Introduction: The Concept of “Legal Dormancy”
India has a law that allows the government to intervene when seeds are unavailable or unaffordable. Yet, in more than two decades, it has never been used. The Protection of Plant Varieties and Farmers’ Rights Act, 2001, is a unique sui generis system of intellectual property rights that attempts to achieve the twin and contradictory goals of promoting plant breeding and protecting the rights of farmers. The Act recognises farmers not only as consumers of seeds but also as cultivators, conservers, and innovators[1]
The most important aspect of the holistic and balanced legislative system is the introduction of the provisions for Compulsory Licensing under Sections 47 to 53 of the Act[2]. These provisions were incorporated to ensure that the system of intellectual property rights does not result in monopolistic practices in the seed industry. The legislative intent behind the CL is based upon the principle of public interest, wherein if a seed variety is not available in the market in the required quantity, or if it is beyond the purchasing power of the farmers, or if it is not accessible in any other manner, the government is free to grant permission to other producers to manufacture and deliver the seed variety. It is pertinent to note that the compulsory licensing mechanism is designed to be used when the breeder or Plant Breeder’s Rights (PBR) holder does not make a registered variety available in adequate numbers, at a reasonable price, or through reasonable channels of distribution. In such cases, any interested party can apply to the Authority for a compulsory licence to allow other producers to produce and sell the variety in the public interest.
Not a single compulsory license has been granted since the inception of the PPV&FR Act in the year 2001. This inaction by the government has led to the creation of a “legal dormancy” wherein the law is in place, but it is not effective in the real world.
The consequences of such dormancy have become particularly significant with the emerging realities of climate change and the increased power of private seed companies to dictate prices. In this context, the failure to operationalise the provisions for compulsory licensing is an issue that requires an overhaul of the existing legal framework. This raises an important question: why has this provision never been used?
Structural Barriers to the Invocation of Compulsory Licensing
The continued lack of utilisation of the compulsory license provision under the PPV&FR Act can be explained by several structural impediments
The Three-Year Moratorium Period
One of the main impediments to the utilization of the compulsory license provision is the three-year waiting period from the registration of the plant variety[3]. The nature of agriculture is such that crops have a limited season, lasting only a few months. In the event of a sudden outbreak of pests, a drought, or a flood, a hardy variety of seeds is required. The three-year wait for a compulsory license is, for many crops, a wait for a solution that will never materialize. By the time the three years have lapsed, the agricultural emergency will likely have already caused irreparable harm.
Moreover, the waiting period also affects small and marginal farmers who do not have the financial capacity to cope with such situations. On the other hand, large agribusiness corporations have the financial power to maintain stock levels and cope with temporary situations. Thus, the waiting period also adds to the inequalities in the agricultural sector.
The Ambiguity of the “Reasonable Price” Standard
Another important obstacle in the process of registering a seed variety is the ambiguity of the term “reasonable price.” There is no clear definition in the Act regarding the meaning of this term, but it is up to the authority to decide. Such ambiguity is the cause of confusion among users of the seeds because they are required to show to the applicant that the price of the seeds is not reasonable.
Thus, it becomes difficult to determine whether the price of a particular seed is exploitative or not. The uncertainty of law creates a disincentive for stakeholders to engage in compulsory licensing, and this contributes to inaccessibility.
Procedural Complexity and Institutional Barriers
The process for obtaining a compulsory license under the PPV&FR Act is more complicated than any other IP law, such as the Patents Act, 1970[4]. It includes aspects related to documentation preparation, collection of technical evidence, and administrative procedures that may exceed organisations and farmers capacities.
A third problem in the compulsory licensing framework as provided in the PPV&FR Act is the logistics of its implementation in rural areas. Many farmers, however, are ineligible to apply for a compulsory licence due to the lack of legal assistance, technological resources, and financial resources. This kind of state is more advantageous for legal and administrative entities, including large corporations. The compulsory licensing system under the PPV&FR Act has been criticised as being cumbersome in procedure and difficult to access and has a significant impact on the utility of the provision, especially for small and marginal farmers, due to the combination of the statutory waiting period, evidentiary requirements, and administrative burden.
Contemporary Context: Climate Change, Seed Scarcity, and Digital Governance
In the era of climate change and technological growth, the problems and circumstances associated with compulsory licensing have re-emerged as a new issue of significance. Access to climate-resilient seeds is a national need as the major weather extremes due to climate change are increasingly affecting the agricultural production in India, and in such environment, the seed shortage can happen due to the loss of crops, disruption of supply chains, or unexpected surge in demand; when a particular variety proves resilient to drought, flooding, or disease, farmers in various regions might simultaneously seek access, creating a shortage when production capacity is limited and driving up prices, making it harder for small and marginal farmers to access. Sudden shortages of climate-resilient and pest-resistant varieties have occurred on and off after extreme weather events and crop failures in some regions, showing how the compulsory licensing mechanism was designed to solve market failure. The Government of India has launched several digital initiatives for improving transparency and accountability in the seed supply chain. One of the prominent examples of this initiative is the SATHI (Seed Authentication, Traceability & Holistic Inventory) portal, which helps monitor the production, distribution, and availability of seeds. However, it is vital to note that the success of digital governance is dependent on the flexibility of the legal system. While the SATHI portal offers relevant information, the existing legal framework under the PPV&FR Act does not expressly provide a mechanism for using such real-time data to expedite compulsory licensing decisions. Scholars have observed that the implementation of the PPV&FR regime is constrained by procedural complexity and institutional limitations, which reduce its effectiveness in responding to farmers’ needs and market failures[5]
Comparative Analysis: Seeds versus Pharmaceuticals in the Application of Compulsory Licensing
A comparative analysis of the application of compulsory licensing under the Indian Patents Act, 1970[6], shows that there are considerable differences in the application of the “public interest” provision. The pharmaceutical industry has seen the successful application of compulsory licensing, particularly about life-saving drugs[7]. This shows that the authorities are not averse to applying the law when life-saving drugs are out of reach.
The agricultural industry has not seen the application of compulsory licensing once, despite similar issues with the availability and affordability of products.
The first difference is with regard to the specific mention of “national emergency” or “public health issues”[8] under the Patents Act, which would allow authorities to grant licenses without delay. In the PPV&FR Act, the “public interest” provision is broader, which can be interpreted by authorities.
Another factor is the degree of public awareness and advocacy.[9] For pharmaceutical access, there has been considerable civil society, international, and public health advocacy for policy change. For agriculture, the advocacy is still limited, and farmers lack institutional support to challenge corporate activities.[10]
From the comparative analysis, it is apparent that food security needs to be treated in the same way as public health. Both public health and food security are concerned with basic goods, which are critical to human survival and dignity. A consistent approach to compulsory licensing would help to build the legitimacy of the intellectual property system and public confidence in regulatory institutions.
Recommendations: Towards a “Fast-Track” Compulsory Licensing Model
To bridge this gap between legislative intent and practical reality, policymakers must implement targeted reforms that increase flexibility, transparency, and accessibility.
Introduction of Emergency Fast-Track Licensing
The first and most critical reform that must be introduced is the introduction of a fast-track licensing system in cases of agricultural emergency. This will enable the government to waive the three-year waiting period in cases of severe crop failure, pest infestation, or climate-induced scarcity in a region. The declaration of an agricultural emergency may be based on objective measures such as rainfall deficit, yield reduction, and supply deficit. A fast-track system will enable the government to act rapidly in cases of agricultural emergencies.
Establishment of Objective Pricing Benchmarks
To eliminate ambiguity in the definition of reasonable price, it would be imperative for the regulatory authority to develop pricing benchmarks using regional socio-economic data. This would include using socio-economic indicators such as average income for farmers, cost of inputs, and inflation rates. This would eliminate ambiguity and enable the regulatory authority to develop guidelines for the industry. Such a move would encourage transparency within the seed industry. It would prevent exploitative practices within the industry.
Simplification of Application Procedures
Administrative reforms would be imperative for the regulatory authority to ensure compulsory licensing is accessible to stakeholders at the grassroots level. This would be achieved through the introduction of standardized application forms, electronic platforms for applications, and decentralization of services.
Integration of Digital Evidence and Real-Time Data
The integration of digital platforms such as the SATHI portal[11] into the licensing process will improve transparency and quick response to changing circumstances. Real-time data on seed availability, distribution, and price will provide evidence for use in compulsory licensing procedures.
Farmer Awareness and Capacity-Building Initiatives
The use of compulsory licensing will not be effective without legal reform. Awareness programmes should be organised by the government, agricultural universities and extension services to sensitise farmers, cooperatives and civil society organisations to the existence and purpose of compulsory licensing under the PPV&FR Act. Documentation requirements, complaint procedures, and legal remedies should be addressed in training to help close the gap between formal rights to legal remedies and access to legal remedies.
CONCLUSION
The Protection of Plant Varieties and Farmers’ Rights Act, 2001, takes cognisance of the need for linking innovation and social justice. The continued nonaction of compulsory licensing provisions, however, challenges the viability of this vision. Under the law, a non-used provision for over a couple of decades may not be expected as a trustworthy instrument of public interest protection, particularly amidst climatic uncertainty and market volatility. This lack of connection between the vision of legislative and the implementation of that vision reflects institutional problems in the regulatory process. The proposed model for a fast-track with compulsory licensing is very practical for reinvigorating the provision towards a dynamic and not a dormant law. Finally, whether seed governance works in any future India hinges on the capacity of policymakers to prioritise collective welfare and private innovations. Timely and low-cost access to seeds must be an economic goal, but also a moral and constitutional one[12]. Through a rejuvenation of an obligatory licensing system, the government can resurface its pledge to food security, rolling out rural empowerment and sustainable development. If farmers’ access to critical seeds is undermined, the compulsory licensing system would benefit farmers; it would contribute to food security and make the food security goals of the Indian seed law more meaningful.
[1] The Protection of Plant Varieties and Farmers Rights Act 2001, § 39.
[2] The Protection of Plant Varieties and Farmers Rights Act 2001, §§ 47–53.
[3] The Protection of Plant Varieties and Farmers Rights Act, 2001, §28.
[4] The Patents Act, 1970.
[5] Amrithnath Sreedevi Babu, Implementing Farmers’ Rights Under the Plant Variety Protection Law in India: Analysing the Complex Regulatory Framework and its Impact, 28(2) J. World Intell. Prop. 491 (2025).
[6] The Patents Act, 1970, §§ 84–92A.
[7] Natco Pharma Ltd. v. Bayer Corp., Compulsory License Application No. 1 of 2011, Order No. 45/2013 (Intellectual Prop. App. Bd. Mar. 9, 2012) (India).
[8] Agreement on Trade-Related Aspects of Intellectual Property Rights art. 31, Apr. 15, 1994, 1869 U.N.T.S. 299.
[9] World Trade Organization, Declaration on the TRIPS Agreement and Public Health, WTO Doc. WT/MIN(01)/DEC/2 (Nov. 14, 2001).
[10] Food & Agric. Org. of the U.N., Climate Change and Food Security: Risks and Responses (2016).
[11] Ministry of Agric. & Farmers’ Welfare, SATHI (Seed Authentication, Traceability & Holistic Inventory) Portal, Government of India, https://seednet.gov.in.
[12] Usha Ramanathan, A Unique Identity Bill, 45(35) Econ. & Pol. Wkly. 10 (2010).
Authored by: Ms. Sanchita Ambasht, Institute of Law, Nirma University
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