A Study On Legislative Framework and Position of Farmers With Special Reference To Baroda District

A STUDY ON LEGISLATIVE FRAMEWORK AND POSITION
OF FARMERS WITH SPECIAL REFERENCE TO BARODA

DISTRICT
CHAPTER 1: INTRODUCTION
1.1 Agriculture and India
1.2 Introduction to some basic concept
1.2.1 what is farming?
1.2.2 What are seeds.?
1.2.3 What is crop?
1.2.4 What is plant variety?
1.3 Objective
1.4 Scope of study
1.5 Significance of study
1.6 Hypothesis
1.7 Rational of Study
1.8 Methodology of study
1.9 Scheme of the study
1.10 Literature Review
1.11 Limitation
INTRODUCTION
India is among the first countries in the world to have passed

legislation granting Farmers' Rights in the form of the Protection of
Plant Varieties and Farmers' Rights Act, 2001.
India is a member of the International Treaty on Plant Genetic
Resources for Food and Agriculture by the Food and Agricultural
Organisation. Being a signatory of the TRIPS Agreement, India is
obliged to confirm to the provisions regarding the protection of plant
varieties. Accordingly, plant varieties have to be given protection
either by a sui generis system or by patent system or by a
combination of both (Art. 27(3) of the TRIPS Agreement).
Confirming to all the international agreements, in India, the Act for
the Protection of the Plant Varieties and Farmers’ Rights came into
existence in 2001 by receiving the assent of the President of India.
The Act is titled “The Plant Varieties Protection and Farmers'
Rights Act 2001”. The Act provides for the establishment of an
effective system for protection of plant varieties thereby encouraging
the development of new varieties of plants heralding agriculture for
the 21st century.
It also gives rights to farmers in respect of their contribution made at
any time in conserving, improving and making available plant genetic
resources for the development of new plant varieties. In the case of
plant breeders, the necessity to protect them came in the context of
stimulated investment for research and development both in the public
and private sector for the development of new plant varieties.
1.1 Agriculture in India
Agriculture is the backbone and is the major source of income

for many of the developing economies including the Indian
economy. It would not be wrong or unrealistic in saying that
“Indian economy is depending on the income generated from
the agriculture” for its revenue and expenditure.1 India is the
country where two – third number of Population depends upon
agriculture either directly or indirectly. Agriculture has played
and is playing a significant role in the building of the nation’s
economy. Majority of Indians are farmers or plant breeders who
endeavour in the agriculture sector perhaps are providing for a
leap for the development of the economy as well as the nation.
In the developed nations such as U.S.A and Europe also the role
of agrarian economy is not insignificant. Comparatively the
farmers in this region are more developed and organized
compared to Indian scenario. The agriculture sectors in such
region are also playing very important role in terms of not only
providing the strength to the economy, but providing for
catering to the essential needs of the people. The contribution of
these farmers and breeders to the society is enormous in
facilitating staple food for the hunger needs of the society. It
was felt that there is a need to acknowledge and protect the
interest of the farmers and plant breeders in order to encourage
them further in feeding the hunger needs with new innovative
crops, plant varieties and consumable foods. There is a need to
recognize their endeavour through rewards for further guarantee
of incentives.
Economic transformation of a developing country like India
crucially depends on the performance of its agriculture and
1
Sreenivasulu N.S, Chandranayak, Ensuring Food Security and plant variety protection ,MIPR,January 2011,
Volume :1, Part :1
allied sector. This sector plays an important role in rural
livelihood, employment and national food security.
It happens to the largest sources of livelihoods in India.
Proportion of Indian population depending directly or indirectly
on agriculture for employment opportunities is more than that of
any other sector in India. As high as 70 percent of its rural
households still depend primarily on agriculture for their
livelihood, with 82 percent of farmers being small and
marginal2. The objective of inclusiveness in development has to
be realised through a focus on rural development where
agriculture can deliver significantly. For Government’s focus on
doubling farmer’s income, a number of measures are being
undertaken ranging from income support schemes, crop
insurance, water conservation, waste management techniques to
agriculture marketing reforms.
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What is Farming?
Farming is growing crops or keeping animals by people for food and

raw materials. Farming is a part of agriculture.3
3
From Wikipedia, the free encyclopedia
Farming is the act or process of working the ground, planting seeds,
and growing edible plants.4
Farming is a great way to describe the lifestyle and work of people
whose jobs are in the agriculture industry. People often have a
romantic idea of what farming is like — roosters crowing, farmers
driving tractors and milking goats — although farming can be very
hard work, dependent on food prices and weather.
Farming system?
 An appropriate mix off arm enterprises and the means available

to the farmers to raise them for profitability.
 It interacts adequately with environment without dislocating the

ecological and socio-economic balance on one hand and attempt
to meet the national goal on the other.
 In its real sense it will help in lifting the economy of agriculture

and standard of living of the farmers of the country as a whole.
Who is farmer?
“farmer” means any person who—

(i) cultivates crops by cultivating the land himself; or
(ii) cultivates crops by directly supervising the cultivation of
land through any other person5; or
4
www.vocabulary.com
5
(iii) conserves and preserves, severally or jointly, with any person any
wild species or traditional varieties or adds value to such wild species
or traditional varieties through selection and identification of their
useful properties;
1.2 What are seeds?

 A seed is the part of a seed plant which can grow into a new
plant.6
 Seeds carry the food that helps the new plant begin to grow.
 It is a reproductive structure which disperses, and can survive
for some time.
 There are many different kinds of seeds. Some plants make a lot
of seeds, some make only a few. Seeds are often hard and very
small, but some are larger.
 Seeds carry the food that helps the new plant begin to grow
1.3 what is crop?

A crop is a plant or animal product that can be grown and harvested
extensively for profit or subsistence.7
Crop may refer either to the harvested parts or to the harvest in a
more refined state.
Most crops are cultivated in agriculture or aquaculture.
Most crops are harvested as food for humans or fodder for livestock.
1.4 what is plant variety?
6
simple.wikipedia.org
7
en.wikipedia.org
A Plant variety represent a more preciously defined group of plants,
selected from within a species, with a common set of characteristics. 8
Plant breeders' rights (PBR), also known as plant variety rights
(PVR), are rights granted to the breeder of a new variety of plant that
give the breeder exclusive control over the propagating material and
harvested material of a new variety.
1.5 What is Plant variety protection?
A plant variety protects the intellectual property for plant breeding.

The protection for a plant variety shall serve the advancement in the
breeding field in agriculture and horticulture.9
A plant variety may be protected if it is distinctive, homogeneous,
consistent and new and in addition is denoted by a registerable variety
name.
The examination for distinctiveness, homogeneity and consistency
takes place according to the occurrence of the features of the plant
variety.
The plant variety protection gives the owner of the plant variety the
exclusive right to commercially use reproduction material (plants or
plant parts including seeds) of a protected plant variety.
The use of a protected plant variety for breeding a new plant variety,
however, does not require authorization by the plant variety owner,
although there is a particular protection for protected incest lines for
the breeding of hybrids.
www.obhanandassociates.com
8
9
www.maikowski-ninnemann.com
1.6 Objective of the study
The present Research is done keeping in mind following
objectives:
 To study role of farmer under Plant Varieties and Farmers Act
2001.
 To Study the provisions relating to rights of farmers under Plant
Varieties and farmers act 2001.
 To study how effective implementation can be done?
 To identify the problems faced by farmers regarding seeds and
other facilities in rural areas.
 To study productivity of land by improving economic condition
of farmer.
 To study role of farmer by rewarding for their contribution
through benefit sharing and protecting traditional rights of
farmers.
1.7 Scope of study
India adopted its own sui generis system in the form of Protection of
Plant Varieties and Farmers’ Rights Act, 2001. The present study
makes a sincere attempt to analyse the food situation in India through
times and also the various provisions of the sui generis legislation,
PVPFR Act, 2001 and as to how this Act can help maintain balance
between the rights of the farmers and the breeders. Ensuring of
farmers’ rights through this Act can guarantee livelihood
opportunities to the farmers and in turn help in attaining food security
for a country like India which is predominantly dependent on an
agrarian economy.
1.8 Significance of Study

Protection of plant variety is closely related to agricultural research. A
higher degree of protection will lead to research and development of
agricultural biotechnology. Farming communities need recognition of
their past, present and future efforts in conserving, developing, and
making available plant genetic resources. In the process of conserving
and developing these resources the farming communities have
evolved different practices and traditions which now constitute both
their basis of livelihood and culture. These include the practices like
selling of seeds, saving of seeds for re-sowing in next season and
sharing and exchange of seeds for acquiring better quality of seeds.
These practices need to be protected in order to protect the livelihood
of the farmers.
Indian Farmers lack expertise and do not have adequate means to
make full commercial exploitation of a variety registered by them,
they should be allowed to claim compensation from any breeder using
that variety even after that period of protection is over. The provisions
relating to paying of compensation in case of false claim by a breeder
should be redrafted and provision be made for payment of so much of
compensation as to have a deterrent effect upon the breeder. The
repetition of the Act should be made penal with stricter jail term. A
provision for free legal assistance to the farmers in order to establish
their innocence in the case of innocent infringement should be
incorporated.
The UNDP Human Development Report summarizes the Western
viewpoint by stating that "technology is created in response to market
pressure - not for needs of the poor people who have little purchasing
power". The Report also states that "policy and not charity" is needed
"to build technological capacities in the developing countries". It is
clear from these statements that technology innovators in the
developed nations of the West are not interested in developing
technology for public benefit of the poor and the needy, but are
increasingly interested in tightening the implementation of TRIPS
(IPRs) in all fields of technology, including agriculture.10
1.9 Hypothesis of study
1.There is loophole under present PVFR Act 2001.

2. Farmers are not getting proper assistance about their rights.
3.Majority of farmers are not aware about farm-based activities,
sustainable cropping pattern and technologies.
4.The farmers having barren land are not aware about setting up of
solar power generation units.
1.10 Rationale of study

Farmers right are central to the protection and continued use of
traditional knowledge related to the conversation and sustainable use
as well as to the sharing of benefits derived from the use of resources.
Such rights can help to promote farmer participation in decision
making and in saving, using, exchanging and farm saved seeds
realising farmer’s right enables farmer to continue to maintain,
develop and manage crops genetic resource, and involve recognising
and rewarding them for their indispensable contribution to the global
pool of genetic resources.
1.11 Methodology of study

There are mainly two kinds of methods for carrying out research.
First, Doctrinal research and other is non-doctrinal research. Another
kind of research is one where author uses both these methods
10
Ms. Sophy, K.J., Farmers’ Rights under Plant Variety Protection (PVP) Legislation in India : A Critical Study,
(http://rostrumlegal.com/r dt. 2.8.2015)
Doctrinal research is the one where author deals with legal principles
and propositions.
Non-doctrinal research is the one where author studies people, social
values and social institutions
For this subject matter, I will adopt Non-doctrinal research which asks
what the law is on a particular issue and as it is concerned with
analysis of legal doctrine and how it has been developed and applied,
it is most relevant method which will bring out answer.
I shall be using questionnaires to collect data.
RESEARCH METHODOLOGY
Non-doctrinal method in required data were collected from both

primary source and secondary sources.
The primary sources were collected from direct interaction with
farmers of Vadodara through questionnaire, focus discussion,
informal interviews, non- participatory observation and other staff
meetings.
The secondary data were collected from websites and books.
Questionnaires in required data were collected by questionnaires
method from farmers of Vadodara.
1.12 Scheme of study

The whole study is organised in six chapters.
CHAPTER 1 - INTRODUCTION
Prologue to the primary subject to the investigation clarifying in detail
different basis view point related with the protection of plant variety
and farmers right. Alongside different other Centre ideas like study,
scope, hypothesis, Methodology, significance, limitation of the study.
Some other parts are allocated towards the clarifying the right related
to farmer and protection of plant variety.
CHAPTER 2 - UNIVERSAL CONVENTION AND TREATIES

It shows the different universal arrangement tradition and convention
which depict the privilege of ranchers. This section for the most part
centre upon how privilege of farmer is displayed in worldwide point
of view. some segment is likewise committed towards hereditary
alteration different universal instruments which are related with
protection of plant variety. Exchange about TRIPS and effect of
TRIPS on seed ventures and ranchers after India being signatory to
TRIPS.
CHAPTER 3 – RIGHTS OF FARMERS

It includes top to bottom investigation of rights of farmers. This
section manages development of idea of rights of farmers. Different
ideas have been talking about long which are legitimately and
implication identifying with the privilege of ranchers. The privilege of
rancher is reference in point by point looked into with seed and
patent.
CHAPTER 4 – IPR AND BIOTECHNOLOGY

This chapter proposes to examine the issues relating to farmers’
rights in the context of Intellectual Property Rights, in genetically
engineered (GE) crops and seeds, for which patents are increasingly
available and their impact on the rights of the farmers.
The concept of farmers' rights is basically contradictory to the
principles of intellectual property. Intellectual property rights are
intended to provide incentive for a limited period as a reward for the
innovation.
CHAPTER 5 – SUI GENERIS PROTECTION LAWS IN INDIA

India is bound by all the provisions of TRIPS Agreement, which
oblige the country to enact/amend relevant domestic laws. Several
legislative and institutional adjustment are being made in the country
to gear up and face the challenges of globalisation. This include
enactment of new legislation on PPVFR Act 2001 and Geographical
indication of goods (registration and protection) Act 1999 and
amendment of patent Act 1970. In 1999, 2002 and 2005 the biological
diversity Act 2002 and Seeds Bill 2004 etc.
CHAPTER 6 – CONCLUSION AND SUGGESTIONS

It is basically committed toward the suggestions and conclusion got
from the whole investigation. Real features are been taken from
editorial of celebrated representative. It is high time that people
should be made aware of the greatness of agriculture and the farmers,
and the enormous contribution they make to the world. To be
indifferent to their needs and sufferings, and to put them at stake in
the wake of new plant breeding technologies like gene technology is
an unpardonable act from the part of the human conscience.
1.13 REVIEW OF LITERATURE
Vandana Shiva has clearly emphasized the need for plant variety
protection with special reference to Plant Varieties Protection and
Farmers’ Rights Act, 2001.
Elizabeth Verkey has traced out the international efforts in
protecting plant varieties by incorporating the UPOV Convention,
TRIPS Agreement and the Convention on Biological diversity. The
UPOV convention aims to ensure a harmonized International system
for the protection of plant varieties and encourage the development of
new varieties of plants. The convention also provides for an
international legal framework for the granting of plant breeders’ rights
which is a key element in encouraging breeder. 11The author
emphasised the need for a separate law to protect plant varieties in
India.
Suman Sahai has analysed the concept of plant varieties and farmers’
rights in a detailed manner12. The Indian legislation was the first in the
world to grant formal rights to farmers in a way that their self-reliance
is not jeopardized. What is significant and positive about this
legislation was that it charted its own course, deviating from the
norms set by the Union for the Protection of New Plant Varieties
(UPOV). UPOV is at present the only platform for developed
countries which is modulated to protect the interests of agriculture in
industrial countries. It does not even have the notion of farmers’
rights. The innovative Indian legislation has opened up interesting
possibilities for developing a developing country platform for
regulating breeders’ and farmers’ rights so that both, not just one, are
acknowledged and protected. The salient features of the new law are
described in this article. In fact the Indian legislation succeeds in
balancing the rights of Breeders and Farmers and exploits the
flexibility granted in TRIPS, in an intelligent manner. There are

clauses to protect the rights of researchers and provisions to protect
the public interest.
11
Vandana Shiva, CED Documentation prepared for Bangalore Seminar on Women, Ecology and Health, 1991
and Sacred Seed, (2014) Global Peace Initiative of Women (GPIW) Editor, Dehradun.
12
Elizabeth Verkey, ‘Law of Plant Varieties Protection’ 2007, Eastern Book Company, Lucknow, pp. 171, 197,
204.
Gopalakrishnan, N.S., in his article titled ‘Protection of Farmer’s
Rights in India : Need for Legislative Changes’ has critically analysed
the Farmers’ Right in detail. He had indicated that it is now
mandatory that members of the WTO must introduce legal measures
either in the form of patent or an “effective” sui generis law or a
combination of both to protect plant varieties. There was stiff
resistance from many developing countries including India and
farmer’s groups against the introduction of such a provision in the
TRIPS Agreement. The concern for providing food security to the
people of the country forced many nations to keep plant varieties out
of IPR protection. The diverse pattern of agriculture, the traditional
methods of breeding and farming followed in the developing
countries resulted in the generation of many customary rights to the
farmers.13
Swaminathan, M.S., has endorsed the protection of plant varieties by
sui generis law14. Access to good seeds of appropriate varieties is an
effective method of bridging the technology divide among farmers.
1.14 Limitation of the study

The study of the research is limited to the city of Vadodara. The
analysis is limited to data available through questionnaire only. No
other means of data collection is adopted by researcher for collecting
data from respondent.
CHAPTER 2 – UNIVERSAL CONVENTION AND TREATIES
2.1 INTRODUCTION
13
N.S. Gopalakrishnan, An “Effective” Sui Generis Law to protect plant varieties and Farmer’s Right in India – A
critique, Journal of World Intellectual Property, January, 2001.
14
M.S. Swaminathan, The Protection of Plant Varieties and Farmers’ Rights Act : From Legislation to
Implementation, Journal of Intellectual Property Rights, Vol. 7, July 2002, pp. 324-329
The realization of Farmers' Rights is a cornerstone in the
implementation of the International Treaty on Plant Genetic
Resources for Food and Agriculture, as it is a precondition for the
conservation and sustainable use of these vital resources in situ as
well as on-farm.
The Treaty recognizes the enormous contributions made by farmers
worldwide in conserving and developing crop genetic resources. This
constitutes the basis of Farmers' Rights. According to Article 9,
governments are to protect and promote Farmers' Rights, but can
choose the measures to do so according to their needs and priorities.
Measures may include the protection of traditional knowledge,
equitable benefit sharing, participation in decision-making, and the
right to save, use, exchange and sell farm-saved seeds and
propagating material.
Several other Articles in the Treaty are also important for the
realization of Farmers' Rights. However, the understanding of
Farmers' Rights and the modalities for their implementation is still
vague. The Governing Body of the International Treaty has taken
steps to promote the realization of Farmers' Rights and is in the
process of discussing further measures.
International Conventions and agreements on intellectual property
provide a flexible platform in which the issues concerning legal
protection for plant varieties were addressed by the various stake-
holders and individual States. Any suppression or weakening the
protection of plant varieties would have a negative impact on the
private enterprises in this sector. Plant genetic resources are important
for food and agriculture. Plant genetic resources are the raw material
indispensable for crop genetic improvement. Genetic improvement
can be achieved by means of farmers' selection, classical plant
breeding or modern biotechnologies. Therefor it is essential that both
the farmers as well as the Plant breeders should be protected for such
genetic improvements.
Farmers’ rights are enshrined in the international plant treaty.
However, their implementation is an ongoing issue, which the plant
treaty is seeking to address by looking at the interrelation that might
exist with other international instruments. Separately, civil society is
asserting that the World Intellectual Property Organization favours the
International Union for the Protection of New Varieties of Plants
(UPOV) in its technical assistance.
2.2 FARMERS' RIGHTS IN ITPGRFA:
2.2.1 Introduction
The International Treaty on Plant Genetic Resources for Food and

Agriculture (ITPGRFA) was adopted at the Thirty-first Session of the
Conference of the Food and Agriculture Organization of the United
Nations (FAO) in Rome . It entered into force 29 June 2004, and is the
first legally binding agreement exclusively pertaining to the
management of plant genetic resources for food and agriculture. Its
objectives are the conservation and sustainable use of these
resources, and the fair and equitable sharing of the benefits arising
from their use – in harmony with the Convention on Biological
Diversity (CBD) – for sustainable agriculture and food security. The
most important benefit is that of access to these vital resources for
food and agriculture. The core of the International Treaty is a
Multilateral System of Access and Benefit Sharing that are under the
management and control of the Contracting Parties and in the public
domain.
The International Treaty on Plant Genetic Resources for Food and
Agriculture (“the Treaty”), to which India is also a signatory, is based
on the following principles, among others:
 That all countries depend very largely on plant genetic resources
for food and agriculture that originated elsewhere;
 To establish a global system to provide farmers, plant breeders
and scientists with access to plant genetic materials;
 That plant genetic resources for food and agriculture are the raw
material indispensable for crop genetic improvement, whether
by means of farmers’ selection, classical plant breeding or
modern biotechnologies, and are essential in adapting to
unpredictable environmental changes and future human needs.
2.2.2 Objective and Significance of PGRFA

Plant genetic resources for food and agriculture (PGRFA) are genetic
material of plant origin, including reproductive and vegetative
propagating material of actual or potential value for food and
agriculture15 In other words, PGRFA refers to the genetic resources
contained in plants or seeds, as opposed to the plants or seeds
themselves that have value for food and agriculture.
PGRFA are of utmost importance to plant breeders and farmers and
indeed to all people on the planet. PGRFA are the “raw material” that
plant breeders use to improve crops and introduce new traits into
them. Thus, PGRFA can and will play an important role in meeting
the challenges of local, regional and global food security, as they
allow us to optimise crops according to our needs. Drawing on genes
from existing varieties of plants, crop breeders are able, using either
traditional crop breeding methods or new genetic technologies, to
develop new crop varieties that express desirable traits. By
incorporating, for example, genes from a drought-tolerant plant
species into an existing crop variety, plant breeders could conceivably
develop a new variety that grows particularly well in arid conditions.
2.2.3 Central provisions on Farmers' Rights under ITPGRFA
Farmers' Rights constitute a cornerstone in the International Treaty. In

Article 9, the Contracting Parties recognize the enormous contribution
that farmers of all regions of the world have made, and will continue
to make, for the conservation and development of plant genetic
15
See Article 2 of the ITPGRFA.
resources as the basis of food and agriculture production throughout
the world.
Governments are to protect and promote Farmers' Rights, but can

choose the measures to do so according to their needs and priorities.
Certain measures are suggested, covering the protection of traditional
knowledge, benefit sharing and participation in decision-making. Also
the rights of farmers to save, use, exchange and sell farm-saved seeds
and propagating material are addressed, but without giving any
particular direction for implementation. Two other provisions state
that funding priority will be given to farmers contributing to
maintaining crop genetic diversity.
Other articles in the International Treaty are also important for the
implementation of Farmers' Rights. For example, it provides that
countries shall promote or support, as appropriate, farmers' and local
communities' efforts to manage and conserve on-farm their plant
genetic resources for food and agriculture and take steps to minimize
or, if possible, eliminate threats to plant genetic resources for food
and agriculture . Article 6 states that the Contracting Parties shall
develop and maintain appropriate policy and legal measures that
promote the sustainable use of plant genetic resources for food and
agriculture. A range of measures are listed for this purpose, among
them 'reviewing, and as appropriate, adjusting breeding strategies and
regulations concerning variety release and seed distribution' (Art. 6.2
[g]). In addition, the International Treaty supports the implementation
of the Global Plan of Action (Art. 14), with its provisions on Farmers'
Rights. Article 7 and Article 8 provide for international co-operation
and technical assistance with a particular view to strengthening
developing countries capabilities to implement the International
Treaty. The Governing Body of the Treaty consists of all Contracting
Parties and shall promote the full implementation of the Treaty,
including the provision of policy direction and guidance, and
monitoring of implementation (Art. 19). According to Article 21, the
Governing Body is to ensure compliance with all provisions of the
International Treaty, and the Preamble highlights the necessity of
promoting Farmers' Rights at the national as well as the international
levels.
2.3 Panel Explores Relation Between Plant Breeders’ Convention
and Plant Treaty
When countries belong to several international instruments, some
aspects of those instruments may run contradictory to one another. A
symposium held recently by the International Convention for the
Protection of New Varieties of Plants (UPOV) sought to explore the
interrelations between the convention and the international treaty on
plant genetic resources for food and agriculture. Farmers’ rights lie at
the intersection of the two treaties and while some find the treaties
complementary, some others view them as contradictory on farmers’
rights. Meanwhile, farmers themselves have been blocked from
participating in deliberations.
2.4 Paris Convention 1883
The Paris Convention, 1883 was the first attempt to address the issues
of intellectual property protection at international level. The
foundation for international patent protection was created in the late
nineteenth century at various Congresses in Vienna and elsewhere,
culminating in the Paris Convention of 1883 that provided inventors
with a rational base for international patent protection. The Paris
Convention was the starting point for a consideration of any
intellectual property rights in the world. While addressing the
intellectual property issues surrounding plant varieties it should be
borne in mind that the attempt should not limit the accessibility of the
plant varieties for further innovation and development.
2.5 UPOV Conventions - Objectives

The International Union for the Protection of New Plant Varieties,
known as UPOV is an inter-governmental organisation with
headquarters in Geneva. The acronym UPOV is derived from the
French name of the organization, “Union Internationale pour la
Protection des Obtentions Vegetables.” The purpose of the UPOV
Convention is to ensure that the member States of the Union
acknowledge the achievements of breeders of new plant varieties, by
making available to them an exclusive property right, based on a set
of uniform and clearly defined principles. UPOV Convention
establishes international rules of system under which countries grant
intellectual property rights to individuals or entities that develop new
varieties of plants.” To be eligible for protection, varieties have to be:
(i) Distinct from existing, commonly known varieties,
(ii) Sufficiently uniform,
(iii) Stable and
(iv) New in the sense that they must not have been commercialized
prior to certain dates established by reference to the date of the
application for protection.
The various UPOV Conventions provided international legal
framework for granting of plant breeders' rights. These rights are a
key element in encouraging breeders to pursue and enhance their
research for improved varieties. These improved varieties are with
benefits such as higher yield, quality and better resistance to pests and
diseases. Protection of intellectual property rights facilitates such a
return by providing a legal basis to prevent under well-defined
conditions, unauthorized exploitation of plant varieties by others. The
UPOV Convention provides a legal basis for the protection of new
plant varieties.
The objective of UPOV is to provide and promote an effective system
of plant variety protection, with the aim of encouraging the
development of new varieties of plants, for the benefit of society. As
of October 13, 2017, UPOV had 75 members16. Still more States
have initiated the procedure according to the UPOV Convention
for assistance in the development of laws. The object of plant
breeding is to produce genetic structures that are new, distinct,
uniform and stable. All members of UPOV Convention enjoy the
same level of protection. Enhancing international harmonization is an
indispensable tool for the protection of new plant varieties, for
international trade and for the transfer of technology. Most of the
plant variety legislations around the world are based on the UPOV
Acts.
2.5.1 Activities of UPOV
The main activities of UPOV are concerned with promoting
international harmonization and cooperation, mainly between its
members, and with assisting countries and certain organizations in
the introduction of the UPOV system of plant variety protection.
The fact that the UPOV Convention defines the basic concepts of
plant variety protection, indicates to a great degree of harmony in
those laws and in the practical operation of the protection
systems. Such harmony is enhanced firstly, through specific
activities undertaken within UPOV leading to recommendations and
model agreements and forms and, secondly, through the fact that
UPOV serves as a forum to exchange views and share
experiences.
The most intense cooperation between members concerns the
examination of plant varieties. It is based on arrangements whereby
one member accepts the test results produced by others as the
basis for its decision on the grant of a breeder’s right. Through
such arrangements, members are able to minimize the cost of
operating their protection systems and breeders are able to
obtain protection in several territories at relatively low cost.
The UPOV members and the UPOV Secretariat maintains, contact
with the provided legal, administrative and technical assistance to
16
http://www.upov.int/members/en/
the governments of a growing number of States expressing
interest in the work of the Union and in the idea of plant
variety protection. Regular contacts are also maintained with many
intergovernmental and international non-governmental organizations.
2.5.2 UPOV, 1961

UPOV is an intergovernmental organization with headquarters in
Geneva (Switzerland). UPOV was established by the International
Convention for the Protection of New Varieties of Plants on
December 2, 1961 by a diplomatic conference held in Paris. The
Convention was ratified by the U.K., the Netherlands and Germany.
The UPOV Convention was revised in 1972, 1978 and 1991. The
objective of the Convention is the protection of new varieties of plants
by an intellectual property right.
The UPOV Convention provides an effective sui generis system for
plant variety protection. The scope of protection under the UPOV
Convention has been carefully defined to provide an incentive for
breeders to develop new varieties of plants beneficial for both farmers
and consumers. A key feature of the UPOV system is that protected
varieties, as a most important plant genetic resource, may be freely
used by the worldwide community of breeders for further breeding.
Plant breeders' rights thereby help to enhance sustainable agriculture,
productivity, income, international trade and economic development
in general.
The contracting parties to the Convention are the members of the
Union and the Union has legal personality. Any State which has not
signed this Convention and any intergovernmental organization can
become party to this Convention by depositing an instrument of
accession to this Convention.
The 1961 UPOV is the first international attempt in the field of
protection of new varieties of plants. The Convention has been
reached after appreciating the importance attached to the protection of
new varieties of plants not only for the development of agriculture in
their territory but also for safeguarding the interests of breeders.
UPOV felt that these interests should be protected to which very
many States rightly attach importance and are keen on resolving each
of them in accordance with uniform and clearly defined principles.
The Convention requires Contracting Parties to take such measures as
are necessary for its implementation. The members should:
“(i) provide for appropriate legal remedies for the effective
enforcement of breeders' rights;
(ii) Maintain an authority entrusted with the task of granting breeders
rights or entrust the said task to an authority maintained by another
Contracting Party;
(iii) Ensure that the public is informed through the regular publication
of information concerning
 applications for and grants of breeders' rights, and
 Proposed and approved denominations.”17
The importance of UPOV Convention is evident from its preamble.
The preamble of the 1961 Convention states:
"Convinced of the importance attaching to the protection of new
varieties of plants not only for the development of agriculture in their
territory but also for safeguarding the interests of breeders,
Conscious of the special problems arising from the recognition and
protection of the right of the creator in this field and particularly of
the limitations that the requirements of the public interest may impose
on the free exercise of such a right,
Deeming it highly desirable that these problems to which very many
States rightly attach importance should be resolved by each of them in
accordance with uniform and clearly defined principles"18
17
UPOV 1961, Art. 30 - Implementation of the Convention on the Domestic Level; Special Agreements on the
Joint Utilization of Examination Services]
18
UPOV 1961, Preamble
2.5.3 UPOV 1972 Amendment Act
The 1961 UPOV had been acceded only by six member countries and
has been amended in 1972. The reason for Amendment was stated in
the Additional Act of November 10, 1972 as follows :
The system of contributions of member States of the Union
provided for by that Convention does not allow for sufficient
differentiation among the member States of the Union as to the
share in the total of the contributions that should be allotted to each
of them, Considering further that it is desirable to amend the
provisions of that Convention on the contributions of member States
of the Union and, in the event of arrears in the payment of such
contributions, on the right to vote.
2.5.4 UPOV 1978 Act
Realizing the significance of the 1961 UPOV in the international

arena of protection of new varieties of plants and the rights of
breeders, it was revised in 1978 with added features. The 1978 Act
provides for the grant of either a special title of protection or a patent
for a new plant variety [Art. 2(1)]19.
The 1978 UPOV Act adopts most of the international IPR obligations
set out in Part I above, including a definition of the applicable subject
matter and protected material, eligibility requirements, exclusive
rights, national treatment, reciprocity, terms of protection and
exceptions and limitations to exclusive rights. It does not, however,
contain any provisions on Most Favoured Nation (MFN) treatment or
enforcement.
19
UPOV 1978 Act, Art. 2(1) deals with Forms of Protection (1) Each member State of the Union may
recognise the right of the breeder provided for in this Convention by the grant either of a special title of
protection or of a patent. Nevertheless, a member State of the Union whose national law admits of protection
under both these forms may provide only one of them for one and the same botanical genus or species.
2.5.5 UPOV Convention of 1991
The developments in the field of science and technology led to the

evolution of much advancement in the agricultural arena thereby
giving rise to enormous new plant varieties. The boom in the
biotechnological realm gave rise to many new plant varieties, which
in terms of the investment pooled demanded protection. In the wake
of these developments, the UPOV was further amended in 1991, thus
making it a credible one.
2.5.6 The 1991 UPOV Act
The limited scope of the 1978 Act led a number of member states of
the UPOV to adopt a revised Act in 1991 with enhanced rights of
plant breeders. The 1991 Act entered into force on April 24, 1998.
Subject matter requirements
i. Phased-in Protection of All Genera or Species:
Unlike its predecessor, the 1991 Act requires the states to
protect at least fifteen plant genera or species upon ratifying
or acceding to the Act, and to extend protection to all plant
varieties within ten years. (Art. 3(2))152 It also contains a
definition of plant "variety" as a "plant grouping within a
single botanical taxon of the lowest known rank" which can
be "defined by the expression of the characteristics resulting
from a given genotype or combination of genotypes;
distinguished from any other plant grouping by the
expression of at least one of the said characteristics; and
considered as a unit with regard to its suitability for being
propagated unchanged." (Art. 1(vi)) No definition of
"variety" appears in the 1978 Act, which indicates that
member states to earlier treaty have greater discretion in
defining the characteristics of plant groupings that qualify for
protection.
ii. Dual Protection with Breeders’ Right and Patent

Permitted:
In response to demands from breeders in industrialized
counties, the 1991 Act removed the 1978 Act’s ban on dual
protection and now permits member states to protect the same
plant variety with both a breeders’ right and a patent.
iii. Protection of Discovered Varieties:

The 1991 Act makes explicit the 1978 Act’s implicit
requirement that discovered varieties to be protected. It does
so through article 1(iv)’s definition of a "breeder" as
including a "person who breed, or discovered and developed,
a variety."
Eligibility Requirements
The four eligibility requirements that must be demonstrated

to merit protection for a specific variety viz., - novelty,
distinctness, uniformity and stability - are preserved in the
1991 Act, subject to only minor changes in scope and
wording. Thus, the 1991 Act has received the same criticism
as the 1978 Act for its encouraging of genetic standardization
and its inability to protect more diverse plant varieties,
traditional varieties or cultivated landraces.
2.5.7 UPOV Conventions and Farmers’ Rights
The extension of the IP protection to agriculture also raised a

few concerns. One such concern was that farmers in
developing countries have traditionally enjoyed the right to
save, share, exchange and sell the farm produce as well as
seeds and the monopoly extended to plant breeders by
granting IPR on plant varieties may take away the traditional
rights of farmers. Also, monopoly in agricultural products
could also raise the prices of such commodities. Above all,
the contribution of farmers in the conservation and
preservation of varieties was considered important for further
plant breeding. To address this, two options were considered
relevant:
(i) protecting the interests or the privilege of farmers to save
and repeatedly use for sowing their farm saved seeds of
protected varieties as an exception to the plant breeder's right,
and
(ii) Protecting the right of farmers in terms of getting
equitable share of benefits derived from the use of plant
genetic resources conserved and preserved by them.
The first approach is reflected in the UPOV
Act, the European nations' effort towards securing the plant
breeders' right, while the second approach is reflected in the
Food and Agriculture Organization (FAO), International
Undertaking on Plant Genetic Resources, which was
renegotiated and adopted as the International Treaty on Plant
Genetic Resources for Food and Agriculture.
In 1961, five European countries agreed to
provide sui generis IP protection to plant varieties and formed
the International Union for the Protection of New Varieties of
Plants (UPOV) which provided for the rights of plant
breeders and prohibited two or more types of protection to a
particular plant species. Article 5 of UPOV Act, 1961
provides for the protection of the interests of the farmers as
against those of plant breeders.20The act of farmers to save a
20
Later, USA extended plant variety protection by enacting the 1970 Plant Variety Protection Act (PVPA).
Advances in breeding technology provided the momentum for the PVPA. It provided protection to sexual
reproduction in plants, including seed germination. The protection has two major exemptions, namely, seed
saving by farmers and use for research purposes. Under PVPA brown bag exemption, farmers could continue
to save, replant and resell protected seeds to other farmers. However, these exemptions were later on
diluted by several judicial decisions.
part of their farm produce as seeds for the next crop season
and to exchange seeds with other farmers were not
considered 'commercial marketing' under Article 5(1).
Therefore, such acts were kept out of the scope of plant
breeder's right as farmers' privilege.
However, the farmers' rights as such were not

recognized under the UPOV Act. The UPOV Acts
underwent three amendments in 1972, 1978 and in 1991.
There are at present two main Acts of 1978 and 1991 which
govern parties to the Convention.21
The 1978 amendment of UPOV Act left the

provision of farmers' privilege unaltered. However, it
provided for restricting the plant breeders' right on the ground
of public interest to prevent adverse effect of the
monopoly22.This provision indirectly addressed the right of
farmer to the adequate availability of seeds. This aspect is
also present in the UPOV Act, 1991.
The third amendment of UPOV Act, in 1991, made

the farmers' privilege optional to the member countries. This
provision allows farmers to use product of the harvest of the
protected variety, which they may obtain by planting on their
own holdings, for further propagating purposes 23. However,
the Convention required that the farmers' privilege be
regulated 'within reasonable limits and subject to
safeguarding of the legitimate interests of the breeder.
2.6 The Trade Related Aspects of Intellectual Property

Rights Agreement (TRIPS) 1994
21
http://www.upov.int.en/publications/conventions/1961/w_up611_htm#_5
22
The countries, which joined UPOV before 1991, could opt to be governed by the 1978 Act but countries
joining now shall be governed by the UPOV Act, 1991.
23
http://www.grain.org/briefings/?id=1
The Trade Related aspects of Intellectual Property Rights
Agreement (TRIPS) was established as part of the General
Agreement on Tariffs and Trade (GATT). The TRIPS
Agreement is one of the most important commercial treatises
in modern history. It will revolutionize the treatment of
intellectual property in the signatory countries. The
Agreement was negotiated in order to reduce distortions and
impediments to international trade. Part I of the Agreement
sets out general provisions and basic principle, notably a
national-treatment commitment under which the nationals of
other parties must be given treatment no less favourable than
that accorded to a party's own national with regard to the
protection of intellectual property. It also contains a most-
favoured-nation clause, a novelty in an international
intellectual property agreement, under which any advantage
a party gives to the nationals of another country must be
extended immediately and unconditionally to the nationals of
all other parties, even if such treatment is more favourable
than that which it gives to its own nationals.
TRIPS radically altered the role of international trade

law in promoting and enforcing intellectual property
protection around the globe. Under the TRIPS Agreement all
member countries must bring their national IPR laws into
conformity with certain provisions of the new Agreement.
TRIPS is an international agreement that requires member
countries to provide strong intellectual property protection in
their domestic law. The recent developments in the field of
biotechnology and plant breeding has led to wide spread
piracy of resources from the developing countries.
Intellectual property protection provided by countries varied
and this disparity was an occasion for the developing
countries to pirate the technological developments of the
developed countries. The developed countries under the
leadership of United States wanted to have a strong system
for the protection of the new technologies. Hence the issue of
intellectual property protection and also protection for plant
varieties was addressed in the Uruguay Round of General
Agreement on Tariffs and Trade. The TRIPS Agreement
covers all areas of intellectual property and also establishes
minimum standards of protection. The Agreement requires
member states to provide patent protection in all areas of
technology. The Agreement also outlines those inventions
which the Member states may exclude from patentability.
TRIPS Agreement 1994 provides that members may

exclude essentially biological processes for the production of
plants or animals other than non-biological and
microbiological processes24. However, the Agreement states
that members shall provide for the protection of plant
varieties either by patents or by an effective sui generis
system or by any combination thereof. Considerable
flexibility is left to the members of the Agreement to adopt
the system of protection suited to them. At the time of
adoption of the TRIPS Agreement, most of the developed
countries had systems for protection of plant varieties and
most of them had adhered to the UPOV Convention.
The Agreement requires members to provide protection to a
plant variety.
There is a clear distinction between the terms "plant" and "plant

variety". A plant variety can be considered as a modification of a
natural plant which belongs to the plant kingdom. The Agreement
also excludes inventions which is necessary to protect "ordre public or
morality, including to protect human or plant life or health or to avoid
24
TRIPS Agreement, Art. 27 3(b) - Patentable Subject Matter : 3(b) plants and animals other than
microorganisms, and essentially biological processes for the production of plants or animals other than non-
biological and microbiological processes. However, Members shall provide for the protection of plant varieties
either by patents or by an effective sui generis system or by any combination thereof. The provisions of this
subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.
serious prejudice to the environment..."25The term ordre public which
has been borrowed from the French law means protection of public
security and physical integrity of the public as part of the society.
Though this includes Environmental issues as well it is narrower than
the concept of public order.
Although the UPOV Acts have provided IPR protection for plant
varieties for more than forty years, their significance has recently
been overshadowed by a different intellectual property treaty, i.e., the
Agreement on Trade-Related Aspects of Intellectual Property Rights
(the "TRIPS Agreement") adopted in 1994. TRIPS is the first and
only IPR treaty that seeks to establish universal, minimum standards
of protection across the major fields of intellectual property including
patents, copyrights, trademarks, industrial designs, integrated circuits
and trade secrets. Although the TRIPS Agreement devotes only
minimal attention to plant breeders’ rights or plant varieties protection
and does not even mention the UPOV Acts, its adoption has done
more to encourage the legal protection of plant varieties than any
other international agreement.
2.6.1 TRIPS as a Spur to Plant Varieties Protection

TRIPS influence on plant variety protection stems from the following
sources:
(1) its link to other international trade agreements;
(2) its widespread adherence by states in both the industrialized and
developing world;
25
Ibid., Art. 27(2) - Patentable Subject Matter: 2. Members may exclude from patentability inventions, the
prevention within their territory of the commercial exploitation of which is necessary to protect ordre public
or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the
environment, provided that such exclusion is not made merely because the exploitation is prohibited by their
law.
(3) its novel enforcement, review and dispute settlement provisions;
(4) the requirement in TRIPS article 27.3(b) that its signatories must
provide protection for plant varieties "either by patents or by an
effective sui generis system or by any combination thereof.
2.6.2 Plant Varieties Protection under TRIPS

The TRIPS Agreement 1994 mandates its signatories to provide
patent protection for any inventions in all fields of technology,
provided that the inventions are "new, involve an inventive step and
are capable of industrial application." (Art. 27(1)) However, with
regard to plant-related inventions, TRIPS permits members to exclude
from patentability altogether "plants," "essentially biological
processes for the production of plants" and "plant varieties." (Art.
27.3(b)) Thus, the TRIPS Agreement would permit WTO Members to
decline to protect plant varieties with a patent.
TRIPS expanded the scope of patentability to cover life forms. Under
Article 27.3(b) of TRIPS Agreement, members of the World Trade
Organisation (WTO) may exclude from patentability of plants and
animals other than micro-organisms and essentially biological
processes for the production of plants or animals other than non-
biological and microorganism and essentially biological and
microbiological processes. However, members shall provide for
protection of plant varieties either by patents or by an effective sui
generis protection or both. This pronunciation extends IPR protection
to advances made in plant genetic engineering and plant
biotechnology. Art. 27.3(b)193 forces countries to change patent law
to introduce patents for life forms and introduce legislation of plant
variety protection. The Article 27.3(b) TRIPS Agreement is of great
concern to the agriculture sector generally and farmers specifically.
The first part of the Article addresses the patenting of life. However,
the words other than ‘micro-organism’ and plants and animals
produced by 'nonbiological' and ‘micro-biological’ processes make
patenting of micro-organism and genetically engineered plants and
animals compulsory. Since micro-organism are living organism,
making their patenting compulsory it is the beginning of a journey
down what has been called the slippery slope that leads to the
patenting of all lives.
2.6.3 Convention on Biological Diversity

The Convention on Biological Diversity (CBD) of 1992 was adopted
at Rio de Janeiro on 5th June, 1992 under the auspices of the U.N.
Conference on Environment and development for conservation of
biological diversity at international level. The contracting parties to
the Convention had recognized the importance of biological diversity.
The Rio Declaration on Environment and Development, 1992 had
accepted the principle that the States have sovereign rights to exploit
their own resources26. The Declaration also recognized the role of
indigenous people and their communities in the environmental
development and management. The Declaration requires that the
States should recognize and duly support their identity, culture and
interests."27
The Convention gives emphasis on the conservation of biological
diversity. The Convention specifies that access to genetic resources
has to be determined by the national governments subject to their
national legislation. Each contracting party shall develop and carry
out scientific research based on genetic resources with the co-
operation of other contracting parties. The benefits arising from the
commercial utilization of genetic resources shall be shared upon
mutually agreed terms between contracting parties.
As a measure of distributing the benefits, the Convention requires
Contracting Parties to provide for the effective participation in
biotechnological research activities by those Contracting Parties,
especially developing countries, which provide the genetic resources
for such research, and where feasible in such Contracting Parties.230
26
Rio Declaration on Environment and Development 1992, Principle 2.
27
Ibid., Principle 22.
Convention on Biological Diversity requires signatories to protect and
promote the rights of communities, farmers and indigenous people.
These are in respect to their biological resources and knowledge
systems as well as benefit-sharing. It was asserted that intellectual
property rights should not conflict with the objectives of the
Convention on Biological Diversity. Intellectual property laws of
most countries are inadequate for benefit-sharing and defending the
rights of the indigenous community. One of the key features of the
Convention on Biological Diversity is the embodiment of the
equitable sharing of benefits.28
Access and benefit sharing system aims to promote scientific and
technological knowledge from plant and animal sources, while at the
same time recognizing the contributions and rights of those who
cultivate and preserve these resources, or have come to understand
their uses.
2.6.4 TRIPS and Convention on Biological Diversity

There has been much debate surrounding the issue as to whether there
is any conflict between the provisions of the TRIPS Agreement and
the Convention on Biological Diversity (CBD).
Many countries take different views as to whether there is an actual
conflict between the two. Countries like United States argue that
implementation of the TRIPS Agreement is supportive of measures
that would implement the obligations of the CBD most effectively.
They also consider that the TRIPS Agreement and the Convention on
Biological Diversity have different, non-conflicting objectives and
purposes and deal with different subject-matter.
The proponents of the view that there is an inherent conflict between
the TRIPS Agreement and the Convention on Biological Diversity
argue that TRIPS Agreement primarily intends to recognize the
intellectual property interests and does not consider national
28
National Association of Home Builders v. Babbitt, 130 F 3d.1041 (D.C. Cir.1997)
sovereignty over plant genetic resources. The Agreement does not
provide for benefit-sharing or disclosure of the country of origin. The
expanding patent protection covering claims to indigenous knowledge
like the protection on neem, turmeric, ayahuasca is also against the
principles of the Convention on Biological Diversity. The Agreement
does not address issues like access to biological diversity, benefit-
sharing and the interests of the traditional community.
However, the importance of both the prevention of bio-piracy and
misappropriation of genetic resources and traditional knowledge, as
well as the promotion of a balanced patent system that benefits patent
applicants and the public interest should be recognized.
The Convention on Biological Diversity has, while considering the
implications of intellectual property rights, specifically provided that
"The Contracting Parties, recognizing that patents and other
intellectual property rights may have an influence on the
implementation of this Convention, shall cooperate in this regard
subject to national legislation and international law in order to ensure
that such rights are supportive of and do not run counter to its
objectives.”29
The TRIPS Agreement and the CBD should be implemented in a
mutually supportive and consistent manner.
The green biotechnology30 can be better developed only by proper

protection at international level.
NATIONAL SEEDS POLICY, 2002
INTRODUCTION
29
CBD, Art. 16.5.
30
Green biotechnology encompasses a wide range of techniques that consist of culturing plant tissues and/or
organs, followed by the multiplication of the relevant plants with desirable characteristics. Genetically identical
plantlets are thus available for distribution all the year round.
Indian Agriculture has made enormous strides in the past 50
years, raising food grains production from 50 million tonnes to over
200 million tonnes. In the process, the country has progressed from
a situation of food shortages and imports to one of surpluses and
exports. Having achieved food sufficiency, the aim now is to achieve
food and nutritional security at the household level.
The increase in agricultural production, however, has brought
in its wake, uneven development, across regions, crops, and also
across different sections of farming community. In the decade of
the 'nineties', a marked slackening in the pace of growth has
occurred, pointing to the need for infusing a new vitality in the
agricultural sector.
Seed is the most important determinant of agricultural
production potential, on which the efficacy of other agriculture
inputs is dependent. Seeds of appropriate characteristics are
required to meet the demand of diverse agro-climatic conditions and
intensive cropping systems. Sustained increase in agriculture
production and productivity is dependent, to a large extent, on
development of new and improved varieties of crops and an efficient
system for timely supply of quality seeds to farmers.
The seed sector has made impressive progress over the last
three decades. The area under certified seeds has increased from
less than 500 hectares in 1962-63 to over 5 lakh hectares in 1999
2000. The quantum of quality seeds has crossed 100 lakh quintals.
The Seeds Act, 1966 and Seeds Control Order promulgated
thereunder, and the New Policy on Seeds Development, 1988, form
the basis of promotion and regulation of the Seed Industry. Far
reaching changes31, however, have taken place in the national
economic and agricultural scenario and in the international
environment since the enactment of the existing seed legislation and
the announcement of the 1988 Policy.
AIMS AND OBJECTIVES
It has become evident that in order to achieve the food

production targets of the future, a major effort will be required to
enhance the seed replacement rates of various crops. This would
require a major increase in the production of quality seeds, in which
the private sector is expected to play a major role. At the same time,
private and Public Sector Seed Organisations at both Central and
State levels, will be expected to adopt economic pricing policies
which would seek to realise the true cost of production. The
creation of a facilitative climate for growth of a competitive and
localised seed industry, encouragement of import of useful
germplasm, and boosting of exports are core elements of the
agricultural strategy of the new millennium.
Biotechnology will be a key factor in agricultural development
in the coming decades. Genetic engineering/modification
31
www.seednet.gov.in/PDFFILES/National Seed Policy, 2002
techniques hold enormous promise in developing crop varieties with
a higher level of tolerance to biotic and abiotic stresses. A
conducive atmosphere for application of frontier sciences in varietal
development and for enhanced investments in research and
development is a pressing requirement. At the same time, concerns
relating to possible harm to human and animal health and bio-safety,
as well as interests of farmers, must be addressed.
Globalization and economic liberalization have opened up new
opportunities as well as challenges. The main objectives of the
National Seeds Policy, therefore, are the provision of an appropriate
climate for the seed industry to utilize available and prospective
opportunities, safeguarding of the interests of Indian farmers and
the conservation of agro-biodiversity. While unnecessary
regulation needs to be dismantled, it must be ensured that gullible
farmers are not exploited by unscrupulous elements. A regulatory
system of a new genre is, therefore, needed, which will encompass
quality assurance mechanisms coupled with facilitation of a vibrant
and responsible seed industry.
Seed Act 1966

The major legislative measures involved under the Act are Seeds rules
framed in 1968, Seeds (Control) order, formulated in 1983 after
including seeds as an essential commodity
A total of twenty five clauses have been mentioned in the act and they
are:
1. Enacted by Parliament for the whole of India to regulate seeds
2. Seeds of food crops, oil crops, cotton seeds, seeds of cattle fodder
and all types of vegetative propagating material are included
3. Constitution of a Central Seed Committee (comprising eight
members) to advise the Central and State Governments on matters
arising out of the administration of this act and carry out other
functions assigned to it by the Act
4. Establishing a Central Seed Laboratory as well as State Seed
Laboratory to carry out seed analysis of notified variety
5. Empowerment of the Central Seed Committee to notify any
variety found suitable as per the Act after notification in the Official
Gazette
6. Empowerment of the committee to fix the minimum limits of
germination and purity of seed for a variety to be notified as well as
for marking or labeling a seed lot to be sold commercially
7. Regulation of sale of seeds of notified varieties by compulsory
truthful labelling revealing the true identity of the variety, germination
as well as purity
8. Constituting a certification agency for undertaking the process of
certification
9. Power of certification agency to recommend notification of
suitable variety and grant of notification certificate provided the seed
meets minimum limits of germination and purity
10. Empowerment to the agency for revocation of certificate if the
agency is convinced that holder has obtained certificate by
misrepresentation or not complied with the conditions
11. Provision for an appeal by the holder on payment basis to express
before an appellate authority, his limitations for not complying with
the conditions
12. Appointment of a seed analyst to undertake seed testing.
13. Appointment of seed inspector who is deemed to be a public
servant within the meaning or section 21 of the Indian Penal Code (45
of 1860)
14. Empowerment of seed inspector to draw samples from any seller
or a purchaser and verify the quality by sending samples to a seed
analyst in the seed testing laboratory
15. Laying-out of procedure for seed sample collection and other
rules. The clause also entrust inspector with the power to break open
any seed container or door of any premises where such seed may be
kept for sale, under those circumstances when owner refuses to
cooperate. The whole operation has to be done in presence of two
witnesses with their signatures on a memorandum
16. Responsibility of Seed analyst to report the results in a specified
format after analysis of the seed samples to Seed Inspector as well as
the seller/ purchaser. Complainant if dissatisfied with the result can
apply to the court for sending samples to Central Seed Testing
Laboratory. Central seed laboratory shall thereupon send its report to
the court in the prescribed format within one month from the date of
receipt of the sample
17. Restriction on import and export of seeds of notified varieties.
Any variety imported or exported should meet the minimum limits of
seed germination and purity marked or labeled on the container truly
18. Recognition of seed certification agencies of foreign countries
for the purpose of this act
19. Penalty or punishment or both for those who do not comply with
the provisions of the act and also prevent seed inspectors from
executing his power
20. Forfeiture of property (seeds) belonging to any person convicted
under this act due to contravention of the procedures under this act
21. Punishment for offences committed by companies or any body
corporate. All who was incharge of, when the time the offence was
committed and was responsible to the company shall be deemed to be
guilty of the offence and punished accordingly.
22. Protection of Government action taken in good faith that is no
prosecution or legal proceeding will lie against Government or any
Government Officer for anything that is done in good faith .
23. Power for Government to give directions for smooth conduct of
the act.
24. Non-application of the act to the seed exchange by the farmers
without any brand name.
25. Power of Government to make rules to carry out various functions
of Central Seed Committee, Central Seed Laboratory, Certification
Agency and Seed Inspectors.
Seed Rules, 1968

The rules have been framed to implement various legislations given
under Seed Act, 1966 and contain 11sections.
I. Preliminary
This section provides definitions of various terminology used under
the seed rule.
II. Central Seed committee

This section describes the specific functions entrusted to the
committee by the act such as recommendation for Seed Testing fee,
advice on the suitability of seed testing laboratory, recommendation
for the procedure and standards for seed certification and testing. Also
the rules provide details of traveling and daily allowances payable to
the members of the committee.
III. Central Seed Laboratory

In this section it describes the specific functions entrusted to the
Central Seed Laboratory such as coordinating with State Seed
Laboratories for uniformity in test results, collecting data on quality
of seeds available in the market and any other function assigned to it
by the Central Government.
IV. Seed Certification Agency

This section deals with the specific functions entrusted to the
Certification Agency such as- outlining the procedure for submission
of applications, growing, harvesting and processing and storage of
seeds indented for certification, maintaining a list of recognized
nucleus seed breeders, inspections of seed production fields, seed
processing plant and seed stores, grant of certificates.
V. Marketing or Labeling
Rules for marking or labeling of seed lots indented for certification
have been provided in this section. The label should contain name of
the person or agency that produced the seed and shall be responsible
for the accuracy of information given in the unopened original
container. The label should contain the name, the address of the
person offering the sale of the seed, name of the variety, germination
and purity level of the seed, net weight of the seed, date of seed
testing and a statement if the seed is treated. Any transparent cover
used solely for the purpose of packing during transport or delivery
need not be marked or labeled.
VI. Requirements for Certification

Three classes of certified seed have been specified in this section, viz.
Foundation (progeny of breeder seed), Registered (progeny of
foundation seed) and Certified (progeny of registered / foundation
seed) and each class shall meet the specific standards. Certification
agency has the discretion of producing certified seed from certified
seed provided that it does not exceed three generation and the genetic
purity is not significantly altered.
VII. Certification of seeds

The detailed procedure of seed certification starting from applying for
certification till the grant of certificate has been provided in this
section. Application has been outlined by the certification agency
containing the name and details of the applicant, the name of the seed
to be certified, class & source of the seed, germination and purity and
mark or label. A fee of Rs. 25 is levied for certification. Once
certified, the certification tag containing information such as name
and address of the certification agency, name of variety, lot number,
name and address of the producer, date of issue of its certificate and
its validity, an appropriate sign, to designate certified seed. The color
of the tag shall be white for foundation, purple for registered and blue
for certified seed. The holder of certificate shall allow any seed
inspector to enter and inspect the seeds kept for sale, registers or other
documents.
VIII. Appeal
Provision for appeal has been provided by submitting a memorandum
accompanied by a treasury receipt for Rs. 100. The appellate authority
shall exercise all the powers which a court has, while deciding appeal
under the code of civil procedure, 1908.
IX. Seed Analyst and Seed Inspectors

The specific qualifications and duties of seed analyst and seed
inspectors have been provided in this section. Seed analyst should
possess a Master Degree in Agriculture/ Agronomy/ Botany/
Horticulture from a recognized University with at least one year
experience in Seed Technology or possess a Bachelors degree in
Agriculture/Botany from a recognized university with a minimum of
three years experience in Seed Technology for this purpose. Seed
analyst shall analyze the seed samples according to the provisions of
the Act. Seed Inspector shall be a graduate in agriculture with at least
one year experience in Seed Technology.
X. Sealing, Dispatch and Analysis of Samples

The details of sampling, labeling, manner of packing and sealing the
samples as well as its dispatch to the seed analyst has been provided.
XI. Miscellaneous
The need to maintain stock record of seeds and record of the sale of
seed have been provided in this section.
Amendments to the Seed Act / Seed Rules
The Seeds (amendment) Rules, 1972

Inclusion of "jute seeds" to the Seeds Act, Establishment of a Seed
Certification Board, and empowerment of the Board to fix minimum
standards
 Certification Board
Establishing Central Seed Certification Board to advise Government
on all matters relating to the certification and co- ordinate the
functioning of certification agencies.
Details of the Board members to be included with a Chairman and
employees nominated by the Central Government, Directors of
Agriculture and Directors of Research.
Membership period has been given for two years.
The board can make by-laws for regulating its own procedure.
The Central Government shall appoint a Secretary for the board
 The rule says seed should not just meet a minimum limit of
germination and purity as given in SEED ACT, 1966, but should meet
a prescribed standard provided that the standard is not lower than the
minimum limits of germination and purity specified for the seed.
 Clause for "Power to fix standards for which seeds should
confirm" was added under the power to make rules in the Seeds Act,
1966.

Powers of appellate authority and duty of seed analyst have been
slightly modified. Seed Testing Manual published by ICAR has been
mentioned to be referred by the seed analysts
 Judicial powers of authority provided in Seed Rules under Appeal,
has been omitted.
 Seed analyst shall analyze samples in accordance with the
procedures laid down in the Seed Testing Manual published by the
ICAR.
 Amendment has been made by specifying the time period
(maximum 30 days after receipt of the sample) within which the seed
analyst should report the result.
 Amendment by empowering the State Government to assign any
duty to Seed Inspector has been made.
More powers conferred on seed inspector during crop failure

 Modified the seed rules by adding a clause on action to be taken by
the seed inspector if a complaint is lodged with him as a result of crop
failure.
 The amendment says that in cases of crop failure, the inspector
shall investigate causes of failure by sending seed samples for
detailed analysis.
 He shall also submit the report to the competent authority
If the inspector comes to conclusion that failure of performance is due
to low quality seed not meeting the minimum standards notified by
the Central government he shall take proceedings against supplier.

A new rule added under the seed certification and has mentioned
Indian Minimum Seed Certification Standards published by the
Central Seed Committee to be referred for certification
 The amendment says certification agency shall ensure that the seed
standards confirm to the minimum seed certification standards laid
down in the manual known as Indian Minimum Seed Certification
Standards published by the Central Seed Committee which is
commonly called as Blue Book.
Seeds (Control) Order, 1983

The inclusion of seeds as an essential commodity item under the
Essential Commodity Act, 1955 brought the Seeds (Control) Order.
 A person carrying on the business of selling, exporting and
importing of seeds needs to obtain a license
 The Essential Commodity Act, 1955 gives powers to State
governments to regulate various aspects of trading in essential
commodities under the supervision of Central Government. The act
again passed with amendments in the year 1980 clearly states that
detaining of persons whose activities are unethical in the supply of
essential commodities. This help in prevention of black marketing of
the supplies
 The license provided to a seed dealer remains valid only for 3
years from the date of its issue which can be later renewed
 The seed dealer has to essentially display the stock position
(opening and closing) on daily basis along with a list indicating prices
or rates of different seeds
 A cash or credit memorandum has to be given by the dealer to
purchaser of seeds, compulsorily
 The State Government is empowered with appointing a licensing
authority, inspectors and mode of action for supply regulation.
 Under this order the time period for completion of seed analysis
in case of any doubt about quality is 60 days compared to 30 days
under Seed Rules
 Cancellation of license if obtained through misrepresentation
 Provision for appeal and an appellate has also been provided
 Provision for amendment of license and need for maintenance of
records and submission of monthly returns by the dealer
The National Seed Project undertook various measures and had set up
huge processing plants in order to provide processing of certified
seeds of self pollinated food crops to farmers. However it did not
result in complete fulfillment of the mission since private sectors were
able to take forward their quality seeds in both self and cross
pollinated crops of varieties/ hybrids respectively. In the year, 1971,
National Commission on Agriculture recommended breaking of
Public sector hold and entry of private sector into the Indian Seed
market. Subsequently, the National Seed Policy in 1988 was
formulated to help privatize the Indian seed industry at that time the
import of seeds were restricted.
New Policy on Seed Development, 1988
The policy was formulated to provide Indian farmers with access to
the best available seeds and planting materials of domestic as well as
imported
 The policy permits the import of selected seeds under Open
General License (OGL), to make available to farmers high quality
seeds to maximize yield, increase productivity thereby farm income.
The policy allow import under OGL of items such as seeds of oilseed
crops, pulses, coarse grains, vegetables, flowers, ornamental plants,
tubers, bulbs, cuttings and saplings of flowers.
 While the import of horticultural crops including flowers need
recommendation from Directors of Horticulture, import of crop seeds
require permission from ICAR. ICAR will direct multi -locational
trials in various agro-climatic conditions at least for one season.
 Evaluation of important traits such as yield, pest resistance etc.
needs to be done within 3 months of harvest after which importer
shall apply to the DAC for permit. Within a month, DAC will process
it and thereafter controller of Imports and Exports will issue a license.
 Private seed producing firms should compulsorily register with
NSC before importing the seeds.
The policy was immediately followed by an order by Government of
India (Plants, Fruits and Seeds Order) for the purpose to regulate the
import of agricultural items into India.
CHAPTER 3 : RIGHTS OF FARMERS
INTRODUCTION
Farmers' Rights are a precondition for the maintenance of crop
genetic diversity, which is the basis of all food and agriculture
production in the world. Basically, realizing Farmers' Rights means
enabling farmers to maintain and develop crop genetic resources as
they have done since the dawn of agriculture, and recognizing and
rewarding them for this indispensable contribution to the global pool
of genetic resources.
Plant genetic diversity is probably more important for farming than

any other environmental factor, simply because it is the factor that
enables adaptation to changing environmental conditions such as
plant diseases and climate change. Thus, as a precondition for the
maintenance of this diversity, Farmers' Rights are crucial for ensuring
present and future food security in general, and in the fight against
rural poverty in particular.
Definition of Farmers' Rights
The International Treaty does, however, not define Farmers' Rights.

The following is a working definition developed on the basis of the
research of the Farmers' Rights Project and can be seen as a lowest
common denominator of all stakeholders consulted and all documents
and literature surveyed:
Farmers' Rights consist of the customary rights of farmers to save,

use, exchange and sell farm-saved seed and propagating material,
their rights to be recognized, rewarded and supported for their
contribution to the global pool of genetic resources as well as to the
development of commercial varieties of plants, and to participate in
decision making on issues related to crop genetic resources.
WHAT FARMER RIGHT CONSTITUTE?

Farmers' Rights are basically about enabling farmers to maintain and
develop crop genetic resources as they have done since the dawn of
agriculture, and recognizing and rewarding them for this
indispensable contribution to the global pool of genetic resources.
Why Farmers' Rights matter?

production in the world. Genetic diversity of agricultural plants is the
very basis of farming.
It provides the pool from which plant traits can be found that meet the
challenges of crop pests and diseases, of marginal soils, and – not
least – of changing climate conditions and it is vital for spreading
risks for smallholder farmers.
Plant genetic diversity is probably more important for farming than

any other environmental factor, simply because it is the factor that
enables adaptation to changing environmental conditions. As farmers
are custodians and developers of crop genetic resources, their rights in
this regard are crucial for enabling them to maintain this vital role for
local and global food security, and they are a central means in the
fight against poverty.
THE CONCEPT OF FARMER’S RIGHTS FIRST APPEAR
The idea of Farmers' Rights came up in the early 1980s as a

countermove to the increased demand for plant breeders' rights, as
voiced in international negotiations. The purpose was to draw
attention to the unremunerated innovations of farmers that were seen
as the foundation of all modern plant breeding. The concept was first
brought up in international negotiations in 1986.
Why are Farmers' Rights important?

production in the world. Genetic diversity of agricultural plants is the
very basis of farming. It provides the pool from which plant traits can
be found which meet the challenges of crop pests and diseases, of
marginal soils, and - not least - of changing climate conditions.
Genetic diversity is also vital for spreading risks for smallholder
farmers. Plant genetic diversity is probably more important for
farming than any other single environmental factor, simply because it
is the factor that enables adaptation to changing environmental
conditions. As farmers are custodians and developers of crop genetic
resources, their rights in this regard are crucial for enabling them to
maintain this vital role for local and global food security.
NEED FOR PROTECTION OF FARMER’S RIGHTS
One of the most important challenges that mankind must face in the
coming years is to feed the entire world population. Land area
available for agriculture will decrease in many regions because of
urbanization and industrialization. So it is necessary to at least double
the current level of agricultural production. It will be very difficult to
achieve this level of production through an increase of land area in
cultivation. The only solution therefore is to increase productivity per
unit area.
Today, plant improvement is an important sector of activity based on
the exploitation of existing genetic diversity. Appropriate
technologies developed from the results of the research base are also
being utilized. This permits the continuous development of new and
better performing varieties that are adapted to the current needs of the
world. Plant biotechnology seeks to address the issues posed by the
concern for food security, pests, improved productivity and quality.
Breeders have benefited from the developments in biotechnology.
Genetic modification is an important tool for breeders to develop new
varieties of plants. Genetic modification can be explained as the
process by which genes are introduced into organisms in a different
way than that found in nature. It is increasingly becoming an
important new tool for breeders in their quest to improve plant
varieties. Before the advent of genetic engineering, new plant
varieties were obtained by traditional breeding methods like selecting
and crossing plants having improved traits. Today the scenario has
changed and the methods of classical breeding have been replaced to
a certain extent by genetic engineering.
Intellectual property system has been termed as one of the
cornerstones of modern economic policy. Intellectual property deals
with creations of human intellect. The protection of intellectual
property rights enables countries to participate in international trade.
Intellectual property rights have acquired increased prominence at
both national and international level. The system of intellectual
property protection is intended to strike a balance between the rights
of the holders and the public at large. Effective intellectual property
rights recognize and encourage the work of plant innovators. They
create incentives for investment in research and development.
The Nine Rights of Farmers
The PVPFR Act provides a separate chapter on farmers' rights.124

The farmers' rights contained in this chapter and elsewhere in the Act
constitute nine important rights. These rights acknowledge the role of
farmers in conserving varietal diversity, honour their traditional rights
on seeds to promote conservation, their poor economic capability to
buy seed for every sowing, their low legal literacy and their
entitlement for equitable share of benefit arising from new varieties.
Right on Seeds
The farmers' right on seeds is a traditional right enjoyed by farmers all

along the history of agriculture.32 UPOV 1978 Act included this as
farmers' privilege while UPOV 1991 Act made it an optional
exception. This privilege has been recognized as fundamental to the
realization of farmers' rights by ITPGRFA as described in its
preamble. This right includes the right to save the seed from one's
crop and use the saved seed for sowing, exchanging, sharing or selling
to other farmers. It is fundamental to the conservation role performed
by farmers. The process of conservation encompasses the total genetic
variability in time and space, including traditional and new varieties;
the farmers' right on seeds encompasses the total genetic variability,
including protected varieties. The PVPFR Act, therefore, allows this
right on seed to all varieties, including varieties registered under this
Act.33 The Act restricts farmers from selling seeds of a protected
variety in packages and containers with labels bearing its registered
name.34 To further safeguard this right on the seeds of registered
varieties, the Act prohibits use of technologies like the terminator
gene technology, which destroys the germination capability of saved
seeds.35
32
Bala Ravi, S., India’s Protection of Plant Varieties and Farmers’ Rights Act, Manual on Farmers’ Rights,
MSSRF, 2004.
33
Sec. 39 (1) (iv)
34
The provisions on the right to seed specify that farmers are entitled to save, use, sow, resow, exchange,
share and sell farm produce, including seeds of varieties protected by plant breeders’ rights. They are,
however, not allowed to sell seeds of protected varieties as branded packages. All the same, this stands as the
most liberal legislation to date in this sphere, allowing farmers all the customary rights they previously
enjoyed.
35
Section 18 (1) (c).
Right to Register Traditional Varieties
The PVPFR Act allows the registration of traditional varieties or

farmers' varieties.36 Registration of the variety grants PBR on the
variety, which allows exclusive legal right to the PBR-holding
farmers to produce and market its seed.37 Farmers are awarded PBR
by the Act on their recognition as breeders. Traditional varieties
developed or conserved by a community of farmers and new varieties
developed by one or more farmers are eligible for registration. In the
case of registration of a traditional variety, it is important to involve
all communities associated with its conservation, if there is no clear
evidence to establish an exclusive role for the origin of the said
variety. Similarly, when a variety developed by a farmer is registered,
it is important to recognize spousal contribution under joint
ownership. Farmers need not have to pay any fee either to register
their varieties or to renew these registrations.38 This is a major
incentive to the innovative breeders among farmers. On the contrary,
professional breeders and public research institutions are required to
pay separately Rs.5,000 to 10,000 as registration and renewal fees.
The PVPFR Act is unique in respect of this right, because the plant
variety protection laws of many other countries do allow only
protection of new varieties bred by professional breeders
Right for Reward and Recognition
Right to reward and recognition to farmers is based on the fact that

their generations have conserved, improved and made available plant
genetic resources, and this contribution has not been sufficiently
recognized or rewarded. ITPGRFA has recognized such a
contribution but not identified it as a component of farmers' right
36
Sec. 14 of PVPFR Act.
37
Ibid., Sec. 28
38
Sections 18 and 44.
under Article 9. Rather, Articles 13 and 18 of the Seed Treaty provide
for support to farmers who conserve plant genetic resources.
In recognition of the important role farmers are playing for the
conservation of varietal wealth of crop plants, the PVPFR Act has a
provision to reward and recognize individual farmers or farming and
tribal communities for such contribution.39 According to the Act, a
National Gene Fund is to be created to facilitate reward and
recognition to eligible individual farmers and communities. This is
provided as an incentive to encourage conservation undertaken by
farming and tribal communities. Farmers conserving traditional
varieties and wild species of crop plants are deemed eligible to
receive reward and recognition.
The reward is to be given from Gene Fund. In 2007, the PVP & FR
Authority started the Plant Genome Saviour Community Recognition
for this purpose. However, such a provision does not exist in any
other Asian country.
Right for Benefit Sharing

Right to benefit sharing is recognized as one of the farmers' rights
under Article 9 of ITPGRFA. Section 26 of the PVP & FR Act of
India recognizes the right of benefit sharing with the breeder of initial
variety, where a breeder may include a farmer.
The Act provides for equitable sharing of the benefit earned from the
new variety with farming or tribal communities that had contributed
varieties used as parents.40
Normally, all applicants who seek to register new varieties are
required to declare the source of the varieties used as parents for
breeding new varieties.41 Farmers are given opportunity to submit
claims for benefit share, when their variety is used as parents.42
39
Sections 39 (1) (iii).
40
Section 26 (5).
41
Section 18 (e) and (h).
42
Section 26 (2)
Claims for benefit share is made when breeder discloses the use of
specific varieties conserved by farmers of a region or on the basis of
strong grounds which may substantiate undisclosed use of specific
farmers' variety by the breeder. Claims for benefit share has to be
made in Form PV-7, prescribed by the Authority within six months
from the date of advertisement inviting such claims by the Authority.
On examination of such claims by the Authority applicant eligible for
benefit sharing and the quantum of benefit to be shared are decided.
The PBR holder of the variety is required to remit the awarded benefit
share in the National Gene Fund.43 The benefit share may be
disbursed from the National Gene Fund to the eligible individual,
community or institution.44
Therefore for claiming eligible benefit share, the farming
communities should have :
 timely information on the varieties being registered under the Act.
 timely understanding on the notification on such varieties inviting
claims for benefit share, and
 capability to understand the disclosed characteristics of the new
variety vis-a-vis those of parental varieties.
The capability of farmers in accessing this right can be strengthened
by vigilant farmers' associations and panchayats by regularly
following the notifications of the PVPFR Authority. Assistance from
governmental or non-governmental organizations may also help
farmers in this regard.
Right to get Compensation

The primary purpose of registration of a plant variety under this Act is
to establish exclusive commercial right on the variety. Commercial
demand arises from the capability of the variety for better agronomic
performance. Some of the seed companies, however, promote their
43
Section 26 (6).
44
Sec. 45 (2) (a).
seed by making exaggerated claims on the agronomic performance of
their varieties. Farmers purchasing and cultivating such seeds may
eventually realize the deceit. The PVPFR Act has a provision to check
such unfair marketing practices by breeders and their seed sellers. The
Act requires that the seed be sold with a declaration on its agronomic
performance and the cultivation conditions ensuring this performance.
The performance could be higher yield, better pest or disease
resistance, better quality, and so on. In the event if farmers are not
able to achieve the claimed performance on having cultivated under
the specified conditions, the PBR-holder will be made liable to pay
compensation to affected farmers.45
Such claims for compensation are made to the PVPFR Authority in
Form PV-25. The Authority on confirmation of the compensation
claim decides the amount of compensation to be paid by the PBR-
holder. For establishing the compensation claim farmers may be
required to prove that they had cultivated a specific variety with seed
marketed by a specific PBR holder, that they cultivated variety in
accordance with the recommended practices in recommended region
and that they suffered an estimated loss due to poor performance of
the crop.
Protection against Bad Seed

The farmer in principle is protected against the supply of spurious
and/or bad quality seed in which he is adequately compensated in the
event of crop failure resulting from sowing of bad seeds.
However, the clause is weakly framed, leaving too much to the
discretion of the Plant Variety Authority which will fix the
compensation. This could lead to arbitrary decisions and should be
amended. Compensation should be large enough to be a deterrent. In
addition, a jail term should be provided if the breeder repeats the
offence.46
45
Section 39 (2)
46
Sahai S. Plant Variety Protection and Farmers Rights Law’, Economic and Political Weekly, September 2001
Farmers' Right to receive Compensation for Undisclosed use of
Traditional Varieties
It was earlier stated that the cause of benefit sharing arises from a
declaration made by the breeder that the pedigree of a new variety has
certain traditional varieties or traditional knowledge sourced from
certain regions/communities. However, there can be situations where
the breeder of a new variety may not disclose the correct identity of
parental varieties or knowledge. Under such circumstances if such
parental varieties belonged to one or more rural communities, they
may be denied the opportunity for benefit share due from the new
variety. The communities concerned also may not have the capability
to detect such use of their varieties or traditional knowledge in the
breeding of a new variety. Under such situations, any third party who
has a reasonable knowledge on the possible identity of the traditional
varieties or knowledge used in the breeding of the new variety, is
eligible to prefer a claim for compensation on behalf of the concerned
local or tribal community.47 The third party could be an NGO, an
individual, a government or private institution. Such compensation
claims are to be submitted to the PVPFR-Authority by such third
party. The Authority on verification of the veracity of the claim shall
admit the same and decide on the compensation to be awarded. The
awarded compensation will be remitted in the National Gene Fund by
the PBR-holder. The National Gene Fund shall disburse the
compensation to the party who made the claim. A good understanding
of plant varieties and professional skill in plant breeding science will
help in detecting many of such eligible cases for compensation.
Farmers' Right for the Seeds of Registered Varieties
47
Section 41 (1).
One of the objectives of the Act is to promote the availability of high
quality seed and planting material to farmers for accelerated
agricultural development. The Act tries to achieve this objective by
ensuring adequate availability of seeds of registered varieties to
farmers at reasonable cost. According to the Act, when the PBR-
holder does not satisfy this requirement three years after registration
of the variety, farmers have the right to take the matter of non-
availability of seed, its poor supply, or its high price to the PVPFR
Authority.48
On receiving such complaints and on its verification, the PVP
Authority may take remedial actions. One of these actions may be
enforcement of compulsory licensing. Compulsory licensing revokes
the exclusive right on commercial production and marketing of seed
granted to the PBR-holder and transfer this right to third parties
determined by the Authority. This revoke of exclusive right is done
for a period decided by the Authority. The third parties, who are given
right to produce and market the seed, are required to meet the
demands and supply seed at reasonable prices.
Farmers' Right for Receiving Free Services

Considering the poor economic capability of farmers and with a view
that this economic weakness shall not be a hurdle for accessing
farmers' rights, the PVPFR Act totally exempts farmers from paying
any fees.49
The Indian PVP &FR Act in Section 44 has exempted farmers from
paying any fees with respect to any proceeding before the Authority
or Registrar or the Tribunal or the High Court. They also need not pay
fees for registration of farmers' variety, DUS testing, etc. This
provision is exclusive to India.
This exemption is applicable to individual, group or community of
farmers. The exemption includes the fees required to be paid to the
48
Section 47.
49
Secs. 18 and 44
Registrar of Plant Varieties for registration of farmers' varieties, for
conducting tests on them, for the renewal of registrations and the fees
prescribed for opposition, benefit claim, etc. This exemption also
covers fees on all legal proceedings at the PVPA-Tribunal or the
Intellectual Property Appellate Board (IPAB) or any Court of law.
This exemption, however, does not include fee on lawyers privately
hired by farmers to represent them at the Tribunal or Appellate Board
or Courts.
Farmers' Right for Protection Against Innocent Infringement
All laws have penal provisions stating what constitutes an

infringement and what punishment is to be awarded to different
proven infringements.50 A safeguard to farmers against innocent
infringement is provided in the Act.51 Section 42 of Indian PVP &FR
Act protects innocent infringement of the rights created under this Act
by a farmer, if the farmer was not aware of existence of such right at
the time of infringement. Therefore, no relief or cognizance of any
offence under the Act can be taken as the act is not considered as
infringement.52
According to this, a Court is prevented from prosecution of a farmer
on charges of infringement of the Act, if the respondent farmer makes
an affirmation that he/she was not aware of the legal provision
deemed to have been violated by him or her at the time of such
commission. This highlights the importance of legal literacy to
farmers on this Act, not only to prevent infringement proceedings
against them, but also to create capability to access the rights
provided to them.
50
Chapter X – Sections 64 to 77 deal with Infringement, Offences, Penalties and Procedure.
51
Sec. 42
52
PVP & FR Act 2001, Section 42.
OTHER KINDS OF FARMERS RIGHTS
Farmers' Rights and protection of traditional knowledge
Protection of traditional knowledge relevant to plant genetic resources

for food and agriculture is one of the possible measures for the
implementation of Farmers' Rights, as set out in the International
Treaty on Plant Genetic Resources for Food and Agriculture.
Most countries in the South which have accounted for the protection
of farmers' traditional knowledge relevant to Plant Genetic Resources
for Food and Agriculture in their legislation have done so through
legislation pertaining to the protection of biological diversity in
general. Bangladesh, Bhutan, India, Vietnam and Chile are examples.
Several countries have provisions pertaining to the protection of
farmers' traditional knowledge in their regulations on access to
genetic resources - for example, the Philippines and Ethiopia. Some
countries have accounted for such protection in legislation pertaining
to indigenous peoples, as in Peru. A few countries have relevant
provisions in their legislation on plant variety protection. India has
passed far-ranging legislation that deals explicitly with Farmers'
Rights in such a context. Several countries are in the process of
issuing legislation on Farmers' Rights, including the protection of
farmers' traditional knowledge. Nevertheless, little has been achieved
in terms of protection with regard to implementing such legislation.
Farmers' Rights to equitable benefit sharing
Farmers' Rights to equitably participate in the sharing of benefits

arising from the utilization of plant genetic resources for food and
agriculture is another measure for the implementation of Farmers'
Rights suggested in International Treaty on Plant Genetic Resources
for Food and Agriculture.
In the South, policies on benefit sharing - if any - are provided for in
various forms of legislation, most notably laws and regulations on
access to biological resources, as in the Philippines. Also in
legislation on the protection of biological diversity, provisions on
benefit sharing are sometimes incorporated, as is the case in Burundi,
Bhutan and - notably - Bangladesh. Some countries also provide for
benefit-sharing arrangements in their plant varieties protection laws:
India is an outstanding example in this regard. Countries with
legislation on indigenous peoples' rights often have provisions on
benefit sharing in these laws, which then also cover indigenous
farmers, as in Peru. Some countries among them Ethiopia, Uganda,
Zambia and Bolivia, are in the process of developing legislation
pertaining to benefit sharing. Despite all these efforts, so far there
have been no examples of direct benefit sharing related to plant
genetic resources for food and agriculture that have resulted from
such legislation.
In the North, benefit sharing is not so much of an issue, since most

farmers use improved varieties and buy their seeds and propagating
material from breeding companies. However, in the Netherlands there
are examples of collaboration between farmer-breeders and
commercial breeding companies that has resulted in royalties for the
farmers. And in Denmark, for example, there are breeding companies
that have been set up as farmer-owned co-operatives, where the
royalties flow back to the companies and from which the farmers can
pocket the surplus.
Farmers' Rights and participation in decision processes
A third measure for the implementation of Farmers' Rights, as

suggested in the International Treaty on Plant Genetic Resources for
Food and Agriculture, is the participation of farmers in decision-
making pertaining to the management of plant genetic resources for
food and agriculture at the national level.
There are generally few examples of legislation in this regard,

although some countries in the South have extensive legislation on
participation. All the same, actual participation in decision-making
processes seems to be marginal and is often confined to large-scale
farmers who are normally not engaged in the maintenance of plant
genetic diversity. In the North, the participation of farmers in
decision-making processes is more common, but without reference to
specific laws or policies. However, farmers in the North claim that
their influence is now decreasing, due to their countries' commitments
to international and regional agreements.
Farmers' Rights to save, use, exchange and sell farm-saved seed
Farmers Rights to save, use, exchange and sell seed and propagating
material from their own harvest are addressed in the International
Treaty on Plant Genetic Resources for Food and agriculture.
Such practices are increasingly affected by regulations on plant

breeders' rights and on the certification of seeds for sale. Generally,
Farmers' Rights with regard to such practices are most restricted in the
North, and least restricted in Africa. In Asia and Latin America, there
are many examples of regulations in this context, but these tend to
have wider exemptions for farmers than in the North. The recognition
of Farmers' Rights in India's legislation has received much attention
of late, due to the wide exemptions for farmers, combined with
farmers' intellectual property rights. The legislation in Bangladesh has
received less attention, but it appears highly interesting because it
promotes plant breeding for the public domain, i.e. for the free use of
farmers.
Rights of breeders
Breeders’ rights recognised under the PPV and FR Act 2001 extend,
for seed and/or propagating material of the protected variety, to:
1. production,
2. selling,
3. marketing,
4. distribution,
5. export, and
6. import53
These rights are consistent with those that have been provided under
UPOV 1991. However, if the breeder’s variety protected under the
Act is an EDV from a farmer’s variety, the breeder cannot give any
authorisation without the consent of the farmers or communities from
whose varieties the protected variety is derived.54
Farmers’ Right Similar to Commercial Breeders Right

The main contribution of the PVPFR Act is the achievement made
under Section 39 which grants the same rights as commercial breeders
for their varieties. The PVPFR Act recognizes the rights of the
farmers to save, use, sow, re-sow, exchange, share or sell their farm
produce including seeds of a protected variety. In contrast to this
UPOV recognized the rights of the farmers over their crops, and not
the rights of farmers over the seeds of the crops they grew. The only
proviso is that these seeds must not be ‘branded’ with breeder’s
registered name. In this way both farmers and breeders rights are
protected. The breeder is rewarded for his innovation, but without
being able to threaten the farmer’s ability independently to engage in
his livelihood and supporting the livelihood of other farmers. In
addition, as a part of the farmer’s rights, compensation can be claimed
53
Ibid., Section 28(1)
54
Ibid., Section 43
if a variety fails to provide the expected performance under given
condition and leads to crop failure.
Key barriers to Farmers' Rights
Farmers' Rights, as they pertain to plant genetic resources for food

and agriculture, are an issue of central importance in countries where
most of the population lives in rural areas, their livelihoods based on
farming - and particularly so when farming systems centre on
traditional varieties. This is the case in most developing countries. In
Northern countries, Farmers' Rights concern a much smaller segment
of the population. Although most farmers in the North rely on
commercial plant varieties, saving and re-use of propagating material
is still practised to some extent, and among eco-farmers there is
increasing interest in developing plant breeding based on traditional
varieties. Thus, Farmers' Rights related to crop genetic diversity are
also important in the North.
A summary of the literature on Farmers' Rights
The substantial and increasing body of literature on Farmers' Rights

provides a valuable source of insights in the potentials for, and
possible difficulties in, realizing Farmers' Rights. Although authors
differ in their points of departure, emphasis and perspectives, their
contributions are largely compatible. The literature provides important
points of departure for understanding the subject matter of Farmers'
Rights, types of rights, rights holders, and appropriate measures for
protecting and promoting these rights. It also draws lessons from
initial efforts at realizing these rights, and warns against certain
tendencies which might prove counterproductive.

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A STUDY ON LEGISLATIVE FRAMEWORK AND POSITION

OF FARMERS WITH SPECIAL REFERENCE TO BARODA

India is among the first countries in the world to have passed

Agriculture is the backbone and is the major source of income

Farming is growing crops or keeping animals by people for food and

 An appropriate mix off arm enterprises and the means available

 It interacts adequately with environment without dislocating the

 In its real sense it will help in lifting the economy of agriculture

“farmer” means any person who—

1.2 What are seeds?

1.3 what is crop?

1.4 what is plant variety?

1.5 What is Plant variety protection?

A plant variety protects the intellectual property for plant breeding.

1.7 Scope of study

1.8 Significance of Study

1.9 Hypothesis of study

1.There is loophole under present PVFR Act 2001.

1.10 Rationale of study

1.11 Methodology of study

Non-doctrinal method in required data were collected from both

1.12 Scheme of study

CHAPTER 2 - UNIVERSAL CONVENTION AND TREATIES

CHAPTER 3 – RIGHTS OF FARMERS

CHAPTER 4 – IPR AND BIOTECHNOLOGY

CHAPTER 5 – SUI GENERIS PROTECTION LAWS IN INDIA

CHAPTER 6 – CONCLUSION AND SUGGESTIONS

1.13 REVIEW OF LITERATURE

flexibility granted in TRIPS, in an intelligent manner. There are

1.14 Limitation of the study

2.2 FARMERS' RIGHTS IN ITPGRFA:

The International Treaty on Plant Genetic Resources for Food and

2.2.2 Objective and Significance of PGRFA

2.2.3 Central provisions on Farmers' Rights under ITPGRFA

Farmers' Rights constitute a cornerstone in the International Treaty. In

Governments are to protect and promote Farmers' Rights, but can

2.5 UPOV Conventions - Objectives

2.5.2 UPOV, 1961

2.5.4 UPOV 1978 Act

Realizing the significance of the 1961 UPOV in the international

The developments in the field of science and technology led to the

2.5.6 The 1991 UPOV Act

ii. Dual Protection with Breeders’ Right and Patent

iii. Protection of Discovered Varieties:

The four eligibility requirements that must be demonstrated

2.5.7 UPOV Conventions and Farmers’ Rights

The extension of the IP protection to agriculture also raised a

However, the farmers' rights as such were not

The 1978 amendment of UPOV Act left the

The third amendment of UPOV Act, in 1991, made

2.6 The Trade Related Aspects of Intellectual Property

TRIPS radically altered the role of international trade

TRIPS Agreement 1994 provides that members may

There is a clear distinction between the terms "plant" and "plant

2.6.1 TRIPS as a Spur to Plant Varieties Protection

2.6.2 Plant Varieties Protection under TRIPS

2.6.3 Convention on Biological Diversity

2.6.4 TRIPS and Convention on Biological Diversity

The green biotechnology30 can be better developed only by proper