Counterpoint: The government is well within its rights to regulate the price of Bt cotton seeds

A piece by environmental activist Vandana Shiva on why the government was right in attempting to control the price of genetically-modified seeds, published in Scroll.in last month, was quickly followed by one by Girish Shahane, who countered her arguments, saying the activist had “chosen fear-mongering and denialism over serious engagement”, and another by Prashant Reddy, who attempted to fact-check Shiva’s piece.

These pieces have been useful to further fuel the current debate on the subject in India. The debate seems to range from intellectual property rights, to regulation of commercial seed trade, to the impact of Bt cotton, and the phenomenon of farmer suicides.

However, both Shahane and Reddy failed to appreciate the main point that Shiva had brought up around intellectual property rights on life forms and seeds in particular. The authors of the two counterpoints only rationalise their arguments in the current legal understanding and frameworks that exist. However, that does not mean that Shiva and others cannot bring in a new, discourse challenging the current regime.

It was not too long ago that the Indian government itself held a position akin to Shiva’s on patents on life forms in international negotiations on the Trade-Related Aspects of Intellectual Property Rights agreement, or TRIPs agreement. In fact, several nations still hold that position firmly. With reference to medicines, India had argued that:

“…patent rights should be exercised coherently with the objectives of mutual advantage of patent holders and users of patented medicines, in a manner conducive to social and economic welfare and to the balance of rights and obligations”.

This can be stretched to the matter of seeds too.

Seeds and intellectual property

At the outset there is this question: Is innovation only, or mainly, to be rewarded through intellectual property rights, and does encouragement to innovation justify intellectual property rights in all fields of life?

It is interesting that Prashant Reddy talked about agricultural innovations changing countries, and introduced the example of American biologist and Nobel laureate Norman Borlaug’s high-yielding wheat varieties as having “saved India from famines” without realising that such innovation progressed even without intellectual property rights.

A better example of innovation flourishing in an open sharing system is that of the evolution of India’s crop diversity over the centuries to suit every growing condition through skills and knowledge of its farmers. This shows that innovation does happen and can be facilitated in non-Intellectual Property Rights settings.

The next question is whether such incentivisation through intellectual property rights protection needs to be tempered by further regulation at least in certain spheres, and whether governments should reserve the right to do so.

To me, the answer seems obvious: yes! After all, agriculture seems to be a matter of life and death, both for producers and consumers.

A third question is whether such intellectual property rights-based revenue collection should continue even if the efficacy of the innovation is lost?

This is where the current Bt cotton debate comes up. Bt cotton refers to a cotton seed that has been genetically modified to kill bollworms which commonly feed on cotton. This is claimed to reduce the requirement of pesticides. The patent for this technology lies with seed giant Monsanto.

But the fact is that bollworm has developed resistance to Bt cotton, and farmers, the end consumers of the seed, are incurring losses. In such a situation, the government believes that regulating the generation of revenue by seed companies from these seeds is important to reduce the burden on the farmer. The Licensing and Formats for GM Technology Agreements Guidelines, 2016, which were notified in June and de-notified soon after following outrage by the seed industry attempted to do exactly that.

For those who believe in a particular kind of macro-economic paradigm without any challenges posed to it, none of the above questions might seem legitimate. Everything might boil down to contractual negotiations between two market players, however inequitable that market is.

Open-source seeds?

However, just as the open source software world emerged as a reliable alternative to proprietary software, there are several efforts underway for the free exchange and development of seed and planting materials within India and around the world.

For instance, in the Open Source Seed Systems, communities of farmers and formal-trained breeders of seeds are joining hands to ensure that access to seeds is free and open, without anyone in the community gaining any exclusive rights on any material evolved through the system. They are showing that innovation can thrive through cooperation and open sharing too.

In these networks, farmer seed conservers, farmer breeders, formally-trained seed breeders and others work jointly to develop farmer-controlled seed systems that also take into account the need for diverse seed varieties that are suitable and affordable for all farmers, especially the most marginal.

Government regulation

I am conscious that there is a contradiction in the fact that I subscribe to a no-Intellectual-Property-Rights-on-seeds approach, but also support what the government is doing within intellectual property rights frameworks that exist in the country such as its current effort at regulating licensing of seeds through the Licensing and Formats for GM Technology Agreements Guidelines, 2016.

I would argue that what the Government of India has attempted to do with both cotton seed price control (regulation of price is one aspect of the commercial seed trade and not necessarily an intellectual property rights issue) and regulation of licensing (related to intellectual property rights, but also connected to the former aspect of regulation of seed prices) falls well within policy and legal frameworks currently in place.

The price control order flows from the Essential Commodities Act, and treating seeds as an essential commodity is legitimate. The argument that there are multiple players, multiple brands and therefore multiple options in the market, that there have been no seed price surges or shortages, does not take away from the significance of having to treat seeds as an essential commodity.

Seeds are a commodity that must be made available to consumers on time, and in adequate quantities. They should also be affordable, and should deliver on the promised quality. They should be diverse (for environmental sustainability) and suitable for local growing conditions (for reducing risk to farmer) – which means choices.

Seeds must be treated as an essential commodity, and not left to market mechanisms alone given all the variables involved, given that governments have wrongly chased Seed Replacement Rates (the percentage of area sown out of total crop area using certified seeds other than farm-saved seeds) as their main target in agricultural interventions, actively forcing farmers to give up their own seed self-reliance, and given that farming is not possible without this essential input.

Farmers seeking seeds from the market are to be treated on par with consumers of foodstuffs, and their interests protected in the same manner that consumers of food are. Farmers are also consumers in this context, seeking inputs for an essential vocation, which provides food and livelihood security for millions. Therefore, pricing, abundant unrestricted availability and timely availability of seeds are issues that confront them. This is why the Essential Commodities Act has great relevance here. The law, therefore, rightly recognises seeds as an essential commodity.

In 2006-’07, apparently due to successful industry lobbying, cotton seeds were removed from the Essential Commodities Act, thereby removing the powers of state governments to regulate its price. Many state governments who were attempting to reduce the price of Bt cotton seeds were challenged in local High Courts, and depending on the timing of the case, courts ended up ruling that state governments cannot regulate prices.

Though Prashant Reddy’s piece refers to the fact that attempts by states to control the price of cotton seeds ran into “constitutional issues” and “High Courts differed on whether states had the power to control seed prices”, the context explaining why the courts ruled thus was missing.

Licensing guidelines

Meanwhile, the Protection of Plant Variety and Farmers Right Act and the Patents Act, which cover intellectual property rights on seeds, have express clauses on compulsory licensing of registered varieties and technologies pertaining to seeds to others.

The reason the government perhaps decided to evolve guidelines on such licensing comes from the fact that at least twice so far, the Competition Commission has found that there are indeed restrictive trade practices being adopted by the technology-holder. The building up of monopolies in the genetically-modified cotton seed sector is prima facie established quite strongly by now, with the investigations of the Monopolies and Restrictive Trade Practices Commission in 2006, and the Competition Commission of India in 2015.

This itself is justification enough for the government to proactively address the issue through licensing guidelines, which include regulation of royalty, or trait fees, and compulsory licensing clauses. The newly announced Intellectual Property Rights policy also mentions clearly that “licensing practices or conditions that may have an adverse effect on competition will be addressed through appropriate measures”.

At one location, the policy also talks about facilitation of development of seeds and their commercialisation by farmers. This then will require measures to counter corporate monopolies. The draft notification under discussion – Licensing and Formats for GM Technology Agreements Guidelines, 2016 – is therefore compliant with the new policy.

Bt cotton yield

Reddy refers to a piece that appeared in Scroll.in earlier to cite how there has been a “phenomenal increase” in India’s cotton yields. However, that article had nothing on yield increases, but was about the growth in the number of Bt cotton hybrids and hybrid-producing companies, and the adoption of Bt cotton within cotton-growing areas of India.

That piece, however, does have a graph on how insecticide use on bollworm declined but how the insecticide use for sucking pests went up dramatically. So, if you are concerned about the use of pesticides from the perspective of farmers or even consumers, what does it matter that the use of pesticides has reduced for bollworms but increased for sucking pests if it is correlated to the use of Bt cotton seeds in the end?

The increase of the production of cotton in India is majorly linked to the expansion of the area under cotton. This area rose from 77 lakh hectares in 2002-’03 to 130 lakh hectares in 2014-’15, and production went up from 86.5 lakh bales to 353 lakh bales in this period.

If you really want to know what is the story of Bt cotton in India, you need to look at the data presented by Dr Keshav Kranthi here. It shows clearly that the most impressive yield increases in cotton in India have been in years when Bt cotton had not expanded significantly. The insecticide usage in cotton in kilos per hectare is, in fact, slightly higher in 2013 than it was in 2002 when Bt cotton was first introduced.

There is a shocking amateur video from Gujarat that shows pink bollworms in a cotton ginning machine. Farmers in the region have said that they have not witnessed this before.

In the end, the only parameter by which Bt cotton technology must be judged is its ability to kill the targeted pest – pink bollworm. The yield claims are confounded by several other factors like vigour of hybrids, irrigation and an increase in application of fertilisers.

The pest and disease ecology on the crop has certainly changed. Most state governments are advising farmers not to plant Bt cotton but there are hardly any other seeds available. This is where we are, a short 14 years after Bt cotton was introduced in India. However, the mainstream narrative of Bt cotton continues to be un-qualified and unfounded, calling it a major success story.

Farmer suicides

Finally, farmer suicides is a complex phenomenon and it will be incorrect to make simplistic cause and effect statements. Thus, to claim that farmer suicides from 1995 are related to Bt cotton and Monsanto is not justifiable. However, to ignore the analysis done by journalist P Sainath and others about how there have been significant changes in the way the National Crime Records Bureau has been classifying its data due to political compulsions is not right either.

Therefore, any data on “farm suicide rates” has to factor in the devious play with data by official agencies. I find that both Vandana Shiva’s critics have not scratched the surface on this. Any analysis that has not accounted for this is not robust.

It is apparent that we cannot create any cause and effect relationships between Bt cotton and farm suicides, but the strong correlations cannot be ignored either. A paper in the peer-reviewed scientific journal, Environmental Sciences Europe, shows that an increase in suicides is correlated to an increase in the area under Bt cotton cultivation. The paper also elaborates on the authors’ understanding of at least seven factors that appear to have influenced suicide rates in rain-fed areas where cotton is a cash crop, with at least a few of them related to the Bt cotton technology and how the industry operates.

In the current context of agrarian distress and climate change, it is important to ensure that risky technologies are avoided (riskiness both in terms of technology as well as increased investment), and Bt cotton can certainly be classified as one. We can certainly conclude that Bt cotton has not been able to bring down farm suicides and has not been a solution to the crisis of cultivators.

Kavitha Kuruganti works on issues pertaining to sustainable farm livelihoods.