‘A plethora of evidence is available to preserve Basmati Geographical Indication as our exclusive right’.
Basmati rice is a traditional description and designation belonging to Bharat. India filed its independent application in European Union (EU) for protecting Basmati rice under Geographical Indication (GI) in July 2018. On 11 September 2020, the European Commission published the Basmati Rice GI application of India for public comments after it had undergone a preliminary scrutiny through appropriate means in accordance to control procedures.
The American adventurism (RiceTec, Texmati, Kasmati) and European Economic Community Commitments in WTO Schedule – Headnote 7 (Blair House accord) were important factors leading to the GI protection of Basmati rice. During the last 25 years, India implemented the process of protection through legal means such as GI Act 1999, Definition of Basmati rice, Standards, DNA Testing, Traceability, fighting numerous international and domestic legal cases, etc and this resulted in the development of institutional mechanism to guarantee the label of Basmati whereas Pakistan does not have such meticulous processes and structures.
The natural history of Basmati paddy cultivation dates back to several centuries in Bharat. Considering the facts that “Basmati” is a non-geographical name and a traditional designation originating from a specific territory within India, the labeling as “Indian Basmati” would mislead its geographical origin ((a) allow all Indian states to grow Basmati rice b) allow other countries to grow Basmati rice) and demote it as generic. India should look into the imbibed language—“of a member” in Article 22.1 of TRIPS agreement in view of exclusive territoriality. The usage of words “Origin” and “Territory” in Article 22.1 of TRIPS Agreement of WTO connects to the precise Basmati growing origin, then allow the marking of area within the territory based on Quality, Reputation or Other Characteristic. Such a precise Basmati growing origin is in India to mark the territory. There are numerous Pakistan media articles on India’s EU GI application stating that India is attempting to snatch the label of Basmati exclusively. The entire matter needs to be seen in the context of Geographical Origin and Territory mentioned in the WTO agreement.
The conquest of British over nature had created artificial water supply to develop “new market-oriented agriculture to grow cotton and wheat” and a new hydraulic society in West Punjab. Historically, Basmati rice was never grown in West Punjab to meet the “Principles of Historic Reputation under GI”. The variety name Basmati 370, suffixing with number instead of geographical name, is an important evidence of recent existence and lack of agriculture history in Pakistan.
The assets to be provided from United India to the newly created Pakistan were settled during the partition by the way of partition proceedings. The prior awareness and knowledge about “Indications of Origin” of British and British India policy makers, and non-inclusion of Basmati rice in list of Other than physical assets (Partition Proceedings: Volume II–Assets and Liabilities (Expert Committee No. II), Annexure 1) emphasise the fact that the implicit right of Basmati rice GI is exclusively vested with India. EU always claims that European emigrants carry a protected product name into their new home territory and use it commercially, as occurred in Latin America, South Africa and the United States. The GI claim of Pakistan in Basmati is equivalent to the issue of European emigrants’ demands in wine.
During the GATT Article XXVIII negotiations in 2004, Pakistan requested to grant import duty derogation only on cross-bred varieties such as Super and Kernel. This too indicates that Pakistan does not grow photoperiod sensitive traditional Basmati rice varieties, which is the pillar for Quality, Reputation or Other Characteristic in GI. India should use the possession and growing of traditional variety as strategic advantage over Pakistan. Based on import duty derogation by European Commission, it is evident that Indian product historically commanded premium of ECU 200 Per Ton over Pakistan.
The private organization—Basmati Growers Association (BGA), Lahore—funded by the Pakistan government, initially participated in our domestic GI registration process, but it did not file evidence within the period prescribed under GI Rules. If Pakistan was legitimate about their claim on Basmati, it should have formally participated in our domestic GI registration process or challenged the process in WTO or through relevant instruments of WIPO. Pakistan perceptibly accepted our exclusive rights and unchallenged claim on Basmati ownership. A plethora of evidence is available to preserve Basmati GI as our exclusive right.
The Letter of Exchange between India and European Union, and EU Regulation No 972/2006, June 29, 2006 was implemented in letter and spirit by India through transparent procedures and democratic institutional mechanism to guarantee the label of Basmati to the trading partners. Unlike global practices, the newly promulgated Pakistan’s Geographical Indication (Protection and Registration) Act, 2020 says that Pakistan government shall only be the holder and exclusive owner of all domestic geographical indications. The ownership clause of Pakistan GI Act invokes inherent conflict while implementing trans-border and joint registration claims. This would lead to the scenario of first among equals and primary ownership of GI. In accordance to Section 13 of Pakistan GI Act, the GI Registry will designate a certification agency to examine the applications, which does not involve standard processes such as advertisement, inviting public opinions, etc. This disallows opportunity to the interested parties in contesting their opposition. The double standard of Pakistan could be sensed from the fact that its own GI Act does not have provisions of public consultation but it wants to use public consultation provisions available in the EU legislation to challenge Basmati rice GI application of India. Pakistan policy does not satisfy the equivalence and reciprocity conditions including inspection structures, under legal means of WTO GI provisions in order to protect GIs on a uniform basis. Therefore, Pakistan GI Act is double standard, non-transparent and non-democratic.
The undisputable fact is that India has legitimately registered its Basmati rice through a transparently laid down policy and procedures in addition to number of foreign products. The compliance of India’s GI Act to WTO agreements could be inferred through no litigation in its two decades of existence. This is evident that our GI Act has been a mutually acceptable instrument for long and meets the norms of equivalence.
It seems that Pakistan strategizes its rights over Basmati rice just based on “provisional recognitions” in the existing European Union rules and regulations instead of “validated GI registration procedure” and “legal process”. Such provisional recognitions belong to an interim or temporary and transitional period. The provisional recognitions cannot supplement and replace the laid down procedures in accordance to the established GI regime of European Union, India and TRIPS Agreement of WTO. The examples of trans-border GIs granted in EU paves strong case for exclusive claim of India in Basmati rice.
While Pakistan filing opposition for our application in European Commission, its Basmati growing area map might include Jammu and R.S. Pura if we go by recent amended map issued by them in August 2020. Therefore, India needs to plan the battle of Basmati rice GI in EU with larger national interest beyond trade.
The consumers believe that some of the famous brands in European Union originate from India, whereas the brands are filled with Pakistani origin product. While India was facing chemical residue conformity issue, the lack of transparent origin labeling and ingredients in European Commission Regulation 1169/2011 facilitated to sell Pakistani origin products in a concealed manner. Current GI application filed in EU has ability and potential to bring the required respite of origin label issue. India might need to file an additional application in UK as it will officially separate on 1 January 2021. The new GI measures on sustainability further needs to be articulated in Basmati.
It may be imperative to view the Doctrine of GI by way of accounting cultural, human and geographical distortions in a decolonized approach to create real value for the heritage and the money of consumers in neutral globalization. Until basic tenets of reputation and other characteristics in GI are not addressed appropriately, the powerful GI products would be on brittle bedrock in coming years. Fiddling the Appellation or Geographical Indication products is equivalent to disturbing the culture, nationalistic pride and nationalism of any society. Basmati rice is a test case for Europe.
The author is a trade policy analyst and author of “Basmati Rice: The Natural History Geographical Indication”