The company had sued farmers from Gujarat citing intellectual property rights on FL-2027
This story has been updated
The Delhi High Court on July 5, 2023, dismissed an appeal filed by PepsiCo India Holdings (PIH) against a 2021 order that had revoked the PVP (plant varietal protection) certificate granted to the company for a potato variety (FL-2027).
Justice Navin Chawla dismissed the appeal against the revocation order passed by Protection of Plant Varieties and Farmers’ Rights Authority (PPV&FRA) in December 2021 in response to an application filed by Kavitha Kuruganti, convenor of farmers’ advocacy organisation Alliance for Sustainable & Holistic Agriculture (ASHA).
PIH had filed suits against a number of potato farmers in Gujarat between 2018 and 2019. However, the suits were withdrawn in May 2019 after immense public resistance, Kuruganti said in a press statement.
“This is probably the first time that a revocation-related litigation was being adjudicated in India’s courts under the PPV&FR Act 2001. The Act is a very sui generis legislation in India, unparalleled anywhere in the world,” she noted.
Kuruganti said Indian lawmakers had brought a unique legislation in the country to comply with the World Trade Organization (WTO) Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement.
The provisions in the PPV&FRA Act offer seed freedoms for farmers, entitling them with saving, using, sowing, resowing, exchanging, sharing or selling the farm produce including a particular variety of seed protected under the Act in an unbranded manner.
The court observed that PIH had ticked the variety as ‘New variety’ instead of ‘extant variety’ which is a crop variety that exists in a country.
It also noted the incorrect information provided by the company regarding mention of date of first sale which was informed as 2009 in India, against 2002 in Chile.
The judgment was also upheld on the grounds of ineligible registrant and failure to provide necessary documents under various provisions of the Act.
The verdict also read that PIH, appellant in the case, is now “suffering for its own mistakes and for its casual manner of making an application seeking registration”.
The order also mentioned that ‘any person interested’ in applying for the revocation of a certificate granted would fall within the scope of a “public spirited person”, a point that was raised by the appellant citing that Kuruganti is not a person directly impacted by the issue.
However, Kuruganti expressed disappointment that the court did not uphold the public interest violation of PIH wrongfully suing farmers in Gujarat.
“Harassment of farmers was noted to be germane to the issue on hand by the Authority in its 3 December 2021 Order. On the other hand, Justice Chawla, in his judgement opines that Section 34 (h) grounds have not been clearly made out for revocation. Section 34(h) is about revocation on the grounds that the grant of the certificate of registration is not in the public interest,” she said.
She added: “It is a matter of grave concern that in three proceedings so far, the matter of vexatious litigation against farmers has not been squarely addressed by adjudicating authorities as a matter of public interest.”
The three proceedings include:
Kapil Shah, another activist from Gujarat involved in defending potato farmers, said, “Pepsi deliberately sued Gujarat farmers in 2018 and 2019 despite Indian laws regarding farmers’ seed rights being subject to interpretation on those provisions that entitle farmers to access seed varieties, including protected ones.”
Shah appealed that the PPV&FR Authority should use the order to reiterate and uphold the rights of farmers over the rights of IP registrants, in letter and spirit as contained in the statute.
“We had filed an Appeal against the order of revocation of registration of our potato variety FL-2027. The Appeal was filed on several grounds and the Hon'ble Delhi High Court vide its order dated 5th July 2023 upheld the revocation primarily on procedural infirmities in the application and other supporting documents,” a spokesperson for PepsiCo India told Down To Earth.
“The court, however, held that exercising of rights by PepsiCo, granted vide registration of its potato variety under PPVFRA cannot be construed as against public interest and revocation of registration by PPVFR Authority on ground of ‘public interest’ was erroneous. We are in the process of examining the order in detail to decide our options,” the spokesperson added.
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