What is basmati? Can it be grown only on the slopes of the Himalayas? Or can long-grained aromatic rice grown in Madhya Pradesh also be called basmati?
These are questions the Madras High Court has been grappling with since February. Its answer to all these questions was to delay answering them.
On August 16, it granted relief to Madhya Pradesh in its legal battle with the Geographical Indicator Registry and the Agricultural and Processed Food Products Export Development Authority to be included as one of India's basmati-growing regions.
The court ordered the state to submit a fresh application for a Geographical Indication or GI certificate.
The GI tag is a crucial trademark certificate that authenticates a product as having originated in a certain location.
The Intellectual Property Appellate Board had in February directed the GI Registry to approve the basmati claims of seven states – Punjab, Haryana, Himachal Pradesh, Delhi, Uttarakhand, West Uttar Pradesh and two districts of Jammu & Kashmir.
Madhya Pradesh challenged this in the court, arguing that its traditional basmati cultivating areas had been arbitrarily left out without any rational reasons.
But can Madhya Pradesh, hundreds of kilometres away from the Himalayas, apply for a tag that is based on geography?
Suman Sahai of the Gene Campaign, a non-governmental organisation working in the area of biological resources and intellectual property rights, believes that it cannot.
“Madhya Pradesh simply does not figure as a basmati growing state because GI tags are not about where it is cultivated, but where it has originated,” Sahai said. “Madhya Pradesh can and has laid claim to Chanderi saris, but even if it is cultivating good quality basmati, it cannot qualify for the GI tag.”
Sahai gave the example of scotch, which refers to whiskey brewed in Scotland. Others might brew whiskies better than the original, but they cannot call it scotch.
“The idea of GI is very specific,” Sahai said. “We should not fool around with it because it dilutes the case for that GI.”
Basmati is traditionally grown in the region of Greater Punjab, which spans the political territories of modern day India and Pakistan. There are also great profits in its exports.
The countries were alerted to the potential intellectual property rights value when a company called Rice Tech in the United States of America applied for a patent for a variety of basmati rice that it grew there. Both challenged the patent status and began negotiations with each other to jointly apply for a GI tag internationally, which would have given growers in both countries the protection of intellectual property laws.
The government had at that time consulted with Gene Campaign on how to fight the patent. Sahai said she had recommended consulting Pakistan, but that was not done.
Any negotiations that were there were scuppered after the 26/11 terror attacks in Mumbai, India passed a law to allow APEDA to stake a claim to basmati internationally without referring to Pakistan. Pakistan responded by granting an exclusive trademark over basmati to the Basmati Growers’ Association.
The legal arguments within and between the two countries have only grown since.
The tussle between Madhya Pradesh and the Agricultural and Processed Food Products Export Development Authority , for instance, began in December 2013, when the GI Registry with its headquarters in Chennai included parts of Madhya Pradesh in the areas that can be considered to grow basmati. The authority argued that as Madhya Pradesh was nowhere near the Himalayas, allowing rice grown there to bear the basmati tag would mean any long-grained aromatic rice could also be called basmati.
The Basmati Growers Association, with its headquarters in Pakistan, also challenged this decision in the Madras High Court, saying that India had “gravely erred” in giving the basmati label to rice produced in Madhya Pradesh, “or for that matter any part of India”. The High Court dismissed that case for having “miserably failed” to comply with the rules.
Another legal scuffle continues in Pakistan’s courts, where the Rice Exporters Association of Pakistan has been lobbying to include Sindh in the list of regions that grows basmati. Like Madhya Pradesh, Sindh is nowhere near the Himalayas. The Agricultural and Processed Food Products Export Development Authority has challenged this in the Karachi High Court. This case continues to be stuck in court.
Basmati is a particularly litigious example of the process of applying for GI certificates. There are deeper issues. For one, that government institutions are applying for the tag in the first place.
T Prashant Reddy, a lawyer specialising in intellectual property and a blogger at website SpicyIP, has just co-written a chapter with Sumathi Chandrashekharan in Create, Copy, Disrupt: India's Intellectual Property Dilemmas, a yet-to-be published book on the case of basmati. Reddy believes that no government should hold ownership over regional trademarks.
“In India, government agencies have taken full ownership over such products and in the process disenfranchise the farmers and traders who have built the brand,” Reddy said.
In cases like champagne in France, for instance, it is associations that defend GI rights internationally, and not the government, Reddy argued. That should be the case here as well.
Sahai, however, disagreed. “It is not a bad idea for the government to hold the tag because you need to be able to defend this,” she said. “In the case of basmati, which other organisation will hold it?”
GI certificates are valid only for 10 years at a time, which requires organisations to be vigilant against allowing them to lapse. In relatively unorganised sectors, such as that of basmati growers, this could become an issue.
Money, money, money
At the end, what it comes down to is money.
“This is not just a scientific tag,” Reddy explained. “There is also an element of reputation and money involved.”
As a form of a trademark, a GI tag is automatically believed to enhance the market value of products that have it. With basmati being a lucrative export product, the organisation that controls its GI certificate could then control the profits from it.
But even when the government is not solely involved, GI certifications tend to reflect the local political and social hierarchies.
The case of feni shows this. Dwijen Rangnekar, an intellectual property rights lawyer and activist closely studied the campaign to certify Goa’s feni as a geographically specific product.
In a paper on the social remaking that occurred around feni, Rangnekar, now deceased, hailed GIs as offering “opportunities to retrieve history, inscribe locality, and facilitate resistance against global agrifood”.
At the same time, he pointed out that when the Goa government was drafting its application, it aligned with the Feni Association – an organisation dominated by bottlers.