Part-3 of 3: India's Seed Bill’2019 and Proposed Amendments for Post-COVID-era

Part- 3 of 3: 

India's proposed Seed Bill’2019 and Proposed Amendments for Post-COVID-era

By:

Vijay SARDANA

Advocate, Delhi High Court and

Techno-legal Expert on Agribusiness

& Consumer Products Industries

&

Priyanka Sardana

Advocate, Supreme Court of India

& 

Aastha Sardana

Researcher on Legal Matters

21.   Impact of private varieties on exports  – What should be legal provision if an IPR protected seed is distributed for cultivation in India only? Can farmers or traders export the output from such seeds or products their-off freely or not? In the value chain, when the transfer of rights will take place and when seed companies rights will cease to happen? Can IPR holder seed company claim rights on farmers' output? If yes, will they pay for the output in case they stop exports? Can IPR holder seed supplier claim a share in the profit of farmers? This should be explained and inserted clearly to avoid legal disputes.

22.       What should be the punishment for the infringement of law by any person or party—just warning, fine, compounding or jail or both should be mentioned? And what should be the quantum of the punishment to ensure deterrence towards violation of the law? The proposed fine should act as a deterrence, not just formality. Badly designed punishment clauses will lead to corruption. Farmers and companies both will continue to suffer. The country will be looser. 

23.        Who will own the seeds available in the public domain or in nature? Can private party use and claim right on it? What should be the scope of privatisation and what should be the terms and conditions (PVP or patent) under the Proposed Seed Act? Can all species, including wild ones, be privatised or only privatised varieties may be used to breed new ones? Can local seed be privatised if “discovered" by natives? Can private ownership be extended to similar pre-existing varieties? What should be the role of IPR and benefit sharing in such cases? the proposed bill is silent on it. 

24.     Offences and Punishments (s.42): The proposal seems to be out of place. The global practice is it should be linked to the turnover or profitability of the company to make them effective deterrence and to ensure good compliance record. Accountability of the companies and performance of the seeds supplied by the companies is vital especially when there are many fly-by-night seasonal seed operators. Use of digital technology should be made mandatory for traceability and this should act as documentary evidence in case of litigation.

        What is the punishment for seed inspectors and laboratory analysts, if they are involved in corrupt practices? Why law is silent and not keen to make the system accountable and transparent? The silence on this vital aspect is wrong in today's world when we want to promote good governance.

25.        Uniformity of law and rules between states to ensure better enforcement: In order to ensure ease of doing business and effective enforcement, all states should follow the same model rules in consultation with the Union government. Local rules create more of transaction cost and corruption than ensuring quality seeds to farmers. This also hurts the image of India.

26.        Make Sub-standard Seed Recall Provisions in the bill: If any defective or substandard seed has reached the market. The law must ensure that it should be removed from the market before it reaches the farmers. All laboratory results should be made public on the website of the state government where the substandard seed was identified, on a weekly basis. This will ensure that bad seeds are removed from the market before they reach farmers and farmers use them for sowing and suffer. Seed and planting material cannot be treated like any other goods in the market. Bad seed means the livelihood of the farmer and his family is at stake and national food security is at stake. 

27.        Payment for the seed samples by inspectors: Whenever seed samples are picked up by inspectors, they must pay for the samples on MRP basis and must keep the bills with sampling report to ensure credibility of the samples. This is must to ensure under Consumer Protection Act. Receipt or invoice must be made mandatory for all sales activities under this Act the farmers as well.

28.     Traceability of the seed supply chain: Company and Traders must maintain the traceability records of the seed, in case of any dispute these will come handy to the enforcement department. Not maintaining traceability records must be an offence. This will check spurious seeds flow in the market.

29.  Farmers, as consumers, should be allowed to use the laboratories for sample testing on payment basis: In case of doubt, farmers should allowed to use the notified seed laboratories of the states or universities to get their seed sample tested on payment basis. This will ensure the accountability of the sales channels.

30.     The basic purpose of the act should be to ensure fair trade practice and no one should be able to distort the market due to their size and monopolistic technologies. farmers should also not use political force to settle scores. 

The proposed bill in the current form is not suitable for the current and future requirements of farmers to ensure food security. This needs major redrafting after proper consultation.

If anyone is keen to have a discussion on the same, can send the message on the same.

With best regards,

Vijay Sardana & legal team

Part-2 of 3 : India's Seed Bill'2019 and Proposed Amendments for Post-COVID-era

Part-2 of 3: 

India's proposed Seed Bill’2019 and Proposed Amendment for Post-COVID-era

By:

Vijay SARDANA

Advocate, Delhi High Court and

Techno-legal Expert on Agribusiness

& Consumer Products Industries

&

Priyanka Sardana

Advocate, Supreme Court of India

& 

Aastha Sardana

Researcher on Legal Matters

Please also read this with Part-1 and Part-3 for additional points)

11.     Sale Price of the Seeds: There is a debate in the seed industry, should law control royalty or MRP? In place of seed price control, there should be a better mechanism to ensure how to deliver value to the farmers. This will help in understanding the reasons behind the cost escalation and how to address the issue. Whether price escalation is due to the monopoly or demand-supply imbalance? With our experience, we can say that there are ways to handle both, in a very transparent manner on a scientific basis. This will also expose if any company is exploiting Indian farmers by unfair means and various authorities can also help in the ensuing fair price regime exists. We will discuss in some other forum how to address this.

12.  What should be the licencing and royalty policy for traits? Law is silent on how to protect unfair trade practices to distort market forces due to their monopoly on a particular trait. Law should encourage fair and honest competition.

13.  Stacking of traits in seed: How it should be priced? Should farmers pay for all even traits, even if he is not keen to buy all traits in the seed? Example Bt and HT both are in the same seed, but Bt is not demanded by the farmers. What should be the price of seed? What is the mechanism to address this concern?

14. Recognition of seed certification is outside India (s.32):  This should be based on equivalence criteria and only on a reciprocating basis. It means India should also be able to export seeds to the world markets from where we are planning to import. This will ensure trade balance and our companies will improve local capabilities.

15.  What can farmers do with their own seeds i.e. local native varieties? Can farmers keep, exchange or give as a gift or can they sell or not should be mentioned in the bill clearly. Can companies use native germplasm for multiplication without the permission of the local governments and benefit-sharing?

16.  Biodiversity is a must for food security, this law should refer the intention so that before every approval this parameter should be checked: Law is not explaining anything about how to preserve biosecurity. What should be the approach to ensure that monoculture and monopolistic approaches do not hurt national biodiversity, biosecurity and food security? Seed Bill is silent on it.

17.   Farmers Rights must be explained in the Proposed Seed Act to avoid litigations: Based on recent incidences in Gujarat with Potato farmers, what can farmers do with privatised seeds (PVP-protected or patented varieties). Can farmers harvest seeds and sow again on own farm, or can farmers harvest seeds and then exchange or give as a gift or can farmers harvest seeds and then sell them or define what should be the contracts and other restrictions may be set by the contracts under proposed seed Act.

18.  What is the position of marketing rights under the proposed Seed Act? Can farmers use certified, registered or catalogued seeds irrespective of source or self-stored seeds or they are only allowed or forced to buy certified, registered or catalogued seeds for use. This should be clear in the law.

19.  Who can go for inspection at farmers end? Can seed suppliers or companies have the power to search, if yes — when, where and how?  This must be clearly mentioned to avoid offence under the law for trespassing and violation of privacy and who should authorise the inspection? Law should clearly mention what all places, including homes, can be searched or not. Can private parties search farmers places without permission of the authorities or search should be done with law enforcement authorities only? This should be mentioned in the law.

20.   If inspectors find “probable cause” of infringement or if courts find farmers guilty of infringement. What should be the regulatory action, in this case? This should be clearly explained i.e. seed can be seized, the crop can be destroyed, harvest can be seized, the product made from harvested material can be seized, should be defined clearly in the law.

(to be concluded..Part 3 or 3)

(Please also read this with Part-1 and Part-3 for additional points)

Meanwhile, feel free to send your questions or queries and observations to: 

Email: technolegalsardana@gmail.com

For updates:  

Follow on Twitter or on the Facebook page.

Part-1 of 3: India's Seed Bill’2019 and Proposed Amendment for Post-COVID-era

Part-1 of 3: 

India's proposed Seed Bill’2019 and Proposed Amendments for Post-COVID-era

By:

Vijay SARDANA

Advocate, Delhi High Court and

Techno-legal Expert on Agribusiness

& Consumer Products Industries

&

Priyanka Sardana

Advocate, Supreme Court of India

& 

Aastha Sardana

Researcher on Legal Matters

Disclaimer: 

This note is prepared by the team at ARPL Techno-Legal Services after reviewing seed laws of about 60+ countries, live cases in the field and problem faced by various stakeholders.

Why Seed Bill is crucial for Indian's food security?

The seed is the foundation of national food security. During COVID-19 lockdown we have seen how disruption in essential medicines and medical supplies forced leaders of powerful nations to demand medicines from other countries. COVID has forced us to think about all options in life normal and abnormal, simple and complex, borrowed or self-reliance, etc. Unless we think logically we will not be able to create policies and mobilize resources to ensure food security in very odd situations like long-duration lockdown.

Can India feed 1.40 billion people on borrowed food?

The Seed Bill 2019 is an attempt to modify the existing Seed Act 1966. Government of India is planning the review the Seed Act after 50 years. In the last 50 years, we have seen that the present Seed Act and Rules were ineffective in controlling the quality of seeds in India and average productivity in India is far below than the world average.

The proposed draft is also not addressing the issues which India is facing and will face in the coming days.

The new proposed Act must address the following issues very effectively so that farmers and national interest can be protected.

1. Indian Agriculture need better productivity to ensure food security

2. Indian agriculture production must have cost competitiveness to meet the global competitiveness challenges in the export market

3.  It must also protect biodiversity in the country

4. It must also prevent unfair and restrictive trade practices in the seed sector

5. New Seed Act must also provide an opportunity for new technologies but at the same time must prevent monopolistic or anti-competitive practices in the trade.

6. COVID-19 tells us immunity in humans and bio-diversity in vegetation is the first line of defence to defend against the spread of infection.

7. Legitimate Farmers Rights must be protected.

8. There must be enough incentive to undertake research in the area of seeds.

9. National interest and sovereign rights of India must be supreme in post-COVID-era and it must be ensured under the law.

10. Dispute resolution mechanism should be fast, simple and affordable to farmers as well.

This proposed seed bill is now coming for review and it should remain meaningful for at least next 20 years, if not 50 years. 

The proposed Seed bill should be drafted in such a way that it addresses the concerns of the stakeholders and ensures affordable food security for the country and at the same time should not compromise the sovereign food security of the country.

After reviewing seed laws of about 60+ countries, live cases in the field and problem faced by various stakeholders, the following points need serious considerations by all stakeholders and policymakers before finalising the bill in the Parliament:

1.    Who should have first right on seeds in India: Seed is vital for food security. The foremost requirement is “Seed production” should to declared as a strategic sector to ensure food security of the country. This will ensure that country must consider the seed sector seriously. This will make way for making policies to meet the national food, feed, fibre and bio-fuel requirements and food, feed and nutrition security. 

       Should we say, to a poor country that COVID-19 vaccine is available but on for those who can pay the premium, hefty royalty and exclusive marketing rights for all other products? Is this reasonable or unreasonable demand? How to decide what is unreasonable?

2.    Address “Conflict of Interest” in the bill: The whole bill is silent on what steps are taken to ensure there is no conflict of interest between the approval committees, review committees and other arms of the departments mentioned in the bill and various applicants. This can be discussed in detail as well. This is vital to protect the sovereignty of national food & feed security. This will also give the level playing field between the public sector and private sector innovations.

3.    Title of the Bill should be changed: The proposed title is not appropriate in today’s context when there are many methods of “Plant Propagation”. It should be “The Seed & Plant Propagation Materials Bill’2019”. This will be more inclusive and logical. Even nurseries and other planting materials quality can be monitored.

4.   Scope of the Bill / Act: The proposed scope is also outdated. The scope should be broad enough to address all the related issues with seed and propagation materials including technological advancements and research in the seed sector. The scope should also cover the new technologies and techniques related to plant propagating materials. In the absence of this, the country will not be able to address the issues related to them effectively in the absence of any suitable legal framework and also during trade disputes.

5.    Definitions: Many key definitions are either missing or vague. This will lead to litigations or gaps in the effective enforcement of the law. All definitions must be reviewed and missing definitions should be included after wider consultation. Some of the missing terminologies in Seed Bill are Nursery, Harmful Technologies, Benefit Sharing, Farmers’ Rights, Genetic Contamination, Gene piracy, Gene Stacking, Seed Coating, different forms of genetic modification techniques, etc.

6.  The classification of seeds in various categories should be discussed more carefully because in the globalised economy it should make sense to all stakeholders. It should be based on scientific principles, not just political boundaries within the country. This will create serious problems and litigations within India. Is there any way to check the movement of seeds from one state to another? Should the classifications be based on political boundaries or on agroclimatic zones? This will lead to multiple layers of bureaucracy, transaction cost, corruption and will reduce the ease of doing business. It will be difficult to address disputes because of political sensitivities. This will also create a market for spurious seeds and farmers and the country will be the loser. Serious brainstorming is required.

7.  Specify who should be accountable for Genetic Contamination or pollution in nearby farms:  In India, there is a drive to promote organic and natural farming. The whole bill is silent on the issue of genetic pollution or contamination? Who will be accountable or liable for creating genetic contamination if it happens in an organic farm? How to address this issue? Who should be accountable for the seed supplying agency or promoter or native farmers in case of genetic pollution? What should be the duty and responsibility of people with IPR rights to ensure that their gene does not spread to other farms without the permission of the farmers or concerned authorities? If it happens, who is accountable? This is not an easy question to answer, but vital for peaceful growth. A recent case of potatoes farmer in Gujarat is a live example.

8.    Evaluation of performance (s.20): This clause must be clearly defined to ensure transparency and no conflict of interest between the committee's members and applicants. Even ICAR and public sector research seeds should be evaluated by a third party to ensure neutrality and credibility.

9.   Compensation to Farmers (S.21): The proposed bill must highlight what all should be the criteria and components of compensation which can help in the calculation of compensation. The Consumer Protection Act does not provide relief on time, therefore there must be mandatory Mediation and Arbitration in case of any dispute before litigation process. Mediation should also be considered for an early resolution of the disputes.

10. Registration process: Details of the registration of various seed producers, processing units, dealers and nurseries should be visible to farmers to check the spurious suppliers. GPS coordinates of all processing units must be part of the registration process of the unit. This will also help in the identification of the suppliers of certified seeds of various crops. Bar-coding and other traceability tools must be made mandatory to check the spread of spurious seeds.

(to be continued...)

(Please also read this with Part-2 and Part-3 for additional points)

Meanwhile, feel free to send your questions or queries and observations to: 

Email: technolegalsardana@gmail.com