Bill Or Bull?
be it enacted in the fiftieth year of the republic of India..." So begins the Protection of Plant Varieties and Farmers Rights Bill ( ppv ) that had been introduced in the Lok Sabha on December 14, 1999. As the report is being written, the bill still awaits enactment. But then biodiversity-related bills have traditionally been associated with a string of delays.
The bill intends to make India compliant to the rules laid down in Trade Related Intellectual Property Rights ( trips). In fact, the ministry of agriculture has been pushing for India to become a member of Union for Protection of new plant Varieties ( upov ), which is an European organisation that regulates plant breeders rights for industrial nations. Within the country too, speculations have been rife about the government's stand on various issues and the pros and cons as far as the target recipients are concerned. Amongst all this came the government's commitment to pass the seven World Trade Organisation ( wto ) -related bills by January 1, 2000 in order to achieve wto compliance. The mission remained unaccomplished.
The ppv Bill has a clear-cut objective to protect plant breeder rights but in doing the same " trips has been wrongly interpreted," says Rajeev Dhavan, director the New Delhi-based Public Interest Legal Support And Research Centre ( pilsarc ) and an eminent Supreme Court lawyer. trips (Art 27) provides for the adoption of a sui generis system that helps various countries to protect their traditional knowledge. "In the bill, however, ample provisions have been made to steal traditional rights and in return give an illusory compensation to the farmer, who is reduced to the status of a benefit-sharer for having contributed to the generation of the new variety of seed," he adds.
While making an alternative submission before the Joint Committee on the ppv Bill, Dhavan asserted that the bill was "fundamentally misconceived, and provides excessive and unwarranted rights to the breeder, multinational corporates at the expense of the farmer."
The bill provides for the establishment of a body to be known as the "Plant Varieties and Farmer's Protection Authority for the purposes of this act." It comprises nine ex officio members and a chairperson but the farmers have been left out. "There should be place for farmer's representatives and representatives of non-governmental organisations (NGO) in the authority," says Ashish Kothari, director Kalpavriksh, an environmental action group in Pune.
A ray of hope The bill does have a few merits which will possibly help the farmers in the long run. For instance, one of the clauses reads "no variety shall be registered under this act, if such variety contains any gene or gene sequence involving any technology, including terminator technology, which is injurious to human beings, animals or plants." This means that a variety with the technology that does not allow the seeds to be saved and grown in the next season will not be registered as a new variety.
This will allow the farmers to keep their seeds and use it later. But another clause in the same bill takes away the right to use these seeds commercially. This means that the farmer can sell, share, exchange or save the produce from a new variety but he will not
be allowed to use it for further reproduction of the variety under a "commercial marketing arrangement."
"Once the law on PPV and Breeders Rights is enacted, it will enable the farmers to keep their seeds and sow them. This should also help the marginal farmers who form the bulk of the agricultural population in our country," informs M S Swaminathan, director of the Chennai-based Dr M S Swaminathan Research Foundation. According to him this will also help the farmers to make use of the benefits of sophisticated research in various institutes and even utilise the same time and again, though not commercially.
Is it the right choice?
Critics claim that the objectives of the act make it clear that the bill does not intend to protect Indian agriculture. The bill provides a right to those who "have bred, discovered or developed any variety of a plant". Discovery is the most important word in the phrase. In other terms it means that all a breeder has to do is steal and register the variety and once this is accomplished the community from whom the knowledge was stolen gets a minute fraction in lieu of the contribution made.
Convenor of the Left Democratic Front V S Achuthanandan has described the bill as anti-farmer and against the interests of the country. According to him the bill destroys all the rights of the farmers. This debate has been raging for long. The pilsarc submission contends that the protection of rights of farmers, which is an important objective behind framing the bill, is surprisingly missing. Clause 31 of the ppv gives the farmers the right to "exchange, share or sell his farm produce to prohibit a marketing arrangement". In real terms it translates into the farmers being unable to exchange their seeds in a barter system or sell them in the traditional mandis .
The ppv Bill has another important provision for the farmers. Clause 61-70 lists a series of criminal penalties and punishments which range from three-year imprisonments to fines of Rs 10 lakh. "The bill provides injunctive relief where damages are an adequate remedy," informs Dhavan. This sort of injunctive relief could amount to preventing the farmer from sowing seeds even on his own land.
The bill officially aims at giving incentives to encourage breeding of new varieties of crops to fulfill its ultimate objective of enhancing India's food security programme. But experts are of the opinion that a lot remains to be done on the bill. They feel it falls short on many counts despite trying to incorporate certain progressive clauses that might help the farmers and breeders. "It will not really benefit small farmers because it puts the rights of the formal sector breeders (primarily private corporations, both Indian and multinational) above those of the farmers," says Kothari. And that fear is uppermost in the minds of many people at the moment. "The strongest lobby behind the ppv bill is the huge mnc lobby," adds Dhavan and the shape of the bill endorses the fact.
Protection of the huge plant genetic resource inventory is another grey area in the bill that has been ignored though it is immensely important. "The bill is not going to help in protecting and enhancing the genetic base of crops in India, but may, in fact, lead to its further erosion," informs Kothari. "The draft of the ppv Act does not include protection of our rich natural plant resources. For this we must press for separating biodiversity from the ppv act and trips," adds Vandana Shiva, director, Research Foundation for Science, Technology and Ecology, New Delhi. "A clause should be added to the bill providing a incentives for farmers and communities to revive or continue practices and knowledge systems which promote the conservation and sustainable use of biodiversity," adds Kothari.
Opposition to the bill also stems from apprehensions that the small-scale seed production sector will be driven out of the market by the big seed industry. This factor alone in the bill could hamper the process of achieving food security. Another area which experts feel is not very clear in the bill is the clause on benefit-sharing. The authority to be set up under the act will determine the amount of benefit-sharing for a variety that has been registered. Experts agree that there should be provisions for explicit and mandatory measures of benefit-sharing when farmer's varieties and knowledge (including those already in possession with state agencies) are used by others.
India: TRIPS-UPOV is it viable ?
Arguments put forward mainly by the Delhi-based Gene Campaign, against upov were that there were no farmer's rights in the system, only breeders' rights. India presents a very different kind of economy as compared to the developed nations. It is believed that conditions laid down in upov do not favour agricultural economies but industrial ones, where only 2-5 per cent of the population practice agriculture and small and marginal farmers do not form a part of the economy on the other. But, if we look at the ppv today "it seems to have been framed within the air-conditioned offices of the mncs with no research into what is required to protect the farmers and their traditional knowledge," says Dhavan.
The other argument against India complying with trips norms is that among upov countries agricultural research is conducted by the seed companies with private capital. So they maximise profits by market mono-polies. In India agricultural research is conducted by public institutions with the taxpayer's money and so belongs to the people. Once the bill is passed it will also be mandatory for India to accept the patenting of plant varieties which according to Gene Campaign is not in our interests. According to Swami-nathan, developing countries should join the upov convention since it has a one-country, one-vote system and the increase in developing nation members will ensure that their voices are heard by the developed nations. Then they can modify the rules to suit their economy.
A number of queries being raised relate to why India hurried with the framing of a misconceived bill when trips does not require India to have the protection before 2005. A post-Seattle review is on at the moment and experts feel that India should wait until it is over.