📍World Rivers Day (27 Sept 26)

Given the way nature is being degraded in the name of “development”, a movement has begun across the world claiming that Nature has Rights like people do. Included in this movement is the backing for the Right of Rivers. 

The Universal Declaration of River Rights says that rivers have :

• The Right to flow unhindered along their natural course.
• The Right to maintain their ecosystem functions and the health of their habitats.
• The Right to maintain and preserve the diversity of their flora and fauna
• The Right to be protected from pollution, and
• The Legal Right to be restored from their damaged state.

On this World Rivers Day, let us affirm the Right of Rivers and commit ourselves to the protection of this life giving resource without which survival on this planet would not be possible.

📌 Protecting farmers, freeing the breeders!

(from the archives)

Suman Sahai discusses India's progressive legislation in the area of patents and protection for plant varieties.

One of the most controversial agreements that resulted from the Uruguay Round of trade talks (GATT, preceding WTO) is that relating to the granting of Intellectual Property Rights on biological materials through the Trade Related Intellectual Property Rights (TRIPS) system. Under TRIPS member nations are required to grant patents on microorganisms, non/biological and microbiological processes as well as effective IPR protection for plant varieties. TRIPS provides a choice for protecting plant varieties. Members may choose from patents or a sui generis system (particular to the nation) or a combination of the two.

Most developing countries including India have decided not to have patents for plant varieties and have instead chosen the sui generis option. The sui generis system (translating roughly into self generating) means any system a country decides on, provided it grants effective Plant Breeders Rights. TRIPS does not specify what kind of Breeders Rights and it does not say what else a member state can put in its law, apart from Breeders Rights. In short, TRIPS is a flexible system leaving a lot to the discretion of members. As a response to the TRIPS agreement, India has started enacting a series of domestic laws to implement the commitments it has made. The Protection of Plant Variety and Farmers, Rights Act, 2001, is the Indian sui generis legislation.

Hailed as a progressive, pro/developing country legislation, this law provides for well-defined Breeder’s Rights as well as strong and proactive Farmers Rights. Its intent is the establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants. The Act recognises the necessity of protecting the rights of farmers in respect of their contribution made in conserving, improving and making available plant genetic resources for the development of new plant varieties. In addition, there are clauses to protect the rights of researchers as well as the public interest. The Indian legislation is the first in the world to grant formal rights to farmers in a way that their self-reliance is not jeopardized.

Breeders Rights On registration of a particular variety, the plant breeder has rights of commercialization for the registered variety either in his/her own person or through a designated person. These rights include the right to produce, sell, market, distribute, import or export a variety, in short, full control over formal marketing. Violation of the breeder’s right can be construed at several levels. It applies to the variety itself as also to its packaging. Infringement will be established if the packaging is the same or even similar, such that the package could appear to be that of the Breeder. Legally, a similar looking package will be considered “Passing Off” and so actionable. Any one other than the breeder can not use the registered name or denomination. The use of the same or similar name in any way, by action or even suggestion, will constitute a violation and will be punishable. Penalties are prescribed for applying false denomination and for selling varieties to which false denomination is applied .

The breeders rights have been strengthened to the extent that if there is mere suspicion of violation or infringement, the onus of proving innocence is placed on the alleged violator. This is somewhat excessive and needs to be toned down. The normal course in law is for the accuser to furnish proof for the accusation and so it must remain in this case too. Penalties can range from Rs. 50,000 to Rs. ten lakh as well as a jail term ranging from three months to two years, depending on the severity of the damage caused. If the violator is actually selling , offering for sale or merely in the possession of a registered variety belonging to someone else, the punishment is somewhat worse. Repeat-offenders face more severe sentencing and penalties.

Protecting breeder’s rights ensures that there is sufficient incentive for the seed industry to invest. At the same time, it is important to recognize that IPR (Intellectual Property Rights) protection alone does not necessarily deliver a successful product. To be bought, a particular variety must decisively provide an advantage. Otherwise, it will fool the farmers for a few seasons and then fail.

An IPR system in a country should not grant such strong rights to breeders that farmers suffer and their livelihoods are threatened. On the other hand, the breeders’ innovation should be rewarded so that they continue to breed useful varieties to benefit agricultural and food security.

Farmers Rights The Act recognises the farmer not just as a cultivator but also as a conserver of the agricultural gene pool and a breeder who has bred several successful varieties. There are provisions for such farmers’ varieties to be registered with the help of NGOs so that they are protected against being scavenged by formal sector breeders. The law allows the farmer to sell seed in the way he has always done, with the restriction that this seed can not be branded with the Breeder’s registered name. In this way, both farmers and breeders rights are protected. The breeder is rewarded for his innovation by having control of the commercial market place but without being able to threaten the farmers’ ability to independently engage in his livelihood, and supporting the livelihood of other farmers.

The pivotal importance of the farmer having the right to sell (not save, not exchange, but sell) seed has to be seen in the context of seed production in India. In India, the farming community is the largest seed producer, providing about 87% of the country’s annual requirement of over 60 lakh tons. If the farmer were to be denied the right to sell, it would not only result in a substantial loss of income for him but far more importantly, such a step would displace the farming community as the country’s major seed provider. Legal sanction for farmers rights keeps the farming community alive and well as viable competitors and an effective deterrent to the take over of the seed market by the corporate sector. Control over seed production is central to food security which is in the forefront of national security.

Apart from the right to sell non-branded seed of protected varieties, the rights of farmers and local communities are protected in other ways too. There are provisions for acknowledging the role of rural communities as contributors of landraces and farmer varieties in the breeding of new plant varieties . Breeders wanting to use farmers varieties for creating Essentially Derived Varieties (EDVs) can not do so without the express permission of the farmers involved in the conservation of such varieties. Any one is entitled to register a community’s claim and have it duly recorded at a notified center. This intervention enables the registration of farmer varieties even if the farmers themselves cannot do this due to illiteracy or lack of awareness. If the claim on behalf of the community is found to be genuine, a procedure is initiated for benefit sharing so that a share of profits made from the use of a farmer variety in a new variety goes into a National Gene Fund.

Despite its good intentions of protecting the interests of the farming community, the formulation of this particular section is likely to create problems in implementation because the drafting is poor. The Gene Fund should be the recipient of all revenues payable to the farming community under various heads. Farming communities should collectively, rather than individually, access this money, except in clear cases where an identifiable farmer’s variety has been used. Farmers should have the right to decide how this money that they have earned will be spent. The use of the money should not be restricted to conservation or for maintaining ex situ collections.

The method for fixing and realising benefit sharing should be made simpler and easier to implement. One approach to fixing benefit sharing could be a system of lump-sum payments, based for example on (projected) volume of seed sale.

Protection Against Bad Seed In providing a liability clause in the section on Farmers Rights, the farmer in principle is protected against the supply of spurious and/ or poor quality seed leading to crop failures. But at present there is too much left to the discretion of the Plant Variety Authority which will fix the compensation. This could lead to arbitrary decisions and should be amended. (Sahai, 2001 a,b)

Rights Of Researchers All IPR systems must strike a balance between the monopoly granted to the IPR holder, in this case the plant breeder, and the benefits to society, in this case the farmers and consumers. Since nobody concerned with public interest would want plant breeding to shift into just a few hands, it is important to maintain competition and vitality in the plant breeding sector. That is why freedom and rights for other researchers to use all genetic material, including IPR protected material, is important. The Bill has provisions for researchers rights which allows scientists and breeders to have free access to registered varieties for research. The registered variety can also be used for the purpose of creating other, new varieties. The breeder can not stop other breeders from using his/her variety to breed new crop varieties except when the registered variety needs to be used repeatedly as a parental line. In that case authorisation is required.

There is however some difference of opinion. Some view that the Indian law actually grants very restricted rights to researchers because of the acknowledgment of Essentially Derived Varieties, EDV. It is felt that all kinds of research will become subject to the breeders authorization if a protected variety is used for research. In the Indian Act, the Breeders authorization is needed for making EDVs.

Protection Of Public Interest The PPV legislation includes public interest clauses, like exclusion of certain varieties from protection and the grant of Compulsory Licensing. To secure public interest, certain varieties may not be registered if it is felt that prevention of commercial exploitation of such variety is necessary to “protect order or public morality or human, animal and plant life and health or to avoid serious prejudice to the environment”.

The Act also provides for the granting of compulsory license to a party other than the holder of the Breeders certificate if it is shown that the reasonable requirements for seeds have not been satisfied or that the seed of the variety is not available to the public at a reasonable price. The breeder is entitled to file an opposition but should the charge be valid, the breeder may be ordered by the Authority to grant a compulsory license under certain terms and conditions including the payment of a reasonable license fee. Compulsory License however will not be awarded if the Breeder can demonstrate reasonable grounds for his inability to produce the seed.

This article is adapted from Suman Sahai, (2003) India’s Plant Variety Protection and Farmers’ Rights Act, 2001, Current Science.

This article appeared in India Together on 01 May 2003 - https://indiatogether.org/ppvlaw-agriculture/

 

The “rights of nature” is a new concept: that nature possesses fundamental rights, just as humans do. It derives from an old concept rooted in traditional societies that saw themselves as part of nature, not distinct from it. Ancient India, including people who lived at the time of the Rig Veda, were nature worshippers. The Rig Veda is said to have been compiled in the Bronze Age, between 3,000 to 4,000 years ago. The Rig Vedic communities revered several deities: personifications of the elements of nature like fire, water, sky and earth, and they treated the environment as a sacred whole. The chief deity was Agni (fire), and others like Indra (lightning/rain), Varuna (water) and Prithvi (earth). India’s ancient seers believed the universe was governed by a moral law: living in harmony with nature and maintaining its ecological balance was essential for fulfilling one’s “dharma”

Like ancient Indians, many other primeval people were nature worshippers too. These included the Shinto community in Japan, Celtic and Germanic tribes, Mayans and Aztec people, Native Americans and ancient Greeks and Romans. Nature held primacy in these civilisations. This changed in later years and far from being worshipped, Nature became a resource to be exploited for financial gain, with little regard for its survival and sanctity. As humans degraded nature and systematically destroyed it, the unpleasant and threatening manifestations of this destruction became evident today.

A hallmark of our era is destruction of ecosystems, disruption of biospheres, polluted rivers, biodiversity loss and species extinction. Instead of conserving Nature, that has nurtured us for millennia, we appear hell-bent on destroying it. We have already breached seven of nine critical planetary boundaries and pushed the planet into uncharted territory: ecosystems are devastated and the weather has become completely unstable. Freshwater in all forms, like surface water, groundwater, even soil moisture, is being depleted at unsustainable rates due to overexploitation. In this backdrop of an utterly ravaged nature, the concept of the Rights of Nature took shape as an attempt to salvage what one could to ensure the continued survival of the human race. History There is a Rights of Nature movement in many nations seeking systemic change in how we treat nature. This movement is trying to develop fresh concepts in the legal system to make it work for the protection of the environment instead of enabling the rights of certain people to exploit the environment. Most Rights of Nature legal precedent is very recent, having emerged in just the last few years as a direct response to the failure of modern environmental law to adequately address the escalating ecological crisis.

The Rights of Nature approach attempts a transformation in the way the status of nature is upheld in society. It says Nature possesses its own rights and can’t be treated merely as human property. Nature’s rights include the right to exist and to thrive, and most important, the right to restoration. Since the Rights of Nature accords it legal standing, it can be directly defended in a court of law. Ultimately, for these rights to be successfully implemented, humans must act as guardians or stewards of the natural world. Rivers have understandably become a key focus in the Rights of Nature movement, since river systems are under extreme pressure everywhere. Many of the world’s rivers suffer from extreme over-exploitation, bringing about fundamental changes in riverine ecosystems, habitats and watersheds. With its established history of worshipping nature, especially its rivers, India could have led the global trend to demand the Rights of Nature by personal example and enlightened legislation. But it failed to do so because of a Supreme Court intervention in a pioneering attempt by the Uttarakhand high court. 

The Uttarakhand case: In 2014, a Haridwar resident, Mohammad Salim, filed a PIL on illegal construction, mining, and stone-crushing on the banks of the Ganga. In response, the Uttarakhand high court ruled in 2017 that rivers were in danger of losing their existence and extended to them “all corresponding rights, duties, and liabilities of a living person”. This led to declaring the Ganga and Yamuna rivers as “Living Legal Entities”. 

This historic legal breakthrough to establish that Nature had rights was, however, short-lived. In 2017 the Supreme Court stayed the high court order, in a sense saying that India’s two most important rivers, the Ganga and the Yamuna, cannot be viewed as “Living Entities”. The stay came in response to an appeal by the Uttarakhand government that making the state solely accountable for the upkeep of rivers spanning multiple states was impractical and required Central government intervention. This put paid to a far-sighted legal ruling that could have gone a long way to uphold the rights of rivers and to protect them from pollution and degradation. 

While the India case lies stalled, other countries have moved forward to provide legal protection to rivers by granting them legal personhood or inherent rights. Ecuador in 2008 became the first country to formally embed the Rights of Nature, including rivers and ecosystems, into its constitution, allowing citizens to legally defend the environment. New Zealand had enacted legislation in 2014 granting the Whanganui River legal personhood, giving it all the rights, duties, and liabilities of a legal person. In Colombia, the Atrato River was recognised as a legal entity in 2016, possessing rights to protection, conservation, maintenance and restoration. In a historic ruling in 2019, the Supreme Court of Bangladesh recognised all rivers in the country as legal persons and appointed the National River Conservation Commission as their legal guardian. Finally, in Canada, the Innu Council of Ekuanitshit and the regional municipality passed resolutions in 2021 giving the Magpie River legal personhood, granting it rights to flow and be free from pollution. 

https://www.asianage.com/opinion/columnists/it-might-be-time-to-grant-legal-rights-to-nature-1969115