On April 5, PepsiCo India filed a case against four potato farmers of Sabarkantha district of Gujarat, accusing them of growing a variety of potato (FC5) that is “exclusive” to it. The multinational corporation (MNC) claims to have exclusive rights over this variety of potato under the Protection of Plant Varieties and Farmers’ Rights (PPV&FR) Act, 2001. Three days after the case was filed, a commercial court in Ahmedabad passed ex-parte interim injunction orders (“against infringement”) against the defendant farmers. The company is also seeking to recover “damages” from the “infringement” to the tune of ₹1.05 crore from each farmer.

However, due to political and civil society pressure, PepsiCo India has now “proposed to amicably settle with people who were unlawfully using seeds of its registered variety”. The company is suggesting that they may become part of its collaborative potato farming programme.

But was there an infringement at all?

The MNC is claiming that FC5 was developed by its scientists in the US and that PepsiCo India was granted a Certificate of Registration by the Protection of Plant Varieties & Farmers’ Rights Authority in 2016 for this variety as “FL-2027”. But this variety has actually been in use in India since 2009 and unsurprisingly the seeds can be found with many farmers because of certain practices that they follow: saving and resowing of seeds, exchange of seeds and sourcing of seeds from the market. In India, farmers cannot be expected to know which varieties are being registered under the PPV&FR Act and if this has many implications for them.

Importantly, the farmers don’t need to use the above two explanations as part of their defence in the court. In compliance with World Trade Organization’s TRIPS Agreement, India had adopted a sui generis or unique approach, which takes into cognisance farmers’ traditional practices around seed management and also recognises them as seed breeders too. The PPV&FR Act emerged from this approach.

The PPV&FR Act’s Section 39 entitles farmers to save, use, sow, resow, exchange or sell his/her farm produce, including seeds of a variety protected under this Act, provided that such seeds are not branded. In fact, Section 39’s articulation makes other provisions of the Act subject to this Section.

A perusal of the 1999 version of the PPV&FR Act, the revised Bill of a Joint Parliamentary Committee, and the parliamentary debates in August 2001 clearly illustrate the legislative intent behind this statute, and it was clearly an intent to protect farmers’ interests.

PepsiCo India is on shaky ground inside and outside the court in this case. The sued farmers, who are not in any buyback arrangement with PepsiCo India, have decided against any settlement since they realise that the fight here is larger than their individual cases. It is about the assertion of their seed freedom/sovereignty and the correct judicial interpretation of the PPV&FR Act. It is now in PepsiCo India’s interest to withdraw the cases unconditionally. I hope the judiciary will reinforce unequivocally Section 39 of the PPV&FR Act since this has huge ramifications for farmers and their livelihoods.

Kavitha Kuruganti is with Alliance for Sustainable & Holistic Agriculture, an advocacy platform for farmers’ rights and sustainable farm livelihoods

The views expressed are personal

First Published: May 02, 2019 21:16 IST