---
title: "Farmers’ Rights Under India’s Plant Variety Protection Regime: Understanding the Scope of the Farmer’s Privilege "
date: 2026-08-24
author: "Aashita Khandelwal"
url: https://ksandk.com/intellectual-property-rights/farmers-rights-ppvfr-act-section-39-privilege/
---

# Farmers’ Rights Under India’s Plant Variety Protection Regime: Understanding the Scope of the Farmer’s Privilege 

Posted On - 24 August, 2026 • By - Aashita Khandelwal

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India’s plant variety protection regime attempts to reconcile two interests that can appear to be in tension: encouraging investment in the development of improved plant varieties while preserving the rights of farmers who have historically conserved, developed, used and exchanged plant genetic resources. 

The Protection of Plant Varieties and Farmers’ Rights Act, 2001 (“PPV&FR Act” or “Act”) was enacted against this backdrop. Unlike a [conventional intellectual property regime](https://ksandk.com/intellectual-property-rights/why-startups-fail-to-protect-intellectual-property/) that focuses principally on exclusive rights for creators or inventors, the PPV&FR Act expressly recognises farmers’ rights, breeders’ rights and community interests within the same statutory framework. The Protection of Plant Varieties and Farmers’ Rights Authority (“PPV&FR Authority”) describes one of the Act’s objectives as recognising and protecting farmers’ contributions to the conservation, improvement and availability of plant genetic resources, while also encouraging the development of new plant varieties. 

Among the most significant provisions is Section 39, which recognises what is commonly described as the “farmer’s privilege”. It permits a farmer, subject to statutory limitations, to save, use, sow, resow, exchange, share or sell farm produce, including seed of a protected variety, in substantially the same manner as before the Act came into force. 

The provision has acquired particular significance in disputes involving commercial breeders and farmers. The litigation surrounding PepsiCo’s FL 2027 potato variety brought Section 39 into sharp focus and, most recently, the Supreme Court’s order dated 5 August 2026 has clarified an important aspect of the relationship between the farmer’s statutory protection and a breeder’s right to pursue infringement proceedings. 

The legal position, however, is more nuanced than the proposition that farmers have an unrestricted right to deal in protected seed. The statutory privilege is broad, but it operates alongside the breeder’s exclusive rights and contains an express limitation concerning branded seed. 

## **Why Did India Adopt a Sui Generis Plant Variety Regime?**

The PPV&FR Act must be understood against the international intellectual property framework that developed around plant varieties. Article 27.3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) requires WTO Members to provide protection for plant varieties either through [patents](https://ksandk.com/intellectual-property-rights/why-ai-cannot-be-patent-inventor-india/), an effective sui generis system, or a combination of the two. 

India chose to establish a dedicated sui generis framework rather than extend ordinary patent protection to plant varieties. The PPV&FR Act, enacted in 2001, therefore created a specialised system for registration and protection of plant varieties while simultaneously incorporating statutory recognition of farmers’ rights. The International Convention for the Protection of New Varieties of Plants (“UPOV”) provides another important international reference point. In particular, Article 15(2) of the 1991 UPOV Convention permits members, within reasonable limits and subject to safeguarding the legitimate interests of the breeder, to restrict the breeder’s right in relation to farm-saved seed. 

India, however, is not a member of UPOV and adopted its own legislative framework. The PPV&FR Act accordingly reflects a distinct policy choice: protection of plant breeders is accompanied by express statutory recognition of farmers’ rights, including the right to deal with farm produce derived from protected varieties within the limits prescribed by Section 39. The result is not a simple breeder-versus-farmer model. The Act attempts to create a legal framework in which both sets of interests coexist. 

## **What Does the Farmer’s Privilege Under Section 39 Actually Permit?**

Section 39(1)(iv) is the central provision. It provides that a farmer is deemed entitled to: 

- save; 
- use; 
- sow; 
- resow; 
- exchange; 
- share; or 
- sell 

his farm produce, including seed of a variety protected under the Act, in the same manner as the farmer was entitled to do before the Act came into force. The provision is subject to an important qualification: A farmer is not entitled to sell branded seed of a variety protected under the Act. The Act defines “branded seed” as seed put into a package or other container and labelled in a manner indicating that the seed is of a variety protected under the Act. 

This distinction is fundamental. The statutory provision does not prohibit a farmer from saving seed from a protected variety for subsequent agricultural use. Nor does it, by itself, prohibit the farmer from exchanging or sharing farm produce including seed in circumstances falling within Section 39(1)(iv). 

What the provision expressly excludes is the sale of branded seed of a protected variety. Accordingly, it would be inaccurate to reduce the statutory position to the proposition that “farmers can freely sell any seed of a protected variety”. The precise statutory language and the factual circumstances of the transaction matter. 

**The Farmer’s Privilege Is Not the Same as a General Immunity from Plant Variety Rights** 

The PPV&FR Act grants registered breeders exclusive rights over a registered variety under Section 28. Those rights include, subject to the provisions of the Act, the exclusive right to produce, sell, market, distribute, import or export the variety and to authorise others to undertake such activities. Section 39 operates as an important statutory qualification to that framework. 

This means that the legal question in a dispute involving a farmer is not simply whether the variety is registered. It may also involve: 

1. whether the material in question constitutes farm produce including seed; 

1. the nature of the farmer’s activity; 

1. whether the activity falls within Section 39(1)(iv); 

1. whether the seed was sold as “branded seed” within the meaning of the statutory explanation; and 

1. whether any other statutory provision is relevant to the particular claim. 

The farmer’s privilege is therefore substantial, but it should not be described as a blanket exemption from the PPV&FR Act. 

## **Farmers’ Rights Extend Beyond Saving and Reusing Seed**

Section 39 recognises several distinct categories of farmers’ rights. 

***1. Registration of farmer-bred varieties*** 

Section 39(1)(i) provides that a farmer who has bred or developed a new variety is entitled to registration and protection in the same manner as a breeder under the Act. Section 39(1)(ii) separately recognises the entitlement of a farmers’ variety to registration, subject to the statutory requirements. 

The Authority presently provides a specific application mechanism for registration of farmers’ varieties. This is significant because the statutory framework does not treat farmers solely as users of varieties developed by commercial breeders. A farmer who develops or conserves a qualifying variety can potentially obtain formal legal protection under the same legislative framework. 

***2. Recognition and rewards for conservation*** 

Section 39(1)(iii) recognises farmers engaged in the conservation of genetic resources of landraces and wild relatives of economic plants and their improvement through selection and preservation. 

Where the statutory conditions are satisfied, farmers may be eligible for recognition and rewards from the National Gene Fund. This reflects one of the distinctive features of the Indian framework: the law recognises that agricultural innovation may arise not only in formal breeding laboratories but also through generations of farmer-led selection, conservation and improvement. The PPV&FR Authority continues to operate schemes for Plant Genome Saviour awards, rewards and recognition for farmers and farming communities. 

***3. Compensation for failure of disclosed performance*** 

Section 39(2) addresses another practical concern, where propagating material of a registered variety has been sold to a farmer, group of farmers or farmers’ organisation, the breeder is required to disclose the expected performance of the variety under given conditions. If the propagating material fails to provide that expected performance under those conditions, the farmer or qualifying group may claim compensation before the PPV&FR Authority. 

The Authority must provide the breeder an opportunity to oppose the claim and hear the parties before determining whether compensation should be awarded. The provision therefore creates a statutory mechanism for addressing situations where the performance represented to farmers is not achieved under the specified conditions. It should not, however, be understood as a general statutory guarantee of yield. The question remains whether the disclosed expected performance was not achieved under the given conditions contemplated by Section 39(2). 

**Protection of Farmers Against Innocent Infringement** 

Section 42 provides a separate protection for farmers. It states that a right established under the Act is not deemed to be infringed by a farmer who, at the time of the alleged infringement, was not aware of the existence of that right. It further provides that specified relief in an infringement action, and cognizance of an offence, will not be available against a farmer who proves before the court that, at the relevant time, the farmer was unaware of the existence of the right allegedly infringed. 

This provision is materially different from Section 39. Section 39 establishes a substantive statutory entitlement in relation to certain activities involving farm produce and seed. Section 42, by contrast, addresses innocent infringement and operates where the statutory conditions concerning lack of awareness are established. The distinction is important when analysing litigation involving farmers. 

## **Farmers’ Exemption from Fees**

The Act also seeks to reduce the financial barriers faced by farmers in asserting their rights. Section 44 provides that a farmer, group of farmers or village community is not liable to pay fees in proceedings before the Authority, Registrar or High Court under the Act or the applicable rules. The provision also defines “fees in any proceeding” to include fees for inspection of documents and obtaining copies of decisions, orders or documents. 

Accordingly, it would be more accurate to say that the Act provides a statutory exemption from fees in proceedings rather than stating broadly that every form of registration, testing or legal expense is automatically free. This distinction matters because the Act contains different processes, including registration, DUS testing, annual fees and proceedings before the relevant authorities. 

## **Farmer’s Rights and Breeder’s Rights: A Statutory Balance**

| **Aspect**  | **Farmer’s Privilege (Section 39)**  | **Breeder’s Exclusive Rights**  |
| --- | --- | --- |
| Saving seed season to season  | Allowed for any protected variety  | Not applicable, breeder controls commercial multiplication  |
| Sharing seed with other farmers  | Allowed, unbranded  | Requires a licence  |
| Selling farm saved seed  | Allowed, as long as it’s not sold under the registered brand  | Breeder controls branded sale  |
| Registering a variety  | Free, open to farmer bred or traditional varieties  | Standard fees, formal DUS testing  |
| Compensation for underperformance  | Farmer can claim under Section 39(2)  | Not applicable  |
| Legal and registration fees  | Fully waived  | Standard fees apply  |
| Protection term once registered  | 15 years for crops, 18 for trees and vines  | Same, 15 or 18 years  |

## **The PepsiCo–FL 2027 Dispute: Why Section 39 Became a Litigation Issue**

The controversy surrounding PepsiCo India’s FL 2027 potato variety brought these statutory tensions into public view. FL 2027, also known commercially as FC-5, is a potato variety used by PepsiCo in connection with the manufacture of potato chips. PepsiCo obtained registration for the variety under the PPV&FR Act in 2016. In 2019, PepsiCo initiated [infringement proceedings](https://ksandk.com/intellectual-property-rights/deceptive-similarity-essential-feature/) against farmers in Gujarat concerning the cultivation and sale of potatoes alleged to be of the FL 2027 variety. The litigation attracted significant public attention because the farmers invoked the statutory protections available to them under the PPV&FR Act. Contemporary reports recorded PepsiCo’s claims against several farmers and the subsequent public controversy surrounding the proceedings. 

The controversy subsequently developed into a broader challenge to PepsiCo’s registration of FL 2027 before the PPV&FR Authority. In December 2021, the Authority revoked PepsiCo’s registration on several grounds under Section 34. The Delhi High Court later considered the dispute in appeal. The Supreme Court’s subsequent consideration of the matter has now added an important layer to the jurisprudence concerning farmers’ rights. 

## **What the Supreme Court Clarified in August 2026**

The most recent development is the Supre**m**e Court’s order dated 5 August 2026 in *Kavitha Kuruganti v. PepsiCo India Holdings Pvt. Ltd.* The dispute before the Supreme Court arose from challenges concerning PepsiCo’s registration of FL 2027 and, in particular, whether the institution of infringement proceedings against farmers could itself justify revocation of PepsiCo’s registration under Section 34(h) on the basis of allegedly vexatious or predatory litigation. 

The Supreme Court declined to interfere with the Delhi High Court’s decision on the surviving controversy. Importantly, the Court held that the mere institution of legal proceedings to protect statutory rights does not, without more, amount to vexatious or predatory conduct warranting revocation under Section 34(h). At the same time, the Court recognised that farmers who are sued retain the ability to invoke the statutory protection available under Section 39(1)(iv) in the relevant proceedings. 

This clarification is important for both sides of the statutory framework. 

For breeders, the judgment makes clear that pursuing an infringement claim does not automatically amount to an abuse of the PPV&FR Act merely because the defendant is a farmer. 

For farmers, however, the judgment equally reinforces that the existence of a registered plant variety right does not eliminate the statutory protections expressly granted to farmers. A farmer facing an infringement action can invoke the protections available under the Act and place the facts of the case before the adjudicating court. 

The judgment therefore should not be described as holding that farmers always prevail against plant variety infringement claims. Nor does it establish that Section 39 automatically defeats every infringement action brought against a farmer. Its significance lies in recognising the coexistence of two statutory positions: the breeder’s right to enforce registered rights and the farmer’s right to invoke the protections expressly created by Section 39. 

## **Why the “Branded Seed” Distinction Matters**

The language of Section 39(1)(iv) makes the treatment of “branded seed” particularly important. The farmer’s statutory entitlement extends to saving, using, sowing, resowing, exchanging, sharing or selling farm produce including seed. But the proviso expressly excludes the sale of branded seed of a protected variety. The Act defines branded seed by reference to packaging or other containers and labelling that indicates that the seed is of a variety protected under the Act. 

Consequently, the factual characterisation of the transaction can become important. A farmer retaining seed for use in the farmer’s own cultivation raises a different question from a commercial enterprise packaging seed for sale using the protected variety’s denomination or otherwise representing it as protected branded seed. The legal analysis must therefore look beyond the simple question of whether the seed originated from a protected variety. 

## **Farmer’s Privilege Does Not Mean the Absence of Breeder Protection**

It is equally important not to interpret Section 39 in isolation. The PPV&FR Act was designed to provide protection to breeders and encourage the development of new varieties. The PPV&FR Authority expressly identifies this objective alongside the protection of farmers’ rights. 

Registered breeders enjoy exclusive rights under Section 28, subject to the statutory limitations and exceptions contained in the Act. The Act also provides mechanisms for: 

- registration of new, extant and farmers’ varieties; 

- protection of essentially derived varieties; 

- benefit sharing; 

- compulsory licensing in specified circumstances; 

- revocation of registration on statutory grounds; and 

- enforcement against infringement. 

The farmer’s privilege therefore forms part of the statutory balance rather than displacing the [breeder’s proprietary interest](https://ksandk.com/intellectual-property-rights/why-founders-must-assign-ip-before-funding-round/) altogether. 

## **Why Section 39 Matters Beyond Individual Farmers**

The importance of Section 39 extends beyond individual seed-saving practices. India’s agricultural system includes extensive farmer-led conservation and exchange of plant genetic resources. The statutory recognition of farmers’ rights therefore performs at least three broader functions. 

- **Preserving agricultural practices:** The ability to save and resow farm-produced seed helps preserve practices that have historically formed part of agricultural production. 

- **Recognising farmer-led innovation:** By permitting farmers who develop or conserve qualifying varieties to seek registration and by recognising conservation activities through the Gene Fund framework, the Act treats farmers as contributors to agricultural innovation rather than merely end-users of commercial seed. 

- **Balancing private rights with food and agricultural interests:** Plant variety protection creates incentives for investment in research and breeding. At the same time, unrestricted exclusivity could potentially interfere with established agricultural practices. Section 39 is one of the principal statutory mechanisms through which the Act addresses that tension. 

## **Conclusion**

The PPV&FR Act represents a distinctive approach to plant variety protection. It does not simply replicate a conventional intellectual property model in which exclusive rights of commercial breeders prevail over traditional agricultural practices. Instead, the Act expressly recognises farmers as rights-holders in their own capacity. 

Section 39 is at the centre of that framework. It protects a farmer’s ability, subject to its statutory limitations, to save, use, sow, resow, exchange, share and sell farm produce including seed of a protected variety. At the same time, the Act preserves breeder exclusivity and expressly prohibits the sale of branded seed of a protected variety. 

The recent Supreme Court proceedings concerning PepsiCo’s FL 2027 potato variety illustrate why this balance matters. The Court’s August 2026 order makes clear that a breeder’s decision to enforce its registered rights does not, by itself, amount to vexatious or predatory litigation; equally, a farmer facing such proceedings remains entitled to invoke the statutory protections available under Section 39(1)(iv). 

The farmer’s privilege should therefore neither be overstated as a blanket immunity nor understated as a narrow exception. It is a substantive component of India’s [sui generis](https://ksandk.com/intellectual-property-rights/geographical-indications-and-digital-infringement/) plant variety protection regime, one that seeks to preserve the space for traditional agricultural practices while maintaining incentives for formal plant breeding and innovation. 

## Frequently Asked Questions

### 1. What exactly does the farmer’s privilege under the PPV&FR Act cover?

The right, under Section 39, to save, sow, re sow, exchange, share, or sell farm produced seed from a protected variety, provided it isn’t sold under the breeder’s registered brand name.

### 2. Can a farmer legally sell seed from a company’s registered variety?

Yes, as unbranded seed. Selling it packaged or labelled with the breeder’s registered variety name crosses into infringement.

### 3. Can a farmer register a traditional or self bred variety under this Act?

Yes, at no cost. Section 15 and Section 39(1)(i) allow farmers to register varieties they’ve bred or traditionally conserved, on the same footing as a commercial breeder.

### 4. What if a purchased seed variety doesn’t perform as advertised?

Section 39(2) lets a farmer file a compensation claim with the PPV&FR Authority if the breeder’s disclosed performance claims turn out false.

*Last Updated on 24 August, 2026*

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