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IN 1987 I WAS INVITED TO A MEETING in Bogeve, France and the United Nations in Geneva on Laws of life and emerging Biotechnologies.¹ Agrichemical corporations were present at this meeting. There, it was stated, that at the turn of the century (2000) there would be only five corporations controlling food and health, and those who would ‘win the race’ would have the largest number of mergers, acquisitions, and patents on seeds. Additionally, it was said that new biotechnologies based on recombinant DNA–which allowed moving genes across species boundaries to make GMOs–were going to be the basis of these patents on seeds.

Today, with the merger of Bayer with Monsanto, Dow with Dupont, and Syngenta with ChemChina, there are precisely three megacorporations controlling global food and health through seeds, agrichemicals, pharmaceuticals, as well as large scale biopiracy from nature and indigenous communities.

It was this very meeting in Bogeve that started me on the journey to protect biodiversity and seeds with local communities, working both with our government and parliament to evolve laws to protect biodiversity, people’s traditional knowledge, as well as protecting national sovereignty in our laws.

As a scientist I have worked for more than thirty-five years on conservation and the sustainable utilization of seeds and biodiversity, on defending Farmers’ Rights, and on IPRs related to seeds.

This book marks the long legal journey to protect our biodiversity and indigenous knowledge from the unscientific, unethical frameworks that corporations try to impose on us in order to own life on Earth and collect rents from farmers as seed royalties. I felt then, and feel even now, that the claim that Monsanto ‘invented’ the seed and has a ‘right’ to collect royalties from our farmers, and farmers all over the world, is both epistemologically and ethically wrong. Seeds are not ‘machines’ ‘invented’ by corporations. Indian laws and international laws were fortunately shaped, not by Monsanto’s bullying and false claims, but by the scientific fact that the biodiversity and living organisms are self-organized, highly complex, and constantly make and renew themselves. Indigenous communities, including traditional farmers, co-create and co-evolve biodiversity with nature. This book is about the common creativity of the earth, her biodiversity, and people’s knowledge. It is also about the scientific, legal, political and cultural struggle to defend the sovereignty of biodiversity, indigenous cultures, and national systems.

Since the beginning of this journey, I have worked with our government on the negotiations on the Convention on Biodiversity (which was signed in Rio at the Earth Summit in 1992). I have worked on TRIPS/GATT/ WTO, as well as serving as an expert involved in drafting India’s Plant Variety Protection, Farmers’ Rights Acts, and the National Biodiversity Act. I have also worked closely with the National Working group on Patent Law and the all-party group in Parliament on the Amendment of the Patent Act to implement TRIPS which resulted in Article 3(j) that excludes plants, animals, and seeds from patentability.

In addition to the work I’ve done to help protect our national sovereignty and public interests; I have also served as an expert in monitoring the epidemic of biopiracy of indigenous biodiversity and knowledge, challenging and winning cases against the biopiracy of neem and wheat in the European Patent Office. Our research on biopiracy monitoring and the resulting victories are also summarized in this book.

Further, I have intervened in the High Court Karnataka case on Monsanto’s challenge to the Seed Price Control Order of the Government, as well as the Delhi High Court case related to 3(j), whose decision Monsanto has repeatedly challenged in the Supreme Court.

Monsanto has further attempted to challenge the Competition Commission of India’s (CCI) investigation into its prima facie monopoly on Bt cotton, with the false claim that it has a patent on Bt cotton. It is in cases such as this, and other such false claims in the context of the Bayer-Monsanto merger, for which I have been a representative to the CCI.²

Monsanto’s refutation of article 3(j) of India’s Patent Act through the commercial case no. 132/2016 was dismissed by the High Courts. Monsanto subsequently appealed to the Supreme Court to overturn the High Court ruling but failed on May 7, 2018.

Reclaiming the Commons first written in 1997 as part of the public debate taking place across the country in the context of the implementation of the Convention on Biodiversity (CBD) and the Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of the WTO. Its objective was to protect our sovereign rights and community rights to biodiversity in the Biodiversity Act and our Amended Patent Act.

The CBD is an international, legally binding agreement, which recognizes the sovereign rights of countries to their biological resources. It also acknowledges ecological innovation within indigenous communities. The CBD gave us an opportunity to change the regime of biopiracy at the global level and replace it with a sustainable and just system in which biodiversity, diverse knowledge systems, and the rights of communities—whose survival depends on this biodiversity and knowledge—are simultaneously protected.

Two decades ago, in the heyday of globalization, there was an attempt by global corporations and some countries representing corporate interest, to privatize and enclose our biological and intellectual commons. The expansion of ‘Intellectual Property Rights’ into the domain of life forms and biodiversity, and the globalization of this regime through the TRIPS Agreements of GATT/WTO, were direct attempts at the enclosure the biological and intellectual commons. We were successful in our laws to prevent these enclosures and protect our rights in our national laws, adopting the sovereign path and avoiding recolonization of our biodiversity and living wealth.

The ‘enclosure of biodiversity and biodiversity related knowledge through patents and intellectual property rights’ is the final step in the series of enclosures of the commons that began with the rise of colonialism. Therefore, biodiversity and biodiversity related knowledge needs to be adequately protected in light of the continued attempt at making ‘private property’ out of long-held traditional knowledge and life forms.

Juridical innovation was required to recognize and protect biodiversity and the cultural integrity of indigenous communities from piracy and privatization, allowing them to continue to use their resources freely, as they have done since time immemorial.

The global context is driven by two forces–the commitment of the international community to protect the conditions of life on earth through the Convention on Biodiversity on the one hand, and the pressure from global corporations for limitless markets, profits, and privatization of the earth’s resources on the other.

Thus, the new context since the 1990s required that:

•Under CBD, India implemented laws to conserve biodiversity and ensure its sustainable and equitable utilization

•Under the Leipzig Global Plan of Action, India evolved and implemented laws to conserve plant genetic resources for agriculture

•India implements the TRIPS Agreement, taking into account the full range of options available

The legal changes are being made in the context of the existing reality of:

•A rich biodiversity wealth in spite of massive erosion

•A rich and ancient heritage of indigenous knowledge for the utilization of biodiversity

•An epidemic of biopiracy which includes the piracy of our biological resources and indigenous knowledge

The three most significant legal changes that have been made in Indian law to protect our biodiversity and indigenous knowledge are:

•Implementation of the Biodiversity Act 2002

•Introduction of the Plant Variety and Farmers’ Rights Act 2002

•Amendments to the Indian Patents Act 1970 which was made in 2005

Within this context of existing realities and emergent challenges, over the last two decades India chose the sovereign route to implement national laws. Sovereignty over biological resources and indigenous knowledge has been recognized by the CBD, specifically in Articles 3 and 15. This recognition has changed the open access regime that was prevalent under colonial systems in which Third World genetic resources were treated as the ‘common heritage of mankind’ available to use freely, while plant varieties and products developed from this rich biodiversity were treated as intellectual property of northern corporations.