25 Farmers Rights

Dr. Aneesh V. Pillai

epgp books

 

 

Table of contents

  1. Learning Outcome

  1. Introduction

  1. Who is a farmer?

  1. Property Right over PGR and TKas a group right- Problems

  1. Conclusion

 

1. Learning outcome

The objective of this Chapter is to examine what are the rights of the farmers that are recognised by law, and how is it a group right. Students will be able to find out whether farmers’ rights are group rights and why. They will also realise the difficulty in defining farmer. They are asked to find their own definition.

2. Introduction

Farmers are the backbone of any country due to two reasons. One is, they are the producer of the food without which life cannot be sustained. The other is, they also contribute to the economy of the nation, by producing crops of export importance. Apart from these, there are other new areas which are attributable as the farmers’ contribution. This is their role as preservers of the plant genetic resources (PGR)1, which are used by scientists or corporations to innovate new plant varieties on which they get the right called the Plant Breeders’ Rights (PBR).

They also conserve the biological diversity.

Because of all these , the role of the farmer is more important than any other segment of the society, though the paradox is that, they were the most exploited, tortured, and neglected, except during the reign of Chandragupta Mourya .

3. Who is a farmer?

Before we proceed to find out the rights of the farmers, it is imperative to examine, “who is a farmer?” This question assumes importance because, there are a lot of persons who are connected with farming, with or without having landed property, who are working or without working in the farm. They can be classified as:-

  • The agricultural labourer- They are having no ownership or possession of land, and thus they do not employ anybody to work in their land. However, they go for work in others land.
  • The poor farmer- As the name indicates, they are called farmers, as they own or possess land, however small the area may be. They work in their own land, but do not employ anybody else to work in their land, and as the income from their small holding is so meager, they work in others land also.
  • The medium farmer-He is also owning or possessing land, works in his own land, does not employ anyone in his land, and the difference with the second type is that, he does not work in others land.
  • The rich farmer- The rich farmer, who has almost all the characteristics of the medium farmers, differs only in that, he employs others in his land, as he has more area of land, and cannot manage it alone.
  • The capitalist farmer lord- These types of farmers, who are almost like the bourgeoisie , in the language of Karl Marx, own huge areas of land, do not work in the land, but employs others in the land. Here, he though not working at all, and make others work, and live like a parasite, is still doing something in his land, in the process of production.
  • The feudal farmer lord- In this type of farmer is seen the gravest form of exploiter, in the language of Marx, as he never does anything towards production, rather just uses his land as a means to make money, as the money lenders do with money. This type of farmer never keeps the land with himself, though he owns handsome acres of land, neither works on the land, nor employs anyone to work on it. He gives it for lease, and collects money from the lessee.

This classification shows that there are people who really toil in the scorching sun, and produce food products (this paper focuses only on farmers who produce crops), and those who do not do anything in the soil but let others work, and make money out of it. So, while the question of rights of farmers arise, their relationship with the land matters a lot.

Now the question is, who should be considered as farmers among this classification? The answer lies in the fact that farmers’ rights are not independent right. They came into existence only in the context of Plant Breeders’ Rights (PBR). PBR is an intellectual property right given to a plant breeder who has developed a new, distinct, uniform and stable variety of a plant. This is a temporarily given IP, which excludes others from doing certain things about the new variety without the consent of the right holder. While this is right almost like a patent right, it remains a fact that the varieties are developed using the plant genetic resources of the wild varieties which are preserved by the farmers, and sometimes by using the traditional knowledge held by them.” Plant genetic resoures” means that part of the plant which is capable of being reproduced. For example in the case of a coconut the dried coconut which is capable being sprout to a new coconut tree is the PGR, whereas in the case of plants like hibiscus, or rose, the matured stem is the PGR, because they are used to reproduce the plant.

Traditional knowledge is , “… the knowledge, innovations and practices of indigenous and local communities around the world. Developed from experience gained over the centuries and adapted to the local culture and environment, traditional knowledge is transmitted orally from generation to generation. It tends to be collectively owned and takes the form of stories, songs, folklore, proverbs, cultural values, beliefs, rituals, community laws, local language, and agricultural practices, including the development of plant species and animal breeds. Traditional knowledge is mainly of a practical nature, particularly in such fields as agriculture, fisheries, health, horticulture, and forestry.”

When a plant breeder develops a new variety, the knowledge of a peculiarity of a plant help him save his time and energy in inventing the new plant. For example if it is known that a particular vegetable has the capacity to cure a disease, and another vegetable has a capacity to resist disease, the plant breeder can think of developing a new variety of vegetable by a combination of the quality of these two vegetable plants. If he were to first find out the disease curing and resisting capacity of the plant, it would have taken triple time for him to develop the new variety. This makes the plant breeder owe to the farmers who preserved this TK. Thus, there arises a need to give the farmers certain rights related to the holding of TK also.

But then the question is, who are the owners of the PGR and TK especially when it is related to the six categories of persons who are related to agriculture mentioned above. The agricultural labourer works in the field of another person who owns the land. If he has preserved a PGR, for example a variety of rice, who owns it? The owner of that rice will definitely be the owner of the land. However, if he knows a TK about a plant, the owner of the land will have nothing to do with it, as he may not be engaged in farming at all. This situation creates a position that, though the owner of TK may be the agricultural labourer, he will not be the owner of the PGR, though he is the preserver. But in the case of a poor farmer, medium farmer, and the rich farmer are persons who own the PGR and also as he does farming, can be said to have preserved the PGR and TK. Regarding the capitalist farmer and the feudal farmer, they own the land, but they have not done anything to preserve or conserve either the TK or the PGR, but by virtue of being the owners of the land, they own the PGR. So, if the ownership of TK and PGR is linked with the ownership of the land, and if the ownership of the efforts of preserving and conserving the PGR is equated with the ownership of the material in PGR (effort is that of the person who really worked in the farm, but the product is with the owner of the land), the farmers rights and the resulting benefits will go to the owner of the land, while the efforts that are tried to be awarded are actually that of the person who really worked in the land .

It is this frustration that demands the definition of a farmer, in order to find out who will get the benefit of the farmers rights- and to see that it goes to the right persons. In that sense, farmer needs to be defined in a different manner, from the existing definitions. First let us look at the existing definitions to find out whether they are adequate.

The Protection of Plant Varieties and Farmers Rights Act, 2001 of India defines a farmer as any person who— “(i) cultivates crops either by cultivating the land himself; or (ii) cultivates crops by directly supervising the cultivation of land through any other person; or (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”

The PPVFRA defines even an agricultural labourer as a farmer, as the only ingredient necessary is, cultivation of crops, irrespective of the ownership over the land. However, even a landlord is defined as a farmer, even if he does not cultivate it himself, but only supervises. An addition that is found in this definition is, a person who conserves and preserves, or adds value to wild or traditional varieties are also considered as farmer. This is a change in the definition of the farmer which is caused due to the new plant breeders rights, and as this Act deals with PBRs as well this change is also adopted in the definition.

Actually farmers require rights during two stages, one is when they want to seek access to the PGR of the PBR protected plant, and when the plant breeders seek access to the PGR of the farmers. In the first stage, what the farmers require is, the right to have free access to the PGR of the protected variety, and in the second stage, the farmers need two rights- they should be considered as the owner of the PGR which they preserved, and as a consequence, their consent must be asked before the PGR is accessed, and they must get a share of the benefit which may accure, or actually accrue to a plant breeder who access it. Thus, the concepts are, prior informed consent, and the right to benefit sharing as a corollary of the property right. Along with these, all the rights that are attached to the owner of a property must also be given to them.

This is also, as evident from the nature of the holders, is collective in nature. It might not have been held even by contemporaries. So, identifying a particular person as holding this right is impossible. For example, if a group of farmers know a particular quality of a plant towards the climate, and a plant breeder uses this knowledge to develop a new variety, who should be given the reward for having known this quality and to have maintained this knowledge? It is impossible to identify any single individual. This makes this right of the farmer a group right.

Thus, there arises the need to recognise the efforts put by the farmers in preserving these two- the PGR and the TK. It is this compulsion that gave rise to farmers’ rights in the international scenario. Thus, it is different from giving the farmer any right for an invention, but it is for his preserving a part of the natural thing for making it available to the mankind for further developments.

Actually the trace of Farmers’ Rights could be seen in the International Treaty for the Protection of Plant Genetic Resources for Food and Agriculture (ITPGRFA) thus: “The Contracting Parties agree that the responsibility for realizing Farmers’ Rights, as they relate to plant genetic resources for food and agriculture, rests with national governments. In accordance with their needs and priorities, each Contracting Party should, as appropriate, and subject to its national legislation, take measures to protect and promote Farmers’ Rights, including:

  1. Protection of traditional knowledge relevant to plant genetic resources for food and agriculture;
  2. The right to equitably participate in sharing benefits arising from the utilization of plant genetic resources for food and agriculture; and
  3. The right to participate in making decisions, at the national level, on matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.

If these are the rights that are to be given to the farmers, then the definition of the farmer should also in such a manner that those who preserved the TK and PGR should get the protection- and not the owners of the land.

Thus, there is need to have a proper definition of the farmers so that the conservers and preservers of the TK and PGR get protection irrespective of their ownership over the land. .

4. Property Right over PGR and TK as a group right- Problems

The problem of recognising this right as a group is due to two reasons. One is, it does not fit into the concept of property, and the rights of the owners in the normal sense. Secondly, there are a lot of practical problems involved in the realisation of this right. The bundle of rights of the owner of a property are, (a) the right to possess a thing (b) the right to use and enjoy the thing (c) the right to consume, destroy or alienate the thing (d) characteristic of being indeterminate in duration (e) the residuary character.

But, when it is a collective property, no single individual can do either of these things. Thus, this collective right may not be even qualified to be a property as per the existing notion of property. However, taking into account the purpose of recognising this right, it has to be recognised as a property. The purpose is to reward the farmers’ for having conserved and preserved the PGR for so long, and for preventing their property being taken away without their consent. So, the purpose is not to alienate, or sell the property, but just to identify the owner and to ask their permission for taking their property, and to give a share of the benefit that will accrue to person or persons who take the PGR from them.

So, it is always possible to recognise collective ownership, as was the case in India before the British invasion. It is a fact that before the concept of individualistic or private ownership, there was a property jurisprudence based on collective ownership as was advocated by Seagal. He observed that” if a cultivator shares with other members of the community, he may be said to hold the land for the benefit of all. The important question is not who occupies the soil but what is done with the fruits of the soil”. This shows that collective ownership is possible, as the object of giving property right over PGRFA and TK is for retaining them. This discussion suggests that there is a jurisprudential basis for collective property right, even those which are inalienable.

5. Conclusion

Farmers are obviously the most segment of the society. But, their efforts go unnoticed. While the plant breeders are given intellectual property rights for their efforts to develop a new variety using the existing variety, which is preserved and conserved by the farmers, the latter is not rewared in any way. Thus, there is a strong vacuum in the law.

The Farmers’ Rights is recognised directly and indirectly in International laws like the Convention on Biological Diversity, International Treaty on the Protection of Plant Genetic Resources for Food and Agriculture, and National laws in India like Biological Diversity Act, and the Protection of Plant Varieties and Farmers’ Rights Act. The next Chapter is on Convention of Biological Diversity, where we examine, to what extend the group rights of farmers is recognised and the measures taken to protect them, and to examine where the measures are adequate.

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Reference

  1. The Convention on Biological Diversity
  2. Tapan Ray Chaudhuri (Edr.), Economic History of India, Vol. I, Cambridge University Press, U.K. (1st Edn.-1982). 26.
  3. Satish Chandra, Medieval India, NCERT, New Delhi (1st Edn.- 1990).
  4. R.P. Kangle (et. al.), The Kautilya Arthasasthra, Part II, Bombay University Press, Bombay, (2nd Edn.-1972).
  5. Ram Gopal, British Rule in India- An Assessment, Asia Publishing House, Bombay,1963.