Devinder Sharma
When the multinational food and beverage giant PepsiCo filed a case for patent infringement against nine potato farmers in Gujarat it was obviously for reasons of strengthening its seed monopoly. Of the nine farmers, four were slapped each with Rs 1.05-crore lawsuit this year and another five had been served with Rs 20-lakh legal case each last year. These farmers were accused of ‘illegally’ cultivating and selling PepsiCo potato variety FC5, which is used for making chips.
And when the company announced the withdrawal of the lawsuit after a social media uproar, and after having discussions with the Gujarat government, it actually managed to seek the same assurance from the government what it was trying through the legal route – to persuade farmers from growing the registered variety of potato without prior permission, and if they do they must sell the produce to the company. Although this goes against the very tenets of farmers rights enshrined in the Protection of Plant Varieties and Farmers’ Rights Act (PPVFRA) 2001, the ‘ amicable solution’ that the Gujarat government reached ended in blatantly upholding PepsiCo’s patent claims, which in reality do not exist.
As per media reports, the Gujarat government sought in future a tripartite agreement to be signed between PepsiCo, farmers and the state government so that ‘the government remains in the know of development if any controversy erupts and can also have a say in it’. If the underlying intention is to uphold the company’s position it defies the very objective of the PPVFR Act, which makes it mandatory for the state to protect farmers’ rights. After all, the PPVFR Authority that has been primarily constituted is not only meant to register crop varieties, including farmer’s varieties, but is required to uphold farmers’ rights. Gujarat government should, therefore, make its stand clear. It cannot brush aside the law which it is under obligation to protect.
The newly formed Beej Adhikaar Manch, an association to protect farmer’s seed sovereignty, makes it abundantly clear: “The Government of India had maintained an ominous silence on the legal situation in the country on farmers’ seed freedoms, taking cover of the matter being sub judice. Now it must make it amply clear that such litigation is not acceptable.” The Gujarat government, therefore, must come out openly to convince farmers of its intent to protect their rights which are under threat from the multinationals. The Centre too must stand by its own law.
The farmers’ right that the PPVFR Act tries to protect makes the Indian law unique in the world. At the time when the World Trade Organisation (WTO) through its Trade-Related Intellectual Property Rights Protection (TRIPs) agreement wanted the member countries to either have patents or a sui generis (meaning one of its kind) system of protection for seeds, India had witnessed a very heated and acrimonious political debate across the spectrum. Being a very sensitive and emotive subject, a joint parliamentary committee headed by the late Sahib Singh Verma was constituted. The committee travelled to various places in the country, met almost everyone concerned with seeds, law and farming, and after a very exhaustive set of deliberations incorporated a chapter on farmers’ rights in the proposed law.
Section 39 (i) of explicitly states that “notwithstanding anything contained in this Act”, and further in Section (IV) adds; “a farmer shall be deemed to be entitled to save, use, sow, re-sow, 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.” Reading both the sub-sections of this chapter together makes it abundantly clear that the Gujarat potato farmers had in fact not violated the Indian law. As long as they were not selling the produce as FC 5 seed, which they were not, as per media reports, these farmers were within their rights to use PepsiCo’s variety.
Knowing the low level of education and awareness of the farming community, the PPVFR Act further absolved them under Section 42 (i) of the consequences of any infringement by a farmer who at the time of such infringement was not aware of the existence of such rights. In other words, Sections 39 and 42 of the Act provides immunity for farmers against any infringement of patent rights claim of any seed company. As long as farmers are not selling the branded seed, they are operating perfectly within the provisions of the law. Why the Gujarat government should appear to override the protections enshrined for farmers in this law and instead side with the company, remains a big question. A constant vigil by the civil society and farmer unions therefore is required to ensure that the governments do not start backing the company’s commercial interests.
Since then, the pressure from seed industry has been to suitably amend the law as per the provisions of the widely accepted International Undertaking on New Plant Varieties (UPOV), which actually is for stricter patent control over new crop varieties. Although India has so far refused to join the UPOV treaty, pressure is building up to amend the PPVFR Act with certain provisions for extending the period of protection at par with the UPOV. The civil society has already submitted a signed letter to the Minister for Agriculture and the chairperson of the PPVFR Authority warning of the consequences.
The implications of the PepsiCo controversy, therefore, are very clear. It is just the beginning of a similar kind of assault on farmer rights that the country will increasingly witness in the years to come. India offers a huge seed market, which is enough to sustain the profits of seed multinationals. More so at a time when US Senator, Bernie Sanders, who has announced his candidature for US Presidency next year, is promising to protect farmers from the predatory patent lawsuits from MNCs, India cannot afford to push farmers under the yoke of seed companies. It is important to know that in the US, Monsanto alone has 80 per cent patent control over corn varieties, and 90 per cent over soybean varieties. Such a monopolistic control over seeds in India will be patently wrong and suicidal. But equally more important is that the predatory patent policy on seeds is withdrawn globally.