AUTHORED BY – MEENAKSHI & ABIN P SHAJU

Farmers’ are an important part of the economic, social, and political fabric of the society in developing countries[1]. India is popularly recognised as an Agrarian Economy as agriculture plays an irreplaceable role in nurturing said economy by way of generation of employment as well as maintenance of GDP. Hence, the diversity in structure and historical significance of the Sector, combined with the above mentioned factors, constitute a constant need for adequate Farmers Rights to exist.However, with the dawn of an era of privatisation, the need for a comprehensive system of protection has arisen as well, as it is quite evident that the industrialisation of the agrarian sector has robbed farmers of their autonomy over seeds. Thus, it may be stated that the extent of influence that the private sector wieldsover the agrarian sector via employing Intellectual Property Rights and the Legislative provisions available to combat the exploitation of such influence forms a subject thatdemandsthorough analysis.

The industrialisation of agriculture was a process that marked its beginning in the 1950s and gradually developed throughout the 1960s and 1970s. This resulted in production processes being extremely mechanised, thereby significantly transforming agriculture from what it once was. Some among the many factors that facilitated said transformation include specific markets that emerged for seeds, fertilisers, animal feed, pesticides and so on, which in turn created a system where farmers could not manage to produce their crops autonomously. Instead, they metamorphosed into mere members of a long chain of production.

Seeds have constantly been the very foundation of social, cultural and productive processes that have accorded the rural population with the ability to maintain a certain level of autonomy. However, with the development of capitalism in the agrarian sector, laws that grant property rights over seeds have been reinforced by other regulations that are supposed to ensure seed quality, market transparency, prevention of counterfeits and so on. These regulations include seed certification, marketing and sanitary rules. By means of these regulations, it becomes mandatory, for instance, for farmers to purchase or use only commercial seeds tailored for industrial farming[2]. Not all small-scale farmers are ina position to take advantage of new opportunities. Subsistence farmers innovate predominantly in response to risk, while only those with accumulated assets, expanded production or off-farm employment are able to ‘step out’ into commercial markets.[3]

In India the contribution of Agriculture in terms of livelihood and as a source of employment is significant. Therefore, it is absolutely necessary to thoroughly understand and protect farmers’ rights. Exploitative practices employed by private entities in the name of Intellectual Property Rights such as the issue at hand concerning the privatisation of seeds may be combated by exercising such rights that have been warranted byLegislations such as The Protection of Plant Varieties and Farmers Rights Act, The National Biodiversity Act, The Geographical Indications of Goods (Registration and Protection) Act and The Seeds Act.

The Protection of Plant Varieties and Farmers Rights Act (hereinafter referred to as PPVFR)[8] is the most significant legislation that has been implemented in the nation with respect to Farmers’ Rights. Although the Act was introduced in order to satisfy the demands of the seed industry, which was pushing for breeders rights, it came to be the primary law for the purpose of protection of farmers rights as well.Prior to the introduction of Intellectual Property Rights into agriculture, it was extremely common practice for farmers to retain seeds to use for the next round of cultivation, or even share or exchange the same. These practices were governed by the principle of free exchange (common heritage). This principle was built on the ideology that the major food crops are not under the ownership of a specific entity. Instead, they were thought to be a part of genetic resources governed by human heritage. However, the downside to this was that there was no system of compensation or benefit sharing, thereby negatively impacting breeders as they could not acquire plant variety protection.

The Rights of Plant Breeders in India were first advocated for by The Seed Association of India. This movement garnered strength with the conclusion of the TRIPs agreement and thus, the government commenced the process of drafting an adequate legislation for the same. However, it was only post five revisions that a legislation that incorporated both farmers and plant breeders rights could be formulated. Subsequent to such revisions, nine rights were established in favour of the farmers of the country with regard to selecting, saving and maintaining seeds. The first among the same would be the Right to Seed[9]. This provision actively aims at attempting to secure the rights of farmers to use, save, sell or exchange seeds as they did prior to the implementation of the PPVFR Act. The conservation of this right was one of the most significant demands put forward concerning the topic. However, according to the provision, the right is only preserved conditionally and the farmer is not entitled to sell seeds in a packaged form that is labeled with a registered name. Similar to the right to seed, the Right to Register Varieties has also been warranted via the PPVFR. This is similar to the rights granted to commercial breeders to seek IPR over varieties that farmers develop. The criteria for the accordance of IPR for the same is similar as well, namely, the presence of factors such as stability, uniformity and distinctness. This is a unique right warranted by the Indian legal system and provides exclusivity with respect to the production and marketing of the registered variety of seed. Subsequently, we can see that the legislation also warrants rights apropos of Reward, Recognition and Benefit Sharing. These provisions have paved the way for the establishment of the National Gene Fund, which in turn rewards farmers that facilitate the conservation of varietal development of plants. The fund is maintained through the payment deposited by breeders under the title of ‘benefit sharing’, a claim of which may be submitted by a person or group of persons, a firm or a governmental or non-governmental organization.

The Right to Information and Compensation for Crop Failure[10]and the Right to Compensation for Undisclosed Use of Traditional Varieties as provided under the PPVFR are extremely significant when considering the extent of protection that they guarantee exclusively to farmers. The former requires breeders to provide information regarding the expected performance of their respective registered variety and if such crops fail to perform or grant an adequate yield, then the farmers can claim compensation under said provision. Similarly, the latter stipulates that in cases where it is established that the concerned breeder has not divulged the source of varieties that belong to a particular community, then compensation would be granted through the National Gene Fund.

The Right to Availability of Registered Materialemploys the IPR’s that are in the possession of breeders in favour of farmers by stipulating that such breeders are to provide ample supply of seeds or material of the concerned plant variety to the public at a reasonable and fair price. Moreover, if post three years of registration of said variety, the breeder fails to accomplish the same, any person can apply to the Authority for a “compulsory licence”. Compulsory licenses possess the power to revoke the exclusive right granted to the breeder and enable third parties to produce, sell or distribute theregistered variety. Moreover, the Right to Free Services and the Right to Protection from Legal Infringement in case of Lack of Awareness take into account the possible deficit in cognizance among farmers in relation to aspects of law and ensure thatthey are not held liable for the same. These provisions also focus on imparting information to people employed in the agrarian sector to maximise their awareness of the rights that are available to them.

The National Biodiversity Act[11] (NBA) is largely based on the Convention on Biological Diversity and has its nucleus at regulating access to genetic resources in India. It focuses on guaranteeing safe and fair use of the same as well. The primary intention of the legislation revolves around establishing the nation’s sovereign right over its genetic resources by establishing administrative regulations for foreigners, as well as Indians, to access the same. The NBA has implemented several provisions for the purpose of preserving and protecting the knowledge of local communities. A method for warranting such protection includes the registration of local knowledge. Moreover, the NBA actively combats bio-piracy by way of the establishment of Biodiversity Authorities at the National and State levels.

With respect to the topic at hand, it may be stated that the Geographical Indications of Goods (Registration and Protection) Act[12] aims to provide protection for agricultural goods originating from a specific region or territory. Although the Act does not deal specifically with farmers, the impact it exerts on farmers in terms of protection that can be granted for agricultural commodities is evident. It can be employed to protect the rights of farmers and it may also restrict the access of farmers to the protected goods depending on its mode of implementation. Benefit Sharing is a significant aspect of this legislation as well. A real-life example of such an agreement of benefit sharing would be the one that was entered into by the Tropical Botanic Garden and Research Institute with a tribal nomadic community in Kerala known as the Kanis. It revolved around a plant with medicinal properties that was discovered by the Kanis and was used by a company under a transfer agreement with the TBGRI to manufacture a drug that had anti-stress properties. Fifty percent of the license fee and fifty percent of the royalties obtained with regard to the drug were agreed to be received by the tribal community as per the benefit-sharing agreement.

The Seeds Act of 1966[13] may be analysed as well and this particular legislation was implemented for the regulation of seed quality with regard to sales that occur in the nation and matters that are associated with the same. Various organisations such as The Central Seed Committee[14], The Central and State Seed Laboratories[15] and Certification Agencies[16]have been established under the Act in order to ensure that its stipulations are adequately carried out. This ensures the protection of farmers from being exploited in such matters.

Therefore, in conclusion, such provisions and practices need to be employed adequately and be developed sustainably in order to ensure that farmers are not exploited and are granted the autonomy that every farmer should ideally be able to exercise.