After passing through at least two versions, Seeds Bill 2019 is now under Parliament’s consideration. The earlier versions of the Bill, in 2004 and 2010, had generated heated debates. The present version promises to be no different.
In 1994, India signed the agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). In 2002, India also joined the International Union for the Protection of New Varieties of Plants (UPOV) Convention. Both TRIPS and UPOV led to the introduction of some form of Intellectual Property Rights (IPR) over plant varieties. Member countries had to introduce restrictions on the free use and exchange of seeds by farmers unless the “breeders” were remunerated.
Balancing conflicting aims
TRIPS and UPOV, however, ran counter to other international conventions. In 1992, the Convention on Biological Diversity (CBD) provided for “prior informed consent” of farmers before the use of genetic resources and “fair and equitable sharing of benefits” arising out of their use. In 2001, the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) recognised farmers’ rights as the rights to save, use, exchange and sell farm-saved seeds. National governments had the responsibility to protect such farmers’ rights.
As India was a signatory to TRIPS and UPOV (that gave priority to breeders’ rights) as well as CBD and ITPGRFA (that emphasised farmers’ rights), any Indian legislation had to be in line with all. It was this delicate balance that the Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act of 2001 sought to achieve. The PPVFR Act retained the main spirit of TRIPS viz., IPRs as an incentive for technological innovation. However, the Act also had strong provisions to protect farmers’ rights. It recognised three roles for the farmer: cultivator, breeder and conserver. As cultivators, farmers were entitled to plant-back rights. As breeders, farmers were held equivalent to plant breeders. As conservers, farmers were entitled to rewards from a National Gene Fund.
According to the government, a new Seeds Bill is necessary to enhance seed replacement rates in Indian agriculture, specify standards for registration of seed varieties and enforce registration from seed producers to seed retailers. While these goals are indeed worthy, any such legislation is expected to be in alignment with the spirit of the PPVFR Act.
For instance, a shift from farm-saved seeds to certified seeds, which would raise seed replacement rates, is desirable. Certified seeds have higher and more stable yields than farm-saved seeds. However, such a shift should be achieved not through policing, but through an enabling atmosphere. Private seed companies prefer policing because their low-volume, high-value business model is crucially dependent on forcing farmers to buy their seeds every season. On the other hand, an enabling atmosphere is generated by the strong presence of public institutions in seed research and production. When public institutions, not motivated by profits, are ready to supply quality seeds at affordable prices, policing becomes redundant.
But this has not been the case in India. From the late-1980s, Indian policy has consciously encouraged the growth of private seed companies, including companies with majority foreign equity. Today, more than 50% of India’s seed production is undertaken in the private sector. These firms have been demanding favourable changes in seed laws and deregulation of seed prices, free import and export of germplasm, freedom to self-certify seeds and restrictions on the use by farmers of saved seeds from previous seasons. Through the various versions between 2004 and 2019, private sector interests have guided the formulation of the Seeds Bill. As a result, even desirable objectives, such as raising the seed replacement rates, have been mixed up with an urge to encourage and protect the business interests of private companies. Not surprisingly, many of the Bill’s provisions deviate from the spirit of the PPVFR Act, are against farmers’ interests and in favour of private seed companies.
I shall, for illustration, highlight six examples where the Bill, despite revisions, continues to be tilted against farmers’ interests.
First, the Seeds Bill insists on compulsory registration of seeds. However, the PPVFR Act was based on voluntary registration. As a result, many seeds may be registered under the Seeds Bill but may not under the PPVFR Act. Assume a seed variety developed by a breeder, but derived from a traditional variety. The breeder will get exclusive marketing rights. But no gain will accrue to farmers as benefit-sharing is dealt with in the PPVFR Act, under which the seed is not registered.
Second, as per the PPVFR Act, all applications for registrations should contain the complete passport data of the parental lines from which the seed variety was derived, including contributions made by farmers. This allows for an easier identification of beneficiaries and simpler benefit-sharing processes. Seeds Bill, on the other hand, demands no such information while registering a new variety. As a result, an important method of recording the contributions of farmers is overlooked and private companies are left free to claim a derived variety as their own.
Third, the PPVFR Act, which is based on an IPR like breeders’ rights, does not allow re-registration of seeds after the validity period. However, as the Seeds Bill is not based on an IPR like breeder’s rights, private seed companies can re-register their seeds an infinite number of times after the validity period. Given this “ever-greening” provision, many seed varieties may never enter the open domain for free use.
Fourth, while a vague provision for regulation of seed prices appears in the latest draft of the Seeds Bill, it appears neither sufficient nor credible. In fact, strict control on seed prices has been an important demand raised by farmers’ organisations. They have also demanded an official body to regulate seed prices and royalties. In its absence, they feel, seed companies may be able to fix seed prices as they deem fit, leading to sharp rises in costs of cultivation.
Fifth, according to the PPVFR Act, if a registered variety fails in its promise of performance, farmers can claim compensation before a PPVFR Authority. This provision is diluted in the Seeds Bill, where disputes on compensation have to be decided as per the Consumer Protection Act 1986. Consumer courts are hardly ideal and friendly institutions that farmers can approach.
Sixth, according to the Seeds Bill, farmers become eligible for compensation if a plant variety fails to give expected results under “given conditions”. “Given conditions” is almost impossible to define in agriculture. Seed companies would always claim that “given conditions” were not ensured, which will be difficult to be disputed with evidence in a consumer court.
The way ahead
Given the inherent nature of seeds, farmer-friendly pieces of seed legislation are difficult to frame and execute. This is particularly so as the clout of the private sector grows and technological advances shift seed research towards hybrids rather than varieties. In hybrids, reuse of seeds is technically constrained.
The private sector, thus, has a natural incentive to focus on hybrids. In such a world of hybrids, even progressive seed laws become a weak defence. On the other hand, strong public agricultural research systems ensure that the choices between hybrids, varieties and farm-saved seeds remain open, and are not based on private profit concerns. Even if hybrids are the appropriate technological choice, seed prices can be kept affordable. For the seed sector and its laws to be truly farmer-friendly, the public sector has to recapture its lost space.
R. Ramakumar is NABARD Chair Professor at the Tata Institute of Social Sciences, Mumbai