The geneticist Dr Suman Sahai on India's controversial draft Seeds Bill.
SEEDS BILL: THE GOVERNMENT'S ANTI-FARMER LAWS
Look at the recent legislation the government is pushing through and you will see its anti-farmer stand. There is the Patent Act which was brought in as an Ordinance since opposition to it was broad based enough for the government to fear it would not get passed and there is the draft Seed Bill listed for action in Parliament. Had it not been for the shenanigans in Parliament, the Seed Bill may have already become law. The provisions of the Seed Bill appear to be clearly favoring the seed industry at the cost of farmers. It would not be incorrect to say this was in fact an anti farmer Bill. The Patent Ordinance goes streets ahead of what the WTO process requires it to do. And as the government rushes ahead on both these legislation, the only pro- farmer legislation that we have, the Plant Variety Protection and Farmers Rights Act, has not been brought into force.
The government says it passed the Patent Ordinance because it was anxious to comply with the international obligations that had been made in the WTO. Unmindful of the fact that swathes of WTO agreements have not been complied with by many other countries and that developed countries are not willing to move an inch on the Doha Round, the only outcome so far from the WTO that has made some commitment to addressing developing country concerns, the Indian government's haste is remarkable.
This is specially so since there are no technical compulsions to rush with implementation. The TRIPS is under mandated review and until this process is completed, there is no legal requirement to comply with its provisions which will have to be seen as interim till the contours are finalized after the review.
The question that needs to be asked is, why is the government not rushing to be equally WTO compliant on the other TRIPS derived legislation, the Protection of Plant Variety and Farmers Rights Act (PPVFR) of 2001? This is India's sui generis law, drafted to fulfill the TRIPS obligation under Article 27.3 (b). Why is the government not worried about international condemnation for non-compliance in this case?
The answer is that the Indian legislation called the PPVFR law is unique in the world as the only legislation that grants an explicit Farmers Right. It is a law that does justice to the farming and tribal community by acknowledging its manifold contributions to biodiversity conservation, agriculture and food security. This law has been widely admired by developing countries for balancing the rights of plant breeders and farmers. The government’s anti-farmer attitude is to be seen in the fact that the PPVFR which was enacted four years ago in 2001, and for which the Rules were framed two years ago, lies gathering dust while pro-industry legislation like the Patent Act and the Seed Bill are being pushed through.
The Seed Bill attempts to supercede the PPVFR. It deviates from the PPVFR on key issues like the parentage of the variety, conditions for multi location testing and the agencies that will conduct these tests, public access to information on grant of registration, price control and the treatment of farmer varieties. For example, the PPVFR requires the declaration of the origin of the variety to be registered, with pedigree details but the Seed Bill does not.
With respect to testing new varieties, the PPVFR lays down that the national authority will conduct the tests for distinctiveness, novelty and utility of the variety. The seed bill does not specify who will conduct the tests for establishing the usefulness of the new variety. This lacuna can be misused unless it is clarified. The PPVFR allows legitimate opposition to the grant of a registration for a new variety before registration is granted. People have an opportunity to raise objections if they have reason to think that the variety is not what is claimed. In the case of the seed bill, the registered varieties will be made known only through periodic publications. The public has no opportunity to object to a new variety for any reason. This lack of transparency could mean that varieties of dubious performance could get registered without giving people a chance to oppose such grants.
The PPVFR accords recognition to the contributions of the farming community in many ways which is not the case in the seed bill. The PPVFR recognizes the farmer as conserver, cultivator and breeder of new varieties. The law therefore protects the farmer in all these roles. The farmer varieties are hence eligible for protection under the Act and such varieties can be registered without paying a fee. According to the seed bill, although farmer varieties are eligible for registration, this can only be done after the payment of the necessary fees. This will place a financial burden on small farmers who have good material to register but may not be able to afford the cost of registering their varieties.
Further cause for alarm are the provisions of the Seed Bill that deal with price control. In the PPVFR, regulation of seed supply and seed price is to be managed through a process of compulsory licensing. This safeguards the interests of the farming community since it places the responsibility of ensuring an adequate seed supply at reasonable price, on the government. The Seed Bill fails to provide any such protection to the farmer. There is no mechanism to regulate seed supply or seed price. This could result in a high cost of seeds fixed arbitrarily by the seed companies, leaving the government with no means to control the price. It could also mean that seed providers are under no obligation to ensure a reasonable seed supply to farmers. This will defeat the very rationale that had kept seed production in the public sector so far.
There are other issues of concern. The Seed Bill is silent on the origin and ownership aspect of a registered variety for trade. This will facilitate unrestricted commercialization of varieties in the public domain, including farmer varieties, by private parties. On top of this, there are no opportunities for benefit sharing post commercialization, as is the case in the PPVFR. The Seed Bill attempts to bypass the PPVFR in other ways. It seeks to nullify the need for seeking a Plant Breeders Right (PBR) in order to obtain rights to market the new variety. This allows evasion of the public interest liabilities that are linked to the PBR.
The ambiguity of the Bill on multi location evaluation of varieties which is a standard practice followed by ICAR (Indian Council of Agricultural Research), can open the door to exaggerated performance claims which because they will not deliver, will hurt the farmers. Further, the grant of registration to a seed variety without concurrent registration for PBR , allows the seed owner to evade the onus of compulsory license provisions which protect the cultivators from high seed price and inadequate seed supply.
Because the Seed Bill does not require the parentage of a variety to be declared, it allows misappropriation of materials belonging to others. These could be farmers or public sector institutions. The seed owners could in principle have free access to all available agrobiodiversity, without having to go through prior informed consent or engaging in benefit sharing. All this amounts to legalizing the piracy of valuable genetic materials like elite breeding lines.
The Liability and Compensation provisions of the PPVFR that allowed farmers to be compensated for spurious or poor quality seeds, has been dispensed with in the Seed Bill. Instead the farmer must try as best as he can, to claim compensation through District Consumer Courts. This will be a daunting if not an impossible task for small farmers. Apart from that, the district Forum or the State Council under the Consumer Protection Act has no expert knowledge in agriculture, to be able to award a fair decision. A straightforward insurance package linked to the seed would be a system that would work far better for farmers. If the seeds did not perform, the insurance claim would become automatic.
The stringent punishment and large penalties for violating the law that was put in as a deterrent against bad seeds in the PPVFR, has been reduced to a token which no one needs to be afraid of. The loophole that has been created to allow provisional registration of transgenic varieties is preposterous. It not only violates biosafety norms, but also clearly provides a particularly favored condition for the multi national companies who are the greatest producers of transgenic seeds.
Finally, the bill is so highly bureaucratic as to almost make it impossible to consider this a balanced document where multistakeholder participation is possible. The system of seed inspectors and central and state seed testing institutions with unbridled ( often misused) powers, that have proved to be thoroughly incompetent in enabling an effective seed trade , have been retained in the Seed Bill when there was an opportunity to come up with a better alternative. Everywhere in the Bill there are opportunities for bureaucratic interventions which provide an opportunity to maneuver and manipulate many critical aspects of the Bill. Not only does this indicate a complete lack of transparency in the implementation of the provisions, it allows opportunities for backdoor actions. The high level of bureaucratic intervention is likely to lead to biased actions and genuine wrong or misinformed decisions.
The draft Seed Bill must be discussed by a variety of stakeholders for a critical and careful reexamination of its provisions so that the farmer's interests are not jeopardized as they are in the current draft. To this end, Gene Campaign is organizing the first stakeholder discussion together with the National Commission on Farmers. Our purpose is to provide concrete recommendations to the government for overhauling and revising the provisions of the Seed Bill so that they are made protective of farmers as well as supportive of community and national food security.
Dr Suman Sahai is convener of the Gene Campaign, a leading research and advocacy group working on issues of bioresources, food and livelihood security, farmer’s rights, indigenous knowledge and GM technology.