SEED BILL 2010AN ANALYTIC VIEW

AN ARTICLE AND COMPILATION (as part of the internship)

BYY.V. ANIL KUMAR

III YEAR STUDENTA.P.UNIVERSITY OF LAW

VISAKHAPATNAM

Centre for Sustainable Agriculture12-13-445, Street no-1

Tarnaka, Secunderabad-500 017

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INTRODUCTION:

Seed is the most unassuming potent gift in the life of the farmer to make his life fruitful. Right to good food and right to safe food are the slogans of the day and the same can be achieved by attaining food sustenance and food security. Seed is the kernel of the life itself, the source of our food, when contaminated have an adverse effect on our health and also health of our planet. India is a country mainly relied upon agriculture and for boosting up agricultural output availability of good quality of seeds to farmers is inevitable. To regulate the seed sector the Parliament has enacted the Seed Act 1966. Due to recent innovations in the seed sector, entry of private industry and introduction of varieties of seeds and its importation in India, makes the existing Seed Act as redundant since it fails to serve useful purpose. Hence, it paves the way to Government to introduce a new Bill in the Parliament legislation to deal with several issues in the seed sector. Accordingly, the Seed Bill 2004 has been prepared and introduced in the Rajya Sabha on 9th December, 2004 and thereupon referred to Parliamentary Standing Committee on agricultural chaired by Prof. Ramgopal Yadav to study and submit its report. The Seed Bill 2004 introduced radical changes in the seed sector.

The Seed Bill 2004 was introduced in the Rajya Sabha on 9th

December, 2004, as stated supra and the same has been referred to Parliamentary Standing Committee on Agriculture for submission of report.

KEY FEATURES OF SEED BILL 2004 :

1. The Seed Bill 2004 aims at promoting the production and supply of quality of seeds and also to regulate its quality for sale, export and import.

2. The Seed Bill 2004 seeks to repeal and replace the existing Seed Act, 1966.

3. To comply with W.T.O. obligations and to protect the farmers and small scale agriculturist from monopolistic

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activities of commercial seed producers and seed suppliers, the Parliament proposed to go ahead for a new legislation on seeds and made an attempt to bring home several radical changes in the seed sector.

4. According to the Bill all varieties of seeds have to be registered and certified. The Bill proposed to be established a Central Seed Committee (CSC) for which the Secretary to the Government of India, Department of Agricultural and Co-operation, Ministry of Agriculture is the ex-officio Chairman.

5. The CSC is a prime controlling and regulating body under the Bill with several Government representatives as its members in the said body apart from two representatives from the farmers’ sector and two from the seed industry. The Bill proposes for constitution of a sub-committee called Registration Sub-Committee which shall maintain a National Register of Seeds for all varieties of seeds. Any type of seed for sale must be registered with the Registration Sub-Committee and its nomenclature must be entered in the National Register of Seeds.

6. At State level, State Seed Committees and State Seed Certification Agencies will be established which are advisory in nature.

7. The Bill does not restrict the farmers right to use or sell his farm seeds and planting material provided that he does not propose to sell the same under a brand name.

8. The provisions for compensation were introduced in the Bill. All the registered varieties and seed producers, distributors and vendors have to disclose the expected performance of the seeds under certain given conditions. In case of failure to perform the expected standards the farmer can claim compensation from the dealer, distributor or vendor under the Consumer Protection Act, 1986.

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9. As a part of the regulatory method, the Bill also introduced Central and State Seed Testing Laboratories with required number of seed analysts.

10. Import of seeds would be subject to the Plant Quarantine (Regulation of Import into India) Order 2003 or any corresponding Order under the Destructive Insects and Pests Act, 1914. The Central Government can restrict export of seeds if it is deemed to affect the food security of the country.

11. The Bill allows self certification of seeds by accredited agencies and also allows the Central Government to recognize certification by foreign seed certification agency.

12. Every seed producer and dealer and horticulture nursery must be registered with the concerned State Government.

13. The transgenic variety of seed must get clearance as per the provisions of Environmental Protection Act, 1986 for obtaining its registration.

14. The Bill proposes to increase the penalties to regulate the seed business. The Bill has enhanced the penalties that were prescribed under the existing Seed Act 4 ½ decades ago.

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SEED BILL 2004 – CHANGES PROPOSED BY STANDING COMMITTEE ON AGRICULTURE:

After placing the Bill before Rajya Sabha, the Standing Committee on Agriculture appointed a Parliamentary Committee to study the Bill under the Chairmanship of Prof. Ramgopal Yadav and he submitted his report on 20.11.2006 and recommends for certain changes in the original Bill.

a) The Committee recommends that Plant Variety and Protection of Farmers’ Right Act 2001 (hereinafter called as PVPFR Act) be made fully operative before the Seed Bill 2004 is passed.

b) The Bill should not impose a condition that the farmers seeds also must conform to the minimum standards required to be maintained by the commercial producers for registering their seeds. The Committee feels that such a restriction imposed in the Bill will seriously effect the rights of the farers and recommended for deletion of such restrictions.

c) The Committee suggested for expansion of the definition of the “farmers”.

d) The Committee discourages for private participation in the Seed Certification since it seriously conflict the interest of the farmers who practice traditional system of exchange and sale of seeds. Thus it strongly recommends for deletion of the self certification provisions.

e) Another notable feature recommended by the Committee is for introduction of price regulatory mechanism in the Bill to ensure that the farmers should not be charged with arbitrary prices by the seed producers and sellers.

f) The Committee recommends for enhancement of the penalties mentioned in the Bill. The Committee suggests to increase the penalty for contravention of provisions of law as a fine of Rs.50,000/- which may be extended up to Rs.2,00,000/- and imprisonment which may be extended

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up to 3 months. Likely, the penalty for supply of spurious and mis-branded seeds must be an amount of Rs. 2,00,000/- which may be extended up to Rs.10,00,000/- and imprisonment of three months which may be extended up to one year.

g) The Committee also recommends for introduction of provisions banning the print misleading pictures on seed packages which may inspire and attract the innocent farmers to buy the said seeds and ultimately land in losses due to nil production.

h) The Committee also recommends for introduction of machinery to deal with the compensation matters in the Bill itself. The Committee found fault with for entrusting the task of dealing with compensation matters to the Consumer Forums constituted under the Consumer Protection Act.

i) The Committee recommends for introduction of Seed Crop Insurance for providing compensation to the farmers whose seeds do not give the desired yield. The Committee further says that the compensation to the farmers should be based on the expected performance as mentioned by the seed producers on the label of the seed package and that the said certification agency should also make liable in the compensation process, in case the seeds failure to give the promised results.

j) The Committee opined that there are chances for misuse of powers by the seed inspectors. The Committee suggest for effective regulatory machinery over the powers of the seed inspector. The search and seizure provisions may be exercised by the seed inspector with the prior permission of the District Collector or/and Magistrate. The Committee also recommends for exemption of farmers from the provisions of search and seizure since they are not selling branded seeds except the farm seeds saved from their own production..

k) The Committee further recommends that there should be atleast one state representative from each of agro

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climatic zones instead of geographical zones on rotation basis and that number of farmers’ representatives must be increased to five and each one from different geographical zones.

l) The Committee further recommends that for reduction of the registration period 10 and 12 years instead of 15 and 18 years. The Committee suggests for deletion of the provisions of re-registration since it will tend to monopoly among certain seed producers.

m) The Committee recommends that seed testing includes seed germination and yield testing and there should be a pre-registration requirement. The Committee further recommends that the Bill should include provision for declaring the origin of the variety and its parental details by the person sought for registration to ensure that farmers exempted variety should not be misused by the said companies.

n) The Committee also recommends that the foreign seed certification agency should be recognized only if the seedscertified by the said agency are tested on Indian soil to confirm to the minimum requirements.

o) The Committee further recommends for deletion of restriction of period of two years mentioned in Sec. 45 of the Bill which is introduced for removal of difficulties.

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AMENDMENTS PROPOSED TO SEED BILL 2004

(SEED BILL 2010)

After the Parliamentary Standing Committee on Agriculture has submitted its report, the Government of India accepted some of the amendments to the Seed Bill 2004 and subsequently on 13.04.2010 notified the Seed Bill 2010 draft. The new Draft Seed Bill 2010 was introduced in the Rajya Sabha on 23.04.2010. The issue of seed price regulation was not agreed upon. After 2002 with the introduction of Bt cotton the issues of royalties over seed technologies like Genetic Engineering etc have come into forefront.

In 2005 faced with the problem of price hike AP government sought the intervention of Monopoly and Restrictive Trade Practices Commission (See box on Bt cotton, Royalties and Seed Prices).

In the last five years, even the AP, MP and Gujarat State Governments have faced serious problems with the Seed Companies in regulating the Seed sale in the state in fulfilling its objective of helping farmers to have timely access to good quality seed in adequate quantities.

1. In 2005, after establishing the large scale cotton crop loss was due to seed failure in Warangal dist, the State government asked Mahyco to pay compensation. This company refused to pay and moved to AP high court on paying compensation saying state govt is harassing them. AP High court orders also were in favour of Mahyco and till date the company has not paid the compensation  Mahyco refused to the compensation.

2. In 2006, after MRTP commission’s ruling to reduce the bt cotton seed price, AP government reduced the cotton seed prices to Rs. 650 and Rs. 750 for bollgard I and II. Challenging this, MMB  moved to Delhi high court on this issue.

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3. In 2007, when Agriculture officers in Warangal district found that Mahyco Bt hybrids were being sold in Warangal market with being approved by the state government. they raided and seized the shop. Mahyco challenged that cotton seed was removed from Essential Commodities Act, hence Seed control order which draws powers from EC Act does not apply to cotton.  At this juncture, AP government made a new act to regulate ‘Transgenic cotton seed in AP’. However, all these Acts, including Seed control order, will be repealed once the 2010 bill is passed, there by taking away the rights of the farmers and also the powers of the State government.

4. In 2010, Monsanto filed case in AP High Court requesting to stop state govt from reducing the royalty arguing that it does not have any power to do so. The case is still pending in the court.

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Bt cotton, Royalties and Seed Prices

Three hybrids of Bt cotton were introduced in India by Mahyco Monsanto Biotech Ltd (MMB) in 2002. The prices were fixed at Rs. 1800 per packet of 450 g which can be used to sow in an acre. In 2005 Rasi and Ankur seeds which also developed Bt cotton in license agreement with MMB also got approval for their Bt hybrid seeds. The license agreement show that the Indian companies which entered into the agreement have to pay upfront Rs. 50 lakhs and an amount annually fixed by MMB. They were asked to pay Rs 1200 on every packet initially.

AP government filed a case with MRTP Commission requesting that Commission to declare the agreement between Indian seed companies and MMB as void as it is leading to monopoly and increase in seed prices. MMB maintained that it is not monopoly as other events (Nath seeds and JK agri genetics) were also approved. However, since the royalty collected is higher the state government should take action to reduce it. As there was no law to regulate the seed prices, AP state government used its power of granting trade licenses under Seed Control Order. The prices of Bt cotton seed were fixed at Rs 750 a packet (450 gm) and Rs 925 in 2006 for Bt 1 and Bt 2 respectively. This was further reduced to Rs 650 and Rs 750 respectively in 2008. As the Agreement between MMB and Indian Seed Companies continues to exist and they still have to pay the royalty as demanded by the company.

The industry quickly changed the recommendation from one packet (of 450 g to two packets of 450 g per acre) which quickly doubled their business. MMB was collecting royalty of Rs 150 and Rs 225 on Bollgard-I and Bollgard-II respectively.

In 2010, the National Seed Association of India (NSAI), a body of seed companies association demanded that they should be allowed to increase the seed costs of bt cotton by Rs. 200/packet. Their main argument is that ‘Farmers across the country earned Rs 25,000 crore, farmers in Andhra Pradesh realised Rs 4,000 crore after the introduction of Bt cotton. The farmers' income, which was at Rs 16,000 in 2006, has increased to Rs 36,000 in 2009’.

Mahyco Monsanto Biotech's sublicense agreement (the concerned page is enclosed) has clauses which says any company entering into an agreement with MMB has to withdraw Cry1Ac (MON 531) based Bt cotton three years after the commercial approval of the Bollgard-II (with staked genes cry1Ac & cry2Ab (MON 15985) or five years after the first planting of the Bollgard-II.  the indian seed companies which have paid Rs. 50 lakh initially to aquire license and paid royalty (Rs. 1250 on every packet initially and now Rs. 150 for Bollgard-I) have to withdraw the single gene cry1Ac anyway by next year as per the license agreement.

CHANGES PROPOSED BY GOVERNMENT OF A.P.:

The State of Andhra Pradesh is the seed hub of our country and most of the varieties of seeds are being produced in the State of Andhra Pradesh. Even though, the State Government has introduced a Draft A.P. Seed Bill 2004, the same has not been approved by the Centre since the Central Government proposes to introduce Seed Bill 2004 in the Parliament. Since the Government of A.P. felt that some of the provisions of the Seed Bill 2004 are not farmer friendly, made certain proposals for amendment to Clauses 20, 21 (6), 36 (1), 38 (2) and (3) of the 2004 Bill. The A.P. Government mostly unsatisfactory as to the provisions of the powers conferred upon the State Governments. In fact, the Bill does not provide any independent powers to the State Governments to deal with or regulate the seed producers and also with regards to registration of seeds. Since no control is provided to the State Governments over the seed producers, the objectives of the Act cannot be achieved. The Government of A.P. also felt that there must be definite provisions for price regulation in the Bill and without that no purpose would be achieved under the Act to protect the farmers. The Government of A.P. also suggested for fixation of maximum retail price and introduction of provisions to that extent in the Bill.

VIEWS OF CENTRE FOR SUSTAINABLE AGRICULTURE (C.S.A.) AND ITS SUGGESTIONS ON THE SEED BILL 2004:

National Seed Act should not be looked at in isolation and it should be looked in conjunction with other legislations like PVPFR Act, 2001, Biological Diversity Act, 2001, Environmental Protection Act, 1986 etc. Any legislation on seeds should first and foremost look at rights of the farmers and they should be protected. Certain provisions of Seed Bill 2004 are quite contrary to provisions of PVPFR Act 2001. Certain rights granted under the PVPFR Act are taken away and abridged under the present Seed Bill.

Discourage the private participation in seed testing and certification since it leads to collusion and there by encouraging spurious seed in the market.

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Facilitative climate for growth should not be at the expense of the farmers. Facilitative growth cannot be interpreted as lax regulation.

Without resolving issues related to ownership of seed resources, boosting exports would only facilitate and legitimize bio-piracy. The in its current form the Bill seeks to violate the rights of the farmers in many ways. The Bill demands the farmer to compulsorily register themselves as seed traders if they are want to sell seeds. . This is violation of farmers rights which was protected in PVPFR Act. Apart from that there is serious incompatibility among the Seed Bill 2004 and other related legislations also.

The Bill further demands that the farmers’ seed must conform to the minimum standards laid down in the Bill and the same is infringement of traditional rights of the farmer in dealing with the seeds.

There are several contradictions between the 2004 Bill and PVPFR Act, 2001. The 2004 Bill is an attempt to take away certain protections and rights provided to the farmers under PVPFR Act.

The Bill failed to introduce an effective mechanism to deal with the compensation cases of the farmers in case of failure and proposed that appropriate mechanisms to estimate and deliver adequate compensation should be defined.

The provisions for two years provisional registration for transgenic variety of seeds since is a clear violation of provisions of Environmental Protection Act, 1986 and the Rules made there under. We suggest for appropriate changes for the provisions of registration of seeds and varieties. It recommends the system of licensing instead of registration. It also recommends for decentralization of powers between the Centre and the States for effective implementation of the provisions of the Bill.

The system of centralizing seeds regulatory mechanism excludes the authority of States in approving the varieties that are suitable for their locations. License should be granted for

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each variety between 3 to 5 years and the same is renewable basing on the performance.

We suggest introduction of required provisions for seed insurance.

The penalty clauses mentioned in the Bill do not create any deterrent or fear in the minds of the spurious producers and seed companies and the said provision cannot control the erring companies and producers unless the penalties are enhanced to maximum extent.

We also recommend for increase of criminal liability, compensation and for introduction of provisions for price control etc. It also suggests for effective powers to the State Governments for proper implementation of the provisions of Seed Bill.

A delegation from Andhra Pradesh including the Minister for Agricultural of the State,all party MPs, farmers organizations and Civlil Society representatives has represented for certain changes in the proposed bill. Taking into consideration all these things the Union Government organized a meeting at National level on 28.06.2010 at New Delhi providing opportunity to all the farmer unions, women groups, NGOs etc.

The Agricultural Minister Sri Sharad Pawar also suggested several amendments to the Seed Bill 2004. Later on 18.10.2010 the Union Cabinet approved the Draft Seed Bill 2010 and in November, 2010 the said Bill with some amendments was slated for reintroduced in the Rajya Sabha. Apparently the Government has not accepted most of the principal amendments proposed by many of the Members of the Parliament and also not taken into consideration the suggestions made at national consultation held at New Delhi. The principal amendments suggested by the Union Minister of Agriculture includes appointment of compensation committee, reduction of tenure of registration, amendment to the “farmers” definition, excluding the farmers from registering their varieties in the register, recognition of seed certification agencies situated in out side India etc.

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SEED BILL 2010 – OUR COMMENTS AND CONCLUSION:

The seed is the most important component of agricultural production. Supply of good quality of seeds to the Indian farmers is a prime factor for substantial growth of Indian agriculture. Since Seed Act, 1966 is not sufficiently meeting the requirements in the seed industry to regulate its production and supply, the Union Government rightly introduced the Seed Bill 2004. However, I feel the Bill is not properly drafted to meet the day to day needs and problems being faced by the farmers in India. Instead of calling it as Seed Bill 2010 we can call it as Commercial Seeds (Regulation) Bill 2010. Why because, the Seed Bill 2010 mostly deals with the commercial production, sale and distribution of good quality of the seeds by the seed companies and the public and private sector agencies and provides protection to the seed producers rather than farmer community. As a matter of fact, the farmers as well as the informal seed saving and cultivation system is kept out side its purview. We can say the proposed amendments made to the Seed Bill 2004 does not serve any purpose to the farmers since they favour private seed companies and corporations at the expense of the farmers. Admittedly, it is not farmer friendly. The Bill does not care to do anything to the farmers to provide food security for their better survival.

Even after serious comments and criticism and series of suggestions and recommendations by several organizations, committees etc., we are unable to understand whey the Government failed to amend the Seed Bill for incorporating suitable provisions regarding price control and for fixation of maximum retail price. In the absence of any suitable provision in the Bill for price control, the farmers have to suffer in the hands of gigantic seed companies and producers since they are at their mercy to buy the seeds at the arbitrary prices fixed by them. After sixty years of independence, the monthly average income of farmer remains at a paltry sum of Rs.2,100/- far below the poverty line. They are expected to purchase one time use seeds and pesticides at obnoxious costs. The farmer who is the back bone of our country and who feeds this nation

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is not at all considered and looked at upon by the Government while making provisions in the Seed Bill. It is undoubtedly ridiculous and shame to the nation. The farmers must be able to purchase the qualitative seeds at affordable prices. If the prices are under control, the farmers can afford to buy good quality of seeds and production will be increased and consequently per capita income of the farmers will go up apart from increasing the national income balancing the food security. Since the Bill failed to define the required statutory powers to the State Governments, they are unable to control the prices to save the farmers from the clutches of seed companies. The recent incident in the Andhra Pradesh with regards to large scale cotton seeds failure in Warangal District (in 2005) is a classic example. The A.P. Government in spite of failure of cotton seed, it is unable to do anything to the suffered farmers since no statutory powers are provided with the State Government. Further, when the A.P. Government reduces the seed prices of Bt. Cotton Seeds, the seed producers approached the Delhi High Court questioning the power of the Government. In 2010, Monsanto filed case in the A.P. High Court questioning the action of the Government in reducing the royalty. These instances clarifies that the State Governments are in helpless situation to control the prices and royalties and also the action of the seed companies and producers.

In these circumstances for regulating the seed price and providing the seeds at reasonable prices to the farmers the following steps may be taken to include in the Seed Bill 2010:

a) The State Committee must be provided with powers to collect the data and review the prices of the seeds registered and sold after their approval.

b) The Central Government should frame seed price control order dealing with several aspects for regulation of prices by fixing a maximum retail price.

c) The State should have an apex body to regulate the price of the seeds

d) The royalty/trait fee charged by the companies over the patents/proprietary technologies should be regulated. Any such royalty/trait fee on all traits/patents should not exceed 5% of the total cost of the seeds.

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e) Seed bill should have a liability clause in case of failure and define a simple redressal mechanism for farmers.

f) The role of the State Government in implementing the Seed Act is not defined or specified in the Bill. The State Governments are almost power less to implement the provisions. Its role is only an advisory.

g) Further, there is no proper representation in the Central Seed Committee from the States. Even though, the agriculture is included in the State list of the VII Schedule of the Constitution, no effective regulatory powers are entrusted with the States for effective implementation of the Seed Act.

We suggest that the power of registration of seeds may be entrusted to the State Committees and the Central Seed Committee may be given the power of review and revision. The seeds which may be more productive for certain soils in certain areas may be unproductive and lesser productive in some other areas. If the power of registration of seeds and varieties is entrusted with State Committees, depending upon the nature of the soil, the State Government can take a decision to register the suitable seeds for the respective regions.

Seed quality control mechanism is not specifically mentioned in the Bill. Standards have to be developed for seeds at various stages like nucleus, breeding, foundation etc. While certifying the seeds the standards fixed has to be verified with a precondition for seed certification.

To achieve the objectives of the Seed Bill, undoubtedly there must be more representatives from the farmers. If one Member from the farmer community from each State included in CSC, it will effectively serve the objectives of the Act.

Minimum limits of germination specified by the Committee in Section 6 (a) of the Seed Bill would only benefit the large companies and encourages centralization of seed business and effects innovation and does not allow the new seed companies to grow.

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The penalties prescribed in the Bill are admittedly paltry and does not reflect or cause any fear in the mind of the seed producers and sellers and most of the said companies and dealers can go Scot free.

We feel the company selling the spurious and substandard seeds should be blacklisted. Apart from that the penalty should include an imprisonment for a maximum period of 5 years and minimum fine of Rs.5 lakhs and ranging upto 15 lakhs In addition in case of complete crop loss the concerned seed company should be directed to pay an amount equal to expected crop out put + 50% assured return as live-li-hood security. Unless such stringent penalties are prescribed, the farmer who is the back bone of the nation cannot be protected and their suicidal tendencies cannot be stopped.

The provision for re-registration prescribed under the Bill undoubtedly encourages the monopoly in particular variety of seeds and this provision must be deleted from the Bill.

We further suggest that all imports of seeds must under go mandatory seed testing process including multi vocational trials to ensure its adoptability to the Indian conditions. No self testing or certificate from foreign seed certification agencies should hold true for Indian conditions.

Seed imports should only be allowed after pest risk analysis, local adoptability. There is a need for introducing a liability clause making the seed exporter responsible for any pest out break and also for the clean of operations.

The bill failed to propose time bound disposal of complaints and fast track arbitration authority accessible to the farmers and such a body is essential to set up. The Panchayat has to be given free role in determining the losses of crops and production and for fixing the compensation and value of the expected yield and cost of the cultivation which are the essential factors for fixing the compensation.

All suggested recommendations of Parliamentary Standing Committee and the suggestions of Centre for

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Sustainable Agriculture and other akin organizations have to be adopted in toto.

The right to food is the slogan of the day and also the slogan of the United Nations. The seed policies and right to food are thoroughly discussed in the United Nations General Assembly in the 64th Session held on 23.07.2009. The W.T.O. recommends in the said session that State should promote innovation in both the commercial seed system and also in the farmer seed system, ensuring that innovation in both systems works out for the benefit of the poorest and most marginalized farmers, particularly in the developing countries.

We hope the Parliament with its wide vision will think about farmer friendly seed legislation.

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