Who Qualifies to be a Producer under Geographical Indications Act??

Article 22.1 of TRIPS Agreement refers to the term Geographical Indications as -

"...indications which identify a good as originating in the territory of a country, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin."

On 15th September, 2015, the Geographical Indications Act, 1999 celebrated its 12th birthday since the day of enforcement, Unfortunately, it is still considered to be in its initial stages. In fact, when I tried to search whether the IPAB or Courts have interpreted the meaning of the term "Producer" defined in Section 2(1)(k) of the Geographical Indications Act, 1999, I could not find a single document throwing light on this issue. 

Section 2(1)(k) of GI Act, 1999 defines the term producer as

"Producer‟ in relation to goods, means any person who,

1. 
   

   if such goods are agricultural goods, produces the goods and includes the person who processes or packages such goods;
2. if such goods are natural goods, exploits the goods;
3. if such goods are handicraft or industrial goods, makes or manufactures the goods,
4. and includes any person who trades or deals in such production, exploitation, making or manufacturing, as the case may be, of the goods.

The definition includes under its aegis the person who  packages such goods. The reason for inclusion of this category of persons is not clear. As far as the conceptual understanding of Geographical Indications goes, the person who packages such goods has got no role to play in shaping up the genuine characteristics of the product involved.

Furthermore, Section 11(1) of the GI Act, 1999 talks about who can be an applicant. It describes the Applicant as any association of persons or producers or any organisation or authority established by or under any law representing the interest of the producers of the concerned goods which means that the Applicant has to be a legal entity and should be representing the interest of producers of the good applied for.

The question arises how a person who packages the good can represent the interest of producers? If we take a close look at Section 2(1)(k)(i) of GI Act, it uses the disjunctive word "or" between 'who produces' and  'who packages'. The interpretation of the connector here is required.

The rules is that "or" is normally disjunctive and "and" is normally conjunctive and a departure from the same shall not be available unless the very aim and objective of the Act requires so. If the Legislature wishes to use "and" in a particular statutory provision, then it has every right to do so and nothing prevents them for doing so. So, if the word "or" has been used instead of "and", it becomes obvious that the Legislature purposefully used the word "or". However, in the present situation, the literal interpretation doesn't seem to fit.

Here comes into the picture, the pragmatic approach of Purposive Construction which interprets law in the larger interest of society while deviating from literal rule. In my opinion, if we apply purposive construction and the word "or" is red as "and" then it makes a lot more sense as the person who processes and packages goods can be seen as the person representing interest of the producers of the goods applied for...

until next time.. in anticipation of change.......