Right at the outset, it was apparent that PepsiCo never had a strong legal case against farmers growing its registered potato variety without entering into a contract. After pressure from farmers’ groups, PepsiCo has decided to withdraw cases against about 10 farmers in Gujarat and Rajasthan who were allegedly cultivating its FC-5 variety — registered by it under the Protection of Plant Varieties and Farmers’ Rights Act 2001 (PPVFRA) — for their own use. The FC-5 variety, used to make Lay’s chips, is grown under a contract farming deal, by 12,000 farmers in Gujarat’s Sabarkantha district. As for proceeding against the rest, PepsiCo’s argument is not well supported by the law. Sections 39 and 42 of PPVFRA clearly spell out the rights of the farmers in this regard, making a conscious departure from UPOV (International Union for the Protection of New Varieties of Plants) 1991. While UPOV 1991 gives breeders the right to monitor all aspects of a farmer’s activity, shutting out scope for farmers to re-use seeds without their permission, the PPVRA rules this out. Section 39 (iv) says: “A farmer shall be deemed to be entitled to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in the same manner as he was entitled before the coming into force of this Act: Provided that the farmer shall not be entitled to sell branded seed of a variety protected under this Act.” The seeds, it would appear, were not sold as branded seeds. Likewise, Section 42 says: “A right established under this Act shall not be deemed to be infringed by a farmer who at the time of such infringement was not aware of the existence of such right.” This makes any claim of damages tenuous.

It is to protect the rights of multiple stakeholders that India chose to stay clear of UPOV 1991. In doing so, it is not alone; Japan and Canada, besides other developing countries, have voiced their reservations. The argument that food should be kept out of rigid patent-like frameworks is not without basis. It is not clear whether enhanced breeders’ rights under UPOV have enhanced research and public welfare along expected lines. Monopoly concerns as well as those related to health and the environment have assumed centrestage over time. In India, the gains under the Green Revolution took place on the back of public investment. In fact, the discourse on how indigenous varieties of rice have been rendered extinct by the propagation of hybrids has relevance in the current context. Plant diversity is crucial in a time of growing pest attacks, rising temperatures and climate change. UPOV does not appear to be in sync with these realities.

However, breeder research should be promoted in drought resistant varieties of millets and pulses. There is no reason to believe that India’s legal framework does not allow this space, given the private participation in these areas.

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