7:56 AM Apr 23, 1997
INDIA: LOCAL COMMUNITY ASSERTS BIODIVERSITY COMMUNITY RIGHTS
New Delhi, 23 April (TWN) -- A local village community in a remote part of the South-Western State of Kerala has used its authority for autonomy, provided by the Indian constitution and supporting laws, to establish its own sui generis system and assert the collective rights to biodiversity of the community. Recent amendments to the Indian Constitution, and laws enacted under it, vest panchayat raj -- or self-government and control over local resources and other affairs -- in villages and taluks (a fourth level of local administrative unit in the Indian Union), and in tribal communities in 'scheduled areas' (tribal areas listed and specified in a schedule of the Indian Constitution) . Using this space for local self-government, the panchayat of Pattuvam taluk in the Kerala State, in South-west India, has issued a charter on biodiversity, and issued a declaration, to assert local biodiversity as a community resource to be collectively protected, and which the community has announced it will not allow to be privatized through patents on derived products or varieties. The legal implications and effects of this assertion visavis the powers and responsibilities of the Government of India (at the apex level of the Union), and India's membership of the World Trade Organization and its TRIPs agreement may not be clear for some time. India has a rich heritage of biodiversity, and methods to use of these herbs to treat various diseases and ailments are spelt out in old traditional medicine texts as those on Ayurveda and the relatively later system of Unani medicine (which was prevalent during the muslim rule in Delhi and North India). It has also been documented in some of the Indian pharmacopoeia. Activists charge that taking advantage of the TRIPs and legal interpretations in US, Japan and Europe -- allowing private appropriation of publicly available knowledge through some small cosmetic changes -- pharmaceutical transnational companies from the North, have been "pirating" all this knowledge and claiming patents on them. Indian Herbal and plant material and soil organisms are the sources of several of these patent claims. The Vechur cow is a particular and near-extinct breed which is surviving due to the conservation efforts of the animal husbandry department of the Kerala Agricultural University. The Roslyn Institute of Britain, associated with the cloning (and patenting) of the sheep "Dolly", has surreptitiously obtained embryos of the Vechur cows to facilitate their patentable transgenic research, according to a recently published book, "The Enclosure and Recovery of the Commons", by Dr. Vandana Shiva, Afsar Jafri, Gitanjali Bedi and Radha Holla-Bhar. The appropriation of native knowledge for patenting and monopolisation has been particularly so in the United States. According to the US law, though an important ingredient for patentability of a claimed invention is "novelty" and is not part of "prior art" or existing knowledge, by a strange legal interpretations, 'prior art' or knowledge of a subject matter of patent that is existing elsewhere is not recognized in the US! On this basis, patents have been filed and claimed for medicinal or pesticide uses of well known Indian herbs and derivatives like the neem, turmeric, Bhuin amla or philanthus niruri (used in ayurveda to cure liver disorders that give rise to various forms of hepatitis symptoms). The name Basmati rice, a fragrant variety native to the Indian sub-continent, has been appropriated by the Cargil grain corporation (a TNC), as a trade name to market US fine rice varieties. The Swiss TNC, Nestles, has obtained patents in Europe for cereals with added vegetables (vegetable palao), process for rehydrating pulses, and in India for some 17 process patents including for vegetable palao, parboiled rice and cooked cereals. For centuries, Indians have been making parboiled rice by boiling paddy in water and then drying and milling it, points out Vandana Shiva, an Indian ecologist and founder of Navdanya, a movement for protection of biodiversity and people's rights. But this has not prevented Nestles to file patents. And under the TRIPs concept of process patents to include patent monopolies on the product, indigenous parboiled rice could become a pirated product in export markets, and one day in India too! All this has created quite an uproar in India, and has impelled non-governmental activists to persuade local communities and tribals to assert their constitutional rights and make indigenous knowledge an inalienable community right and block patents and other IPRs to the products, processes and derivatives. There are similar NGO movements around the globe that are gearing up to challenge these monopolistic rights, and build up opposition to the WTO and its TRIPs regime. The Government of India's attempts to introduce legislation to deal with bio-diversity and sui generis protection, and legislation to implement Indian obligations under the TRIPs have got stalled in Parliament where the opponents have criticised that the laws have not used the available options to protect public and indigenous community interest, but have leaned on the side of transnational seed industry. Meanwhile, activist non-governmental organizations have been using the "space" available for autonomy actions by local communities, and more so by indigenous tribals, to create a movement to protect community rights against transnational patent monopolies. The action of the Pattuvam Panchayat is part of an illustration of non-governmental actions to protect community rights. At Pattuvam early in April, a Declaration was made and a People's Biodiversity Registry was established, with documentation of local biological wealth, and handed over to the President of the Pattuvam Panchayat, Ms. Kamakshi. Participants in the local ceremony included Dr. Vandana Shiva (Director of the Research Foundation for Science, Technology and Ecology), Dr. Melaku Worende, the former Director of Ethiopian gene-bank and now Director of Seeds-for-Survival, and Mr. Claude Alvares of the Goa Foundation. According to Vandana Shiva's book, the Indian ecosystem has over 75,000 species of fauna and 45,000 flora. Of the 45,000 plant species, some 15000 are endemic to India. The government of India, as well as governments in the states, are now engaged in undertaking documentation of Indian biodiversity. In the draft legislation, the Indian government approach has been to enable registration of such local knowledge and plant and other material, but to allow patenting of derivatives provided the source is acknowledged and some royalty is paid to the local community. But this approach has been rejected by several Indian non-governmental activists and ecologists.