Farmers' rights in India : The way it always was

Suman Sahai

Indian law recognises strong farmers’ rights. For instance, they are entitled to sell seed of protected varieties from their harvest, though not under the registered brand name. [ By Suman Sahai ]

 

In August 2001, India’s Parliament passed the Plant Variety Protection and Farmers’ Rights Act. This is the “sui generis” legislation of India, defining intellectual property rights (IPRs) according to Indian standards rather than adopting a model from elsewhere in the world.

Before the Act was passed, there was a long and heated debate. As a WTO member, India had to comply with TRIPS, the agreement on Trade Related Intellectual Property Rights. Among other things, TRIPS applies to plant variety protection (PVP). WTO members must protect IPRs either by patents, a sui generis system or a combination of the two.

Initially, India’s government leaned towards patents. It launched a large-scale public relations campaign propagating seed patenting as the harbinger of prosperity for rural India. But NGOs like Gene Campaign intervened. An important early event was a farmers’ rally in Delhi. Its single point message was: “No patents on seeds”. The event was organised by Gene Campaign and three farmer organisations, showing the government the strength of the opposition.

In the end, the government was persuaded to opt for a sui generis legislation. The WTO offers no references to existing models of plant breeders’ rights (PBR). Therefore, developing countries tend to draft their PVP legislation according to the model of ­UPOV (International Union for the Protection of New Varieties of Plants), partly because of the pressure of the seed corporations and partly due to lack of alternatives.

UPOV provides rights to plant breeders, but does not recognise farmers’ rights. Gene Campaign’s position was clear from the start: if India was to grant PBR, it would have to grant strong rights to farmers too. Gene Campaign insisted that the farming community had to retain control over seed production and use. It would not do to merely allow farmers to save seed from the harvest to sow for the next crop (“plant back rights”).

Plant back rights are called “farmer’s privilege” in many countries. This right, however, is merely an exemption from a right granted to the plant breeder. This kind of exemption is in force in different degrees in various ­UPOV member countries. But after the last amendment in 1991, such exemptions were made subject to the breeder’s consent. Countries that have since joined UPOV have to comply with standards of 1991, whereas those that joined earlier are bound by the less stringent version of 1978.

Selling seed

Gene Campaign always demanded
– that Indian law include clearly defined farmers’ rights,
– that landraces not be used by commercial breeders unless farmers give their consent and are financially rewarded, and
– that farmers be entitled to compensation should poor-quality commercial seeds lead to crop failure.
The most important issue, however, is the farmers’ right to sell seed to other farmers, even if a variety is registered under PBR. This is key to ensuring that farmers stay relevant as seed producers. Not surprisingly, the right to sell seed was most fiercely contested until the law was finally passed.
The seed industry opposed this right. After the patent option fell through, the industry wanted strong UPOV-style PBR in India. Business leaders managed to persuade some government officials, including senior scientists of ICAR (the Indian Council of Agricultural Research) and top bureaucrats at the Agriculture Ministry. The idea was to allow farmers to save, sow and exchange seed, but not to sell seed of protected varieties.
It took seven years of civil-society campaigns and the intervention of two Parliamentary Committees to establish comprehensive farmers’ rights, including the sale of seed, though not under the registered brand name. Breeders thus stay in control of large scale commercial marketing, while farmers have the right to sell seed and mutually support one another the way they always have at the local level.
Generally speaking, there are three focal points to farmers’ rights:
– PBR should not hinder the traditional right of farmers to save, exchange and sell seeds of all varieties that they grow.
– Protection should also be given to landraces bred by farmers and not only to varieties produced by commercial breeders.
– The regime should reward farmers for their contributions to conserving and enhancing plant ­genetic resources, which commercial breeders need in ­order to develop new crop varieties.
Recognising the contribution of farming communities of the developing world to plant genetic ­resources, the Food and Agriculture Organisation (FAO) introduced the concept of farmers’ rights in 1989 in its Undertaking on Plant Genetics Resources. In November 2001, the International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty) was adopted (see essay by Regine Andersen, p. 147).
The Treaty recognises the rights of farmers to save and use, exchange and sell farm-saved seeds or propagating material. There is, however, no international agreement on the design and implementation of farmers’ rights. That responsibility is left to individual countries.

Indian perspectives

India is the birthplace of crops such as rice, millets, red gram, moth bean, jute, pepper, cardamom, many vegetables and fruits. Over millennia, rural and tribal communities identified plants from the wild and developed them into food and cash crops. The result is the cereals, legumes, spices and vegetable species we know today. Farmers incrementally improved these varieties over time.
India’s sui generis law recognises farmers not just as cultivators but also as agricultural gene pool conservers and breeders of several successful varieties (see box). The rights of rural communities are acknowledged as well.
To understand the importance of Indian farmers’ right to sell seed, one must consider the context of seed production in this country. The farming community is the largest seed producer. Until recently, it provided 85 % of the country’s annual requirement of over 6 million tons.
Denying farmers the right to sell seed would have resulted in a substantial loss of rural incomes. In addition, the farmer would lose self reliance in seed and become dependent on outside seed suppliers. In ­Europe, the US, Canada, Australia, New Zealand, Japan and to a lesser extent South Korea and some Latin American countries, the largest seed suppliers are agro-chemical multinationals that have turned into “life science” corporations.
These industry giants have taken control of the international seed market by buying up all smaller seed companies. That strategy, however, would not have worked in India. Since there are not enough large seed corporations and farmers themselves are not a purchasable company, multinational corporations could only gain control of the Indian market if farmers were denied the right to sell seed. That is why there was such heated debate over farmers’ rights. Control over seed production is key to a country’s food independence. A nation that does not produce its own seed – and food – is not secure.

Protection for rural communities

India’s sui generis law not only allows farmers to sell unbranded seed of protected varieties, it protects their rights in other ways too. It acknowledges the role of rural communities as contributors to breeding landraces, which are essential for the creation of commercially valuable new varieties. Breeders who want to use landraces to create what is legally called an “essentially derived variety” (EDV) need the permission of the farmers affected.
EDVs are basically the same as the parent variety except for limited, specific changes. They virtually retain the original genetic structure. Most genetically modified (GM) varieties are EDVs. For example, Bt cotton, Bt corn or any other Bt crop are varieties identical to their parents except that they contain a bacterial gene from the Bacillus thuringiensis.
The Indian law has provisions for benefit-sharing when farmer varieties are used in breeding. A share of profits made from new varieties is required to be paid into the National Gene Fund. For this to happen, farmers’ landraces need to be registered. The Indian law allows any person, governmental or non-­governmental agency to register a community’s claim and have it recorded at an official centre.
Farmers’ rights are also protected in the so-called “passport data”, which people have to submit when applying for a breeders’ certificate. Passport data contain a host of information, including the parentage of the new variety and the names and locations of landraces used. Breeders certificates will be cancelled if such information is found faulty.

Farmers’ rights according to Indian law also prohibit breeders from using sterile seed technologies. Breeders have to submit an affidavit that their variety does not contain Gene Use Restricting Technology (GURT or terminator technology).

Moreover, farmers are exempt from paying fees if they wish to examine PBR-related documents and papers or receive copies of rules and decisions made by various authorities. Fees, however, are applicable to everyone else. Finally, the law states that farmers cannot be prosecuted for infringement of rights specified in the Act if they can prove in court that they were unaware of the existence of that rule. For example, farmers are protected from punishment if they can prove that they only accidentally sold seed under a breeder’s registered name.

MONSANTO CLEARING THE DECKS FOR ITS SECOND BT COTTON

Suman Sahai

The March 5, 2010 statement by Monsanto that Bt cotton in Gujarat is now demonstrating resistance to pink bollworm , does not add up. For one, it has been known for quite some time that the Bt cotton in India, was in fact susceptible to the pink bollworm. Gene Campaign had first made this observation in 2003, after documenting the performance of India’s first ever Bt cotton harvest.

The 2003 study found that Bt cotton hybrids had a mixed response to the bollworm ( Helicoverpa armigera) , but they did not offer protection against pink bollworm (Pectinophora gossypiella). Pink bollworm attack was found to be severe after 60 to 70 days and farmers used several sprays to control the pest. There is a genetic basis to the resistance of pink bollworm . Scientists have shown that field populations of pink bollworm harbour three genetic mutations that confer resistance to Bt toxin. Because the Bt.-resistant pink bollworm larvae mature into adults synchronously and later than the susceptible larvae, they are more likely to mate with each other, rather than with susceptible bollworm .In this way, the resistant pink bollworm not only persists but increases in the population. No surprises therefore that Bt toxin is unable to control the pink bollworm.

In fact the question of resistance build up in the ‘worm’ pests of Bt cotton ( there are more pests of other kinds) , the bollworm, tobacco budworm and the pink bollworm, is a given. No pest can be kept down for ever, as our lifelong experience with pest control demonstrates. Sometimes the host plant comes out on top, sometimes the pest does. But almost always, pests ultimately develop resistance to a single agent used to kill them. Pest resistance in Bt cotton is being reported for some time now. The first reports came from Arkansas in the American cotton belt, where Bt cotton was first introduced.

In 2006, scientists from the Nagpur-based Central Institute of Cotton Research (CICR) had noted pest resistance in Bt cotton fields and sounded the warning against growing resistance developing in the cotton pest, specially marking Gujarat as vulnerable. CICR said that incorrect farm practices like not planting insect refuges and the spread of illegal Bt cotton is accelerating the process of resistance development and it would only be a matter of time till the bollworm develops complete resistance to Bt toxin.

A 2007 study in China led by the Cornell University ,found that six to seven years after adopting Bt cotton, secondary pests had become so dominant , that farmers were spraying heavily to control these. Bt toxin is directed only at leaf-eating bollworms, so other pests remain unaffected. In an effort to keep the Bt cotton strategy alive and the pests vulnerable to the Bt toxin, Chinese scientists have begun implementing a more integrated pest control using natural predators to kill the secondary pests and enforcing the planting of refuge areas where broad-spectrum pesticides are used.

With all this evidence already available, Monsanto owning up that the pink bollworm is now resistant to the Bt toxin, is less a mea culpa than setting the stage for something else. This sounds like a prelude to the push for the promotion of Monsanto’s second generation Bt cotton, the Bollgard II. Granted approval for commercial release some years ago, Bollgard II carrying two Bt toxin genes instead of only one, as in the first generation Bollgard I, is already being cultivated in parts of India. So is Monsanto trashing its first Bollgard to promote its second Bollgard? It would seem so.

Given that there are over 300 Bt cotton hybrids approved by the GEAC, and most companies, barring a few like Nath Seeds ( which use a different Bt construct) , have already paid up their license fees to Monsanto for using its Bt gene, the market is getting saturated . Monsanto has already milked the Bollgard I Bt gene construct substantially. In addition to this, is the problem of the spread of illegal / spurious Bt cotton hybrids flowing out of cottage industries in Andhra Pradesh, particularly Kurnool, which are eating into Monsanto’s profits, so its time to switch to something else.

Introducing Bollgard II ( the 2 gene Bt cotton) will bring in a new period of fresh license fees as companies are forced to license the stacked gene construct with two Bt genes from Monsanto. With stagnating profits from Bollgard I ( the one gene Bt cotton), the next boom in earnings from license fees will happen for Monsanto if Bollgard II is promoted as extensively as Bollgard I was. Monsanto’s statement about resistance is calculated to achieve this goal by persuading GEAC and other policy bodies that the Bollgard I has outlived its utility and it is time to shift to Bollgard II. Monsanto has already been boasting that Bollgard II is ‘ten times better’ than Bollgardd I.

There is however a real problem associated with introducing the Bollgard II cotton in situations like India. Scientific publications point out that the one gene Bt cotton and the two gene Bt cotton cannot be cultivated in the same region, that is, they cannot coexist. If they are made to do so, the development of resistance in the bollworm will be very rapid and the technology will fail even faster than has been estimated. Therefore scientists recommend that if Bollgard II is to be introduced, Bollgard I must be withdrawn from cultivation completely.

It would be practically impossible to do this in India. Where we have failed to check the spread of illegal variants, it is not realistic to expect that the existing legal and illegal one gene Bt cottons can be withdrawn from farmers fields. Then there are the companies who have licensed the expensive Bollgard I technology from Monsanto and have only just brought their hybrids to the market. It is unlikely that they would be prepared to abandon their investments and potential profits and have to license the new gene construct if they want to stay in the Bt cotton business.

In countries like the US , technology change is not difficult since the seed is replaced easily. Farmers do not save seed from their farms, they always buy new seed and are used to dealing with ‘packages’ from the company . The seed and the inputs required for cultivation, come together. In the case of GM crops like Bt cotton, they sign legally binding contracts with Monsanto that they cannot save seed for themselves, even when the seeds are true breeding varieties, and not hybrids, as is the case in India. In such situations, farmers simply receive a new package in which Bollgard I would simply be replaced by Bollgrad II. In the case of India, where there are hundreds of approved Bt cotton hybrids and hundreds of others that are spurious and not approved, getting Bollgard I out of the field before introducing Bollgard II will be near impossible.

Rather than get into the trap of replacing Bollgard I with Bollgard II and ending up with a bigger mess than we have today, we should take a step back and review our Bt cotton strategy. Following China’s example and promoting Integrated Pest Management (IPM) would be a good beginning. IPM was in any case the government policy for pest control until Monsanto came along with its Bt cotton.