In a shocking development, officials of the Union Ministry of Agriculture deliberately failed to submit the Government of India’s views on the Indian Patent Act and Protection of Plant Varieties & Farmers’ Rights Act, 2001 (PPV&FR) before the Delhi High Court closed for vacations on June 5, in a case in which the judgement could impact multiple litigations in which the Centre is involved, regarding seed patents and transgenic traits. Any ruling delivered without knowledge of the Centre’s views on points of law and interpretation in this matter could adversely affect the Indian farmer and consumer.
The lapse is inexcusable because the Proposed Affidavit and Written Submission were prepared well in advance by Additional Solicitor General Tushar Mehta, and discussed and finalized with joint secretary R.K. Singh and deputy commissioner D.S. Misra of the Ministry.
The case in question is a dispute between Monsanto Technology & others vs. Nuziveedu Seeds Ltd. & others, and the Delhi High Court has completed hearings in the matter. Hence it was imperative that the Union Government’s views be submitted to the Court in writing, before it closed for vacation on June 5, 2017.
The lapse is inexcusable because the Proposed Affidavit and Written Submission were prepared well in advance by Additional Solicitor General Tushar Mehta, and discussed and finalized with joint secretary R.K. Singh and deputy commissioner D.S. Misra of the Ministry. An Application was sent for affirmation by Shri Sunil Mathews, Advocate. Despite this, the concerned officials made no move to submit the prepared Written Submission, Affidavit, and Application, which action lay within the sole purview of the Ministry as the Government of India cannot be party to a dispute between two private parties.
RSS think tank Swadeshi Jagran Manch called the development a major blow to India’s fight against seed monopolies. In a letter to Prime Minister Narendra Modi on July 21, co-convenor Ashwani Mahajan urged that despite this setback, the Government of India should file the written submissions on questions of law, even if the Division Bench has begun to write the judgment during vacations in the absence of the government’s legal stand, because the judgement has not been delivered so far.
Essentially, the case involves a dispute over royalties of Bt Cotton seeds, between Monsanto Technology & others vs. Nuziveedu Seeds Ltd. & others.
This led to a situation in which every State fixed the cotton seed prices for its own State while Monsanto Technology fixed different ‘trait values’ for different States even as it challenged the said enactments by claiming patent rights.
BT Cotton Seed prices have been a contentious issue in India for over a decade and some State Governments and farmers associations had complained to the then existing MRTP Commission. Some State Governments enacted their own laws to regulate cotton seed prices and the ‘trait value’ to be levied. This led to a situation in which every State fixed the cotton seed prices for its own State while Monsanto Technology fixed different ‘trait values’ for different States even as it challenged the said enactments by claiming patent rights.
Given the adverse effects on Indian farmers, the Government of India intervened in their interest and promulgated the Cotton Seeds Price (Control) Order, 2015 [CSPCO] under the Essential Commodities Act, to fix the price of cotton seeds including ‘trait value’, which would be uniformly applicable across the country, and would also regulate the one sided monopolistic licenses agreements signed with Indian seeds companies, which were hurting Indian farmers economically.
The Union Ministry of Agriculture also filed a reference before the Competition Commission of India [CCI] against Monsanto and its subsidiaries for anti-competitive business practices. The CCI found a strong prima facie case of violation of Section 3 and 4 of the Competition Act and directed an investigation vide order dated 10 February 2016 against Monsanto and its subsidiary companies and the persons involved.
Simultaneously, Monsanto launched a spate of litigations by itself or through subsidiary companies before various forums, challenging the constitutional validity of Cotton Seeds Prices [Control] Order, 2015 in Writ Petition No.12069 of 2015 before the High Court of Delhi. Tushar Mehta and Sunil Mathews, advocate, appeared and filed a detailed reply on behalf of the Government of India.
Mehta came to the conclusion that while the Government of India does not have any locus standi in disputes between two private parties, there are several legal questions raised by both parties…
As the Delhi High Court did not give Monsanto any interim relief in the writ petition filed by its subsidiary company, a petition (Writ Petition No.15173) was filed before the High Court of Karnataka at Bangalore by an Association sponsored by Monsanto. Initially, the company secured an ex parte stay, which was later vacated by the High Court of Karnataka. The Government of India intervened and even the appeal filed by the said Association (Writ Appeal No.1125 and 1126 of 2016) was dismissed.
Monsanto and its subsidiary companies have also filed writ petitions against the investigation ordered by the CCI, which are pending before the Delhi High Court.
Sources said that when the Addl. Solicitor General learnt of the appeal before FAO(OS)(COMM.) No. 86 of 2017 filed by Nuziveedu Seeds & others, he studied the matter to ascertain whether any interpretation of law given by Delhi High Court in these proceedings could impact the legal stand of the Union of India in other pending litigations.
Mehta came to the conclusion that while the Government of India does not have any locus standi in disputes between two private parties, there are several legal questions raised by both parties which rest on an interpretation of the Indian Patent Act and Protection of Plant Varieties & Farmers’ Rights Act, 2001. Hence, any decision arrived at by the High Court on the interpretation of law and especially regarding interpretation of Section 3(j) of the Indian Patent Act (which says seeds and life forms cannot be patented) and the applicability of PPV&FR Act for transgenic plants, will directly impact pending matters in which the Union Government has taken or will have to take a specific stand on legal interpretation of various provisions being considered in FAO(OS)(COMM) No.86 of 2017.
Any view that the Court might take on the question of law on exclusions from Section 3(j) of Indian Patents Act will have nation-wide ramifications on agriculture, farmers and the entire population…
Accordingly, the Written Submission prepared for the Agriculture Ministry clearly stated that the law laid down in FAO(OS)(COMM) No. 86 of 2017 can be extended to other crops like rice, wheat, soybean, groundnut etc. and even animals like chicken, pig, sheep, goat etc., wherever a transgenic trait is introduced. Indeed, that is why it was so important that the Delhi High Court be informed of the Centre’s interpretation of the law.
Any view that the Court might take on the question of law on exclusions from Section 3(j) of Indian Patents Act will have nation-wide ramifications on agriculture, farmers and the entire population as their food security would be impacted by monopolies on seeds and plants. As India has nearly 600 million farmers and agriculture accounts for over 26 per cent of the nation’s capital GDP, the legal issue before the Court cannot and should not be decided without the stand of the Government of India being put on record regarding questions of law (and avoiding the dispute between private parties).
This failure to file submissions is probably the first major act of subversion of governmental objectives by officers of a Union Ministry. It remains to be seen what action the Centre takes against officials who have humiliated it before the High Court and risked the future of lakhs of Indian farmers and consumers. Their moral laxity and culpable negligence is self-evident.