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GLOBALISATION OF INDIAN AGRICULTURE : BOON OR BANE?

Dr. Nilima Chandiramani : Dean of Faculty of Law
University of Mumbai

ABSTRACT

The World Trade Organisation was born on January 1, 1995. With its birth, the multilateral trade entered a new phase. The conventional trans-boundary trade in commodities got transformed. New issues such as investment, services, intellectual property and agriculture - that have nothing to do with trade – appeared on the list of international trade. The global trade arena got littered with the most comprehensive, complex and one-sided agreements, and rigged and inequitable rules, formulated by the powerful players. These global agreements and rules decide the pattern of investment that a country should pursue, the type of technology and service it must promote, the agricultural support it must maintain, the patent system it must implement, the plant variety protection regime it must adopt, etc.

It was projected that the globalised trade would benefit all the WTO member countries. The promised rewards of liberalised trade have come to some, but not to all. The restructuring of the customary international trade has proved beneficial to the Northern countries. To-day world markets are dominated by less than two hundred multinationals belonging to the five developed nations. The top hundred of these regulate two-thirds of the world trade, control one-third of the world foreign direct investment and account for more than one half of all production. But what have the Southern nations got ? The specially engineered WTO rules and the double standards of trade that WTO promotes have made life poorer, nastier and brutish for majority of the world population. The WTO agreements curtail the power of developing countries like India to frame people-oriented policies in fundamental areas such as investment, services, social welfare, medicines and agriculture.

This paper tries to dissect the hype from reality. It gives pointers to whether globalisation of Indian agriculture is a boon and a key answer to broader development challenges of economic growth, poverty alleviation and sustainable development, or is it a bane, denying a large proportion of Indian population access to safe food in adequate quantities at affordable prices and thereby resulting in widespread and chronic hunger and malnutrition. The paper begins by emphasising the importance of the Indian agricultural sector and the effect of the WTO and TRIPs regime on it. The paper quickly moves on, to critically examine the impact of WTO provisions on Indian agricultural growth. The third part of the paper analyses the deleterious consequences of one of the most vexed issues under the WTO – the TRIPs Text – on Indian agriculture, farm families/indigenous communities and biodiversity of the country. The recent Indian legislation on protection of plant varieties and farmers’ rights is scrutinised in part four of the paper. The paper finally concludes by suggesting that liberalisation of Indian agriculture should be human rights based and must favour the fundamental rights of the poor and vulnerable to food, health and self-determination.

INTRODUCTION

The Indian agricultural sector is too vital to the country’s economy. It is the largest sector in terms of output and employment. More than twenty-five per cent of the GDP comes from agriculture and over sixty-five per cent of the working population depends on agriculture and allied industries. Over the years, our farmers, diligently and tirelessly, built a strong foundation for agricultural development. From a net importer of agricultural products, the country went on to becoming, first, self-reliant and then an exporter of food products. Agriculture became the mainstay of Indian economy. It helped the nation  tide over serious economic crises. But now the WTO agreements in general and the TRIPs Text in particular have dealt a very severe blow not only to Indian agriculture and the food security of the nation but also to the rights of farm families, indigenous communities and the rural poor, and our genetic resources and traditional knowledge.

WTO AND INDIAN AGRICULTURE          

When GATT was established after the World War II, the advanced nations, by mutual consent, had excluded trade in agriculture from the purview of GATT. But by 1980, almost one third of the agricultural produce in both – the US and the EU – was for export. Production and export of agriculture was heavily subsidised by both the groups. But the demand for agricultural produce started declining – thanks to the self-reliant development policies pursued by some countries and due to balance-of-payment problems in other countries. This resulted in a trade war between the two giant agricultural exporters. It was the United States which introduced the topic of agriculture in the Uruguay Round of GATT negotiations. Thus the idea of liberalising trade in agriculture did not arise out of any concern for the distressing millions who go to bed on an empty stomach. It was the intense agricultural trade rivalry between the United States and the European Union which necessitated the introduction of the subject of agriculture in the Uruguay Round. But having once entered, it came to occupy the centre-stage of GATT/WTO negotiations.

Inordinate insistence on agricultural exports
Exports are the main thrust of WTO Agreement as far as agriculture is concerned. The undue emphasis on exporting agricultural products from India has decreased the food supply for the masses who live and work in the rural areas. The desirability of exporting agricultural produce in large quantities to earn foreign exchange is questionable – given the widespread poverty and hunger prevailing in India. The large agricultural stock in India tends to bring a sense of complacency but it warrants noting that the same is in a great measure an outcome of pricing the poor out of the market. Even today we are self-sufficient only to the extent that those who can afford food can have it. More than 200 million Indians go hungry to bed every night. Thousands have died of starvation. Farmers, wracked by indebtedness, are committing suicides or are selling their kidneys. Exporting food by snatching it from the mouth of the poor violates Articles 7 and 11 of the International Covenant On Economic, Social And Cultural Rights. These Articles recognise the right of everyone to be free from hunger and to enjoy an adequate standard of living, including adequate food. The same right is also recognised by Article 25 of the Universal Declaration Of Human Rights.

Moreover, our efforts to promote export agriculture has resulted in agricultural production having shifted to commercial and exportable crops. Food crops have been replaced by cash crops, fruits, vegetables, aquaculture, etc. Thousands of local but nutritious staples, coarse grains, legumes, lentils, etc. have become extinct. Some tribal communities, which once survived on maize, have been compelled to change over to wheat or cash crops. This shift from food crops to commercial crops has been occurring with disastrous results on the livelihood of small and marginal farmers as well as on the food security of the country. The total area under food grains is declining with a corresponding increase in area under non-food grain crops. This will  threaten the food security of the poorer sections of the Indian society. It may be recalled that the heart-rendering Bengal famine during the British period was the result of emphasis on export oriented agriculture, namely indigo. Or again, in Southern Tanzania, the main work of the tribal people, before colonisation, was small farming. But the British and German colonisers compelled them to produce cash crops for exporting. Initially the tribal people were happy as it enabled them to have money to purchase imported items. Gradually they realised that it was at the cost of destroying their traditional cultivation. Farming got neglected. Traditional pots and utensils got replaced by plastic. Instead of sharing work and natural resources, an era of competition set in.

Further, exporting agricultural produce from India is extremely difficult. Even if we succeed in entering the highly cartelised market, the international prices fall. The massive subsidies given to domestic farmers in industrialised countries generate over-production. The resulting surpluses are dumped in world markets with the help of yet more subsidies. These highly subsidised exports from rich countries drive down the prices for exports from developing countries, devastating the prospects of small and poor farm families. Prices of tea have remained depressed and continue to remain well below peak levels recorded in 1998. Lower prices have resulted in lowered value of tea exports from India. Price trends of coffee too are on an absolute low. Prices of coffee have fallen by seventy per cent since 1997, costing developing country exports some $8 billion in lost foreign exchange earnings. Trans national corporations such as Nestle have benefited from these ruinously low producer prices that have spelt disaster for the millions of world’s most vulnerable families.

Further still, export agriculture is capital intensive and beyond the reach of a small farmer who lacks not only the infrastructure to take advantage of market openings but also access to productive assets such as land and credit. Life styles have changed. There is a demand for processed, ready-to-cook and fast foods, and not for raw food grains. Technical tie-up with MNCs – which have entered into Indian food processing industry in a big way – is an essential pre-condition to sell our products in the global markets. Our farmers have thus been reduced to mere suppliers of raw agricultural materials to these giant MNCs,  who lap up the profits. The European Union’s ban on seafood exports from India was a culmination of a calculated move to prevent the Indian exporter from diversifying into export of cheap, cooked, processed and value- added seafood; and to restrict him to exporting only raw seafood which is converted into value added food by the European firms and sold in the international markets at exorbitant rates! Above all, even the meagre Indian gain has become uncertain because of the stringent sanitary and phyto sanitary norms; social barriers; green barriers and other protectionist measures adopted by the advanced countries.

Weakening of Public Distribution System
The WTO rules have seriously altered our public distribution system, a safety net for the poorest sections of the population. Food grains constitute seventy-five per cent  of a poor man’s budget and it makes sense to keep food prices low in a country where the majority of the population is poor. But under the WTO rules, the Government purchases are to be made at the current market prices and not at the prices fixed by the Government. The consequent increase in the PDS prices have priced the poor out of the food grain market. The difference between the prices of the food grains and the essential commodities in the open market and the ration shops is slowly disappearing. And the number of fair price shops in the country are diminishing and the essential commodities in these shops are decreasing.

Compulsory imports and import liberalisation
Under the WTO Agreement a minimum proportion of the value of domestic agricultural production, including food grains, have to be imported. Let us not forget that till recently, we were a food deficit nation, dependant on foreign agricultural doles. Will not the provision on ‘compulsory imports’ make our vital, vibrant and self-sufficient agricultural sector once again import dependant – as it was under the US PL 480? Brazil, a self-reliant country in wheat, became a net importer of wheat soon after it opened up its agricultural sector. One hundred thousand Brazilians lost jobs. And five million farms, which sustained more  than half of the rural working population, were threatened.

The situation can be aggravated when a country goes in for rapid import liberalisation. Many countries that are integrating most successfully into global markets are not rapid import liberalisers. In India several import incentives have been announced such as reduction in customs duties, removal of quantitative restrictions, etc. The government is permitting import of hybrids of coarse cereals, oilseeds, pulses and fodder. Import of planting materials and seeds of vegetables as well as ornamentals are directly allowed on open general licensing. Most items free of quantitative restriction are agricultural, small-scale and animal husbandry products and include fish, milk, coconut, coffee, spices, tea, ragi, bajra, neem products and even basmati. The Indian market is flooded with apples, Kiwi fruits, oranges and a multitude of fruits. This import liberalisation which is destroying the local markets in India, has intensified poverty and inequity within rural areas, and between rural and urban areas.

TRIPs AND INDIAN AGRICULTURE

Biotechnology is the technology of live systems. It involves the use of living systems to give society more or better food, drugs and other products. Biotechnology, therefore, has application in diverse industries, including agriculture. The WTO TRIPs Agreement exerts a very significant influence on the future of biotechnology in agriculture. As importance of agriculture in Indian economy cannot be undermined, it becomes necessary to examine the implications of TRIPs Agreement vis-à-vis biotechnology developments in Indian agriculture.

Patenting Plant Varieties
Article 27.3 (b) of the TRIPs Agreement outlines the obligations of WTO member countries vis-à-vis plant variety protection. It states that the member countries shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. Plants and crops, including food varieties and living creatures, all of which constitute a significant area of daily life, are now being patented. Countries are obliged to accept new biotech patents covering genes, cell lines, organisms and living processes that turn life into commodities. The Western biotech companies have patented several genetically engineered plant varieties. A dozen companies – mostly from the United States – hold eighty per cent of these patents. Nearly forty-eight per cent of the four thousand odd plant patents granted in the United States pertain to traditional knowledge from countries like India. Patents have been granted by the United States Patent and Trade-mark Office on karela, jamun and brinjal, turmeric (later cancelled), neem, basmati, etc. Such patent  grants ignore the fact that the (medicinal) properties of these plant varieties form part of common traditional knowledge in India. Thus it is to be noted that the WTO’s intellectual property rights regime legitimises pirating of valuable genetic material from gene-rich countries. The industrialised nations have the technology but they do not have the bio-resources, which are located in the developing countries. The harmonised intellectual property regime is an attempt by these technology-rich nations to create instruments to gain access to the bio-diversity and genetic wealth of developing countries and then after minor modification such as ‘reshuffling of genes’, to convert that bio-diversity into intellectual property over which they can claim exclusive rights.

Bio-diversity is found in the poor and marginal farmer’s field. The small scale subsistence farmer under the traditional low input farming system and mixed cropping pattern not only maintains but, year after year, further generates bio-diversity. From time immemorial our farming communities have identified, domesticated,  improved, conserved and developed plant species. Not only have the farm families created the basis of agriculture but have also identified important traits such as high yield, disease resistance, resistance to water logging, salt, heat or drought tolerance, in these plants. Each farmer has shared his innovations with others without maintaining a record as to who has innovated what. Hence genetic research and knowledge of bio-diversity is considered as farming community knowledge. But now in a restructured and globalised economy our pool of rich genetic resources and the traditional knowledge of our informal innovators is being pirated by formal innovators who are giant trans-national corporations. According to the UNDP Report, eighty per cent of the world’s population, for its food and medicinal needs, depends on the knowledge of these indigenous communities. The Report cites more than hundred cases where developed countries have benefited from the bio-resources and the indigenous knowledge of developing countries. And this benefit to the developed nations has been free of cost, without compensating the farm communities either for their bio-resources or traditional knowledge. If a royalty of two per cent had been levied on these materials, it would have generated about $5 billions.

Patenting of biotech processes and products has raised a great furore all over the world. On the one hand, private and public interests in biotechnology industry are demanding stronger patent protection to boost innovation and to recover compensation for the huge expenditure in biotechnology. On the other hand, the farm families and indigenous communities, who though instrumental in conserving the genetic heritage are left with no benefits, are raising socio-economic concerns to check patents on organic and breeding material. Even the environmentalists are against patenting of seeds and plant varieties as this will result in genetic erosion and a drastic reduction in diversity of food crops, as fewer varieties will be monopolised by a handful of trans national seed corporations. The small farmers, fearing the potential monopolies of yet bigger and stronger units, worry that they would loose access to breeding material. The traditional seed varieties that can be traded or planted for free every year might become difficult to find or could get contaminated by engineered crops in the neighbouring fields. Then the powerful seed multinationals would have monopoly over the seed – the most basic source of a farmer’s livelihood and life.

Moreover, there have been vocal and acrimonious arguments for and against genetically modified (GM) crops. According to the proponents, GM crops are healthier and more productive than  crops derived from conventional means. They assert that agricultural biotechnology, through genetic engineering or genetic modification, is the only way to raise agricultural productivity, improve country’s food security, tackle rural poverty and foster sustainable development. Most private sector biotech companies such as Aventis, Monsanto and Syngenta are confident about the safety and value of their products such as GM potato, GM sugarbeet, BT cotton, Starlink maize and Roundup soyabean. The opponents of GM crops, who are not at all convinced about the necessity of such technology, are concerned about the safety of such crops. They point out that the first and second generation GM crops are considered to be unsafe as very little information is available regarding the actual technology involved and the after effects of the interaction between the genetically engineered organisms, consumers and environment. They have dubbed GM crops as “Frankenstein food”. They have also voiced their concern over the disastrous impacts of allergy proteins, production of super weeds and leaking of killer micro-organisms/pollens in the environment.

Unless India evolves a pro-poor agricultural biotechnology, it is unlikely that the new biology-based-knowledge economy will bring broad or deep benefits to either the seed industry, agricultural sector or subsistence farmers in India. India must think about protecting its farmers’ rights, food security and food safety, and environment, otherwise it could easily land itself into an Indonesia-type situation. In Indonesia, rice production has been dominated by one single variety which has Indonesia in a state of severe food vulnerability. The Indonesian Government is annually importing 5 million tones of rice. The Indian policy-makers must therefore tread slowly and surely before devising a regulatory regime that will ensure that the potential benefits of agricultural biotechnology are realised in India for Indians. The use of biotechnology in agriculture must be governed so that it can help meet the desired societal goals.

Sui Generis System

Article 27.3(b) of the TRIPs Text provides an option to the patent system so far as plant varieties are concerned. If a WTO member nation decides against patenting of plant varieties, it may do so. But then, it will have to adopt an ‘effective sui generis’ system. Sui generis means ‘of its own kind’. It  means a unique or special system of national intellectual property rights legislation that protects plant varieties and its breeders. It is therefore abundantly clear that Article 27.3 (b) of the TRIPs Text does provide a member nation flexibility in developing a system of plant variety protection that is truly of ‘its own kind’. Despite this, it is deliberately projected that UPOV is the only effective sui generis system.

During the decades between the two world wars, the industrialised countries realised the potential benefit that could accrue from systematic and scientific plant breeding. But selective, systematic and scientific plant breeding on a large scale involved labour, time, investment and also risk. Hence a need was felt in these countries for effective legal protection to plant breeders and to encourage them with incentives. Therefore in the early 20th century, as an alternative to patenting, plant variety protection in various forms was introduced in the West. But the criteria for grant of rights varied from country to country and even the concept of plant variety was not the same in these countries. Further, though these countries provided  plant breeders’ rights to their own nationals, they refused to extend them to nationals of other countries. To harmonise the laws, in 1961, a number of European nations adopted the International Convention for Protection of New Varieties of Plants, popularly known as UPOV.

UPOV defines and provides for plant breeders’ rights in new plant varieties. It contains rules relating to conditions for granting protection, scope of protection, restrictions and exceptions to protection, and forfeiture of protection. It also ordains national treatment to plant breeders of other member countries. UPOV was revised in 1978 and 1991.

Under the UPOV Convention 1978, the plant breeder of a new variety has an almost total monopoly of producing and marketing his variety via the seed trade. His right is subject to only two exceptions:

  • The breeder’s exemption, which permits any other breeder to use the protected variety for breeding purposes; and
  • The farmer’s exemption, which gives the farmer the right to retain protected seeds from his harvest to plant the next crop.

In 1991, the UPOV Treaty was revised. UPOV 1991 embodies significantly higher standards of protection. It moves the system of protection closer to patents. It further strengthens the monopoly rights of the breeder of a new variety. The breeder’s exemption and the farmer’s exemption have been considerably curtailed.  The breeder has to pay royalty to the right-holder, if his new variety resembles the protected variety in any trait. Similarly, the farmer is not automatically allowed to use farm saved seeds of protected variety to sow the next crop. He has to either pay compensation for use or obtain the approval of the breeder. Plant breeders are giant MNCs whose only interest is in maximising their profits. It is illogical to expect them granting such approvals to farmers, who would otherwise have to purchase the seeds from these MNCs.

UPOV was enacted to protect agriculture in the industrialised North, where it is dominated by cash rich corporate cultivators and where private appropriation of the seed is an integral part of the agricultural system. It ensures that the plant breeder has strong protection for his intellectual property and is able to commercially exploit it. It ignores the interests and the traditional rights of millions of small and marginal farmers and the indigenous communities who have been breeding, nurturing, domesticating, improving, adapting and developing seeds for thousands of years. According to Genetic Resource Action International, UPOV system promotes commercially bred varieties geared for industrial agricultural systems in which farmers have to pay royalties on genetically uniform modern varieties of seeds and the seed sector becomes an investment opportunity for chemical and bio-tech companies. This is done at the expense of more sustainable bio-diverse systems, in fact, it leads to genetic erosion in favour of plant varieties that are more distinct, uniform and stable.

In February 1998, pro-UPOV forces succeeded in making eleven of the poorest countries in Africa sign UPOV Convention of 1991. These countries are members of the French-speaking African Organisation of Intellectual Property. They enjoy the special status (within the WTO) of ‘least developed countries’. Hence they did not have to implement Article 27.3(b) of the TRIPs Text until January 1, 2006. But they were coaxed, coerced and misguided in adopting and implementing the monopolistic regime of UPOV 1991, much before the date they were legally bound to. Pushing these nations into UPOV clutches amounts to a deliberate move to undermine pro-farmer legislative processes that were underway in Africa. For more than three decades, UPOV officials have been trotting around the Southern world to enlist new members into their club. Until TRIPs Text came around, they met with little success. On January 1,1995, when TRIPs Text came into force, UPOV membership comprised 27 countries, all but three of which were industrialised nations. But thanks to the deliberate confusion that was created in interpreting Article 27.3(b) of the TRIPs Text, by 1999, UPOV membership escalated to 43 nations, 11 of which were developing countries. It must be pointed out that the TRIPs Text  neither refers to UPOV, nor imposes an obligation on the member states to adopt legislation consistent with UPOV system, nor to become a member of UPOV. On the contrary, a conjoint and harmonious reading of Articles 8 and 27 of the TRIPs Text permits a member state to enact specific legislation that may be different from the UPOV system, if it is necessary to protect its food security, vast biological resources, indigenous farming communities and their common knowledge.  It may be pointed out that even the Doha Ministerial Declaration indicates that WTO member countries can adopt measures to address concerns relating to food security and rural development.

Adopting a UPOV model will spell disaster for India. It will lead to an increase in price of seeds due to monopoly in the seed industry. Second, the anxiety to develop new improved plant varieties will keep our farmers away from traditional varieties, thereby contributing to shrinkage in the genetic diversity of cultivated species. India can boast for possessing the largest diversity of cultivated crops in the world. One specie of mango has been diversified in India into at least a 1000 varieties. Similarly, one specie of rice has yielded almost 50,000 distinct varieties in India. Third, the entry of gigantic seed TNCs in India will eliminate small farmers and increase unemployment manifold. These TNCs will stimulate creation of few varieties that will be useful to commercial farmers but not to the traditional, small scale and marginal farmers.

PLANT VARIETIES PROTECTION AND FARMERS’ RIGHTS LAW

A system of protecting plant varieties is of paramount importance to India for two reasons: one, to prevent the northern TNCs from stealing our vast and rich biological knowledge and material. Hundreds of Indian plants have already been registered in western countries. And two, progress depends on inventiveness, and inventiveness has to be encouraged through incentives. Therefore, plant breeders’ rights have to be protected. But plant variety protection should also take into account various socio-economic factors in India. The day to day lives of the majority of Indians are governed by what happens in the agricultural sector. Further, more than seventy-five per cent of Indian farming families possess less than two hectares of land. And the landless labour who depend on agriculture for their livelihood constitute fifty per cent of our village life. Therefore, our plant variety protection law must take into account these socio-economic realities.

If plant breeders are to be protected for developing new and better varieties then the  farmers too should be protected and rewarded for developing and maintaining the land races for centuries. Their traditional knowledge should be recognised and compensated for. It is the abundant knowledge and material in the possession of these indigenous and farming communities which forms the base for modern agricultural research. The raw materials for the plant breeders come from the fields of these small, traditional and marginal farmers. Justice therefore demands that these farmers share the benefits along with the breeders. The Convention on Biological Diversity, founded on the principle that local farming communities generate and are dependant on bio-diversity and should continue to benefit from it, too recognises and respects the collective rights of the local farming communities. And the International Code of Conduct for Plant Germ Plasm Collecting and Transfer, adopted by FAO in November 1993, which promotes sharing of benefits derived from plant genetic resources between the donors and users of germ plasm, states that the farmers’ rights means the rights arising from the past, present and future contributions of farmers in conserving, improving and making available plant genetic resources, particularly those in centres of origin/diversity.

The Indian Plant Variety Protection Law should have two main aims. One, to improve the agricultural production and scientific knowledge, and conservation and protection of genetic resources and not mere monopolisation of our rich bio-diversity. Two, to admit, reward and encourage the past, present and future contributions of our farmers in conserving, improving and making available plant genetic resources to the society. In other words the Indian law should focus more on the contributions of our farmers and their property rights in the vast biological resources.

What is the Indian law on this point? What does it say? How effective is it? The   Plant Varieties Protection Bill was first drafted in 1994-95, when it was simply known as Protection of Plant Varieties Bill. The draft Bill had no mention of farmers’ rights as it was based on the UPOV model. It gave rights to plant breeders alone. It was because of the insistence of NGOs and other action groups that farmers’ rights got some place in the revised Bill of 1998, and the Bill was then titled as Protection of Plant Varieties and Farmers’ Rights Bill. But the farmers’ rights in the Bill were very weak. The Bill was heavily biased in favour of the plant breeders and against the farmers. It gave the farmer the right to save, use, exchange, share or sell the produce of the protected variety, that is, the right over the crops he had grown. But it took away his right and control over the seeds of the protected variety, a traditional right that he had enjoyed since time immemorial. Further, the conditions for compulsory licensing in the Bill were irrational and illogical. Further still, the National Authority set up to oversee the implementation of the Act was thoroughly bureaucratic. It did not have a single farmer as its member. The 1998 Bill was once again revised in 2000, when the farmers’ rights were strengthened and other provisions introduced/amended to safeguard Indian agriculture. The Bill was finally passed on August 9, 2001 by the Lok Sabha.

The Protection of Plant Varieties and Farmers’ Rights Act, 2001, now purports to strike a balance between the rights of the plant breeders and the farmers. This is reflected in the Preamble which says that it is “necessary to recognise and protect the rights of the farmers in respect of their contribution at any time in conserving, improving and making available plant genetic resources……” In the same breath, the Preamble admits that “for accelerated agricultural development in the country it is necessary to protect plant breeders’ rights….for the development of new plant varieties.”

The Central Government is empowered under section 3 of the Act to establish a Protection of Plant Varieties and Farmers’ Rights Authority, to which is entrusted the implementation of the Act. The Authority shall comprise of a Chairman and fifteen other members. Except for three members, one representing a tribal organisation, another representing a farmer’s organisation and a third representing a women’s organisation, the remaining twelve members  are bureaucrats. The composition of the Authority should be more representative of the indigenous and farming communities, whose interest it is supposed to promote.

The Act also provides for setting up of a Plant Varieties Registry for facilitating the registration of plant varieties.

Any breeder or successor of the breeder or assignee of the breeder or farmer/group of farmers/communities of farmers or university or publicly funded agricultural institution, claiming to be a breeder, may make an application to the registrar for registration of any variety of genera or species specified by the Central Government under section 29(2), or which is a farmer’s variety or an extant variety.

A  farmer’s variety means a variety which:

  • has been traditionally cultivated and evolved by the farmers in their fields; or
  • is a wild relative or land race of a variety about which the farmers possess common knowledge.

Whereas, an extant variety means a variety available in India, which is:

  • notified under section 5 of the Seeds Act 1966; or
  • farmer’s variety; or
  • a variety about which there is common knowledge; or
  • any other variety which is in public domain.

The Act provides for registration of new varieties if they conform to the criteria of novelty, distinctiveness, uniformity and stability. An extant variety too can be registered provided it is registered within a specified period and it conforms to the criteria of novelty, distinctiveness, uniformity and stability.

The breeders’ rights are very well recognised and protected under the Act. Registration confers exclusive right on the breeder, his successor, his agent and his licensee to produce, sell, market, distribute, import or export the variety. Any infringement of his right entails stringent punishments in the form of hefty fines [Rs.50,000-20 lakhs] and imprisonment [3 months-3 years]. Infringement may be of the variety itself or its packaging. Burden of proving innocence is on the alleged violator. However a redeeming feature of the Act is found in section 42 which grants protection against innocent infringements. The Act recognises the need to protect an innocent, illiterate and poor Indian farmer from prosecution for infringement of breeders’ rights if the farmer can prove that he was unaware of the existence of such a right.

Registration granted can be revoked by the Authority if the grant is not in public interest. The government is further empowered to refuse registration of plant varieties in public interest or to protect public order or public morality or human, animal and plant life and health or to avoid serious prejudice to environment.

Terminator technologies are being developed to deliberately create sterile seeds by selectively programming a plant’s DNA to kill its own embryo. This is done so that the farmers remain perpetually dependant on the seed corporations. To overcome this sinister plan, the Act bans registration of any variety containing technologies such as ‘terminator technology’ or ‘gene use restricting technology’ which are injurious to the life and health of human beings, animals or plants. Further, breeders have to submit an affidavit that their varieties do not contain terminator technologies or gene use restricting technologies. But the Act does not have a mandatory clause to conduct environment impact assessment to ensure that new varieties do not displace bio-diversities.

The government is further entitled to compulsorily license protected varieties to other breeders if the original plant breeder abuses his rights and acts against public interest by not producing, distributing and selling the seeds or other propagating material of the registered variety in sufficient quantity to the public at a reasonable price.

The Act admits researchers’ rights. It allows researchers and scientists to have free access to registered varieties for research purposes and for the purpose of creating other new varieties. However, authorisation of the breeder is required when repeated use of the registered variety as a parental line is necessary for commercial production of such other newly derived variety.

The Act acknowledges and respects farmers’ rights. It says:

  1. A farmer who has bred or developed a new variety shall be entitled for registration. But his rights are subject to registration. For generations, farmers have developed new seed varieties and domesticated the wild ones. It is doubtful how many of the 115 million illiterate, small and marginal farmers will be able to register their new varieties with details of their genetic compositions.
  2. A farmer’s variety is also eligible for registration. Such varieties can be registered with the help of NGOs so that they are protected from being pirated by the formal sector breeders.
  3. The Act perceives the farmer not only as a cultivator but also as a conserver, preserver and improver of genetic resources, land races and wild relatives of economic plants. A farmer shall be rewarded from the National Gene Fund provided that the material so selected and preserved has been used as donor of genes in varieties registerable under the Act.
  4. A farmer is entitled to save, use, sow, re-sow, exchange, share and sell, not only his farm produce from the protected variety but also, the non-branded seeds of the protected variety. Thus the farmer’s right to sell seeds to other farmers is protected under the Act. This is so even if the seeds are from a protected variety, provided they are non-branded. The right of the farmer to sell seeds is essential because the Indian farming community is the largest seed producer, providing 85 per cent of India’s annual requirement of sixty lakh tons of seeds. This right of the farming community to retain the same control over the seed production and use as it always had before the Act will help maintain the livelihood basis of farming community and India’s self reliance in agriculture.

A farmer is entitled to be protected against the supply of spurious or poor quality seeds, leading to crop failure. Where propagating material of a registered variety is sold to a farmer, the breeder shall disclose to him the expected performance of the variety. If the propagating material fails to provide such performance the farmer can claim compensation from the breeder through the Authority. This provision requires tightening. Rather than leaving the amount of compensation to be arbitrarily decided by the Authority, the Act should specify the amount of compensation in terms of the projected harvest value of the crop. Further the amount should be large enough to act as an effective deterrent.

The Act views the breeders and farmers as allies in the struggle for a hunger-free India. It permits and encourages a breeder to use the genetic material, conserved by any tribal or rural family, in breeding or developing his variety. The only obligation cast on the breeder is that at the time of making an application for registration of his variety, he must disclose in the application the information regarding the use of such genetic material, in default of which his application is liable to be rejected.

Regarding the rights of the farmers and the breeders as mutually reinforcing, the Act further makes provision for benefit sharing between the two. Section 26 permits the farmer to claim payment/benefit sharing from the breeder for use of his genetic material in the development of the variety of the breeder. The Authority shall determine the amount of payment, depending on the extent and nature of the use of the farmer’s genetic material in the development of the variety of the breeder and the commercial utility and demand in the market of the variety. A farmer, aggrieved by the amount determined by the Authority, may appeal to the Tribunal under section 56 of the Act. The amount of benefit sharing shall be deposited by the breeder in the National Gene Fund. It shall be recoverable as an arrear of land revenue by the district magistrate within whose local limits of jurisdiction the breeder liable for such benefit sharing resides. This provision is open to criticism as it converts the property rights of the farming community to an uncertain monetary payment to be determined unilaterally by a largely bureaucratic Authority. Moreover, payment is only for the genetic material used in the plant variety and not for the knowledge or intellectual contribution of the farming community.

An apparently enabling provision is found in section 41 of the Act. It says that any person or group of persons, whether actively engaged in farming or not, or NGO, may, on behalf of any village or local community in India, file any claim attributable to the contribution of the people of that village or local community in the evolution of any variety. If the Authority, after enquiry, is satisfied of such claim, it may order grant of compensation to be paid to such person or NGO. However, it warrants noting that claims for compensation can be made only after a variety is registered. There is no participation before that stage and no right to intervene at the point at which a commercial breeder is making an application for registration. The claimant cannot stop the registration of a variety. The Act should permit the claimants to participate before and during the plant variety registration. Moreover, the Act puts the burden of claim on the claimants but does nothing to ensure that the information regarding registration of a variety reaches the claimant.

A provision which appears to safeguard the farming community is section 43 of the Act. This section obliges the breeder, who wants to use a farmer’s variety for creating an essentially derived variety, to obtain the consent of the farmer, groups of farmers or community of farmers who have made contribution in the preservation or development of such variety.

Appreciating the inability of an impoverished Indian farmer to pay hefty fees, the Act exempts a farmer, group of farmers and a village community from paying any fee in any proceeding before the Authority, Registrar, Tribunal and High Court under this Act.

CONCLUSION

Globalisation of agriculture has been at the behest of the economically powerful countries. It is a manifestation of the expansionary needs of the gigantic agricultural multinational corporations, and is being forcefully thrust upon the developing countries. Many of the WTO agreements and rules relating to agriculture are bad so far as the developing and agricultural countries like India are concerned. These rules are rigged and smack of double standards and hypocrisy. Consequently, globalisation of agriculture has been lopsided and inequitable, resulting in further marginalisation of the poor farm families. Genetically engineered crops and food products are being produced in which profits are being privatised and costs are being socialised and ecologised. And the poor are being priced out from the food market. Global trade in agriculture, instead of being a source of shared prosperity and poverty reduction, has become a source of misery and distress for millions of poor farmers.

The concept that the world has become one and that India can develop only if she integrates her economy, including her agriculture, with the world economy is nothing but an illusion. The design behind this propaganda is to capture her domestic markets and at the same time not to allow her a foothold in the international market. It is oft said that globalisation of Indian agriculture will lead to economic development. But for whom is this development and at what cost is this development? If development means satisfying the demands of only the affluent sections of the population, numbering 150 million, at the cost of denying human rights to the vast majority of Indians, it is a travesty of development. Globalisation which does not help in ameliorating the lives of the poor masses but instead renders four million handloom weavers and ten lakhs power-loom workers jobless or causes thousands to die on account of starvation due to rise in the price of food or results in an epidemic of kidney sales and suicides by our cotton farmers, is a mockery of growth.

It is not too late to rethink dispassionately  about the merits and demerits of policies pursued by staunch supporters of globalisation. UNCTAD has repeatedly drawn attention to the pitfalls of hasty and thoughtless globalisation. Not all countries have benefited from globalisation. A significant number have been  threatened by marginalisation. Several Latin American,  African and South East Asian countries, who introduced liberalisation externally, without initiating internal reform measures, found to their dismay that the promised development and integration was a mirage! One must never forget that globalisation cannot benefit countries like India, who are not able to enter the world market on equal footing with the developed countries.

The specious plea that there is no alternative is nothing else but escapism. If we really wish to do something constructive – even under the present trying circumstances – it is essential that we fight against the manipulative rules and make the trade fair to sub serve the interests of the poor farm families all over the world. This requires self-confidence and clear-cut commitments. We should be committed to the fact that the end of all development is human development. Hence, all global agricultural policies should be human rights based and must favour the fundamental rights of the world’s poor and vulnerable to food, health, shelter and self-determination. The realisation of human rights of the underprivileged and oppressed sections of human societies require economic and social policies that emanate from people themselves, technologies that build on their own capacities and knowledge, community and people’s control ever the natural and economic resources necessary for life and livelihood.

REFERENCES

Bare Act

  1. Protection of Plant Varieties and Farmers’ Rights Act, 2001.

Books

  1. Bhalla G. S. (ed), 1994: Economic Liberalisation and Indian Agriculture, ISID, New Delhi.
  2. Chandiramani N.M. 1999: World Trade Organisation and Globalisation: An Indian Overview, SPD, Mumbai.
  3. Choudhary R. C. & Singh R. P. (ed), 2000: Rural Prosperity and Agriculture Policies and Strategies, NIRD, Hyderabad.
  4. FAO, 1990: Plant Breeders’ Rights in India, FAO, Rome.
  5. Singh R. P. (ed), 1998: Implications of GATT/WTO on Agriculture and Rural Development, NIRD, Hyderabad.
  6. UPOV, 1995: UPOV-General Information, UPOV, Geneva.
  7. World Trade Centre, 1994: GATT Agreements-Final Text of Uruguay Round, World Trade Centre, Mumbai.
Journals
  1. Chandiramani N.M.: Patents Rights?, Times Agriculture Journal, November-December 2001, Vol. I Issue 1, pp. 53-54.
  2. Chandiramani N.M.: Rights of Breeders, Times Agriculture Journal, January-February 2002, Vol. I Issue 2, pp. 21-23.
Papers
  1. Shiva Vandana: The US Patent System Legalizes Theft and Biopiracy, The Hindu, July 28, 1999, at www.purefood.org.
  2. Wan-Ho Mae: Why Biotech Patents are Patently Absurd – Scientific Briefing Paper on TRIPs and Related Issues, Institute of Science, London at www.i_sis.org.

Weekly

  • Economic and Political Weekly, July 6-12, 2002, Vol. XXXVII No. 27.

 

 

 
 
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