for ecological science as ‘the sustainable solution’? As the UN Committee on Economic Social and Cultural Rights in general comment 12 – realization of a ‘right to food’ is everyone’s responsibility – stated, the transfer of technology for adaptation that is informed by human rights would increase the overall effectiveness of international efforts for protecting human health and environment.¹⁰² Thus, a right-based approach to regulation, in this case, a right to food, requires full regulatory thrust to play an influential role in discussions over adaptation, as well as the innovation of and access to climate-related technologies and know how. The effectiveness of NFSA depends on successful implementation of such an approach.

Measures to involve key private sector partners to invest in sustainable agriculture will encourage financing mechanisms for developing climate resilience and access and benefit-sharing regimes.¹⁰³ There is a pressing need to develop consensus on private sector investor advisory for adaptation funding so as to further sustainability goals.

Agricultural productivity has direct implications for poverty alleviation. Labour-intensive farming in populous countries such as China and India can particularly benefit from increase in produce, as not only wages for farmers would improve as a result, but the cost of basic foods which make up a large share of the poor’s expenditures is likely to plummet as well.¹⁰⁴ Till such time, the claim made by the UN agencies of having achieved the promised halving of the number of the hungry in the developing world in 2015 seems to be a fiction, at least in the Indian context.