Skip to main content

Delhi High Court 'dismisses' Pepsi’s appeal against revocation of IPR on potato variety

By Our Representative 

In an important development, Justice Navin Chawla of the Delhi High Court has dismissed the appeal filed by PepsiCo India Holdings (PIH), against a revocation order on its Plant Varietal Protection (PVP) certificate in December 2021 on its IPR on a potato variety. The revocation order was earlier passed by the Protection of Plant Varieties & Farmers’ Rights Authority in December 2021 on an application filed by farmers’ rights activist Kavitha Kuruganti.
The cause for action for Kavitha Kuruganti’s revocation application arose from the fact that Pepsico India Holdings had filed vexatious suits against several potato farmers in Gujarat in 2018 and 2019 in the name of IPR infringement. In May 2019, however, it was forced to withdraw all those cases unconditionally in the face of intense public resistance.
The High Court Judge concluded that he “found no merit in the present appeal” and dismissed the same, on 5th July 2023; the judgement was uploaded onto the Court website on 6th July 2023 night. Farmers’ rights activists termed it as a partial victory of farmers of India, for a third time.
This is probably the first time that a revocation-related litigation was being adjudicated in India’s courts under the Protection for Plant Varieties and Farmers’ Rights (PPV&FR) Act 2001. According to legal experts, the Act is a very unique sui generis legislation in India, unparallelled anywhere in the world. India’s lawmakers created this one-of-a-kind legislation in India, to comply with the WTO TRIPS Agreement.
It is an Act which through Section 39(1)(iv) incorporated seed freedoms for farmers in terms of their entitlement to save, use, sow, resow, exchange, share or sell his farm produce including seed of a variety protected under this Act in an unbranded manner.
The farmers’ rights in this Act are in line with international treaties that recognise farmers’ rights, such as the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA), the Convention on Biological Diversity (CBD) and the United Nations Declaration on the Rights of Peasants and Other People Working in Rural Areas (UNDROP).
The appeal by PIH in the Delhi High Court brought forth many legal questions for adjudication, specific to PepsiCo India’s applications for PVP registration in 2011 and 2012; its actions against several Gujarat potato farmers in 2018 and 2019 and public interest in relation to that; as well as in relation to interpretation about certain provisions of India’s Protection of Plant Varieties and Farmers’ Rights Act 2001.
“It is good that the judgement of Justice Navin Chawla upheld the revocation order on at least three grounds (incorrect information with regard to date of first sale), ineligible registrant and failure to provide necessary documents, which are Sections 34(a), 34(b) and 34(c) of the Act). The judgement notes that the Appellant/PIH is now suffering for its own mistakes and for its casual manner of making an application seeking registration", Kuruganti, who is with the Alliance for Sustainable & Holistic Agriculture (ASHA), said.
“We welcome the fact that the judgement also states that 'any person interested' in applying for a revocation of a certificate granted would include within its ambit and scope a 'public spirited person' who files for revocation of the registration in public interest", she noted, adding, "It is however unfortunate that public interest violation, when it comes to vexatious suing of farmers in Gujarat, has not been upheld by Justice Chawla. Harassment of farmers was noted to be germane to the issue on hand by the Authority in its December 3rd, 2021 Order."
Kuruganti continued, "On the other hand, Justice Chawla, in his judgement opines that Section 34(h) grounds have not been clearly made out for revocation. Section 34(h) is about revocation on the grounds that the grant of the certificate of registration is not in the public interest."
The matter of vexatious litigation against farmers has not been squarely addressed by adjudicating authorities
She added, "It is a matter of grave concern that in three proceedings so far (when PepsiCo was forced to withdraw its cases against Gujarat farmers in May 2019 unconditionally through a public campaign, later on when the certificate of registration was revoked in December 2021 and in the current judgement that dismissed PIH’s appeal), the matter of vexatious litigation against farmers has not been squarely addressed by adjudicating authorities as a matter of public interest”.
Kapil Shah, an activist from Gujarat who was involved in defending the potato farmers right from the beginning, said, “Pepsi, which held a plant varietal certificate on a potato variety called FL-2027, had vexatiously and illegally sued several potato farmers in Gujarat in 2018 and 2019. The company did this despite the fact that India’s legislation on the subject of farmers’ seed rights is very unambiguous in its provisions entitling farmers to access any seed variety that they would like to, including protected varieties."
He added, "It appears that Section 8’s duties imposed on the Authority for protecting farmers’ rights have to be constantly defended by alert citizens. The PPV&FR Authority can nonetheless make use of this order to reiterate and uphold the rights of farmers over the rights of IP registrants, in the letter and spirit as contained in the statute.”
On behalf of  Kuruganti, senior counsel Colin Gonsalves and his team Hetvi Patel and Mr Rohit Saini (and Siddharth Seem in the initial stage) argued the matter which saw 12 hearings in the case, from 19th May 2022 to 25th April 2023, when the matter was reserved for judgement. The law firm J Sagar Associates has been representing PIH in court.



New Odia CM's tribal heritage 'sets him apart' from Hindutva Brahminical norms

By Bhabani Shankar Nayak*  Mohan Charan Majhi took the oath as the new Chief Minister of Odisha following the electoral defeat of the BJD led by Naveen Patnaik, who served as Chief Minister for twenty-four years. The new Chief Minister is the son of a security guard and a four-time MLA who hails from the remote village of Raikala in the Keonjhar district. He belongs to the Santali tribe and comes from a working-class family. Such achievements and political mobilities are possible only in a democratic society. Majhi’s leadership even in the form of symbolic representation in a democracy deserves celebration.

AMR: A gathering storm that threatens a century of progress in medicine

By Bobby Ramakant*  A strategic roundtable on “Charting a new path forward for global action against Antimicrobial Resistance (AMR)” was organised at the 77th World Health Assembly or WHA (WHA is the apex decision-making body of the World Health Organization – WHO, which is attended by all countries that are part of the WHO – a United Nations health agency). AMR is among the top-10 global health threats “Antimicrobial Resistance (AMR) is a growing and urgent crisis which is already a leading cause of untimely deaths globally. More than 2 people die of AMR every single minute,” said Dr Tedros Adhanom Ghebreyesus, Director General of the WHO. “AMR threatens to unwind centuries of progress in human health, animal health, and other sectors.”

What stops Kavach? Why no time to focus on common trains meant for common people?

By Atanu Roy  A goods train rammed into Kanchenjunga Express on 17th June morning in North Bengal. This could have been averted if the time tested anti-collision system (Kavach) was in place. 

A Hindu alternative to Valentine's Day? 'Shiv-Parvati was first love marriage in Universe'

By Rajiv Shah*   The other day, I was searching on Google a quote on Maha Shivratri which I wanted to send to someone, a confirmed Shiv Bhakt, quite close to me -- with an underlying message to act positively instead of being negative. On top of the search, I chanced upon an article in, imagine!, a Nashik Corporation site which offered me something very unusual. 

Buddhist shrines were 'massively destroyed' by Brahmanical rulers: Historian DN Jha

Nalanda mahavihara By Our Representative Prominent historian DN Jha, an expert in India's ancient and medieval past, in his new book , "Against the Grain: Notes on Identity, Intolerance and History", in a sharp critique of "Hindutva ideologues", who look at the ancient period of Indian history as "a golden age marked by social harmony, devoid of any religious violence", has said, "Demolition and desecration of rival religious establishments, and the appropriation of their idols, was not uncommon in India before the advent of Islam".

Top Punjab Maoist who failed to analyse caste question, promoted economism

By Harsh Thakor*  On June 15th we commemorated the 15th death anniversary of Harbhajan Singh Sohi or HBS, a well known Communist leader in Punjab. He expired of a heart attack in Bathinda in 2009.

Saving farmers and consumers from GM crops and food: Philippines court shows the way

By Bharat Dogra*  At a time when there is increasing concern that powerful GM crop lobbyists backed by enormous resources of giant multinational companies may be able to bulldoze food safety and environmental concerns while pushing GM crops, a new hope has appeared in the form of a court decision from the Philippines.