Part 1: Analysis of the Proposed Pesticide Management Bill 2017

Part 1: 

Analysis of Pesticide Management Bill 2017

By: 

Vijay Sardana

Techno-legal Expert and

Advocate, Delhi High Court

Disclaimer: Views are personal and also open to discuss the same on any forum.

You may or may not agree with me, on every point you will endorse that existing Pesticide management administration in the country is totally ineffective because farmers are suffering due to spurious pesticides and farmers are deprived of cheaper options by not permitting more than 100+ off-patent products "Make in India". Who agenda the department is serving, is a big question mark? Why no one is keen to change the bad system. Why we are not keen to learn from bad practices flourishing under existing law?

To start with there must be a discussion paper on what problems are faced in the enforcement of existing law? Why we need a new law? There must be stakeholder consultation. It seems this is law is designed by the inspectors, for the benefit of inspectors. This law do not address any of the concerned expressed by stakeholders. 

I have right to express my views on the legislation proposed by Government of India. I have read pesticide laws of all other developing and developed countries and compared with our proposed law and asking why our law is most ill-conceived, badly drafted which will hurt investment, exports and create a huge opportunity for corruption for inspectors and laboratory analysts.

Please also keep in mind all the malpractices which are promoted under The Insecticides Act’1968 and how policies are manipulated to promote imports and preventing domestic manufacturing. It is important to investigate, What is the motive of this badly drafted bill when farmers, consumers, and investors all will suffer alike? Who will benefit from this law? Why is this bill promoting a power-hungry department with no accountability and transparency?

This is a matter of concern in the 21^st century when Prime Minister is talking about “Make in India”, “quantum jump” in exports and eliminating corruption from India. This bill needs complete redrafting and laws of other countries, those who are ahead of us in manufacturing, R&D, and trade can be used as a reference.

·   This proposed law lacks accountability

·   This proposed law lacks transparency

·   This proposed law lacks objectivity

·   This proposed law does not believe in performance

·   This proposed law does not believe in knowledge and competency

· This proposed law provides extra-constitutional authority to inspectors

·   This proposed law will promote corruption and extortion

·   This proposed law discourages Investment

·   This proposed law discourages Exports from India

·  This proposed  law will make a joke of India’s capability in the drafting of laws when it will be circulated to all WTO members and when it will be placed on the internet

The drafting committee of this law must be exposed to know who are these people responsible for insulting India and hurting Indian economy and farmers in the world because this bill is hosted on the website and everyone around the world is noticing very badly drafted the bill.

Let me elaborate this with examples from the Draft Bill itself.

Section	The content of the Law	Analysis - Why this drafting of law is bad in letter & spirit?
Preamble	The title of the bill is: THE PESTICIDES MANAGEMENT BILL, 2017 A BILL to regulate the import, manufacture, export, storage, sale, transport, distribution, quality and use of pesticides with a view to— (i)       control pests; (ii)     ensure availability of quality pesticides; (iii)   allow its use only after assessing its efficacy and safety; (iv)   minimize the contamination of agricultural commodities by pesticide residues; (v)     create awareness among users regarding safe and judicious use of pesticides, and to take necessary measures to continue, restrict or prohibit the use of pesticides with a view to preventing its risk on human beings, animals or environment, and for matters connected therewith or incidental thereto.	· The title says ‘management’, but the intention to ‘regulate’. This means the bill will be drafted to provide excessive discretionary power to the inspectors and department. This will increase corruption and harassment. This is against the spirit of a transparent and accountable regulator regime. ·       The first word used is to regulate ‘import and export’ in the preamble itself, is this the law designed to control trade or ensure quality pesticides for the farmers. It means the intention is to interfere in the trade and create ‘rent-seeking opportunities’ through law. This will only crease corruption. ·       Import and export are controlled by the ministry of commerce and there are laws existing in the country, why the department is keen to interfere in the trade. In case of any complaint and grievance, they can always refer to the concerned ministries. ·       How Indian domestic law can decide what is good for a buyer in the importing country, the control on export seems no logic. Exporters will make as per their buyer’s requirement, why and how Indian authorities can decide what is good for a buyer in another country? This is a gross violation of WTO agreements and trying to interfere in the activity which is beyond their jurisdiction. This will hurt exports bad from India. This is against the spirits of “Make in India”, “Investments” and “export growth”. What is the role of the Commerce Ministry and Export inspection agency in this case?
S.1 Jurisdiction	It extends to the whole of India.	If jurisdiction is within India, export happens when it goes outside India, how this law will regulate exports. The the only way they can regulate exports is by stopping exports. Why they should stop exports when the buyer has asked for the customized product, as per the law of the country in which product will be sold. What is the motive of controlling exports is not clear? If the product is of dual-use technology, that is any way controlled by the Ministry of Commerce, so why PMB’2017 is keen to interfere in export and trade promotion. NO logic and no justification except the opportunity to seek rent from exports for granting permission. Under the WTO Agreement on TBT, this is also unfair trade practice to have two different laws to control one activity.
S. 3: Definitions	This law is needs serious look at vague and missing definitions The definitions provided in the draft bill do not clarify the terms used in draft law at various places. The lack of clarity in law opens corruption opportunities. Important: Law must clarify all definitions either by elaboration, examples or by providing references to be used.	No clarity is given in the following definitions: ·       Active ingredient ·       Batch ·       Best before / expiry date ·       Biological control ·       Bio-pesticide ·       Chemical control ·       Multiple-use chemicals examples Boric acid, etc. ·       Dual-use technology ·       Emulsion ·       Encapsulation ·       Entry Points ·       Flowable concentrate ·       Formulation ·       Formulator ·       Fumigation ·       Fungicide ·       Generic chemicals ·       Good Agriculture Practices ·       Grant of license ·       Granules ·       Export ·       Herbicide ·       Home use pesticide ·       Imported pesticide ·       Label ·       Larvicide ·       Maximum Residue Limit ·       Methods of application ·       Minor Crops ·       Misleading advertisement ·       Nematicide ·       Nominal value ·       Off-patent products ·       Packer ·       Packing ·       Patented Chemicals ·       Performance claim ·       Pest ·       Physical control ·       Post-harvest management ·       Premises ·       Product Concentration ·       Prohibited ·       Purity ·       Quality ·       Quarantine ·       Reporting Method ·       Restricted Pesticide ·       Rodenticide ·       Safe pesticide ·       Sale ·       Sampling methods ·       Shelf-life ·       Spray methods ·       Stock position ·       Storage ·       Testing methods ·       Tolerance limit ·       Toxicity ·       Trader ·       Traps ·       Vector ·       Vector control ·       Warehouse ·       Wettable Powder / Granules Many others
S. 4 Central Pesticide Board	Too big and vague composition Total - 41 members  Too many irrelevant members but useful members with relevant expertise are missing	Following expertise are not part of the decision-making body:  But only two farmers for 650 million population from more than 30 states with different agro-climatic zones 40 officials with no ground-level experience and no trade experience. ·       No manufacturers’ representative ·       No exporter representative ·       No importer representative ·       No trader representative ·       No representative of warehousing industry ·       No representative of the road department but of railways and shipping ·       No representative of consumer affairs ministry ·       No expert on toxicology ·       No expert on packaging ·       No expert in spaying/ application machinery
S. 6	Functioning of the Board	Board must discuss all items in a transparent manner. All agenda papers, Minutes of Meeting and more important supporting documents used must be on the website for public scrutiny.
S.11	Registration Committee Composition	Following expertise are not part of the decision-making body:  ·       No farmer ·       No manufacturers’ representative ·       No exporter representative ·       No importer representative ·       No trader representative ·       No representative of warehousing industry ·       No representative of the road department ·       No representative of consumer affairs ministry ·       No expert on packaging No expert of spaying/ application machinery
S.11	Cut paste of 1968 Act, no application of brain how to accommodate new ways and approaches.	Clause 6 and 7 talks of “Opinion of the Committee” - without any ground-level expertise and global understanding. It seems competency is not required only 'designations' are required to be part of the committee. Is this the way we want to make India a developed economy? I hope Parliament will make some correction.  “Opinion” means ‘discretion of the committee’, this leads to corruption and lobbying. There must be clear guidelines and these must be defined in advance and must be part of the rules to ensure opinion remains consistent from case to case and must be applied in transparent and non-discriminatory manner.
Sec 12 (3)	It shall be the responsibility of all applicants applying for registration to provide complete information on all the known inimical effects of the pesticide on human beings, animals, and the environment.	The law has not defined animal and the environment. What is the definition of animal and environment? Which all vectors, microbes, insects part of animals and is a weed, unwanted herbs by farmers part of the environment? What about weeds in water bodies? What is the mechanism to check whether the data submitted are correct or not?  When the product was never allowed and never used in India but to be used, who will generate data and how it will be evaluated and by whom? How will the department ensure that only people with experience on the products are part of the evaluation committee? All this information must be placed on the websites for benefit of experts and the function of the department will be under check. Otherwise, the bribe will be used to get approvals.
S. 13(3) & S. 13(5)	Suspension and cancellation of registration	Today, the registrations granting method lacks credibility. In the last meeting of stakeholders, One unit with no infrastructure granted 700+ products registrations. This must be investigated. This is a bigger scam than banking frauds.  Let the department make the list public how many registrations granted to date and to whom. If they don't share you can understand the reason. All registrations and cancellations must be supported by GPS coordinates and photographs of all critical machines and laboratory, etc. in the facility as mandatory requirements. This will check spurious and fictitious manufacturing. This will bring transparency to the registration and inspection system.
S. 13(4)	Suspension and cancellation of registration	All the supporting evidence must be made public to ensure transparency in the decision-making process. This will reduce corruption and will improve public trust in the system.
S. 14	An appeal against suspension or cancellation	The rules must specify to ensure natural justice in a time-bound manner. In this case Registration Committee should not be part of the decision-making body while the appeal process is on because Conflict of interest must not be there. All the decision with supporting evidence must be on the website to ensure accountability and transparency.
S. 17(3)	Grant of license	If the license is not granted by the department in a given time or objection raised in the given time frame, it must be considered as approved. This must be inserted. Delay in the grant of a license must be considered as a corrupt practice.
S.17(6)(i)	Household pesticide	Household pesticide term is not defined in the law. Pl. define it. Also, the Criteria to classify it as a household pesticide.
S.17(7)	Maintain record	Maintain record with GPS coordinates and photographs of the site approved by the licensing officer. This will help in tracing the fictitious players. All information on facilities, good practices, etc must be provided through the website and should be open to all stakeholders.
S. 17(7)(d)	Quality of Pesticides: According to industry sources, 30% products are spurious in the market but not a single prosecution till date in many states.	Inspectors use their discretionary power to seek rent from players in the trade, this must be checked and there must be a transparency method to decide sampling criteria and frequency.  All this information must be online to ensure transparency and to check the rent-seeking attitudes of some irresponsible elements. Sampling methods and samples collected must be monitored online. There must be a proper sampling method. All laboratories, sampling and testing results must be online. This will ensure proper enforcement of the quality regime.
S. 21(1)	Central Pesticide Laboratory Laboratory results can be wrong due to poor machines, poor maintenance, poor skill and bad intention of the people involved. There are reports that laboratory personal use received samples to extort money from manufacturers and trade by giving threat that sample will be failed if the bribe is not paid. Example: Good Companies exporting products to developed nations never got any rejection on quality but local laboratories failed their samples more than 50 times. Now litigations are going on.	The laboratory must be audited by experts on a regular basis. Unless these laboratories confirm the Good laboratory practices and standards under NABL and GLP, the results of these laboratories cannot be used for prosecution. This will be like a defective administration prosecuting another person without proper evidence. All laboratory test reports and sampling reports must be online on daily basis to minimize the chances of extortion (as reported by trade). Today there are technological systems to hide the identity of the samples. These options must be used to ensure transparency and accountability.
Chapter-V S.22	Prohibition of Import, Export, and Manufacture of Certain Pesticides: 22. (1) No person shall, himself or by any person on his behalf, import, export or manufacture— (a) any misbranded, sub-standard or spurious pesticide; (b) any pesticide the sale, distribution or use of which is for the time being prohibited under section 33; (c) any pesticide except in accordance with the condition on which it was registered; and (d) any pesticide in contravention of any other provision of this Act or of any rule made thereunder.	Nowhere in the world, such laws exist. Quality control is the domain of the Department of Commerce, Chemicals Exports Council and Export inspection agency and Pesticide Management Bill have no role because their job is to manage affairs within their jurisdiction. The department that cannot ensure quality inputs for its own farmers, how they can ensure quality for farmers of other countries. Will Indian Inspectors decide what is good for America and Europe? The PMO and Government of India must ensure that the concerned department does not exceed their jurisdiction this will only increase corruption and kill the efforts of investment and exports from India.
Sec. 23	(1) No person shall, himself or by any person on his behalf, sell, stock or exhibit for sale, distribute, transport, use, or cause to be used— (a) any pesticide which is not registered under this Act; (b) any pesticide, the sale, distribution or use of which is for the time being prohibited under section 33; (c) any pesticide in contravention of any other provision of this Act or of any rule made thereunder; (d) any pesticide in a packing other than its original packing in which it was primarily packed by the manufacturer; (e) any pesticide which has outlived its shelf-life as evident from its label; and (f) any pesticide without disclosing its expected performance as claimed and usage instructions as suggested by the manufacturer or importer to farmers and end-users, as the case may be, while applying for a grant of a certificate of registration under section 12. (2) No person shall— (i) transport, or cause to be transported, any pesticide, which is registered in India only for the purpose of export, within the country except directly between the premises of manufacture for which the license has been obtained and the port of exit; or (ii) distribute, sell or exhibit for sale, or use or caused to be used any pesticide within the country, which is registered in India only for the purpose of export. Provided that nothing in this sub-section shall affect the transportation of any pesticide which has outlived its shelf-life for disposal in accordance with section 52. (3) No person shall, himself or by any person on his behalf, sell, stock or exhibit for sale or distribute or use for commercial pest control operations any pesticide except under, and in accordance with the conditions of, a license issued for such purpose under this Act.	If pesticides are not registered under the act why they are allowed to be imported? This is a major source of corruption because every permission is a rent-seeking opportunity. This power must be concerned with a transparent process and no approval should be required if rules and criteria are followed. 2. Please elaborate on what is the method of checking expected performance when a farmer has the discretion to use the way he wants and not following instructions. When authorities don’t follow the prescribed timelines for approvals on paper can expect farmers to follow guidelines due to his illiteracy. 3. When conditions like rain, excessive heat and moisture impact performance how we can make anyone accountable for performance? 4. When GST and e-way bills are already used for tracking, why pesticide act should add this clause. If they find the illegal product in their market, they can always charge the supplier. This clause is just to use their power in the transport industry. 5. What about waterways and railways, they don’t go to destinations for experts. There may be a possibility of transhipments. Is transhipment in this act illegal?
CHAPTER VI	ANALYSIS OF PESTICIDES Sampling and laboratory analysis are the initiations of corruption in the field and this must be defined very elaborately. It is well-known fact that extortion rackets are fun by some inspectors and analysts that is why till date no spurious products manufacturers are brought to justice. There are no records how many spurious manufacturing facilities are busted. NO one is made accountable under the law when they fail in their duty. Are we assuming that all officers under this act are honest and saint? If so, why spurious and substandard products exist in the market?	Specified qualification of the person, but does not mention when and how frequently he should be trained on modern technologies of testing and analysis. Who is responsible for the calibration of the machines? There is no mention of what type of laboratory is required for testing and which parameters. Who should be responsible for maintenance of the laboratories What should be the action against officials not able to maintain the laboratories as per the expectations under the law? There is no accountability, transparency under this act for any officers involved. This gap in the legal system is leading to massive corruption and in many cases extortion, ultimate farmer and consumers are suffering. Our economy is suffering. The only people who are gaining are inspectors and laboratory analysts.
Section 26 Powers of Inspectors	(1) A Pesticide Inspector shall have power— (a) to enter and search, at all reasonable times and with such assistance from local police/SHO, if any, as he considers necessary, any premises in which he has reason to believe that an offense under this Act or the rules made thereunder has been or is being or is about to be committed; (our inspectors are God, they can forecast the crime)	This clause makes the inspector God. This power is a major source of corruption. ·       Inspector does not need permission, no search warrant, etc. ·       Inspectors can judge the intention of a person, like God, before even a crime is committed. These absolute powers which are not even under IPC make the inspector the most powerful person in the country. This Chapter and all section must be re-written to ensure natural justice and to make inspectors accountable for their acts if they encroach on the personal life and liberty of any individual.

 For all parts visit blog: "Law Notes by Vijay SARDANA"