We're pleased to bring to you a guest post by Nirajan Man Singh & Sheja Ehtesham, both of whom will be graduating from NALSAR this weekend. Their post deals with the Seed Act, 2004 which is scheduled to be tabled in Parliament amidst severe opposition from farmer associations.
A CRITICAL ANALYSIS OF THE INDIAN POLICY ON SEEDS – BANE OR BOON?
India is predominantly an agricultural country. 31% of its GDP comes from agriculture and around 64% of its labour force is dependent on agriculture. Thus any developments in the arena of agriculture warrant a very close scrutiny. Especially in the light of the widely accepted perception that seeds belong to farmers, as they are the discoverers, selectors and protectors of agricultural biodiversity.
The trend that emerges is that a majority of the private investment in the area of agriculture goes to seeds other than wheat and rice. Rice and wheat are domains wherein the investment is mainly from public research institutions funded by the Government, which naturally, is not sufficient. The merits of this policy are questionable and it has often been criticized as being a key factor in reinforcing poverty in a majority of the population. Consequentially, it has emerged as the need of the hour to attract further investment in rice and wheat. Accordingly, the Government decided to permit private participation in this field. They further endeavored to ensure that there were enough safeguards introduced in new Seed Bill and the Protection of Plant Varieties and Farmers’ Rights Act (i.e. PPV & FR Act) to reduce the scope of any misuse.
The introduction of foreign and domestic private participation would inevitably increase the investment in the area of food and agriculture. It will bring new varieties of seeds to the farmer with higher productivity. This was, perhaps, the main objective behind allowing for an inevitable, yet limited monopoly to private players. It seems reflective of the Government’s consciousness of the fact that its investments alone will not suffice to provide for food security to the country. Private participation is the need of the hour. Furthermore, the disadvantages to bringing in the private players are substantially counterbalanced, considering there is nothing in the existing legislation which provides that seed saving is a crime.
BT COTTON: FARMER STITCH THEIR OWN SHROUDS
In 1996, an insect resistant Bt cotton was discovered by introducing Cry1Ac gene from a soil borne bacteria, Bacillus Thuringiensis (BT) and was commercialized in USA and subsequently in other countries. Those varieties of Bt cotton have reportedly failed in large parts of Madhya Pradesh causing serious losses to farmers. Reports of the failure of Bt cotton have been coming in steadily after the harvest of the first crop of 2002- 2003. Gene Campaign’s study of the first Bt cotton harvest in Andhra Pradesh and Maharashtra had shown that 60% of the farmers who cultivated Bt cotton in these regions had suffered such massive losses that they were unable to even recover their investment.
As per the Andhra Pradesh Government Report of the Bt cotton failure, the state has banned the sale of such varieties of Bt cotton, due to the large scale losses incurred by farmers. The cause of such a colossal failure of Bt Cotton in India was that India’s Bt Cotton technology was faulty and inadequate to protect the cotton crops, where the major pest is the bollworm. Bt cotton hybrids being produced in India were found to be unstable and unpredictable and not very effective against the bollworm, as the variety being used here was created for the US, to protect America’s cotton crops against its major pest, which is the tobacco budworm, not the bollworm.
The poor performance of Bt cotton in India can also be attributed to the fact that in India, Bt cotton seeds were produced as hybrids, not the true varieties. It could possibly have been a wiser choice if the government undertook the decision that only true breeding varieties of Bt cotton would be permitted in India, not only because they perform better but also because they would be a cheaper option for farmers who could save seeds for the next harvest.
The Navbharat Bt seed was another variety selling cheap at Rs 100 per bag, since it was illegal – similar to selling on the black market, at a lower cost. The tragedy began unfolding inGujarat where over 10,000 acres of Bt cotton were planted illegally. The Genetic Engineering Approval Committee (GEAC) of the Union Ministry of Environment and Forests, whose permission is required for cultivation of any GM crop, ordered the destruction of this illegal Bt cotton that was still standing on the field. This decision led to numerous farmers committing suicide.
Despite the widespread failure of such Bt cotton varieties neither the Genetic Engineering Approval Committee (GEAC) nor the Ministry of Agriculture, have so far moved to take action against the offending company. The company contended that the failure was attributable solely to agronomic conditions like shortage of water or heavy rain, hence it was reported only from a few pockets, and not the whole country.
SEED MANAGEMENT SYSTEM IN INDIA: WHERE DOES IT STAND?
The major change in the patent regime achieved through the second amendment is not in the area of drugs as is commonly believed, but in the area of seeds and plants, especially genetically engineered seeds. Methods of agriculture and plants were initially excluded from patentability under the Indian patent act to ensure that seed, the first link in the food chain, was held as a common property resource in the public domain and farmer’s inalienable right to save, exchange and improve seed was not infringed upon.
Prior to globalisation, peasants never felt threatened, as there were no barriers to exchange, distribute or multiply the seeds. It was treated largely as an accepted cultural practice inherent in the peasant economy. Today, however, the multinational seed industries are steadily encroaching into this area.
There are certain safeguards in the PPV & FR Act to prevent the interests of farmers. The Farmers are entitled to save, use, sow, re-sow, exchange, share or sell their farm produce including seed of a variety protected under the Act. The breeder while selling any propagating material of a variety registered under the Act shall disclose to the farmer the expected performance under given conditions, and on failure to provide such performance the farmer can claim compensation. Section 39 of the Act protects innocent infringement by a farmer. Also, Section 41-42 provide for a community to have a right in benefit sharing if that community has contributed to the evolution of the variety. There is also a provision for compulsory licenses if a reasonable requirement of the public for the seed is not satisfied.
Since time immemorial, Indian peasants have produced their own seeds locally. In a country where 70% people depend on agriculture for survival, 75% of the seeds used for agriculture are produced by the peasants themselves. Thus, it is evident that farmers have always enjoyed a wide ambit of rights with regards to agricultural seeds. With the coming of the Seeds Bill, 2004, the scope of these rights is severely curtailed. The Bill fails to regulate and hold Indian private seed companies and MNCs liable, which has had devastating consequences for farmers. The loss of more than Rs 1,000 crores incurred by peasants in Bihar recently due to the failure of maize seeds, the recurring failure of Bt cotton seeds, and the ensuing suicides by hundreds of farmers in Andhra Pradesh are all manifestations of the failure of those companies in delivering quality seeds to Indian farmers.
It has been argued by policy makers in defense of the Act, that there is no provision in the Seed Bill 2004 that has the potential to make peasants completely dependant on the seed market, especially in the light of Section 43 gives farmer the right to save, use , exchange, share or sell his farm produce without registration. Yet, oddly enough, the very same Bill also stipulates that no seed of any kind or variety shall, for the purpose of sowing or planting by any person, be sold unless such seed is registered. What emerges is a set of complex and starkly conflicting laws at a very fundamental level. Furthermore, if a farmer sells any seed which does not conform to the standards of physical purity, he shall, on conviction pay a fine of up to Rs. 25,000. This means that farmers involved in the traditional practice of seed sale and barter across their farm fence can be charged under the new Bill. The farmer attracts penal action, if he misbrands any seed, supplies any spurious seed, sells any non-registered seeds, and if convicted he is punished with an imprisonment for a term which may extend to six months or with a fine of upto Rs. 50,000 or with both.
If the farmer were to be denied the right to sell, it would not only result in a substantial loss of income for him but far more importantly, such a step would displace the farming community as the country's major seed provider. Control over seed production is central to food security, which is in the forefront of national security.
Furthermore, there is the liability to be searched by the Seed Inspector who has been given powers to break open and enter houses and search if he is of the opinion that the Seed Act is being violated.  It would almost seem that the idea is to make the whole process so bureaucratic that the farmer is rendered uncompetitive in the market. It is impractical to expect any farmer to expend the energy, time and money to go to a committee or an institution to ascertain the quality of his seed, get a certificate of approval and then sell, save or share it. This will only lead to widespread corruption and farmers will have to bear the brunt.
Another case in point is the issue of seed certification. It is pertinent to note that such seed certification is not mandatory. It is provided for in the new Bill, for those who desire to have seed certified. Under the existing Act (Seed Act, 1968) only central or state seed laboratories can provide seed certificates. But under the new Bill, accredited individuals or institutions will also be able to provide such certificates. This will allow self-certification. Any seed company may establish an institution and certify its own seeds. The scope of abuse is unbridled.
Also, in case of crop failure, apart from the provision in Seed Bill there is a provision in PPV & FR Act which says that the breeder while selling any propagating material of a variety registered under the Act shall disclose to the farmer the expected performance under given conditions, and on failure to provide such performance the farmer can claim compensation. A valid concern here is compensation to farmers when the agronomic performance claimed by the seed provider fails to perform. The proposal asks the farmer to claim it through consumer courts, knowing the tedious processes of consumer courts and their inaccessibility to rural masses, one reaches the conclusion that it is a provision that will deter the farmer from claiming the compensation.
The Seed Act seems to be designed to impinge into the free economy of farmers seed varieties. Once farmers’ seed supply is destroyed through compulsory registration by making it illegal to plant unlicensed varieties, farmers are pushed into dependency on the corporate monopoly of patented seed. The Seed Act is therefore the handmaiden of the Patent Amendment Acts which have introduced patents on seed.
As mentioned in part 1 the importance of agriculture in India is interminable. Though 3/4th of the land is under food crops, the country could not be self sufficient. Every year 3 to 4 million tonnes of food grains have to be imported. The inadequate production of foodstuff and the consequent high prices constitute the main problems in the Indian Economy. But even when there is acute shortage of food grains, population is mounting by 10 – 15 million a year.
In the first set, the paper covered a wide range of topics – from the basic consideration and issues to the more specific technical concerns of structural measures for seed usage in India. There is more dialogue in the second set on the administrative issues of seeds with reference to TRIPS, UPOV, CBD.
PATENTS SYSTEM FOR LIFE FORMS AND PROCESSES – SUITABILITY IN QUESTION
One of the key objectives, of ensuring the availability of seeds at affordable prices, was fulfilled by the Patent Act 1970, as it barred seeds from being patented. It allowed India to specialize in the production of cheap seeds as well as export it to other countries. The move to product patent, however, makes such production and commerce illegal. As a consequence, the price of newly patented seeds is set to rise sharply in the region, imposing a significant social and economic cost on the country. Nonetheless, as developed nations have argued, higher prices are necessary to ensure the delivery of new and better seeds in the future. The question that emerges is, at what cost?
Patents have been filed on indigenous plants which have been used for generations by the local people, without their knowledge or consent. The locals then find that the only way to use their age-old knowledge is to buy them back from the big corporations. In Brazil, which has some of the richest biodiversity in the world, large multinational corporations have already patented more than half the known plant species.
Indian agriculture has had a consistent growth over the past three decade due to favourable government policies and limited competition from overseas. However, it seems that the nation is being forced to reassess its long-term strategies and business models as India opens its markets to global trade. However, what is to be kept in mind, especially with respect to an agricultural economy like India, is that inaccessibility or unavailability of seeds due to such “Seed Policy” can have devastating consequences on a majority of the population.
The Supreme Court of India recognized the enforceability of right to health within the scope of Article 21 of the Indian Constitution . Furthermore, Article 15(1) (b) of the ICESCR recognizes the “right of everyone to enjoy the benefits of scientific progress and its applications.” The Supreme Court has often interpreted fundamental rights in consonance with international treaties. Hence, the implementation of product patents should not result in the complete denial of rights guaranteed under the Constitution of India and the ICESCR. According to Section 2 (d) & (f) of Protection of Human Rights Act, 1993 rights under the ICESCR are the rights that the National Human Rights Commission (NHRC) has to protect.
The TRIPS agreement requires all member countries to introduce a sui generissystem for the protection of new plant varieties. India had no choice but to carry out these changes under the agreement. Such changes will undoubtedly have a huge impact on public research activity, private research, foreign direct investment and technology transfer in the seeds sector. However, the necessity of a complete overhaul of a system that has been in place for years is questionable, as in the sui generis system (i.e. PPV & FR Act) there are already adequate safeguards for the protection of public and private research activity.
The Union for the Protection of New Varieties of Plants (UPOV) is an internationally harmonised sui generis system for this purpose. It has several members today, mostly developed nations. India has submitted the PPV & FR Act for examination to the UPOV to determine compliance with the UPOV Convention, and while it is not a member yet, it is likely to become one soon. The UPOV establishes a very strong system to protect the rights of the plant breeders; also, the breeder can apply for rights in any other member country. With such a rigid support structure for plant breeders, the desirability of India becoming a member of the UPOV seems controversial and questionable in the extreme.
The Convention on Biological Diversity, 1994, is an alternate international convention that came into force in 1994. The CBD lays emphasis on national sovereignty over the genetic resources of a country, and the protection and the promotion of the rights of local and indigenous communities. Thus, there seems to be a conflict between the TRIPS and CBD, especially with respect to patenting of life forms. Several nations opine that the TRIPS should be amended to be in conformity with the CBD, i.e. with a greater emphasis on protection of the rights of indigenous and local communities against possible negative impacts of bio-patenting.
Article 27 of the TRIPS agreement provides that a legal infrastructure to Patent Life forms (including plant) is a compulsory obligation, provided that plant varieties are protected by effective sui generis system. However, the authors propose that patents on genetic resources for food and agriculture should not be allowed under the TRIPS agreement, as it undermines the right to food as recognised in Article 25 of the Universal Declaration on Human Rights, and reaffirmed in the International Covenant on Economic, Social and Cultural Rights (Article 11) and the Convention on the Rights of the Child (Articles 24, 27). There is an inherent contradiction between human rights and the TRIPS agreement. This argument is further reinforced when the UN Sub-Commission for the Protection and Promotion of Human Rights passed a resolution stating that the TRIPS Agreement does potentially infringe on poor people’s right, especially their access to seeds and pharmaceutical drugs. Not only can the patenting of food and seeds lead directly as well as indirectly to a denial of the right to food, but in granting a two decade long monopoly on ‘inventions’ relating to food and farming crops, particularly staples, we are sacrificing the free and public exchange of technology that may benefit the poorer sections of society. Thus, in the light of the dependence of a large segment of society on seeds, neither the seeds nor developments of these seeds should be subject to private monopoly.
NO PLACE FOR MONOPOLIES IN SEED POLICY
Somewhere in the world, a man, woman or child dies of hunger every 3.6 seconds. In this context, more than 1.4 billion people in developing countries depend for their survival on crops they grow from seeds saved from their last harvest.
The seeds policy has no mechanism to limit monopolies in agriculture. The inevitable consequences of displacement, hunger and famine will follow such a regime that is monopolistic over food production and consumption, through their control ownership over seed, which is the primary link in the food chain.
Such policies can lead to and reinforce already extant poverty at a primary level, i.e. an inability to command enough income to buy the bare necessities of life. Accessibility and affordability of seeds is a major concern in India today, and it is time that law makers prioritise, rather than get influenced by foreign seeds policies which are not suitable for Indian agricultural fabric.
 Uma Kapadia, “Understanding the Problem of Indian Economy”, 4th ed. 2003, p. 477
 R. Radhakrishna and Alakh N. Sharma, “ Empowering Rural Labour In India: Market, State and Mobilisation”, 1st ed. 1998, p. 44
 Suman Sahai, “The Failure Of BT Cotton”, www.genecampaign.org last accessed on April 2nd 2008.
 Suman Sahai, “ Performance of BT Cotton India: Data From The First Commercial Crop”, Economic & Political weekly, July 26-1 Aug2003, Vol-XXXVIII No.30 pp 3139-3141.
 Suman Sahai and Shakeelur Rehman, “ Bt Cotton: field swamped with illegal variants”, www.epw.org.in last visited on 4th April, 2008
 G.S.Bhalla, “Globalisation and agricultural policy in India”, p.122.
 The Protection of Plant Varieties of Farmers Rights Rules, 2003.
 Dr. Gupta, “Seeds Bill 2004: A Blueprint to Murder of Indigenous Seeds”, www.peoplesmarch.com last visited on 14th April, 2008.
 P Sainath, “when farmers die”, http://www.indiatogether.org last visited on 9th April 2008.
 The Seeds Bill, 2004.
 Chapter 3, clause 13.(1) of The seeds bill, 2004 reads No seed of any kind or variety shall, for the purpose of sowing or planting by any person, be sold unless such seed is registered under sub-section (2) by the Registration Sub-Committee in such manner as may be prescribed.
 Chapter 8, Clause 38 of the seeds bill, 2004 imposes punishment on any person who contravenes with the provisions of the Act. The Clause 38 (2) states If any person sells any seed which does not conform to the standards of physical purity, germination or health or does not maintain any records required to be maintained under this Act or the rules made there under he shall, on conviction, be punishable with fine which shall not be less than five thousand rupees but which may extend to twenty- five thousand rupees.
 Chapter 8 Clause 38(3) of the seeds bill, 2004 says If any person furnishes any false information relating to the standards of genetic purity, misbrands any seed or supplies any spurious seed or spurious transgenic variety, sells any non-registered seeds he shall, on conviction be punishable with imprisonment for a term which may extend to six months or with fine which may extend to fifty thousand rupees or with both.
 Chapter 6 Clause 35 of the Seeds Bill, 2004 addresses that The Seed Inspector may take samples of any seed from any person selling such seed or conveying, delivering or preparing to deliver such seed to a purchaser or a consignee. He can enter and search, at all reasonable times, with such assistance, if any, as he considers necessary, any place in which he has reason to believe that an offence under this. The power to break-open the door of any premises where any such seed may be kept for sale, when the owner or any other person in occupation of the premises, if he is present therein, refuses to open the door on being called upon to do so.
 CHAPTER 3 Clause 20 of the Seeds Bill, 2004 Where the seed of any registered kind or variety is sold to a farmer, the producer, distributor or vendor, as the case may be, shall disclose the expected performance of such kind or variety to the farmer under given conditions, and if, such registered seed fails to provide the expected performance under such given conditions, the farmer may claim compensation from the producer, distributor or vendor under the Consumer Protection Act, 1986.
 David Hathaway, “Brazil about to Patent Life?”, www.grain.org last accessed on 12th April, 2008.
 Vincent Panikurlangara v Union of India,1987 (2) SCC 165.
 Human Right Act, 1993, http://nhrc.nic.in/ last visited 12th April, 2008.
 Black’s Law Dictionary, sui generis : the only one of its kind.
 Article 27.3 (b) of TRIPS states: “Parties may exclude from patentability plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, parties shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. This provision shall be reviewed four years after the entry into force of the Agreement establishing the WTO."
 S. 30, PPV & FR Act.
 Human Rights and Human Development, The latest Human Development Report 2000 of the UNDP, www.Undp.org last visited on 15th April, 2008
 http://www.devp.org/pdf/seedpatents1.pdf, Why Seed Patents Threaten Food Supply For The World’s Poor.
 Paul Streeten, “ poverty concepts and measurement”,Thinking about development, 1995.