India’s Protection of Plant Varieties and Farmers’ Rights Act

India’s Protection of Plant Varieties and Farmers’ Rights Act of 2001 is the most far-reaching legislation with regard to establishing rights for farmers to save, use, exchange and sell farm-saved seed.

A unique aspect of the 2001 Act is that it confers three concurrent rights - to breeders, to farmers and to researchers. When it comes to Farmers’ Rights, the Act recognizes the farmer as cultivator, conserver and breeder. The Act establishes nine rights for farmers, of which the most important in this regard is the right to seed and the right to compensation for crop failure (Art. 39).

The provisions on the right to seed specify that farmers are entitled to save, use, sow, re-sow, exchange, share and sell farm produce, including seeds of varieties protected by plant breeders’ rights. They are, however, not allowed to sell seeds of protected varieties as branded packages. All the same, this stands as the most liberal legislation to date in this sphere, allowing farmers all the customary rights they previously enjoyed.

The Act seeks to protect farmers from exaggerated claims by seed companies regarding the performance of their registered varieties. The breeder is obliged to disclose to farmers the performance of the variety under given conditions. If the material fails to perform according to this information, farmers may claim compensation from the breeding company through the Authority set up to administer the Act.

Not only does the 2001 Act protect the rights of farmers to save, use, exchange and sell farm-saved seed, it also seeks to ensure that these seeds are of good quality, or at least that farmers are adequately informed about the quality of seed they buy. In addition, safeguards are provided against innocent infringement by farmers. Farmers who unknowingly violate the rights of a breeder are not to be punished if they can prove that they were not aware of the existence of such a breeder’s right (Art 42).

Ensuring Farmers’ Rights to save, use, exchange and sell seed in this way must be seen as a success with regard to this component of Farmers’ Rights, as these rights are basically fully ensured through the Act. Whether the provision on compensation in case of crop failure can be implemented in practice is another question, as there have been no cases so far. On the whole, India’s Protection of Plant Varieties and Farmers’ Rights Act is the most advanced in terms of Farmers’ Rights to save use, exchange and sell seed to date. It applies to all farmers in India, and to all crop species. So far, twelve crop species have been brought under the scope of the Act, and more species will follow. The practice of saving, using, exchanging and selling seeds may well exist elsewhere, but India is the only country so far where a law has been passed establishing and securing Farmers’ Rights to this extent.

How can this success be explained? 

First, India has been a central proponent of Farmers’ Rights internationally, ever since the mid-1980s when Prof. M. S. Swaminathan chaired the FAO Conference, the highest body of the FAO. Prof. Swaminathan channelled the idea of Farmers’ Rights into the international negotiations and has advocated these rights warmly ever since. He was also a key person in framing the 2001 Act and ensuring that Farmers’ Rights were properly dealt with in India. When the bill was first proposed as a draft in 1993/1994, primarily in an effort to establish plant breeders’ rights, it provoked massive protests. It contained provisions on Farmers’ Rights, but particularly farmers’ organizations and NGOs found them to be too weak. The massive pressure they exercised over time proved successful, and after about five revisions the final bill with its rather strong protection of Farmers’ Rights was adopted. Most of the major stakeholders who had lobbied for revisions ended up approving the final version.

The most important lesson for others is that it is possible to uphold Farmers’ Rights to save, use, exchange and sell farm-saved seed, also within the framework of legislation on plant variety protection. India is a member of WTO and TRIPS and thus required to ‘provide for the protection of plant varieties’. With its 2001 Act, the country complies with the provisions in the TRIPS Agreement on the protection of plant varieties (India’s Department of Industrial Policy and Promotion). Other countries in the same position should therefore be able to pass similar laws without neglecting their obligations towards the TRIPS Agreement. It should be mentioned, however, that India has applied for UPOV membership on the basis of its 2001 Act. Although the application was made in 2002 the country has so far not been granted such membership, as its 2001 Act does not comply with the strict requirements of UPOV.

Furthermore; we note that massive and enduring advocacy can be required in order to succeed with demands for Farmers’ Rights in the context of the development of plant variety protection laws. In India, M.S. Swaminathan Research Foundation has initiated, with the assistance of the government, a programme for capacity-building among farmers, grass root democratic institutions, non-governmental and community organizations in order to enhance the implementation of Farmers’ Rights as provided for in the Protection of Plant Varieties and Farmers’ Rights Act of 2001.

Extracted from AgriGold SwarnaSedyam