Food for Thought

The Madras High Court is currently hearing a dispute as to whether rice grown in certain areas of Madhya Pradesh qualify as genuine basmati rice under the law. The disagreement originates from a 2008 application filed by the Agricultural and Processed Food Products Export Development Authority, or APEDA, under the Geographical Indications of Goods Act, 1999, seeking to register the term “basmati” as a geographical indication. A geographical indication, or GI, is a form of recognition granted to a particular product grown or manufactured in a particular region, whose specific properties are considered attributable to the conditions of its place of origin, or whose reputation is associated with it. Historically, basmati rice, famed for its distinctive aroma, taste and long grains, has been marketed as a set ofrice varieties grown in the foothills of the Himalayas. In its application, the APEDA, which functions under the ministry of commerce, listed only certain areas of Punjab, Haryana, Himachal Pradesh, Uttarakhand, Uttar Pradesh, and Jammu and Kashmir as basmati-growing areas.

The state of Madhya Pradesh has argued that the same rice varieties grown as basmati in the areas listed by the APEDA are just as good when grown in certain parts of the state, and so deserve to bear the “basmati” title. In December 2013, the Madhya Pradesh government and stakeholders from the state successfully opposed the APEDA application before the Geographical Indication Registry, the recognising authority for all GIs in the country, but faced a setback upon appeal before the Intellectual Property Appellate Board. The IPAB, in a decision issued this February, asked the GI registry to accept the APEDA application, and also ordered the registry to re-evaluate the evidence submitted to it by stakeholders from Madhya Pradesh before passing a reasoned order on whether parts of the state could be included as basmati-growing areas as well. It is this IPAB decision that the state of Madhya Pradesh has challenged before the Madras High Court.

India’s GI legislation was inspired by European law, which stridently defends claims to specific labels by regional growers and manufacturers. One popular example of a product with a GI is champagne: only wine made of grapes grown in the Champagne region of France may bear this name. But as the case before the Madras High Court shows, there are numerous fundamental issues with India’s approach to protecting agricultural GIs, raising questions of scientific ethics and farmers’ rights, and particularly of who may claim and control GIs for region-specific products.

The question of what qualifies as basmati is not new. When the government first allowed private industry to export basmati, in the late 1970s, the ministry of agriculture used its powers under the Agricultural Produce (Grading and Marking) Act, 1937, to create the Basmati Rice (Export) Grading and Marking Rules, 1979. These rules laid down an official definition of basmati: among other things, the rice had to have, in marked degree and in both raw and cooked states, the natural fragrance characteristic of basmati; and each grain had to have a length of at least six millimetres, and a length-to-breadth ratio of three or above. But these rules did not specify anything regarding geographical origin. In 1980, the commerce ministry co-opted the same rules in the Export of Basmati Rice (Inspection Rules), 1980—notified under the Export (Quality Control and Inspection) Act, 1963)—to create a new system for certifying exports. The certification system was flawed. As recounted by the maverick businessman Subhash Chandra in his autobiography, it allowed him and a competitor to pass off 50,000 tonnes of inferior parmal rice as basmati to the Soviets in the 1980s. The 1980 export rules were eventually replaced by the Basmati Rice (Quality Control and Inspection) Rules, 1990, but the definition of basmati remained largely as before, with no limitation on the basis of geographical area.

Through the 1990s and beyond, basmati exports to Europe surged—from 50,000 tonnes in 1994, to 160,000 tonnes in 2002. But concerns over quality control also emerged during this period. In 2003, the European Union threatened India and Pakistan, the only recognised producers of basmati, with the withdrawal of huge tariff discounts on the rice. The Europeans were worried about the adulteration of exported basmati with other rice, and were also concerned about an increase in the export of evolved and hybrid rice types derived from traditional basmati varieties under the basmati name, though many complained that these lacked the aroma and taste of the traditional varieties.

This latter issue became important enough for the Europeans to consider limiting their tariff concessions to only traditional basmati varieties, and not evolved and hybrid varieties such as Super Basmati (from Pakistan) and Pusa Basmati-1 (from India). After diplomatic parleys, however, the Europeans agreed to recognise evolved and hybrid varieties as basmati, so long as they had at least one traditional basmati variety as a parent. In light of this, the commerce ministry released the Export of Basmati Rice (Quality Control and Inspection) Rules, 2003. Under these rules, the definition of basmati was limited to 11 varieties—six traditional ones and and five nontraditional ones—which had to be grown in the “Indo-Gangetic plains.”

As articulated in the 2003 rules, what constitutes the Indo-Gangetic region is quite vague. The government also never made clear why it introduced a geographical requirement in the 2003 rules, where there had been none for the 24 years since the first basmati exports. The APEDA application in 2008 did not answer this question either. Further, while it described water, soil and climatic conditions in the parts of the Indo-Gangetic plain that it listed, it offered no specific reasons why these conditions are conducive to growing basmati. Stakeholders from Madhya Pradesh argue that they have long been growing and selling rice widely accepted as basmati, and so there is no basis for their exclusion now. This has been fiercely contested by the APEDA, which maintains that no region of Madhya Pradesh has a reputation for growing basmati, and that no rice from the state has basmati’s characteristics. The GI registrar, in reassessing the evidence from Madhya Pradesh as per the IPAB ruling, will have to resolve this contention, and offer a clearer rationale for what qualifies a location to grow basmati.

The basmati case also brings up several general issues related to the implementation of India’s GI legislation. First, there are questions regarding the development of hybrid and evolved varieties of valuable traditional crops. Traditional varieties are created and maintained, usually in specific locations, through the efforts of farming communities over multiple generations. Hybrid or evolved varieties are derived from traditional varieties through techniques such as crossbreeding. With basmati, this has often meant crossing traditional basmati varieties, which typically generate low yields, with other, higher-yielding rice varieties, to produce new varieties with improved yields but which don’t entirely mimic all the characteristics of their traditional parents. In India, much of this work has been carried out by public bodies such as the Indian Council for Agricultural Research. This raises legitimate ethical concerns over whether publicly funded scientists should use traditional varieties developed by farming communities to create new varieties for use beyond these communities’ home areas, thus forcing competition upon them. There is no legal requirement, under Indian or international law, to consider the impact of agricultural innovation on the livelihoods of traditional farmers, though many would argue there ought to be.

There is also the question as to whether basmati yields need a boost in the first place. Basmati was never a subsistence food, and was always, even in traditional Indian cuisine, regarded as a luxury. Its prices, and corresponding profits for cultivators, are likely to fall as basmati supplies go up. None of this seems to have been considered when scientists undertook the development of such varieties as Pusa Basmati-1 or Pusa 1121, which were popularised over the last two decades and together account for most of India’s basmati crop today. These varieties have helped to significantly increase exports—India sold basmati worth Rs 22,718 crore in the last financial year, compared to Rs 294 crore in 1990 (not adjusted for inflation)—but there are already indications that the price of basmati is starting to drop in the international market.

Another point of concern is the Indian government’s role in securing and controlling GIs. Under Section 11 of the GI act, an application can only be filed by an “association of persons or producers or any organisation or authority … representing the interest of the producers of the concerned goods, who are desirous of registering a geographical indication in relation to such goods.” In practice, however, government institutions have routinely applied for and secured GIs in their own names, despite having no representation from producers of the relevant goods. With basmati, it is the APEDA, which has only marginal representation from farmers, millers and merchants in the basmati trade. The GI for Madhubani paintings was registered by Bihar’s department of industries, and that for Kanchipuram saris by Tamil Nadu’s department of handlooms and textiles. There are numerous other such examples.

Both the GI registry and the IPAB have justified the APEDA’s right to file for a GI for basmati on the basis of a 2009 amendment to the Agricultural and Processed Food Products Export Development Authority Act, 1985. The amendment authorises the APEDA to take “measures … for registration and protection of the Intellectual Property rights in respect of Special products in India or outside India.” It could be argued, however, that the term “measures” empowers the APEDA only to assist producers in registering GIs, and not to apply for them itself. By acting as it has in the basmati case, the APEDA could lead to basmati being treated as national property, owned and regulated by the state rather than by the people who actually developed it—in defiance of at least the spirit, if not the letter, of the GI act.

This is not all that surprising, because the government has consistently viewed securing rights to intellectual property as an end in itself, rather than as a means to an end. The GI registry has been on a single-minded campaign to increase the number of GI registrations, even at the cost of many registrations being of appalling quality. In cases where the government is the registered owner of GIs, it has done little to ensure that producers of the relevant goods derive benefits from the registrations. The Indian GI project, of which the basmati case is but a poster child, is in desperate need of introspection and overhaul.

There are larger international dimensions to the implementation of a GI for basmati too—not least how India and Pakistan might enact a joint strategy to protect their status as the exclusive producers of basmati for foreign markets. That situation might have been easier to handle if only private interests were involved, but with the Indian government having invested itself deeply in the legal definition of basmati, the strained relations between India and Pakistan are likely to be a major hurdle. Before that, though, India needs to resolve its domestic disputes, and the Madras High Court, which is scheduled to hear the basmati case again in November, could take us some way along in that endeavour.