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S Bala Ravi (sbala@mssrf.res.in) is with the M S Swaminathan Research Foundation, Chennai.

Fault Lines in the 2010 Seeds Bill

S Bala Ravi

The 2010 Seeds Bill that has been introduced in Parliament does address some of the major concerns in the aborted 2004 version, but strangely a number of important correctives – on regulation, consistency and punishment – that had been incorporated in the 2008 version (which lapsed in 2009) have now been modified or dropped altogether. What forces are pushing the government to act against the interests of India’s farmers?

The third edition of the Seeds Bill 2004 is currently before Parlia-ment. The 2004 Bill was with-

drawn in the face of opposition from farm-ers, civil society and parliamentarians on the ground that many of its provisions were anti-farmer, pro-corporate and also contradicting other national laws on plant v arieties protection, biological diversity and biosafety.

The bill was therefore referred to the Parliamentary Standing Committee on Agriculture (PSCA) chaired by Ram Gopal Yadav. The report of the PSCA, submitted in October 2006, addressed almost all the concerns raised by stakeholders and r ecommended exhaustive revamp of the legislation. A second edition introduced in Parliament in 2008 incorporated many of these recommendations. The bill, how-ever, lapsed with the prorogation of 14th Lok Sabha. A third edition of the Seeds Bill was recently introduced in Parlia-ment. A reading of the bills presented in 2008 and 2010 reveals a consistent un-willingness of the government to accept some of the recommendations of the PSCA, which are important in establishing a farmer-friendly and accountable seed trade and a backtracking from some of the accepted recommendations.

What Is Seed Quality?

Seeds are the most basic and important among agricultural inputs. The most vital attribute of quality is viability – the innate ability of seed to germinate under favour-able conditions. Seed vigour is the second attribute that is closely associated with seed viability and is important for ensur-ing establishment of a vigorous and uni-form field crop. These two traits signifi-cantly influence crop performance. The performance of a seed, which culminates in economic yield, depends also on its g enetic architecture. This constitutes the main difference between traditional and new seeds.

Genetic and physical purity are two other important factors influencing seed quality. Genetic purity is assessed from a benchmark chosen for defining a variety, which varies in the perceptions of farmers and scientists. A plant variety may have a taxonomic or legal definition. According to the taxonomic definition, a variety is a plant grouping within a species that is produced by selective breeding with little or no role from natural selection, and per-sists only under cultivation and seed selection. Every variety has an identity on the basis of a given unique name and certain characteristics, which are usually distinct from any other plant grouping and these characteristics remain stable during r epeated propagation.

Seed of a variety becomes genetically impure when the distinctive characteris-tics defining a variety are either diluted or lost due to genetic contamination. The latter may happen either by out-pollination with other cultivars, or by very rare spontaneous mutations, or by physical mixing of the seed with those of other cultivars of same crop. While genetic con-tamination cannot be totally excluded u nder the normal process of seed produc-tion, its regulation is essential for preserv-ing the true-to-type character of a variety and seed quality.

Another important attribute of quality is seed health, which refers to its free-dom from infection by pests or diseases. Such infection may occur either prior to the harvest or during seed processing or at storage. This may seriously compro-mise viability and vigour. The danger of seed-borne or transmitted diseases is that it gives a poor yield and spreads the disease to other varieties during its movement from place to place and country to c ountry. This is more s erious in vegetative propagated crops. More-over, some vegetative planting m aterial is often used with planting medium like soil, where the potential threat to spread soil-borne pathogens such as nematodes, fungi or bacteria is very high. Therefore, seed health is even more important than genetic purity in terms of the damage it can cause to farmers and national a griculture.

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A seed law with scientifically prescribed quality standards and its strict enforce-ment are important in providing good yield to farmers and safeguarding national agriculture from serious threats from pests and diseases. Quality seed is conside red to increase yield by 15-20%. At least 30% of seeds sown every year in India by small and big farmers are sup-plied by the formal seed trade. The remaining 70% lies in the farmer seed system. A seed law basi cally defines, moni-tors and controls the minimal standards and other quality measures on seeds (or other planting m aterial) produced and processed, imported and exported for the purpose of trade. In other words, a seed law is necessary to prevent trade in spuri-ous and poor quality seeds. Therefore, the farmers will be the singular victims of a lax seeds law and its weak enforcement. To promote regular supply of superior seeds to farmers, the law may also offer certain legal protection and space to seed developers to build a market through reg-istration right and the right to export and import the registered seeds. Countries also allow developers to establish market-ing monopoly on seeds by placing laws in sync with laws on intellectual property rights (IPR) such as plant breeder’s right, trademark or trade secret on varieties.

Seeds Law and Traditional Seeds

Traditional varieties of crops evolved and conserved by farmers continue to play a important role in the agriculture of all megadiverse and developing countries. In India, the traditional seed system or the farmer seed system claims 70% of the seed annually sown. This seed system com-prises both traditional and improved seeds, which are saved, shared, ex-changed or l ocally sold by farmers. While seed exchange makes a major contribu-tion in the farmer seed system, this system is not built and maintained on commercial considerations. Hence, the seeds law de-signed for traded seeds should neither reg-ulate farmer seed system nor restrict farm-ers’ traditional right to save, sow, share, e xchange or sell seeds. These rights are fundamental to the generation and con-servation of genetic diversity, which is essential for developing newer varieties and ensuring the food security of coming

gene rations. This brings forth the need for a seeds law in harmony with existing na-tional laws in the domain, such as the Pro-tection of Plant Variety and Farmers Rights (PPVFR) Act, the Biological Diversi-ty (BD) Act, the Environment Protection Act and the Plants, Fruits and Seeds (Reg-ulation of Import into India) Order.

Major Contentious Clauses

Some of the major contentious issues thrown up by the Seeds Bill, 2004, which generated protest from farmers, civil s ociety and parliamentarians were:

• Imposed seed quality standards, such as a prescribed germination percentage, physical purity and genetic purity on the farmer seed system, which can potentially kill this im-portant seeds system, deny them the farm-ers’ rights on seeds provided in the PPVFR Act, 2001 and force farmers to totally de-pend on commercially traded seeds;• Farmers are dealt as producers of seeds and thereby treating farmers as well as the commercial seed producers on the same plane in all respects including on offences and p unishment;• Farmers’ varieties were not excluded from the mandatory requirement that all varieties sold, exchanged or bartered shall be regis-tered. This also snatched away the farmers’ traditional right to selling farm-saved seeds;• By robbing farmers of their traditional seeds rights, the Bill undermined their im-portant role as primary conservers of genetic resources, which, on the other hand, was be-ing promoted by the PPVFR Act, 2001 and BD Act, 2002.• A provisional registration, which is bio- hazardous, was provided for those transgenic varieties having not received bio-safety clearance from the national bio-safety regu-latory system; • Accredited private seed producing and trading companies and individuals were to be allowed to do self-certification of seed quality, while such certification is an essen-tial regulatory requirement for traded seeds. This is something like sports personnel d oing their own doping test. • Foreign seed certification agencies were to be accredited to certify the agronomic performance of imported seeds and such seeds were to be allowed for direct market-ing in India without submitting to national

e valuation.

• The exclusive commercialisation period of registered seeds was to be de facto al-lowed for 30 years in the case of annual crops and 36 years in the case of perennial crops, while the PPVFR Act provides exclu-sive commercial rights on protected va-rieties of these crops only for 15 years and 18 years, respectively.

• Farmers were made eligible to receive compensation in case a seed sold to them with specific claims on its performance failed to realise such performance under specified production conditions. However, award and disbursement of such compensa-tion was left to consumer protection courts under the Consumer Protection Act, 1986, which virtually denied a fair and quick relief to farmers after having lost a crop due to dis-honest seed trade practices.• The increased powers given to seed in-spectors to enter and search premises, break open seed containers, confiscate spurious seeds or seal premises spelled a threat and would have been a source of harassment to farmers at the hands of adventurous/ prejudicial officials in the context of the Bill defining farmers as seed producers and t aking farmer seed system under its ambit. • The penalty prescribed for offences under the Bill continued the legacy of the Seeds Act with very soft cash punishment, which could be made good with a smallest fraction of the profit earned from illegal practices. Such soft pedalling on offences, in the context of the Indian seed trade being plagued by “fly by night” seed companies, would do more harm to the fragile economy and livelihood of farmers.

Salient Features of 2010 Edition

The PSCA examined each of the provisions in detail, and recommended an exhaus-tive revamp of the Seeds Bill, 2004. An amended Seeds Bill was introduced in Parliament in 2008. The 2010 edition was introduced in Parliament during its Budget session, 2010. This Bill seeks to repeal the existing Seeds Act of 1966 for the purpose of facilitating supply of quality seeds to farmers and regulating the seed trade, import and export to this end.

Unlike the Seeds Act of 1966, the 2010 Bill insists that no seed, except farmers’ seeds, without registration by the Central Registration Sub-Committee could be traded in India. The Seeds Bill covers all seeds including any living embryo and vegetative planting material such as seed-lings, tuber, bulbs, rhizomes, roots, cut-tings, grafts, tissue culture plantlets and synthetic seeds. Every producer of such seeds, except the farmer, processing unit, distributor and trader are to be compulso-rily registered at the state level. The dura-tion of marketing allowed for a variety r eleased by the centre or state govern-ment, under the Seeds Act, is 15 years, while the Seeds Bill amends this period to 10 years for annual or biennial plant

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varieties and 12 years for perennial plant varieties with option for renewal for an equal term on revalidation of their agro-nomic performance.

The Seeds Bill demands that any traded seed should be identified in terms of the variety to which it belongs, meet the mini-mum prescribed standards for germina-tion, genetic and physical purity, maxi-mum standard in seed health and an ac-ceptable level of agro nomic performance. Certification of seed standards is manda-tory and done by accredited central and state Seed Testing Laboratories. These are welcome changes from the existing volun-tary seed certification and sale of “truth-fully labelled” seed.

The Bill introduces assessment of agro-nomic performance in multi-location trails to determine the eligibility of a variety for registration.

Details of all registered varieties are to be recorded in the National Register of Seeds. The existing role of the State in v ariety release is recalled. The Bill pro-vides new labelling standards and also a declaration on the expected performance of the seed and the conditions required to realise such performance.

Farmers failing to realise this perform-ance from such seed under the prescribed cultivation condition are eligible for com-pensation. Enforcement of most of the regulatory clauses of the Bill is retained with the state administrative set-up involv-ing seed inspectors at field level. The Bill empowers these officials to enter and search any place where commission of o ffence is suspected and to confiscate stock of spurious seeds with prior written order from the district magistrate and to initiate prosecution of offenders. However, the past record of enforcement of the Seeds Act in many states is notable for farmers paying a heavy toll for the inaction, ineffi-ciency and corruption of the enforcement system and soft penalty to offenders.

Farmers’ Protection

Thanks to the four recommendations of the PSCA and their adoption in the latest edi-tion of Seeds Bill, the farmer seeds s ystem is saved from the regulatory grip of legisla-tion. These recommendations are: (1) the revised definition of farmer reflecting his triple roles as cultivator, conserver and

breeder; (2) effective protection to farmers’ right to grow, save, re-sow, exchange, share or sell seeds and planting material, except that such sale shall not be under a brand name; (3) exclusion of farmers from the scope of “seed produ cers”; and (4) exemp-tion to farmers’ varieties for registering in the National Register of Seeds.

Contentious Provisions Retained

Notwithstanding important recommenda-tions provided by the PSCA and the Natio-nal Commission on Farmers (NCF), one may sense the working of a strong force behind the retention of some of the anti-farmer provisions in the latest edition of the Bill. The forces operating on the govern ment also seem to have succeeded in making it to backtrack on some of the recommendations of the PSCA, which were carried out in the 2008 edition. Some of the important farmer unfriendly provisions retained in the 2010 edition of the Bill or the silence of this Bill in certain other aspects, which, in turn, adversely a ffect farmers’ interests are discussed here.

(a) Lack of Transparency in Registration Process: The compulsory registration of all seeds in trade is indeed welcome. How-ever, such registration promoted without transparency is more harmful than help. The relevant clause of the Bill (Section 13) seems to convey that one can get any variety registered on the mere satisfac-tion of seed standards and agronomic performance, with no mandatory require-ment to satisfy either for its prior regis-tration under the PPVFR Act or with proof on its plant breeder’s right (pBR) or right of licence or other kind of right. The fail-ure of the Bill, by not stipulating a re-quirement for declaring the origin and ownership of varieties submitted for reg-istration would legiti mise the piracy of farmers’ varieties by com mercial inter-ests and other instances of variety swap-ping. The Bill has to be transparent in this respect by p roviding provision for decla-ration on the origin and ownership of va-riety, p re- registration publication of ap-plication, pre-grant o pposition of regis-tration and severe punishment for wrong or misleading dis closure. This could also be achieved, alter natively, by enforcing that only varieties first registered under

PPVFR Act are to be s ubmitted for regis-tration under the Seeds Bill.

(b) Robbing Peter to Make Paul Rich: The Seeds Bill is essentially a legal device to promote and regulate commercialisa-tion of biological material, the seed and other planting material which are largely bred from national genetic resources. It cannot be denied that these genetic r esources at one stage or other constituted farmers’ varieties and resources con-served by them.

The Biological Diversity Act and PPVFR Act speak of legal access to genetic re-sources and benefit sharing with provid-ers of such resources in the event of com-mercialisation of the new seeds bred from these resources. Moreover, India has been championing the cause of bene-fit sharing in all international fora on bio-diversity. In addition, the right to benefit sharing is part of the farmers’ rights agreed by India under the International Treaty on Plant Genetic Resources for Food and Agriculture.

Important legal requirements to facili-tate access and benefit sharing are truth-ful disclosure on the genetic material used to breed any variety registered under Seeds Bill, details of their source, geo-graphical location, passport data, etc, and a declaration that these materials were a ccessed legally. The Seeds Bill is totally silent on this. This, in effect, is allowing double protection to varieties registered under the Seeds Bill and thereby facilitat-ing the creation of the strongest possible trade monopoly and associated benefits. These are direct protection mandated for the seed trade and indirect protection to keep pedigree of the variety as a trade s ecret. Such trade secrets on hybrid varie-ties would offer absolute monopoly, which will be much stronger than what a patent could offer, although India does not pro-vide patent on plant varieties.

By not aligning the Seeds Bill in tandem with the PBR of the variety granted under the PPVFR Act and by not mandating b enefit sharing on the traded seeds; it is w eakening both the PPVFR Act and B iological Diversity Act while legitimising biopiracy.

(c) Unchecked Monopoly on Seed Trade: The above reveals the kind of strong

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monopoly being allowed by the Seeds Bill to the seed trade. Such a monopoly will have an obvious impact on seed prices, which will also affect the farmers not only in terms of their profitability but also in their ability to access a new seed. Here, the Seeds Bill should have given, as recom-mended by the PSCA and the NCF, a regula-tory system to control unjustifiably high seed prices and to ensure its normal supply with a view to prevent black marketing and other monopolistic malpractices in trade. However, the 2010 Seeds Bill does not have such a provision and abdicates from this important responsibility, essential for serv-ing Indian farmers and agriculture. Here it strikes another stark contrast with the PPVFR Act, which has a mechanism to en-sure seed supply and regulate prices. It ap-pears the essentiality of this regulatory mechanism has not been given importance even after the court ruling slashing the pric-es of Bt-cotton seed to below 50% of what was levied by a large seed company. The recent initiatives by the minister of agricul-ture, MPs and MLAs from Andhra Pradesh to impress on the government on the need to introduce this provision are also relevant to mention in this context.

(d) Commercial Monopoly: The Seeds Bill offers commercial right to market seeds, which will be more often exclusive, for a longer duration than the period provided for PBR in the PPVFR Act. The eligible period for commercial marketing of a variety in the Seeds Bill, on the other hand, is 20 years for annual and bie nnial crops and 24 years for perennial crops, while the exclusive market-ing period provided under the PPVFR Act for these crops is only 15 years and 18 years, re-spectively. In both cases, the said period is allo wed with an extension option exercised by the applicant party. In this respect also, an option to register a variety only under the Seeds Bill and not under the PPVFR Act is made advantageous to the seed trade. In-terestingly, both these mutually contracting laws on seeds are devised and administered by the same ministry!

(e) Backtracking: The agronomic per-formance of varieties assessed under m ulti-location trials is an important eligibility criterion for registration of variety. The clause in the 2004 version of

the bill allo wed accredited private sector organisations to conduct such trials. This invited wider public criticism and led to the recommendation by the PSCA that such trails should be conducted only by the accredited government/semi-government/ autonomous organisations, such as the ICAR and SAUs. While this rec-ommendation was incor porated in the 2008 edition of the Seeds Bill, its 2010 edition backtracked and brought back ac-credited private organisations for con-ducting these trials. Another instance of backtracking from the recommendation of the PSCA, which was incorporated in the 2008 e dition of the Bill, is on the establishment of state Seed Testing Lab-o r atories. The PSCA recommended that such laboratories should be only in the “government or semi- government sector” and not in the “non- government sector”. The 2010 edition makes a u-turn to the 2004 version to bring back the “non- government sector”. In both these cases, compliance with PSCA recommendations will be in larger public interest.

(f) The Compensation Muddle: The pro-vision to provide compensation to farmers by the seed trade in instances where the seed sold to the farmer under a declara-tion of expected performance had failed under the specified condition of cultiva-tion, offers important protection against dishonest trade. However, this clause attra cted wide criticism for making deter-mination of such compensation and its award by the district consumer forums and state consumer councils under the Consumer Protection Act, 1986. Review-ing this clause, the PSCA strongly recom-mended that compensation provisions should be included in the bill itself and such designated institutional arrange-ment established by the government should be either a compensation commit-tee or tribunals or a fast track court, etc, and the c ompensation award should be handed down within 30 days of the filing of the claim. While the 2010 version of the bill has provided for a compensation com-mittee, vital details on whether the com-pensation committees are to be estab-lished in every state, what principles shall govern the compensation award and what shall be its time frame, what is the

appellate authority, etc, are left out from the bill for possible bureaucratic determi-nation under rules and regulations. It is important that these aspects of compensa-tion are included in the bill.

(g) A Toothless Law: The force of law on offenders who trade in substandard seeds or using other malpractices has to be stronger than a concern for the supply of good quality seeds. Many Indian laws are poorly enforced. In this scenario, a tooth-less law with weak penal clauses may pass off as an unwritten licence for viola-tions, malpractices and cheating. The Indian seed industry is the eighth largest in the world with turnover of Rs 4,900 crore and growing at 13% per annum. It has more than 400 players, big and small, with an increasing presence of multi-national seed companies, acquisitions and mergers. While many of them are honest and do good service, there are also “fly by night” players. Towards nur-turing a healthy and responsible seed in-dustry, the Indian seeds law has to not only put in place a good legal and ethical system governing the production and trade of seeds, but also bring in deterrent punishment to those v iolating the system, particularly in view of the high sensitivity of its clients.

As mentioned, the Seeds Act, 1966, which is currently in force is notable for symbolic rather than deterrent punish-ment, such as a fine of mere Rs 500 for selling tonnes of spurious seeds over years. The 2010 Seeds Bill is taking the same road and hence the services it may render to farmers would be no different from the past. There is unfortunately greater resistance from the seed industry, which is being strongly supported by the government with no understandable logic. All editions of the Bill from 2004 onwards have persisted with token pun-ishments, despite strong and emphatic recommendations from the PSCA for strong and deterrent punishment. The presence of a compen sation clause provid-ed in the bill should under no circum-stances be a reason to hand out soft pun-ishment to offenders.

For serious offences such as stocking and selling spurious or misbranded or unregistered seeds, illegal import of

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seeds, and obstructing the due authority from discharging their duty, the bill pre-scribes a petty fine of between Rs 5,000 and Rs 30,000 with no prison term. As there is no compounding punishment for repeated prosecution of such offenders, all fines paid could be made good from a small fraction of the profit earned from such malpractices continued. It is unfortu-nate that the bill keeps to ignore the well arg ued recommendation of the PSCA to enh ance punishment to these offences, committed for the first time, to a fine of between Rs 50,000 and Rs 2 lakh, or a prison term up to three months or both, depen ding on the offence and offender involved. In the case of offences such as furnishing false information relating to the standards of genetic purity, supplying spurious seed or spurious transgenic variety, the PSCA recommended enhanced punishment with a fine of between Rs 2 lakh and Rs 10 lakh or a prison term between three months and one year, or both. For these serious offences the bill,

on the other hand, prescribes punishment with a fine of between Rs 5,000 and Rs 1 lakh or with a prison term up to six months, or with both. A toothless law only encourages offences, which, in this case, will seriously damage the life and livelihoods of millions of Indian farmers.

(h) Offences by Seed Company and Culpability: One of the penalty clauses deals with the legal liability of director, manager, secretary or any other officers of any seed company, which committed an offence under this bill. According to the 2010 edition of the bill, any such officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. How-ever, an immediate proviso states that such an official shall not be liable for any punishment if he proves that the offence was committed without his knowledge and that he had exercised all due diligence to prevent the commission of such an offence. This proviso is indeed

superfluous as the section does not deem an official who is honest and diligent as guilty, until it is proved. Interestingly, this proviso initially included in the 2004 edi-tion was deleted in the 2008 edition in compliance with the recommendation of PSCA and reintroduced in the 2010 edi-tion. This needs to be deleted and the process of law must shift the burden of proving the non- culpability of the official in the offence to himself.

The present version of the Seeds Bill restored farmers’ rights except the right to benefit sharing. However, a corporate hand seems to be heavily holding the government back from accepting some of the important recommendations of the PSCA and to craft this bill in harmony with other domain laws in force and render it to serve the Indian farmers and agriculture better. Now only Parliament can do the unfinished task to make the Seeds Bill totally effective in protecting and promoting the life and livelihoods of Indian farmers.

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