VANDANA SHIVA Vs. UNION OF INDIA

JUDGEMENT

(1.) The first petitioner Dr. Vandana Shiva, is a Director of Research and Foundation for Science, Technology and Natural Resource Policy, Second petitioner is Shri N.D. Jayal, Director General (Natural Heritage), Indian National Trust for Art and Cultural Heritage, the third petitioner is Prof. M.D. Nanjundaswamy, President, Karnataka Rajya Ryota Sangha and the fourth petitioner is Srilata Swaminathan, State Secretary, Rajasthan Kisan Sangathana. These four petitioner have filed this writ petition on the 7th April, 1994 seeking a writ of mandamus restraining the. Union of India from signing/ratifying the existing version of GATT Treaty,' or to restrained the Union of India from, agreeing to sign and signing Art. 27.5.3(b) of the TRIPs Agreement. They also seek a direction for exclusion of patents on life-forms including plants, animals, human beings produced through biological or microbiological processes, whether natural or modified on grounds of public morality and public order. They seek a further direction against Union of India from violating the fundamental rights and ensuring their protection while signing the Treaty, the right to health and nutrition ensured by the existing Indian intellectual property regime and patent system which had ensured the exclusion of patents on life-forms and patents on products in the area of health and. agriculture on grounds of morality and public order and also in respect of rights of farmers including the right to seed as owners, producers, breeders and innovators etc.

(2.) Ld. counsel for the petitioner MS. Indira Jaising elaborated the above aspects and submitted that several High Courts have admitted similar writ petitions and the matters are pending in the said Courts. Learned counsel referred us to the Third World Network Briefing Paper on Agriculture on Dunkel's Draft of GATT which critically analyses the. GATT clauses on agriculture, farmers rights, food security of the country etc. (Annexture A). In particular, reference is made to para 6 of the said Annexture which deals with Article 27.5.3(b) of TRIPs (Trade Related Aspects of Intellectual Property Rights) which read as follows :

(3.) Learned counsel also referred to various statements in the said Annexture viz. the statement in the Annexture as to how, by allowing the patenting of micro-organisms, the Government of India would be affecting the life of the citizens through a handful multi-national Corporations. Patenting is based on traditional knowledge of the life-form and of its use. It is in no way '"creation" of anything "original". It may, however, involve some tinkering or modification to suit certain non traditional conditions, states the above said Annexture. Reference is also made to another aspect dealing with protection of Plant Varieties either by patents or by affecting sui generis system or any patent thereof and it is pointed out that though Governments are given the option to have their own sui generis system for plant protection, in international negotiations, the Union for Protection of Plant Varieties (UPOV) which is also known as Plant Breeders Rights (PBRs), is the only protection recognised. It is pointed outthat this system does not recognise the plant breeding activity that the farmers carry out in his field every day, thus denying the farmer his basic and fundamental right. Reference is also made to certain aspects which show how and in what manner TRIPs will have adverse consequences on the farmers. Reference's made to papers at page 103 of the paper book dealing with Neem Treaty of India and its utility and how the GATT affects its products. Reference is also made to Biopiracy Survey (Annexture D), prepared by Rural Advancement Foundation International, at page 118 of the paper book. Out attention is also invited to page 192 of the paper book relating to the Dunkel-Debate-Continuing Apprehensions in India.