Farmers' rights and food sovereignty: critical insights from India

Abstract

Farmers' access to and rights over seeds are the very pillars of agriculture, and thus represent an essential component of food sovereignty. Three decades after the term farmers' rights was first coined, there now exists a broad consensus that this new category of rights is historically grounded and imperative in the current context of the expansion of intellectual property rights (IPRs) over plant varieties. However, the issue of their realization has proven so thorny that even researchers and activists who are sympathetic to farmers' rights now express growing skepticism regarding their usefulness. In this article, I explore this debate through a case study of India's unique Protection of Plant Varieties and Farmers' Rights (PPV&FR) Act. Based on an analysis of advances and setbacks in implementing the PPV&FR Act and a discussion of other relevant pieces of legislation, I argue that the politics of biodiversity and IPRs in India in recent years has been characteristic of the cunning state, and that this has seriously compromised the meaningful implementation of farmers' rights.

Keywords:

• farmers' rights
• plant variety protection
• food sovereignty
• civil society
• cunning state
• India

This research was supported by a postdoctoral fellowship of the Social Sciences and Humanities Research Council of Canada. I wish to thank Shalini Randeria, Marc Edelman, Anitha Ramanna, Priscilla Claeys and two anonymous reviewers for their comments on an earlier draft of this article, as well as the organizers and participants in the conference Food sovereignty: a critical dialogue, held at Yale on 14–15 September 2013, for stimulating discussions. The usual disclaimer applies.

Notes

¹In a recent press release, La Via Campesina states that ‘with or without the [International Treaty on Plant Genetic Resources for Food and Agriculture, ITPGRFA] Treaty, in line with or against national laws, La Via Campesina will continue to exercise, in a very concrete way, Farmers’ Rights over their seeds, because it is the very first step for food sovereignty’ (Via Campesina 2013).

²See, for example, Montecinos (1996), Bennett (2002), Borowiak (2004), Kloppenburg (2004) and Kneen (2009, 66–75). For a review of the literature up to 2005, see Andersen (2005).

³For a detailed history of the concept of farmers' rights, see Andersen (2005).

⁴In February 2012, the UN Advisory Committee to the Human Rights Council adopted a draft Declaration on the rights of peasants and other people working in rural areas, largely based on La Via Campesina's Declaration of Rights of Peasants – Women and Men (see Via Campesina 2009; UNHRC 2012). On the ongoing negotiation of an international Declaration (and, eventually, Convention) on the rights of peasants at the UN, see Edelman and James (2011), Claeys (2012), Golay (2013) and Edelman (2014).

⁵Several articles of La Via Campesina's Declaration of the Rights of Peasants touch, directly or indirectly, upon farmers' rights over seeds, notably Article 5 (‘Right to seeds and traditional agricultural knowledge and practice’); Article 9 (‘Right to the protection of agricultural values’) and Article 10 (‘Right to biological diversity’). For a comprehensive list of peasants' rights, see UNHRC (2012).

⁶Created in 1961 and revised in 1972, 1978 and 1991, the International Union for the Protection of New Varieties of Plants (UPOV) is an inter-governmental organization that enforces intellectual property rights on plant varieties, known as plant breeders' rights.

⁷In the context of this article, I use ‘civil society’ to refer to those individuals and organizations that have been actively involved in the public debate over farmers' rights in India. Some of these organizations were founded as early as the late 1970s, others in the late 1990s. They describe themselves as ‘non-profit organizations working on environmental and social issues’, ‘grassroots organizations’ or ‘research and advocacy organizations’. While they are not farmers' organizations, they work closely with farmers' communities toward food security, sustainable agricultural practices and the preservation of agricultural biodiversity. With the exception of large rallies of 18,000 to 200,000 farmers organized in Delhi in 1993 against the General Agreement on Tariffs and Trade (GATT) negotiations and Dunkel Draft (Gupta 1998, 291), farmers' organizations are conspicuous by their absence in the farmers' rights debate. The reasons behind this are beyond the scope of this essay, but would warrant further research.

⁸A notable exception is Ramanna (2006), a detailed case study based on interviews with the different actors in the farmers' rights debate in India. However, it was published in the early stages of the Act, and thus does not address the issue of its implementation.

⁹This article is based on research conducted between 28 January and 8 March 2013 in New Delhi, Chandigarh (Union Territories), Hyderabad and Medak district (Andhra Pradesh) and Pune (Maharashtra). In total, I conducted 18 interviews with NGOs (seven), researchers (five), government officials (three), farmers (two) and a representative of industry. I also participated in related events, such as a biodiversity festival and a farmers' assembly, and visited village seed banks.

¹⁰On reconciling farmers' rights and breeders' rights, see also Alker and Heidhues (2002), Verkey (2007) and Winter (2010).

¹¹On the role of multinational corporations in drafting the TRIPS Agreement, see Sell (1999) and Matthews (2002).

¹²Indian Council for Agricultural Research (ICAR), interview with the author, New Delhi, 26 February 2013.

¹³As Seshia (2002, 2745) points out, Indian industry associations were calling for plant variety protection prior to the WTO, and the Indian legislation should therefore not be seen strictly as the outcome of the TRIPS Agreement.

¹⁴A farmer is defined in the PPV&FR Act as any person who cultivates crops himself or herself or through direct supervision, or who conserves and adds value to wild species or traditional varieties through selection and identification of their useful properties (Art. 2 k).

¹⁵Interestingly, EDV is a concept taken from UPOV 1991, of which India is not a member.

¹⁶Biswajit Dhar, Director, Research and Information Systems for Developing Countries, interview with the author, New Delhi, 5 March 2013.

¹⁷This provision takes on a special dimension in the context of the wave of farmers' suicides that has plagued the Indian countryside in recent years. While the causes defy simplistic explanations, spurious seeds and crop failure in a context of economic precariousness are important dimensions of the problem (Stone 2002).

¹⁸The Patent Act (1970) excluded from patentability ‘any process for the ( … ) treatment of animals or plants to render them free of disease or to increase their economic value or that of their products’ (Art. 3).

¹⁹In the Monsanto vs. Schmeiser case, for example, the Canadian Supreme Court ruled that the issue of how Roundup Ready canola had landed on Schmeiser's property – whether through genetic contamination or otherwise – was ultimately irrelevant. Monsanto's patent on a gene extended to the plant of which it is a part, thus blurring the distinction between patents on trangenic cells or genes, and patents on plants (Cullet 2005, 105).

²⁰Introducing plant variety protection is not a simple task. It requires setting up a complex infrastructure for processing applications, including guidelines for each crop species and for the different categories of applications, as well as for conducting distinctiveness, uniformity, stability (DUS) testing and in field grow-out tests, national and field gene banks, an appellate tribunal for resolving disputes surrounding plant variety registration, benefit sharing, compulsory licensing and the payment of compensation (Gautam et al. 2012, 20).

²¹Compiled from data in Lushington (2012) and PPV&FR Authority (2013a).

²²Registrar General, PPV&FR Authority, interview with the author, New Delhi, 4 March 2013.

²³The four varieties of rice are Tilak Chandan, Hansraj, Indrasan and Dadaji HMT; the two varieties of bread wheat are KUDRAT 9 and Wheat Ravi No. 1.

²⁴Among the NGO representatives interviewed, no one knew who the farmers' and women farmers' representatives to the PPV&FR Authority were or even that there was one. When I asked officials at the PPV&FR Authority, I was told that the position for farmers' representative was currently vacant but that someone would be nominated shortly (Registrar General, PPV&FR Authority, interview with the author, New Delhi, 4 March 2013).

²⁵See the PPV&FR Authority Annual Reports for a summary on these initiatives. (PPV&FR Authority n.d.).

²⁶Suman Sahai, Director, Gene Campaign, interview with the author, New Delhi, 24 February 2013.

²⁷Few countries, such as the United States, allow the protection of plant varieties under patent law. However, as evidenced by the evolution of UPOV conventions, the tendency, over time, has been to expand the scope of plant breeders' rights to make them more akin to utility patents.

²⁸Biswajit Dhar, Director, Research and Information Systems for Developing Countries, interview with the author, New Delhi, 5 March 2013.

²⁹Contrary to Santilli's (2009, 350, my translation) suggestion that the fact that UPOV has not responded to India's interest in joining ‘reveals that UPOV will probably not accept a sui generis system for the protection of plant varieties, distinct from its own’, the immediate reason for India not joining UPOV is the filing of a Public Interest Litigation. This is not to say that UPOV would accept a sui generis system; in fact, it almost certainly would not, since it goes against the trend towards stronger plant breeders' rights evident in the latest UPOV Convention (1991).

³⁰To add to the complexity, different ministries, each with its own goals and institutional culture, are responsible for implementing these laws. For example, the seeds policy comes under the authority of the Ministry of Agriculture, the Ministry of Environment and Forest is responsible for implementing the Biological Diversity Act and the Ministry of Science and Technology is in charge of the regulation of agricultural biotechnology.

³¹The only mechanism for redress is to turn to a local consumer court, an option already available under the 1986 Consumer Protection Act.

³²Another relevant act is the Geographical Indications Act, 1999, which came into force in 2003. According to Ramanna (2006, viii), depending on the way it is implemented, it could be either beneficial to farmers, if it enables them to claim rights for agricultural goods originating in a specific region, or it could be detrimental if it restricts farmers' access to the protected goods.

³³Food activists advocate substituting the negatively connoted ‘coarse grains’ by ‘nutritious grains’ but the latter has not yet made its way into common parlance.

³⁴Coarse grains have recently attracted the interest of private corporations. For example, the Syngenta Foundation, in partnership with Bioversity and the Consultative Group on International Agricultural Research (CGIAR), has a Payments for Agrobiodiversity Conservations Services (PACS) program targeting Indian varieties of millets (Syngenta n.d.).

³⁵The Deccan Development Society (DDS n.d.) has been a pioneer in the revalorization of millet-based farming and food systems in India. See also the website of the Millet Network of India (MINI n.d.)

³⁶For a critique of the National Food Security Act, see the Right to Food Campaign (n.d.)

³⁷According to Article 27(3)b, ‘However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof’ (WTO 1994). On the lack of an agreed upon interpretation of the meaning of ‘an effective sui generis system for new plant varieties’, see World Trade Organization (2008).

³⁸With the exception of Costa Rica and Ethiopia in their national legislation, and the African Union as a whole, the countries that recognize farmers' rights are mostly located in Asia (Bangladesh, Malaysia, Nepal, Pakistan, the Philippines and Thailand). See the Farmers' Rights Project (n.d.)

³⁹In India, the State government of Andhra Pradesh has recently introduced a bill asserting its right to monitor the pricing of seeds and royalties (Kurmanath 2013).

⁴⁰While the issue of access to seeds affects all farmers, it is a more pressing concern for small farmers who rely on farm-saved seeds.

⁴¹According to section 25(1) of the Patents Amendment Act, 2005: ‘Where an application for a patent has been published but a patent has not been granted, any person may, in writing, represent by way of opposition to the Controller against the grant of patent on the ground – … (j) that the complete specification does not disclose or wrongly mentions the source or geographical origin of biological material used for the invention’.

⁴²Mahyco-Monsanto Biotech (MMB) is a 50:50 joint venture between Mahyco (the Maharashtra Hybrid Seed Corporation) and the US company Monsanto.

⁴³According to the Biological Diversity Act, 2002, ‘No person shall apply for any intellectual property right by whatever name called in or outside India for any invention based on any research or information on a biological resource obtained from India without obtaining the previous approval of the National Biodiversity Authority before making such application’ (Art. 6.1).

⁴⁴Grassroots organizer, Environmental NGO, interview with the author, Pune, Maharashtra, 23 February 2013. On the changing role of the Indian state since 1991, see Gupta and Sivaramakrishnan (2010).

⁴⁵Morpho-agronomic characterization consists in the analysis of germplasm, using descriptors developed by organizations such as the FAO International Plant Genetic Resources Institute (IPGRI) and UPOV. This data is then used to elaborate the ‘passport’ of a specific variety.

⁴⁶Grassroots organizer and researcher, Environmental NGO, interview with the author, Pune, Maharashtra, 23 February 2013.

⁴⁷Executive Director, Sustainable Agriculture NGO, interview with the author, Hyderabad, 14 February 2013.

⁴⁸Director, Rural Grassroots Organization, interview with the author, Medak district, Andhra Pradesh, 10 February 2013.

⁴⁹It must be noted that these comments are made with reference to India's PPV&FR Act, in which farmers' rights are conceived as IPRs, and not to current efforts to frame peasants' rights as human rights.

⁵⁰Director, Rural Grassroots Organization, interview with the author, Medak district, Andhra Pradesh, 10 February 2013.

⁵¹For a concise overview of the different positions in the debate, see Edelman (2014, 13–5).

⁵²Director, Rural Grassroots Organization, interview with the author, Medak district, Andhra Pradesh, 10 February 2013.

⁵³Grassroots organizer, interview with the author, Medak district, Andhra Pradesh, 12 February 2013.

⁵⁴For an overview of Biological Open Source and seeds, see Kloppenburg (2010).

⁵⁵Executive Director, Sustainable Agriculture NGO, interview with the author, Hyderabad, 14 February 2013.

⁵⁶Thank you to Anitha Ramanna for drawing my attention to these positive impacts of the farmers' rights debate in India.

⁵⁷For example, the Supreme Court has, in recent years, interpreted the right to food as part of the right to life, and directed the Central Government to design an employment guarantee scheme, upgrade education as a right and draw up a right to information act. See Chandhoke (2007, 45–6).

Additional information

Karine Peschard is a postdoctoral fellow at the Graduate Institute of International and Development Studies, in Geneva, where she conducts comparative research on farmers' rights in Brazil and India. Her research interests are centred on global capital, contemporary peasant movements, food sovereignty, agricultural biotechnology, intellectual property rights and biodiversity.