Bt [Bacillus thuringiensis] cotton – the only genetically modified [GM] crop so far allowed for cultivation by farmers in India – is genetically tweaked to kill bollworms that ravage cotton crops. It promises substantial increase in return by saving on pesticide use and increase in crop yield. At the price paid for Bt cotton seed including technology fee [this is less than what the innovator viz. Monsanto charges even in China], farmers get handsome returns.
Since, introduction [2002] the use of Bt cotton in India has increased manifold with area under coverage leapfrogging from a mere 50,000 hectare then to around 12 million hectare covering major states such as Gujarat, Andhra Pradesh, Maharashtra etc. At present, 98 per cent of the area under cotton is covered by Bt technology. Millions of farmers have adopted it on their own volition.
Yet, Bayer-Monsanto [renamed after acquisition of Monsanto by Bayer] faces a stifling environment due to legal/judicial, regulatory and administrative hurdles.
On March 28, 2017, a single judge bench of the Delhi High Court [DHC] had upheld Monsanto’s patent related to the gene sequence responsible for the Bt trait but held as illegal and arbitrary latter’s termination of its sub-license agreement for GM hybrid cotton seeds with Nuziveedu Seeds [a local seed company]. It also ordered domestic companies to pay all future royalty payments/trait fee as per government stipulations. While, Monsanto challenged the above order pertaining to termination of sub-license agreement, Nuziveedu challenged the portion upholding of the patent.
A Division Bench [DB] of DHC in its judgement on May 2, 2018 invalidated the patent arguing that gene sequence responsible for Bt trait is a part of the seed, and hence un-patentable in terms of Section 3(j) of the Patents [Amendment] Act, 2005 that excludes higher life forms, like plants, animals, and their parts and essential biological processes from the realm of patentability. However, the DB was silent on the other portion of single bench order.
Bayer-Monsanto challenged the order of DB in the Supreme Court [SC]. In its order dated January 8, 2019, SC has restored Monsanto’s Bt cotton patent in India till its validity is decided finally by the DHC. On the face of it, this might come as a relief to the company, but this does little to change the situation on ground zero.
First, the seed being the only carrier of biotech traits, the protection of transgenic variety under the Plant Variety Protection & Farmers Rights Act [PVPFRA], 2002, overrides the Patent Act. This renders a patent on the trait redundant even as the innovator gets much less commercial advantage under the PVPFRA.
Second, the union agriculture ministry had issued in December 2015, a Cotton Seed Price Control Order [CSPCO] under which it fixed the price of cotton seed sales all over the country at a ‘uniform’ level and max trait fee [royalty] payable to Monsanto.
Under the order, MRP of a packet of Bollgard II seed [450 grams] was cut from Rs 930/- [including Rs 163/- for trait fee] to Rs 800/- [Rs 42/- as trait fee]. Of Rs 130/- cut in price, Rs 121/- was in trait fee alone. In March, 2018, the price was further reduced to Rs 740/- which includes trait value of Rs 39/- or a mere 5% of MRP.
The company had challenged the order but till date, the court has not even started hearing the case. Meanwhile, limiting the trait fee to a pittance 5% of MRP denies the innovator a reasonable opportunity to recuperate the investment on discovery, development and commercialization of the new transgenic variety.
Third, on May 18, 2016, the ministry had issued another order making it mandatory for Monsanto to license technology to any seed company that approaches it. If license is not given within 30 days, it is ‘deemed to have been given’. Following protest, though the order was withdrawn, the local companies are freely selling the seeds bearing the patented technology of the biotech major.
A company which holds patent for the product of its innovation has exclusive rights over its production/import, distribution, pricing and use. In the instant case however, far from exclusivity, the innovator [read: Bayer Monsanto] has no say whatsoever even as decision on all these parameters are taken by the government with full backing of the judicial authorities. Alas! the situation remains unchanged despite the order of the apex court [January 8, 2019].
This is not good omen for farmers who will not only be denied access to advanced versions of Bt cotton [to deal with emerging problems] but also, new technology solutions such as for saline soils, drought- and flood-resistant GM crops – badly needed to meet the challenges of fast changing climatic conditions. Already, Monsanto withdrew the herbicide tolerant cotton seeds from the approval process in August 2016. Reportedly, it has also put in abeyance plans to submit newer seeds for approval in India.
A collateral damage is by way of unapproved new seeds finding their way to the farmers. According to the Field Inspection and Scientific Evaluation Committee [FISEC], a body of experts—chaired by the co-chair of Genetic Engineering Approval Committee [GEAC], around 15% of the seeds being used in major cotton-growing states comprise of unapproved herbicide-tolerant seeds. Even worse, these seeds are selling at Rs 1200-1500 per packet – almost double the MRP for Bollgard II seed [albeit approved] fixed by the union government.
These illegal seeds have increased the problem of resistant weeds and are responsible for the new threat posed to the cotton crop—that of pink bollworms.
The crux of the problem lies with the mindset of the government/ regulators/courts. They feel that the innovator is out there to exploit the patent induced monopoly to fleece farmers which is not true [otherwise, why would they adopt GM seeds in such large numbers]. This mindset has to change or else, only Indian agriculture will be put to loss by denying access to new solutions.