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Pepsi action against Gujarat potato farmers declared 'violation of public interest'

By Jag Jivan  
The Protection of Plant Varieties & Farmers' Rights (PPV&FR) Authority has accepted a farm activist’s Revocation Application, to revoke the varietal registration of Pepsico India Holding (PIH) on potato variety FL-2027.
Calling it a a precedent-setting judgement a joint note issued by several farmers' rights groups said, it means that anything that threatens farmers rights as contained in India's unique legislation is, and ought to be a matter of Public Interest. "This is a victory for farmers of India", it said.
PPV&FR in its virtual hearing accepted a plea for revocation of the PVP certificate granted to PepsiCo India Holding on the potato variety in India (FL-2027), on multiple grounds.
Grounds included are: that the grant of the certificate of registration has been based on incorrect information furnished by the applicant (Sec.34 (a)), that the certificate has been granted to a person not eligible for protection (Sec.34(b)), that the breeder did not provide the Registrar with such information, documents or material as required for registration (Sec.34 (c)), and that the grant of the certificate of registration is not in the public interest (Sec.34 (h)).
This means that Pepsico’s varietal intellectual property rights (IPR) as granted in a plant variety certificate in February 2016 will be taken back by the authority. The judgement brings to light the procedural gaps in the grant of PVCs. Importantly, farmers’ rights as contained in India’s Act and any attempt to harass and intimidate farmers have been considered as a matter of public interest, through this judgement.
The revocation application used specific clauses (Sec.34 (g)) in India's Protection of Plant Varieties and Farmers' Rights (PPV&FR) Act 2001 and argued that the IPR granted to Pepsico India on a potato variety was not as per provisions laid down for registration and was also against public interest. The revocation application was filed by farmer rights activist Kavitha Kuruganti, who said, the judgement is unprecedented in India's statutory history related to farmers' seed rights.
The revocation application was filed on June 11, 2019, and the authority took almost 30 months in arriving at this conclusion on Kuruganti's application. The company now has just about two months of the original registration time period left which was till January 31, 2022 (the registration certificate given to the company was renewable up to January 31, 2031, but now stands revoked).
The judgement sets a precedent for all seed and F&B corporations and other registrants to not only uphold, but also more importantly, not to transgress the legally granted farmers’ seed rights and freedoms in India, said Kuruganti.
“This judgement of the Authority is significant and historic. It upholds farmers’ seed freedoms as contained in Sec. 39 of the PPV&FR Act, which makes this sui generis law of India truly unique. The Authority’s acceptance of the Revocation Application, including on grounds of being against public interest, sends an important signal that farmers’ rights cannot be taken lightly by IPR-holders in the country", said Shalini Bhutani, legal researcher and IPR expert in agriculture and biodiversity.
"This should prevent further intimidation of farmers through vexatious IP lawsuits. The PPV&FR Act 2001 provides routine legal provisions for opposition to the IP registration at the time of grant of registration [Sec.21(3) read with Sec. 34]", Bhutani explained.
"The grounds for subsequent revocation include [Sec. 34(h)] that the grant of the certificate of registration is not in public interest; this is a fundamental safeguard for farmers’ inherent seed rights Sec.34 for Revocation of the IP protection has been reinforced by our law-makers in their wisdom keeping in mind that developments warranting intervention could happen after the grant of certificate of registration, requiring the said IP Registration to be revoked”, she added.
The civil society note said, in the current case, Pepsico India used the certificate that it got from the authority on FL-2027 potato variety to sue hapless and uninformed farmers in Gujarat in 2018 and 2019, basing its actions on a non-existent exclusive right that it claims to have obtained against Indian farmers also. The judgement of the authority also says this.
On the other hand, the Indian legislation is unambiguous that farmers have over-arching rights over what seed they can plant as well as what they are entitled to do with their produce from any variety, including seed of registered variety. The only condition is that they may not sell seed of protected varieties in a branded fashion, knowingly, the note continued.
Indian legislation is unambiguous: Farmers have over-arching rights over what seed they can plant and what they are entitled to do with their produce
Even here, an Indian farmer can claim innocent infringement if done unknowingly. Despite the law being this clear, Pepsico India harassed and intimidated farmers and sued them for exorbitant levels of alleged damages in 2018 and 2019. PIH also engaged detectives to entrap farmers and took secret video footage to build its cases, it added.
“It is a welcome development. With this judgement, the authority has chosen to uphold the legal rights granted to farmers and has decisively considered Pepsi’s actions against potato farmers in Gujarat as a violation of public interest. The Order today follows another responsible action that the Authority took several months ago, when it corrected the factual mistakes we pointed out in the FAQs document on their website", said Dr Suman Sahai of the Gene Campaign.
"We are happy with the result of this case filed with the Authority and feel proud to be instrumental in setting up the precedent that asserts farmers’ rights. We are thankful to the farm activists also", said Bipinbhai Patel, one of the farmers sued by PIH in 2019.
"We believe that the Authority and the Government have a responsibility to let every applicant and registrant under the PPV&FR Act know that their rights do not supersede farmers' rights. The registrants’ rights are limited to only production of a variety, and not production from a variety. Even when it comes to production of a variety, farmers have rights to produce seed and even sell seed of a protected variety provided it is unbranded", said Kapil Shah of the Kisan Beej Adhikar Manch.
"Companies should not think that they are at liberty to harass farmers -- we are watching, and will disallow any such mischief. For us, any intimidation and harassment of farmers is clearly a matter of public interest. We sincerely hope that the Authority will proactively put into place all measures and mechanisms possible to ensure that farmers' rights are not violated at any cost", asserted Kuruganti.
The interpretation of 'public interest' by the Authority today is very progressive. This is a victory for farmers in the country, especially of the potato farmers in Gujarat who strongly resisted Pepsi’s onslaught on their rights in 2019", she added.

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