Pesticide Regulations Part-3 : PMB'2020 and the Governance of Pesticide Sector

Pesticide Management Part-3

Pesticide Management Bill (PMB) 2020 and Governance of Pesticide Sector

By:

Vijay SARDANA

Advocate, Delhi High Court

Techno-legal Expert on Agribusiness 

& Consumer Products Industries

& 

Priyanka Sardana, Advocate, Supreme Court of India

& 

Aastha Sardana, Researcher on Legal Matters

Food must be safe and affordable. Efficient agriculture inputs management is vital to ensure food security and safe food for citizens and for trade.

Pesticide legislation must address the aspiration of society:

Laws always address the aspiration of society and create a path for a better future for all stakeholders. Therefore, the main reasons for updating the pesticide legislation should be to:

1. Pesticide Management Law must ensure consistency in the overall regulatory framework with effective connections between pesticide legislation and other relevant legislation with minimal contradiction or overlap. This is vital to ensure the accountability of the stakeholders.

2. Pesticide Management Law should also clarify all issues related to responsibilities, authority or the mandate of the institutions involved in the various dimension of pesticide management in the country;

3. Pesticide Management Law should also incorporate suitable provisions to address the new requirements based on ground reality and advances in science and technology or updated priorities of the countries related to food security, food safety and other trade and non-trade issues;

4. Pesticide Management Law is a highly specialized and complex subject due to diversified agro-climatic conditions and variety of crops. Pesticide laws should facilitate multidisciplinary approaches to pesticide management for effective monitoring and control.

5. Most agriculture products are traded and must meet the domestic laws and policies where products are sold. In order to avoid trade barriers,  Pesticide Management Law should comply with requirements of international conventions, treaties, international agreements and recommendations based on good practices;

6. In order to facilitate global trade, the pesticide laws Pesticide Management Law should meet the international norms to harmonize the requirements with countries within the region and key trading partners.

The above-mentioned points highlight the principle requirements of the Pesticide related laws in any country.

Homework required for revising pesticide laws:

There are many stakeholders in any society. All want to have a say in pesticide management in the country. Many stakeholders have filed various public interest litigations to make changes in the pesticide management system in the country.

Caution: There are many players in the system, those who want a bigger market share for their products and may like to use the regulatory arbitrage to gain market share. Fair and unfair means cannot be ruled on in this battle of market share. This makes pesticide management task more complex and difficult.

The only way to address these issues without fear and favour is by doing good homework before the modified draft is formulated.

We suggest that before a drafting pesticide legislation, due consideration should be given to the following:

1) Review and analyze all existing relevant national legal and institutional frameworks directly or indirectly relevant for pesticide management existing laws and objections raised on various legal and institutional provisions and clauses by various stakeholders.  

2) Review the provisions of the existing laws and regulations based on the experience of farmers and scientists on technical needs and regulatory failures.  This can be done based on identified and duly documented field realities and experiences.

3) The existing pesticide legislation should be reviewed based on international recommendations, which should be based on good practices

4) While reviewing the new pesticide policy objectives there must be due considerations for the cost-benefit analysis, socio-economic conditions, impact on environment and workers health and other strategic issues like over-dependency on imports etc. should be considered.

5) Pesticide legislation is highly techno-legal subject. Sensible drafting needs a wider understanding of the subject and implication of various provisions of the proposed law. This should involve a team composed of techno-legal experts and in absence of them a team of legal and technical experts from the field of pesticides and related subjects;

6) After drafting the proposed bill, the provisions of the same should be discussed with the involvement of key stakeholders. This will give the insight to the policymakers that how the stakeholders will react on the final draft. Meanwhile, the policymakers can prepare the justifications to address the media and people representatives, if required.

What next:

Now, the bigger question is, whether the proposed ‘Pesticide Management Bill ’2020’ is addressing these requirements or not? Please do share your views on the same.

We will analyse Pesticide Management Bill and 2020 and discuss this in detail in future articles.

Follow this blog and Visit again, more analysis in upcoming articles. Follow on Twitter and Linkedin for regular updates.

If any clarification is required you may contact the authors.

Do send your queries to us at email address: 

Email: technolegalsardana@gmail.com

Disclaimer: This article is for general information. For any specific techno-legal discussion, you may contact the authors.

Pesticide Regulations Part-2 : Role of Government in Prohibition or Permission of Pesticides

Pesticide Regulations - Part-2

Role and Obligation of Government in Prohibition or Permission of Pesticides

By:

Vijay SARDANA

Advocate, Delhi High Court

Techno-legal Expert on Agribusiness & Consumer Products Industries

&

Priyanka Sardana, Advocate, Supreme Court of India

& 

Aastha Sardana, Researcher on Legal Matters

We suggest that, please also read the earlier parts of the Pesticide Regulation Series for better understanding of the arguments used in this article.

When any country wants to become a big player on the world stage, one cannot ignore the expectations of the global community. COVID-19 outbreak has reinforced the need for the countries to become more sensitive towards humanity. Countries are expected to become transparent in their decision-making process and engage with the world community to ensure the collective welfare of all.

The global community expects governments must behave responsibly not just to meet the expectation of the local population within their jurisdiction but also to consider the impact of their actions and decisions on the global the community where they want to expand their trade ties. COVID-19 outbreak will force new obligations on the governments.

In global trade and also under WTO regime health and safety is a major concern. It is a well-known fact that with the spread of trade the health risk also spreads. Therefore a dedicated Agreement on Sanitary and Phyto-sanitary was negotiated to protect human, plant and animal life and health.

With the growth of international trade in agriculture-based products and agro-chemicals with various applications also became a point of policy debates and trade negotiations. 

International Conventions on Pesticides:

To address these concerns, several international instruments dealing directly or indirectly with pesticides or pesticide management have come into force. The most important of these are:

• The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (Rotterdam Convention), 
• The Stockholm Convention on Persistent Organic Pollutants (Stockholm Convention), 
• The Basel Convention on the Transboundary Movement of Hazardous Wastes and their Disposal (Basel Convention), 
• The Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol)
• The International Labour Organisation Convention No. 184 on Safety and Health in Agriculture (ILO Convention 184). 
• Strategic Approach to International Chemicals Management (SAICM)
• Globally Harmonized System of Classification and Labelling of Chemicals (GHS), which is intended to standardize and harmonize the classification and labelling of chemicals.

Whether a country is a signatory or not, these conversions will impact everyone.

Pesticide Regulation and Management: 

Civil society expects from the Governments around the world including the Government of India to ensure safe and healthy food. Based on the global experiences and collated information, inter-governmental bodies have created a detailed Code of Conduct for the policymakers to ensure safe and healthy options for the consumers by creating regulatory requirements for agro-chemicals.

1. Introduce Regulations: It is advised that Governments should introduce the necessary policy and legislation for the regulation of pesticides, their marketing and use throughout their life cycle, and make provisions for its effective coordination and enforcement, including the establishment of appropriate educational, advisory, extension and health-care services.

2. Use Global references for consensus: It is advised that Governments may create suitable regulatory regime by using the FAO and WHO guidelines, wherever applicable, and use the provisions of relevant legally binding instruments. Please note that FAO and WHO are intergovernmental bodies and reference points in case of disputes under the WTO trade regime.

3. Factor local agro-climatic factors & pest incidences: In so doing, governments should take full account of factors such as local needs, social and economic conditions, levels of literacy, climatic conditions, availability and affordability of appropriate pesticide application and personal protective equipment.

4. Prohibit Child labour in agrochemicals application: International Partnership for Cooperation on Child Labour in Agriculture also advises that the government should introduce legislation to prevent the use of pesticides by and sale of pesticides to children.  The use of pesticides by children in a work situation should be included in National Hazardous Work Lists for children under ILO Convention No. 182 on the Worse Forms of Child Labour in countries which have ratified it.

5. Regulate pesticide businesses: Pesticides are toxic chemicals and it is expected that the government will establish regulatory schemes such as licenses or permits for pest control operators. To ensure proper monitoring of the manufacturing and trade of hazardous chemicals, it is expected that the government should establish pesticide registration schemes and infrastructures under which each pesticide product is registered before it can be made available for specified use.

6. Avoid Non-tariff barriers: Agriculture is an important component of economic development. Cooperation between various trading partner is expected in the trade issues. While framing legislations regulations  should  act as facilitation in trade based on the cooperation with other governments in, the establishment of harmonized (regionally or by groups of countries) pesticide registration requirements, procedures and evaluation criteria taking into account appropriate, internationally agreed technical guidelines and standards, and where possible incorporate these standards into national or regional legislation; 

7. Establish a review mechanism: Allow for re-evaluation and establish a re-registration procedure to ensure the regular review of pesticides, thus ensuring that prompt and effective measures can be taken if new information or data on the performance or risks indicate that regulatory action is needed; export, manufacture, formulation, quality and quantity of pesticides; improve regulations concerning collecting and recording data on import, export, manufacture, formulation, quality and quantity of pesticides; 

8. Promote Safe Applications: To save farmers from accidents only permit standardized and certified pesticide application equipment and personal protective equipment. Permit marketing of equipment under established standards only. 

9. Regulate and monitor pesticide residues in food in accordance notably with the recommendations of the Codex Alimentarius. In the absence of Codex standards, national or regional standards should be used. This should be done in a manner that is consistent with WTO requirements and will not lead to technical barriers in the trade or non-tariff barriers.

10. Ensure transparency to gain the confidence of stakeholders: The only way to gain confidence and the support of all stakeholders is making an effective regulatory regime is by way of transparency. The conflict of interests should be avoided in all committee meetings and decision-making process.

Therefore, the role of the government is very critical in controlling and managing hazardous and toxic chemicals to save people and the environment.

Important: 

The Prohibition Order of 27 pesticides issued by the Government of India should be tested on the above-mentioned parameters. This will be the right approach and all stakeholders can be convinced. 

Follow this blog and Visit again, more analysis in upcoming articles. Follow on Twitter and Linkedin for regular updates.

If any help is required you may contact.

Do send your queries to us at email address: 

Email: technolegalsardana@gmail.com

Disclaimer: This article is for general information. For any specific techno-legal discussion, you may contact the authors.

Pesticide Regulations Part-1: What is the Right Approach in Post-COVID-era?

Pesticide Regulations Part-1

What is the Right Approach for Food Security & Safety in 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

While working on Seed Laws, we came across various recent controversies around the existing Pesticide Act and also, proposed new Pesticide Management Bill and the recent order of banning 27 pesticides. 

We decided to address this vital subject in a wider national and international context because this blog is read in many countries of the world.

Food Security is vital for society. At the same time, food must be safe. About 30 to 50% of food is lost or wasted due to various insects, pests and weeds. At the same time, we should keep in mind that like medicine, pesticides are also functional chemicals and misuse may impact health and life the way it happens in the case of misuse of any medicines.

This opens up a fundamental question: what should be our approach towards pesticides? 

In our series of articles on this vital subject of Pesticide Management Regulation, as a techno-legal advisor and lawyers with specialization on techno-legal matters and techno-commercial matters, we will try to address all the issue in a very objective and unbiased manner.

Recent Developments and Pesticides in Post-COVID-era:

Two recent developments will force us to think about our future and approach towards regulations, prohibition, research and new developments.

Lessons from Two Recent Developments:

1. COVID-19 Virus and its control or treatment:

During COVID-19, not a single new research came handy to control this deadly virus, which has affected more than 5 million people worldwide. The most powerful countries and the companies investing heavily on research in medicine for the discovery of new molecules are clueless about how to control COVID-19 virus. The most effective medicine which came to rescue of the health services is the age-old hydroxychloroquine (HCQ). This medicine was actually abandoned by the western world under the pressure of companies willing to promote their expensive newly-patented molecule by pushing low-cost generic medicines. The President of USA was forced to asked Prime Minister of India to send generic medicines because patented medicines were not able to address the challenges at hand. Even alternate medicines and therapies are also not showing any promising results. This clearly indicates we must have a comprehensive view of everything we do because unexpected developments may need unconventional pearls of wisdom which may be outdated in the minds of few people. 

2. Locust Attack on crops in South Asia:

Large tracks of standing crops were destroyed by locust attack and this has created serious food security and livelihood security challenges for farmers and society in the affected area. To control the locust attack, no patented pesticide was effective. The most effective options were again generic chemicals like Chlorpyrifos, due to various reasons and in an emergency. Where are the organic pesticides to control locust attack? Where are the methods in control of locust? Now, this chemical is in the banned list as per the draft order.

Such situations will keep emerging and we have limited control on such emergencies. Now, the issue is how to ensure availability when they will be required to manage crisis and products are not available because no one is manufacturing, due to restrictions imposed in the law.

Thos need careful analysis and planning.

Policy Makers, please beware of "Conflict of Interests" in consultative meetings:

These two parallel incidences expose the weaknesses in our way of thinking and governance of the commercial world. This becomes more complex when various lobbies push their agenda for their commercial gains through the regulatory system. 

As the technol-legal team, we would like to caution the policymakers to be careful while working on regulations:

1. Every new innovation may not be better than the old product. 

2. Innovation and patented does not guarantee the usefulness and effectiveness of the new product. 

3. New technologies help in improving product performance and quality of life. These must be adopted on their own merit.

4. Every incidences and product should be evaluated based on its merit.

5. In the commercial world, the human weakness of greed is a big motivator. Many unethical people and vested interests have a tendency to manipulate data and records. Do we have a reliable system to cross-verify the facts and data submitted for approval or registration?

6. Actively educate society on how to differential between good and bad products. So that better options are prefered. Digital media can be used effectively.

Why "Conflict of Interests" issues should be addressed?

Please also be clear that due to commercial reasons provided data may also be manipulated. Delayed and manipulated data of COVID-19 outbreak, the role of Cholesterol, DDT, Mustard oil and its health effect all were projected for commercial reasons. With time it is becoming clear that as a society, we were fooled by so-called experts supported by commercial agenda those who pushed these data. The whole world has to pay the price. After learning from these blunders, OECD has created a detailed protocol to address the problems created by "CONFLICT OF INTERESTS".

What will happen now, in COVID-19 situation, one lobby will ay hydroxychloroquine is not effective based on their studies and on the other hand Indian doctors are finding it useful. 

Similarly, many will say Chlorpyrifos toxicity will destroy the economy.

No one is saying the above-mentioned example is the ideal solution, but in the given situation they are the best options. These issues will be converted into controversy and will be fuelled by the conflict of interest.  

Therefore, to have fair and open discussions on all policy matters, India must pass a law and regulatory framework to avoid "Conflict of Interests" in the decision-making process. We want to know who is representing whom? Even official members may have financial relations with sponsors in some other activity? 

What should be the approach for reviewing pesticides?

The regulatory framework for the control of pesticides should encompass the set of different types of legislation governing the management of pesticides.

Besides pesticide legislation, this may, for instance, include legislation on:

• environmental protection, 
• public health, 
• occupational health, 
• water, 
• food safety, 
• wildlife, 
• marine protection, 
• plant protection and 
• general chemicals management. 
• obligations under international instruments.

Pesticide legislation will remain controversial hence needs careful thinking:

Pesticide legislation refers to legal instruments specifically designed to control pesticides. 
Under the Indian legal system the term, pesticide legislation will be in two parts.

1. The Primary legal instrument: Law, Act or Ordinance.

The Pesticide Law, or similar primary instrument, provides the core part of the pesticide legislation. It establishes principles, mandates and responsibilities. Its adoption generally involves parliamentary approval.  

2. Secondary or Subsidiary instruments: Regulations, Decrees, Rules or Notices to ensure proper enforcement. 

Pesticide Regulations, or other secondary legislation (also referred to as subsidiary legislation or implementing legislation), further, regulate specific areas of the Pesticide Law in greater detail.

Why Controversies Emerge?

In coming articles, we will discuss this vital aspect and how to minimize them in the field of pesticides. There are many critical aspects of pesticide laws and regulations, we will cover all those issues one by one.

Meanwhile, you may send you feedback to us.

Proposed Seed Bill

You may also like to read our analysis of Proposed Seed Bill, please search the blog by typing the Seed Bill.

For updates, follow us on: 

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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:  

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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