Askew

The Seeds Bill 2004, which aims to replace the Seeds Act, 1966, is with the Indian Parliament. It is a bone of contention. Between interests of farmers and the private seeds industry. Parliament's standing committee on agriculture is looking into this bill, drawing widespread criticism for favouring the seed industry and compromising the interest of the farmer.

The Left parties that support the United Progressive Alliance (upa) government at the Centre have condemned the bill and openly say they will not let it pass in its present shape. S Ramachandran Pillai, politburo member of the Communist Party of India (Marxist) and general secretary of the All India Kisan Sabha, has written a scathing critique on the bill. Social groups and individuals who campaign for farmers' rights condemn it as anti-farmer.

For their part, seed companies aren't too happy either, especially smaller companies. They fear the large corporations will completely dominate the market if this bill is passed. Farmers' groups have objected on either side, depending on their leaning. The most contentious issue is farmers' customary access to seeds. The bill, it is alleged, fails to hold the seed industry accountable, while trying to control farmers' rights. It will either supersede or destroy the effectiveness of laws like the Protection of Plant Varieties and Farmers' Rights Act, 2001 (ppvfra) and the Biological Diversity Act, 2002 (bda). And if that wasn't enough, it ignores certain key policy recommendations of government's own committees.

Commission and omission
For more than three decades, the Union ministry of agriculture (moa) has tried hard to forget that an amendment was needed to regulate the private seed industry, especially since the Indian seed industry had started growing rapidly in the 1990s due to liberalisation of the sector. When the 1966 law was framed, the private industry was virtually out of the picture. Hence it has no provisions to regulate private seed companies. At present, seed inspectors who draw samples of private sector seeds do so under the Essential Commodities Act, 1955. If farmers complain of failure of private company seed due to poor quality, they have to seek compensation under the Consumer Protection Act, 1986. The Seeds Act 1966 has no role in either the company-government relationship or the company-farmer dealings.

The first official reminders came from the Seed Review Team of 1968 and the National Commission on Agriculture in 1972. In 1987, moa set up the Expert Group on Seed. Its 1989 report said: "The Seeds Act, 1966 may be amended to make registration of varieties compulsory, without which sale of seeds should not be permitted. However, farmer-to-farmer exchange, as envisaged in section 24 of the Seeds Act, 1966 will be exempted from the application of the proposed provisions." In 1995, moa created a Seed Policy Review Group. Its 1997 report says: "It is a matter of concern that most of the well-considered recommendations of the Expert Group on Seed (1989) are yet to be acted upon". It took moa another five years to release the National Seeds Policy 2002. In 2003, work finally began on a draft to amend the Seeds Act, 1966.

The Seeds Bill, tabled in Parliament on December 9, 2004, brings private seeds companies within the ambit of the seeds law. It provides for the creation of a national register of seeds, and requires all companies selling seeds in India to register themselves and the varieties they sell. This is supposed to make them accountable for the quality of seeds they sell to farmers and to put a check on the sale of spurious and poor quality seeds. It is also supposed to provide compensation to farmers who lose their crop due to poor quality of seed they purchase from private seed companies. The bill also aims to liberalise import and export of seeds and planting materials to attain compatibility with World Trade Organisation commitments.

The big question that haunts the bill has to do with farmers' customary rights: will farmers continue to enjoy the right to freely distribute, barter and informally sell seeds saved from their crops, as they have done for centuries? Since the beginning of human settlements, farmers have innovated to adapt wild plants (called land races) into plant varieties with more desirable traits -- they developed food crops like rice and wheat from grass varieties, which is the foundation of human civilisation. This has involved careful observation and selection of seed for further cultivation. Farmers' right to use seed of their choice is considered sacrosanct, at least in developing countries, where most farmers still practice agriculture like it was done hundreds of years ago. The varieties they developed have been exchanged, bartered or sold freely, informally.

Post-1945, the nature of agriculture changed. The focus changed to more yield per hectare. This led also to the demand for seeds with specialised traits -- high-yielding, or resistant to diseases and pests. A formal market emerged, with seed companies investing large sums of money into crop research and developing specialised traits. They reserved exclusive rights to create and sell specialised varieties, but this required protection of what is called plant breeders' rights (pbr). Industrialised countries typically have a very small percentage of their population practising farming, and their farmers have large stretches of land. They have the purchasing power to pay for costly seed, thereby honouring pbrs. In case the seed supplied by the companies is not up to the promise, they have the power to force companies to pay compensation. Not so for most farmers in developing countries like India, who use seed saved from one harvest to use it in the next, exchanging, bartering and buying/selling in informal markets. But how can one establish that a crop failure is due to poor quality of seed when there are so many factors that influence a crop -- irrigation, soil character, use of fertiliser, weather, rainfall, use of pesticides, so on and so forth?

There are three easy ways to tell. Physical purity, which means that the seeds should all look consistent and should not be adulterated. If the seed is not up to the mark, the germination rate is low. If the seeds germinate, the characteristics of the crop can tell if the seeds are genetically pure -- if all the plants have similar traits, the seed is genetically pure. These are the grounds to ascertain seed quality. When seed is sold as a commodity, the farmer deserves to know what to expect of the seed. If the seed fails to meet those expectations, the farmer is entitled to compensation, provided it can be proved that the crop failure is due to poor seed quality. But all this puts farmers, who have freely exchanged seed, in a new market atmosphere. It is to protect farmers in this new market that the concept of farmers' rights has been evolved.

This is why seed laws are needed. moa has stated the deficiencies in the 1966 law it seeks to address in Seeds Bill 2004 (see box: Deficiencies...).

Did someone say farmers...?
moa's statements show the emphasis of Seeds Bill 2004 is not on the farmer but the seed industry. "This objective doesn't reflect the role this bill is expected to play in serving the Indian farmers and agriculture," says S Bala Ravi, biodiversity advisor to the M S Swaminathan Research Foundation, Chennai. moa officials say regulating the seed industry comprises precisely such a service.

The Seeds Bill, 2004 doesn't mention farmers' rights, except in section 43, which deals with exemption from registration. It says: "Nothing in this Act shall restrict the right of the farmer to save, use, exchange, share or sell his farm seeds and planting material, except that he shall not sell such seed or planting material under a brand name or which does not conform to the minimum limit of germination, physical purity, genetic purity prescribed... (emphasis added)." This section has drawn the most emotive opposition. It only "exempts" farmers; it doesn't acknowledge their entitlements, as is the case with ppvfra. Farmers' rights groups call it a major infringement: if the purpose of the bill is to regulate industry and not the farmer, this section does the opposite. It simply violates farmers' a priori rights -- rights that have existed from much before laws began to be framed, hence inalienable, not residual as the law makes it out to be. Compared to this, ppvfra set down the rights of farmers in section 39 (1) (iv): "a farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act", "Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act".

Farmers do have their own ways of ensuring accountability of seeds they exchange amongst themselves (see box: Social property). This accountability doesn't apply to seed companies, which is why they, not the farmer, need regulation. But there is a dilemma here. Today, farmers have moved away from customary practices of seed exchange to buying and selling seed in the market. "We have to draw a distinction here," intervenes P V Satheesh, director of the Deccan Development Society, which runs a seed conservation programme in 70-odd villages of Medak district in Andhra Pradesh, especially with regard to the much-ignored 'coarse' grains like millets. "If large farmers engage in seed business, they should not get the protection and entitlements that rightfully belong to small farmers who save and exchange seeds locally," he cautions. "We already know how subsidies are given in the name of the poor farmer for massive withdrawal of groundwater. Who benefits? Mostly large farmers and the wheat/rice system. Agro-biodiversity is important only to small farmers. And they can't get institutional credit for mixed cropping -- for growing more nutritious foods like millets that don't overdraw groundwater. If regulators can't tell the difference between one variety and another, how is the farmer expected to make an informed choice?" asks Rao, who was on moa 's 1987 Expert Group on Seed and headed the 1995 Seed Policy Review Group.

The proposed ppvfra registry requires, under section 18 (1) (e), complete disclosure of parental lines for obtaining plant variety protection. But industry doesn't want to disclose its trade secrets. While this business concern is justified, the Indian seed industry has a dubious record. For example, most agriculture scientists and business professionals know that most hybrid varieties of most crops Indian private firms sell -- except vegetables, maize and sunflower -- are created from varieties developed by icar institutions. But this can't be verified. There is no compulsion on private players to disclose parental lines, while those of public sector varieties is public knowledge. Take the example of cotton seeds in Andhra Pradesh. Seeds of a particular government certified variety are not readily available to the farmer, though its cost is Rs 25 per packet. Private sector hybrids developed from the same variety sell for upwards of Rs 400 per packet. Farmers have to choose from hundreds of cotton varieties, almost all of which might have been created from similar parental lines. This is a complete violation of the farmers' right as a consumer. The Seeds Bill also doesn't tackle the issue of seed prices; in this it is no different from the 1966 Act. Again, the ignored ppvfra talks about regulating prices in special circumstances in sections 47, 48, 51 and 68.

Disturbingly, the Seeds Bill allows a seed producer to protect a variety for 15 years (for annual and biannual crops) and 18 years for perennial crops -- this can be extended to 30 and 36 years respectively after re-registration. "Companies could exploit this secrecy norm and long registration period as an instrument for exclusive marketing rights," says Phillip Cullet, lecturer in the law department of the School of Oriental and African Studies, University of London. For a bill that claims to not infringe on ipr, the provision of such marketing rights, without reference to other existing laws, is quite ludicrous.

iodiversity Act!
While the bill flirts with exclusive rights to sell, it doesn't account for the sharing of benefits in case a company uses farmers' traditional knowledge and plant material. It allows for easy registration by showing minimum prescribed standards, and without disclosing parental background. bda explicitly mentions the 'benefit claimers' as the conservators of biological resources, innovations and practices associated with such use and application -- including farmers. The Seeds Bill speeds up the process of registration without mentioning benefit sharing. The registration norms are based on modern breeding practices, and disregard traditional breeders' ingenuity. Once registered, a variety would be easily transferable to other countries to be patented there. "This legislation could promote biopiracy if the varieties are not regulated properly in the post-registration phase," says A Damodaran, policy analyst at the Indian Institute of Management, Bangalore. The Seeds Bill doesn't so much as mention bda, section 3 of which deals with protection of biopiracy.

Then there are other problems with the Seeds Bill 2004. It proposes a reorganisation of the Central Seed Committee set up by the 1966 Act, reducing the number of representatives from states, farmers' groups and seed companies. At present, all states are represented. The bill seeks to change this to a maximum of five, representing the five agro-climatic zones in the country. Then there is the question of undermining technical expertise in favour of bureaucratic control. In making the moa secretary the chairperson, the bill undermines a key recommendation of the 1995 Seed Policy Review Group: "A National Seeds Board should be set up through appropriate amendments to the Seeds Act. (It) should be entrusted with all the functions currently entrusted to the Central Seed Committee and the Central Seed Certification Agency... The National Seeds Board should be a permanent body with its own secretariat and technical manpower." "I think it's important that the director-general of icar is at least the co-chair of the National Seeds Committee," urges M V Rao.

The Parliamentary standing committee will need to carefully look at a spectrum of views before making its suggestions for the treatment of farmers' rights. It will need to look at the Seeds Bill, 2004 in light of the implications it might have on other laws. While the Seeds Act, 1966 tries to ensure regulation of the seed sector, ppvfra protects rights of plant breeders and farmers. And bda covers the protection of agro biodiversity.

Some of the questions that crop up here are theoretical, but they have to be asked right now, and answered. Where the committee's task is really cut out is when it scrutinises the sections that will regulate the seed industry. The reason ppvfra didn't become a tool in the hands of industry is the effort the then standing committee on agriculture put into its drafting. The present committee has real work to do.

Andhra Pradesh (ap) is the gauge for India's private sector seed business (see table: India's seed capital). Industry is concentrated here due to the state government's encouragement since the sector liberalised in the mid-1990s. But in 1997-1998 the state witnessed the first spate of farmers' suicides (see 'Abetment to suicide', Down To Earth, February 28, 1998), and one reason for crop failures was spurious seed. This led the state government, then under the Telugu Desam Party leader N Chandrababu Naidu, to create a system of signing memoranda of understanding (mou) with seed companies to ensure accountability -- this was the biggest admission of the fact that the Consumer Protection Act, 1986, was failing to provide liability. Meant to provide some guarantee to the farmer against deficiencies in seed quality (without the technical processes of certification), the move actually gave the farmer no legal basis to challenge companies in case of substandard products. Typically, the mou system was invoked after farmers went into an agitation mode.

Farmers' suicides contributed to Naidu's defeat at the 2004 polls (see 'Inevitable tragedy', Down To Earth, July 15, 2004). But the suicides continued after the new Congress government assumed power. The new government was under increasing pressure to show results. After cases of crop failure reported in the 2004 kharif season, it asked companies such as the Maharashtra Hybrid Seed Company (Mahyco; in association with Monsanto it sells Bt cotton varieties) and eid -Parry (which sells maize) to pay damages. The companies refused and have moved the high court. For Mahyco, it isn't just about Rs 4.5 crore in damages; it is about reputation. The company denies crop failure was due to bad seed quality; it points to farmers' faulty management practices. The government has responded by blacklisting Mahyco's Bt cotton varieties.

Another company, Nuziveedu Seeds, presents a contrasting case. Chief minister Y Rajshekhar Reddy, while inaugurating Nuziveedu's new facilities at Sangareddy on May 2, 2005, said: "While we will encourage companies like Nuziveedu Seeds who have done good work, we will not allow firms like Mahyco to sell their Bt cotton seed in any part of the State." Nuziveedu launched its own version of Bt cotton in the 2005 kharif season. There were complaints of seed failure from Khammam district. Like Mahyco, Nuziveedu too doesn't accept crop failure happened due to substandard seed. It says all 110 samples taken by the agriculture department passed germination tests. Besides, it claims, farmers used fewer seed than they ought to have, because the seed is expensive, which in turn is due to the high technology fees Monsanto charges for providing the Bt sequence. But the company has still paid up to honour the mou it signed with the government; it says that it cares for its relationship with the farmer and the government. It is paying only farmers who have complained in Khammam, that too only after joint field visits by officials of the agriculture university, department of agriculture and others. According to the agriculture commissioner's office, it has already paid up more than Rs 20 lakh and replaced more than 8,000 packets of seeds.

In 2004 itself, ap decided to scrap the mou system -- which even moa had discouraged -- and began work on a new legislation. This was the ap Seeds Regulation Bill 2004, cleared by the ap cabinet in October and sent to the Union government for concurrence. "The Union minister for agriculture, Sharad Pawar, complimented us for a very well drafted bill," N Raghuveera Reddy, ap agriculture minister, told Down To Earth, adding, "Unless it is accepted in toto , we'd be doing a great injustice to the farming community." While it resembles the draft national Seeds Bill, its punitive and compensation clauses are harder (see box: Andhra Pradesh's draft). ap 's civil society labelled the bill 'progressive'.

Yet this isn't the first time a state has moved in this direction. Karnataka and Maharashtra were dissuaded from doing the same earlier by moa; they were told a Central legislation was on the cards. So now that the Seeds Bill 2004 is with Parliament, the ap bill doesn't stand a chance of approval. The Parliamentary committee is looking at the ap bill also for clauses that can be brought into the Seeds Bill 2004. But events in the state bring out clearly how farmers' interests are in conflict with those of seed companies. The only way to settle this is a clear legislation that leaves nothing to the imagination.

Can Seeds Bill 2004 solve this mess?
Unlikely, though the real picture will emerge only two years after the bill is passed and the rules are notified. But the notification of rules depends on the clarity in the legislation. Even if the punitive clauses are made harder than what they are at present, how will the liability of the company be established? The ap case study shows that even when the government has the political will to penalise offending seed companies, the law doesn't allow the accountability to be fixed.

Seed inspectors complain they often don't know how to interpret the procedures for obtaining samples. Even judges struggle to interpret the law. What is required of a Seeds Bill amendment is to lay down the requirements of registration with no ambiguity, so accountability can be fixed. The registration process the bill proposes lacks clarity. For instance, section 14 (2) says: "On receipt of any such application for the registration of a kind or variety of seed, the Registration Sub-Committee may, after such enquiry as it deems fit and after satisfying itself that the kind or variety of seed to which the application relates conforms to the claims made by the importer or by the seller...register the kind or variety...of the seed on such conditions as may be specified by it.... (emphasis added)". The drafting is vague; it doesn't lay down criteria to register. If registration requirements aren't clear, it becomes difficult to fix liability in case of failure of seed a company sells. Even if the liability clause was clear, compensation, if any, is left under the Consumer Protection Act, 1986.

Typically, consumer laws work only when there is awareness among consumers about their rights and about the evidence they are required to produce. Given the literacy levels in rural India, to leave the farmer to the consumer court is tantamount to leaving them at the seed companies' mercy. A consumer forum expects the farmer to produce proof of purchase of seed from authorised dealers with full details on the bill, and with reports from an agriculture scientist or official connecting losses due to poor germination or performance to the quality of seed sold. It is well known that seed dealers in India double up as creditors and extension agents, with indebted farmers under their thumb. Receipts are almost never given for seeds sold on credit. Even if a farmer takes all precautions, a consumer forum relies on some kind of credible mechanism/report to verify the farmer's claim -- field visits and laboratory testing, for instance. This has to be laid down in the Seeds Act. Even after liability is established in a consumer court and the farmer gets compensation, there are no penal measures to deter future violations.

The moot question, therefore, is: if the farmer has to go to a consumer court, why have a Seeds Act?

It is clear. In drafting the Seeds Bill 2004, the Union ministry of agriculture (moa) has failed the Indian farmer. All the consultations held by the ministry brought out only one thing: here was an opportunity for the seed industry to get back what it lost in the Protection of Plant Variety and Farmers' Rights Act (ppvfra). Now the matter has moved to Parliament. Members of the standing committee on agriculture have to remember this. They will have to undo what moa has done. They will have to read up ppvfra and the Biological Diversity Act and ensure that the bill recognises the prior legislations. Each clause of the bill has to set out its objective unambiguously, so that accountability is fixed and roles of each player in the seeds regulatory system defined.

Unfortunately, the Indian Parliament has ceased to be a forum for creative discussions. More often than not, political bombast ensures that important laws are passed without good discussions. Which is where social groups and media have to ensure the Seeds Bill discussion stays alive -- politicians take things seriously only when they suspect political fallout of their actions. Which is good in one way. Parliamentarians have more accountability than bureaucrats in a ministry. They have to face voters, and farmers comprise India's biggest vote bank.

When/if the Seeds Bill is discussed in Parliament, it will be the might of the farmers' vote pitted against the deep pockets of large seed companies. The upa government came to power on a rural vote from an India that wasn't shining. Can it address farmers' desperation?