This Seeds Bill must go

The National Seeds Bill 2004 has provoked great controversy. It was referred to the standing Parliamentary Committee on Agriculture, after being introduced in the Rajya Sabha in December 2004. The Bill seeks to replace the Seeds Act of 1966. The current draft describes the bill as one “to provide for regulating the quality of seeds for sale, import and export and to facilitate production and supply of seeds of quality and for matters connected therewith or incidental thereto”.

In addition to wanting to put a check on the sale of spurious and poor quality seed and to provide compensation to affected farmers, the draft bill also appears to have an express objective of increasing private participation in the seed trade in the country and to liberalise imports of seed and other planting material into the country, ostensibly to meet WTO commitments. The bill then goes on to propose various mechanisms and modalities by which regulation of seed would happen – compulsory registration of all seed varieties; certification not just by State Seed Certification agencies but by accredited agencies outside the government too; inclusion of commercial crops and plantation crops too into the purview of the Bill; provisions for regulation of transgenic material; slight increase in penalties for contravening the law and so on.

The draft bill seeks to replace the Seeds Act of 1966 and was originally drafted in 2002, and saw some revisions circulated to state agriculture ministries/departments by the Centre in 2003 also. The latest version has been introduced in Rajya Sabha in December 2004, and proved controversial. It was then subsequently referred to the Parliamentary Standing Committee on Agriculture, which sought responses from all stakeholders. Next, a modified version is expected to get back to the Rajya Sabha.

The rest of this article looks at how this bill came about, why it has become so controversial and the changes it needs to become more purposeful and pro-farmer.

Shifting control from farmers to seed firms

Indian agriculture is mainly run by seed saved from farmers' own fields, very often by women in farming communities who use their traditional knowledge and skills in selecting and saving seed. Nearly 75% of the seed required for Indian farming is estimated to be created by farmers themselves in this manner. When it comes to seeds, Indian agriculture has seen and continues to witness a variety of roles that farmers perform. While some farmers and farming communities have been breeders of seed varieties, most farmers are seed producers in that they save seeds from their own crop to be re-used. Many farmers also engage in seed exchange and thereby meet their varied needs. Farmers are also consumers as they buy seeds from companies and traders.

By virtue of these varied roles, there are a variety of rights that accrue to farmers and that they have traditionally enjoyed – rights as breeders, rights as producers of seed (from their own farms), rights as seed exchangers and rights as seed buyers. While the first three are most often in the arena of what is called the informal seed sector, the last is in the formal seed sector.

How do these rights accrue? There are the apriori and customary rights that communities have, by virtue of certain things they were doing, much before any nationhood was created or laws enacted. Activists have been fighting for the apriori rights for indigenous communities and their seed resources, especially outside an IPR framework. A few such rights were recognised in the Convention on Biological Diversity (CBD) and laws flowing from it. Farmers' rights as breeders in particular accrue from the CBD and the Indian legislation based on that - the Biological Diversity Act. These are also enshrined in the Protection of Plant Varieties and Farmers' Rights Act (PPVFR), which was evolved using the sui generis clause of TRIPS, the WTO instrument. It is this legislation which also recognises the rights of farmers as seed users and seed buyers.

However, this is a scenario that is fast changing. Governments are urging farmers to increase seed replacement rates ‘for higher productivity’, with seed corporations using technological, institutional and legal means to increase their markets. The objective seems to be to make farmers seed consumers wherein they depend on external sources for their seed. Within the formal seed sector, the role of the public sector in seed development, production and supply is rapidly decreasing with the private sector taking over.

Why this Bill now?

Seeds in Indian agriculture are governed by nearly thirty legislations – the Seeds Act 1966; the Essential Commodities Act, 1955; the Biological Diversity Act, 2002; Plant Varieties Protection and Farmers’ Rights Act, 2001; Patents Amendment Act, 2005; Environment Protection Act, 1986; Consumer Protection Act, 1986; Geographical Indication of Goods Act, 1999; The Plants, Fruits and Seeds (Regulation of Import into India) Order, 1989 and so on.

While some of these legislations are meant to regulate the formal seed sector and ensure that adequate and good quality of seed is supplied to farmers, others are related to ownership rights over seed resources. These are rights which seek to recognise the parentage of certain varieties and based on that, bestow certain exclusive marketing rights to the ‘developers’ of the seed (breeders’ rights).

The Plant Varieties Protection and Farmers’ Rights Act, which the government has not yet brought into force, expressly talks about farmers’ rights in connection with seed even as it talks about breeders’ rights. A legislation like the Consumer Protection Act 1986 is supposed to uphold the rights of farmers as consumers of inputs like seed, fertilisers, pesticides etc.

The seed industry itself has grown rapidly and changed its profile substantially after the articulation of the National Seeds Policy of 2002 and prior to that, the New Policy on Seed Development in 1988. Legislations which have been enacted in recent times only work within an IPR framework to the advantage of seed companies, including the PVPFR Act. Farmers’ rights are more and more defined only in terms of residual rights, after rights to seed corporations are ensured.

Private capital, including that of foreign seed companies, began to flow in even as mushrooming of several small Indian seed companies happened since the late 1980s. As the seed production and supply chain lengthened in terms of distance as well as number of players in the chain, the need for regulating the seed trade became more urgent and important. In this context, the existing Seed Act 1966 as well as the Seeds Control Order 1983 were found to be inadequate in regulating seed trade and ensuring provision of high quality seed. There are many reasons for this.

The Seeds Act of 1966 is a legislation meant “to provide for regulating the quality of certain kind of seeds for sale” and for matters connected therewith [author’s emphasis]. The Act seeks to regulate quality of seed by first laying down minimum standards and then requiring all seed marketers to conform to such standards. The mark or label of the seed should indicate that the seed conforms to such minimum limits. No person can sell, offer for sale, keep for sale, barter or otherwise sell any seed of any notified variety unless the seed is identifiable to its kind or variety, that the seed conforms to the minimum standards and that the container of the seed bears in the prescribed manner the mark or label indicating the standards of the contents inside.

The implement this law, there is an elaborate institutional set up (apart from the Central Seeds Committee and the Seed Certification Agencies) in the form of Central and State Seed Testing Laboratories, Seed Analysts and Seed Inspectors through which regulation towards good quality seed is sought to be achieved. A person upon conviction for contravention of the provisions of the Act could be punished for the first offence with fine which may extend to five hundred rupees and for subsequent offences with imprisonment for a term which may be upto six months or with fine which may extend to one thousand rupees or with both.

While the Seeds Act 1966 might have met the regulation requirements in the situation that existed during that period, in the current situation, this legislation and its provisions are grossly inadequate. Today, the Indian seed industry has an annual turnover of about forty billion rupees. As the seed sector grew, the scope for more and more unscrupulous elements to enter the picture increased.

In AP, just in the span of three months last year (2004), spurious seeds worth nearly seven crores of rupees were seized during raids all over the state. Further, the existing Seeds Act deals only with notified varieties and there are many varieties which are not notified but which get traded. Certification is also voluntary and not mandatory. There are no adequate deterrents in the Law for offenders – the punitive clauses are very weak compared to the tremendous potential that exists to make quick money at the expense of farmers. There are also no compensatory mechanisms provided for farmers in case of failure of seed.

Given these shortcomings, Maharashtra and Andhra Pradesh wanted to enact their own legislations to regulate the seed industry at the state level. However, the Central Government did not give a clearance for this, citing that a new seeds legislation was on the anvil at the central level. This is the genesis of the current national bill.

General critique

The Ministry of Agriculture articulates the rationale for the new Seeds Bill on its website. There are problems with this rationale. For instance, increasing private participation - it is not clear why increasing private sector participation should be an objective in itself especially to the extent of criminalising farmers who practise traditional systems of exchange and sale. Increasing private participation in seed production, distribution as well as certification and seed testing is bound to bring in conflict of interest where the judged becomes the judge.

Similarly, coming to the stated intention of increasing imports of seed, giving in to WTO commitments is not the primary mandate of the government, but to protect farmers' interests. Imports of seeds should also be understood as bringing in undesirable pests, weeds, diseases as well as seeds which could cause problems for Indian farming - we do not have sufficient technical, institutional and physical infrastructure to check this. The bill also seeks to boost exports of seeds. This could legitimise and facilitate bio-piracy since issues related to ownership/parentage of seed resources are yet to be resolved.

Incompatibility with other legislations and impact on farmers' rights

The Seeds Bill has to resolve both contradictions in concepts and objectives as well as operationalisation conflicts with other laws. First, it is not clear why the government has not brought into force the more progressive PVPFR Act and why it is willfully drafting a legislation which is clearly in contradiction with many clauses of the PVPFR. The PVPFR was also brought out by the Ministry of Agriculture!

The "registration" of plant varieties under the Seeds Bill is likely to create a parallel system to the PVPFR registrations and create much confusion, because the PVPFR Act also allows for rights through "registration".

Second, the Seeds Bill allows for “Registration” of seed varieties without first resolving issues related to parentage/origin of seed while granting rights of commercialisation. The Bill could lead to a situation where plant varieties could be registered by anyone without the obligation of disclosure of origin or without prior informed consent. Ownership/parentage in the context of IPRs could then be claimed by the legitimisation provided by the Seeds Bill. This would lead to bio-piracy and would constitute a clear infringement of farmers’ rights as breeders since all varieties that exist now have their origin in farmers’ varieties. Once de facto breeder rights are appropriated, private interests could obtain exclusive marketing rights. In fact, exclusive marketing rights could be extended endlessly, given the provisions in the Bill!

And unlike in the PVPFR Act, this Bill also has no provision for regulating seed supply or seed pricing. These are two important requirements if the formal seed sector has to be regulated in a manner that farmers’ interests are upheld.

Furthermore, the Seeds Bill is also incompatible with the Environment Protection Act, the Biological Diversity Act and so on. For example, it is the EPA which lays down the procedure for approvals and permissions related to genetically modified organisms. But the current bill seeks to circumvent those rules by talking about provisional registration for GM varieties.

We already noted how the Seeds Bill could impact farmers’ rights as breeders. The Seeds Bill asks farmers to compulsorily register themselves as “Seed Dealers” if they are engaged in saving and exchanging seeds. Secondly, the Bill says that farmers have to conform to the minimum standards laid down through this Bill. Both are clear infringements on the traditional rights of farmers who have always engaged in seed production and exchange with accountability systems that work out at the local level within the social structures of the community.

In the first instance, the traditional seed saving and exchange system is not based on commercial interests and is usually a non-monetised system. Therefore, entry of unscrupulous, unknown "fly by night" operators is minimal. Farmers who seek seed select their choice of seed from other farmers after first seeing it perform in their fields. Certain farmers and even landless women are known for their seed selection and seed keeping skills and the others in the community trust their resource and knowledge. In the author's experience, it is rare that such seeds fail due to deficient quality. Farmers do not knowingly supply deficient seed to other farmers. However, interviews with farmers engaged in seed exchange show that when such an instance of failure does happen, farmers who have borrowed the seeds pretty often assume that it is their management failure rather than the seed failure, especially if they see the same seed performing in other fields. Forcing the seed giver to pay compensation is somewhat rare given that it is perceived that the seed giver is actually doing a favour by lending her/his seed in the first instance. Still, in this traditional system, if a crop fails, the borrower could return any other variety to the seed giver.

Coming to farmers as consumers of seed supplied by the formal seed sector, the Bill has no satisfactory clauses with regard to the institutional set up that will regulate and ensure the quality of seed produced and supplied nor satisfactory punitive clauses that will act as deterrents on unscrupulous seed traders. It also does not uphold the rights of farmers when it comes to compensation in case of seed failure. The Bill proclaims that farmers can claim compensation through Consumer Forums under the Consumer Protection Act 1986. If that was the case, there is no need to draft this legislation again!

As is well known, it is not easy for the farmers of this country who are mostly illiterate to access and successfully obtain redressal through these Consumer Forums. What is needed is a simplified and farmer-friendly redressal mechanism to be provided for in this Bill.

As mentioned earlier, the Seeds Bill is also silent when it comes to seed pricing and seed supply regulations. With the Patents Act coming into force and monopolies being legitimised in the form of IPRs, seed prices are bound to spiral upwards increasing the overall cost of cultivation for farmers. This is already seen in the case of the first transgenic crop in India, Bt Cotton. Ordinary cotton hybrid seed costs around Rs.450/- per acre while Bt Cotton costed Rs.1600/- in its three years of commercial cultivation so far. From this year onwards, the cost of Bt Cotton has been increased further to Rs. 1800/- per acre!

On transgenic varieties

In the case of transgenic varieties, the Seeds Bill has a confusing and unclear proposal called "Special Provision for Regulation of Transgenic Varieties" - it proposes a provisional registration for two years, subject to clearance under the Environment Protection Act. It is unclear why this provisional registration is being proposed and what the operationalisation implications are. While some have interpreted it as a violation of the EPA, others feel that it is probably a cautious approach to GMOs where only provisional registrations are provided.

If the former is the case, where transgenics are sought to be introduced through the backdoor, then there is much cause for concern. Genetic engineering is an irreversible and uncontrollable technology. Once released into the environment even for one season in a small scale, the potential for environmental damage and human health impacts could be tremendous. In a country where even existing liability mechanisms are not being enforced, suggesting such a provisional registration is suicidal. Transgenic contamination of seed stocks would become inevitable and irreversible in this country. The threat to our original seed stock from where other varieties could be evolved is immense from GE and should be recognised for what it is.

No vision for decentralised regulation

The Seeds Bill relies on the same old institutional mechanisms that are found deficient and ineffective in implementing the current Seeds Act and Seeds Control Order. Institutional mechanisms proposed should incorporated decentralised planning. This is best done in the public sector given the elaborate R & D set up and the agriculture departments that are in place. Instead of doing away with the extension system and trimming the departments more and more, there should be adequate investments on State Seed Development Corporations, on Seed Certification Agencies, on Seed Testing Laboratories and most importantly on programmes like Seed Villages which could incorporate training on breeding skills to farmers where required.

The proposed institutional mechanisms allow for conflict of interest elements to creep in during seed trials, testing, certification, etc. Under the new Bill, for instance, accredited individuals and institutions will be able to provide certification. Self-certification is also allowed. The Bill allows any seed company to establish its own certification institutions tomorrow and certify its own seeds! It does not address the deficiency of voluntary certification that exists under the current Seeds Act.

The Bill also says that any seed testing laboratory in the government or non-government sector can act as a State Seed Testing Laboratory where analysis of seed of any kind or variety shall be carried out. This once again is a dangerous provision with private seed testing laboratories fraught with conflict of interest elements. The Bill has to come up with innovative mechanisms to involve Panchayats and farmers in assessing the performance of seeds and so on rather than rely on a heavily bureaucratic set up.

Any proposed institutional set up should have clearly laid down, pro-active mechanisms for information-sharing and transparent decision-making so that corruption and arbitrariness can be tackled. Such mechanisms are best set up at a decentralised level rather than in a highly centralised manner.

Just another law based on archaic, ineffective and corrupt institutions cannot obviously tackle the issue of quality of seed and its regulation in isolation. The number of cases of failure of seed and losses incurred by farmers is a clear indicator of the ineffective functioning of the present system. One of the primary reasons that the formal seed sector has provided bad quality seeds to farmers is the lack of proper seed production and supply planning in the early stages and lack of subsequent implementation of such plans by the public sector in the country. There are many instances of commercial produce supplied in the garb of seed at the expense of farmers.

Punitive and compensation clauses

The penalty clauses provided for offences are very mild and not deterrent enough. The bill proposes that the offender who sells sub-standard seed, upon conviction, be punishable with fine which shall not be less than five thousand rupees but which may extend to twenty five thousand rupees. Offenders who sell spurious, misbranded or non-registered seeds are punishable with imprisonment for a term which may extend to six months or with fine which may extend to fifty thousand rupees or with both, according to the bill. Given that the spurious seed trade is worth crores of rupees, the small penalties being proposed are not likely to deter offenders.

There should be a formula specified in the law itself for calculating the penalty applicable. For instance, the penalty should be based on the quantity of seed supplied or stocked with malicious/negligent intent and therefore, X-times the real loss or potential loss incurred by farmers and not a fixed amount irrespective of the magnitude of the offence. Each time a seed trader/company commits an offence under this law, there should be pro-active publicised data in front of farmers about the erring companies, warning them not to deal with such companies.

The bill is completely inadequate when it comes to compensation to farmers in the case of seed failure. This Bill should take the opportunity to provide a mechanism for providing compensation to farmers in case of seed failure. Such compensation should be linked to a Seed Insurance system the premium for which is paid by the seed trader. Compensation should also be calculated based on a formula that should be specified in the Legislation itself which should include the monetised value of the expected performance as well as coverage of costs of cultivation incurred and not just the seed cost. Panchayats should have a role in certifying failures or losses since agricultural officials are not always available on time to verify the field level situation. Further, maximum time period for payment of compensation failing which more punitive clauses would apply should be specified in the legislation itself.

Punitive and compensatory clauses should apply to misbranding, selling at prices higher than specified prices/MRP, failure of germination, lack of genetic purity etc. Misbranding should be defined to include failure to keep up promises made during marketing/propaganda by the company and should include failure to reveal or keep up promises on expectable performance under different conditions as per the multi-locational agronomic trials as part of the packaging of seed.

Conclusion

The proposed Bill should not be looked at in isolation, but should be looked at in conjunction with other legislations and policies that India has, related to Seeds and Agriculture, like the Plant Varieties Protection and Farmers’ Rights Act, 2001; Biological Diversity Act 2002; Environment Protection Act 1986 with its 1989 Rules pertaining to Genetically Modified Organisms; Patents Amendment Act 2005 and so on. It should also be seen in the context of policies like National Biotechnology Development Strategy and so on to understand the full implications of what lies ahead for Indian farmers in terms of their seed resources. Any new policy and legislation should first and foremost try and uphold the rights of farmers over Seed in terms of its ownership as well as its use and management. Such policies and legislation should also uphold the central and special role that women have always had when it comes to seeds.

Towards this objective, the Seeds Bill should incorporate the following:

1. Regulation should include seed pricing, seed supply and decentralised seed planning/production in addition to regulation of quality.
2. A mechanism of licensing seed producers and sellers, rather than provide for registration.
3. Multi-locational agronomic trials undertaken in a scientific manner in all those locations where the seed is sought to be commercialised. The definition of “Agronomic Performance” should be included in the Act itself to cover many parameters like yield, growth, pest/disease/drought/other resistance, quality etc.
4. Each such licensing should be reviewed after 3-5 years and renewal should be allowed based on actual performance. The ICAR establishment should be used to conduct/supervise the initial trials as well as the review of performance.
5. Public access to information related to the grant of licenses for varieties as well as provisions for opposition to licenses granted to certain varieties if there is reason to believe that the variety is not what is claimed; information on revoking of licenses to be public too.
6. Strong punitive clauses which act as deterrents, based on standard formulae to calculate penalties.
7. Appropriate compensation clauses for speedy redressal to farmers who have incurred losses due to seed failure – this should be linked to an insurance system and should be based on calculations that consider loss in yields as well as cost of cultivation.
8. A role for panchayats in determining seed failure under various conditions – misbranding, spurious seed, sub-standard seed, seed sold above MRP etc.
9. Most importantly, the Seeds Bill should exclude traditional practices of farmers of seed production, sale and exchange from its purview.

Ultimately, any legislation related to seeds must uphold and support the following:

1. Farmers’ rights of breeding, selecting, saving, using, exchanging/bartering, distributing and selling seeds. These should be seen as inalienable primary rights and not be given as residual rights. Equally importantly, such rights should not be denied or violated by any method. In other words, ownership and control should be in the hands of farmers over their seed resources.
2. Increase in agro-biodiversity in particular and biodiversity in general; it should not seek to promote or end up promoting monocropping nor contribute to erosion of diversity.
3. Farmer-level self sufficiency in the form of community seed banks and seed networks.
4. The right of access to good quality, affordable, desired seeds primarily from the public sector if not the informal sector.
5. Protection of farmers’ rights in case of violation of trust in terms of quality, quantity and price of seeds supplied to them.
6. Accountability and liability clauses should be fixed both in terms of civil and criminal damages (given that farmer suicides are also linked to spurious seeds) against the seed traders.