Indian mustard and farmers' rights

Although there were 54 applications for IPR for Indian mustard, only one was granted plant variety certificate.

National Plant Authority’s June, 2015 statistics reveal that out of the total number of applications for intellectual property (IP) received by it for Indian mustard (sarso), 54 were from farmers. The large number of varieties is evidence of the grassroots’ innovation in this crop.

It also reflects the crop diversity that exists in the Indian fields. Yet, only one farmer’s variety has been granted the plant variety certificate and it belongs to Hukum Singh Lodha Sitara village of Bharatpur district in Rajasthan.

Indian mustard was notified by the Ministry of Agriculture as a crop eligible for IP protection on in 2010. The Gazette Notification was issued by the Department of Agriculture & Cooperation (DAC) under the law – Protection of Plant Varieties and Farmers’ Rights (PPVFR) Act, 2001.

This signalled that the National Protection of Plant Varieties and Farmers’ Rights Authority functioning under the ministry was ready to receive applications for IP registration of varieties of Indian mustard, both sarso (Brassica juncea)and karan rai (Brassica kurinata).

Once a crop is so notified, there are time limits prescribed for the registration of farmers’ varieties (FVs) and extant varieties (EVs). The FVs can be registered within five years after the date of crop notification.

In other words, FVs of sarso were eligible for plant variety protection (PVP) until April 29, 2015. Likewise, EVs can be registered up to three years after notification, which in this case meant until April 29, 2013. The PPVFR Rules, 2003, were specifically amended by the PPVFR (Second Amendment) Rules, 2009 to notify these time-bound schedules.

However, the amendment gives the registrar the power to register FVs or EVs after the expiry of the prescribed five and three years respectively, provided he records his reasons in writing.

When an application for such IP registration is accepted, the registrar issues a certificate of registration in the prescribed form. It is valid for six years and extendable to a maximum of 15 years, upon review and payment of renewal fees.

During the term of registration, the breeder of the variety or his successor, his agent or
licensee has the exclusive right granted by the Act to produce, sell, market, distribute, import or export the registered var-iety. These are clearly a set of rights vis-à-vis the ‘formal’ seed market.

The PPVFR Act defines an FV as that which has been traditionally cultivated and evolved by the farmers in their fields; or is a wild relative or land race or a variety about which the farmers possess the common knowledge. According to the Act, an FV can be applied for by any farmer(s) or group of farmers or community of farmers claiming to be the breeder of the variety.

In sharp contrast to the single FV, a total of 46 extant varieties have been registered under the Act and granted IP by the PPVFR Authority as of March 31, 2015. Most of these registered EVs belong to the Indian Council of Agriculture Research and state agricultural universities (SAUs). One of these 46 is the plant variety certificate granted to Dhara Mustard Hybrid-1 (DMH-1) applied for jointly in 2013 by the National Dairy Development Board along with the University of Delhi, South Campus.

GM controversy

The developers of the GM variety of Brassica juncea mustard hybrid (DMH 11) containing bar, barnase and barstar genes have applied for and been granted several patents on different aspect of this ‘invention’, both in India and USA.

But the PPVFR Act expressly excludes crop varieties with Genetic Use Restriction Technology (GURT) or ‘terminator technology from IP protection. The Act classifies GURT and Terminator as a technology that is injurious to the life or health of human beings, animals or plants. It also clearly lays down that no variety of any genes or species that involves GURT will be registered.

The seed industry – public or private – does not want competition from farmers’ varieties. This in part explains the go-slow by the Authority on the applications of FVs of sarso. Such a delay can only be inferred as the formal system wanting to keep at bay apparent competition for the hybrids and GM varieties waiting to be marketed both by the public and private sector.

In the light of the above, there are three key questions that need to be asked:

• Why have the other pending applications for farmers’ varieties of Indian mustard not been granted PVP certificates? And why isn’t the only FV registered so far being supported and popularised by the public sector?

• What are the valid reasons the Registrar of Plant Varieties can give for the grant of PVP to companies for EVs beyond the date of expiry for registration of extant varieties of Indian mustard?

• Last but not the least, if the implementation of the PPVFR Act through its rules and regulations is visibly leaning towards IP protection of varieties developed by the seed industry – public or private– then why is it (still) called a ‘Farmers’ Rights’ Act?