Indian ‘Fake’ pesticide makers misuse legal loopholes

A recent report of the Federation of Indian Chambers of Commerce and Industry (FICCI) suggesting that ‘fake’ pesticides could account for 10.6 million tonnes of lost production, besides causing immutable damage to soil fertility, environment and various forms of life has stirred the conscience of an agriculture economy as big as India. The report further warns about the consequent rejection of Indian export of agriculture produce which could cost the country another US$28 billion. The report has ignited a debate about the lack of a robust mechanism to curb the menace of manufacturing and selling sub-standard, spurious and counterfeit pesticides in the country.

The India’s use of pesticides is whopping 76 per cent as against the world average of 44 per cent. However, the use in agriculture is less than 350 gram a hectare as against the world average of 500 gram. Surprisingly, 51 per cent of India’s food commodities are generally contaminated with pesticide residues, out of which 20 per cent has pesticide residues above the permissible level, which exposes the human race to irreversible neurological disorders, cancer and premature deaths and infestation of environment.

To become eligible to get a license for manufacturing a pesticide in India under section 9(3), a person has to wade through field trials, scientific research, and testing of the product at three different locations for no less than two crop seasons whereas a registration under section 9(4) is offered on a platter without adhering to any scientific protocol. What an applicant has to do is to simply approach the Central Insecticide Board & Registration Committee (CIB & RC) and submit that he too (read “Me too”) would follow the same formulation and procedure for the manufacture of the product as mentioned by the person to whom the licence has originally been granted under section 9(3). It offers the self-proclaiming manufacturers a safe passage to flee from the scientific scrutiny of the efficacy of the product and purity of the procedure to formulate an effective and environment-friendly pesticide.

It is obvious that no risk of using an ‘untested’ pesticide can be taken as its efficacy depends not only on the quality, genuineness and percentile of the technical grade material (active ingredient) used therein but also on the quality and source of procurement of the inert matter and also the manufacturing process thereof. It is precisely this legally manipulative provision ingrained in section 9(4) of the Insecticides Act, 1968 which is playing havoc. It is a pity that in spite of grave risks involved, the pesticides are freely being manufactured and traded in India without an effective control mechanism.

This provision was thoroughly examined by the Punjab & Haryana High Court in CWP 17230 of 2011 and CWP 14750 of 2012. The CIB & RC admitted in its reply that the “… registration under Section 9(4) of the Act is granted on extremely relaxed criteria i.e. merely on submission of Form-I supported by certain statutory documents without submission of any technical data… However, over the years, it was observed that registration under Section 9(4) had become prone to mischief… the registrant could procure technical grade material from a source other than the one mentioned in Form-I.”

The High Court vide its landmark judgment dated 3rd March, 2015 held that “…every registered insecticide is of a formulation brought through unique process. Same compound formulations may come through different processes. The product through different processes may not necessarily have same safety or efficacy. There may be impurities in one process which may not be in another registered insecticide brought through a technical manufacturer tested before registration under Section 9(3) … To that extent source of supply becomes very relevant. Another technical manufacturer having the same formulation may still have a different efficacy for the product which is brought through another process. Indian patent law protects not merely process patent but also product patent… The requirement imposed by the authorities that the technical manufacturer shall give an affidavit of supply during the tenure of the certificate of registration is a reasonable demand.”

Whether mere submission of an affidavit would suffice in itself is a moot question? Certainly, there needs to be in place an effective monitoring apparatus to verify the veracity of averments made in the affidavit and cross-check the sources of active technical material and inert compound used in the pesticide. It is no denying that such registrants under section 9(4) often purchase highly toxic material from suspicious and illegal sources from within or outside India for the manufacturing of pesticides with no fear of scrutiny. Only a thorough investigation can reveal the truth and expose the profiteers.