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Ministry of Agriculture & IPAB failure in invoking the transitional provision as provided under Section 59 of The Protection of Plant Varieties and Farmers‟ Rights Act, 2001 for setting up a tribunal.
- The variety of crops both edible and for commercial purposes has grown as the size and need of the human population has grown. This has resulted in experimentation of plant varieties and a need was felt for protection of the plant varieties and the right of the farmers and plant breeders to encourage development of the new varieties of plants. This is essential for accelerated agricultural development. It is towards this objective that India ratified the agreement of Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1994 requiring it to make provisions for giving effect to various articles of the agreement relating to protection of plant varieties. The Protection of Plant Varieties and Farmers‟ Rights Act, 2001(„the Act‟) was thus born. The Act received the assent of the President of India on 30.10.2001 for the establishment of an effective system for protection of plant varieties, rights of farmers and plant breeders and to encourage the development of new plant varieties.
- But it was not till four years later on 11.11.2005 that some of the provisions i.e. Sections 2 to 13 and Sections 95 to 97 came into force. However, these Sections only dealt with the creation of the Authority and the Registry as also the power to make Regulations and Rules. Substantive provisions being Section 1 and Section 14 to Section 94 came into force on 19.10.2006. Thus, there was a hiatus period of five years between receiving the assent of the President and the provisions of the Act effectively coming into force.
- In exercise of the powers conferred by Section 96 of the Protection of Plant Varieties and Farmers Rights Act, 2001 (53 of 2001) read with Section 22 of the General Clauses Act, 1897 (10 of 1897), the Central Government made the rules and published in the Gazette of India vide GSR 738(E) on 12.09.2003 and subsequently amended the same from time to time.
- The Act provides for the establishment of an effective system for protection of plant varieties, the rights of farmers and plant breeders and to encourage the development of new varieties of plants. The Indian PPV & FR Act is unique in the world as it recognizes the Farmers Varieties and also protects their rights. The Act has considered it necessary to recognize and protect the rights of farmers in respect of their contribution made at any time in conserving, improving and making available plant genetic resources for the development of new plant varieties.
- Thus it becomes clear from The Protection of Plant Varieties and Farmers‟ Rights Act, 2001 and its objectives that the Act not only recognizes the Farmers Varieties but also seeks to protect their Rights and it is in this background that the statute was created and notified.
- Chapter VIII of the Act envisages setting up of an Appellate Tribunal. This chapter consists of Sections 54 to 59.
- It is pertinent to mention here that the legislature was aware of the difficulty and the time which is required for setting up any appellate authority. The legislature realizing the above fact and also keeping in mind the necessity to set up effective remedy measures incorporated Section 59 of the Act. It is pertinent to mention here that the Section 59 of the Act would become redundant if the same is not implemented. However despite the same, the Ministry of Agriculture and IPAB, has failed to act under the said Provision.
- Section 59 is a transitional provision requiring the Intellectual Property Appellate Board (IPAB‟) established under Section 83 of the Trade Marks Act, 1999 to exercise jurisdiction of the Tribunal till the Tribunal is established under Section 54 of the said Act but requiring a technical member to be appointed under the said Act who would be deemed to be a Technical Member for constituting a Bench under Section 84(2) for the purposes of this Act.
- But Despite the lapse of more than 9 years, there is no sight of this Tribunal being constituted or implementation of the transitional provision. This is in addition to the hiatus period of five years from bringing into force the provisions of the said Act.
- The Ministry of Agriculture has failed to implement the transitional provision of The Protection of Plant Varieties and Farmers‟ Rights Act, 2001 despite a specific direction being issued by the Hon’ble High of Delhi, vide order dated 22/03/2013 in Writ Petition No. 4527 of 2011 wherein Hon’ble Justice Sanjay Kishan Kual showed the concern of non implementation of the transitional provision over a passage of 6 and a half years. In the said case it was also occasioned that IPAB has given its consent for invoking the transitional provision under Section 59 of the said Act and the Chairman and Vice Chairman of the IPAB will act as judicial members along with the Technical Member to be appointed under the said Act for purposes of exercising the transitional power and authority conferred on the Appellate Tribunal under the said Act. But despite all these the Ministry of Agriculture and IPAB collectively had failed to implement the Transitional provision.
- Some of the important observation and direction issued by the Hon’ble High of Delhi, vide order dated 22/03/2013 in Writ Petition No. 4527 of 2011 by Hon’ble Justice Sanjay Kishan Kual is reproduced herein below.
“The rules for such an appellate Tribunal were brought into force only on 21.09.2010. Since we found an unexplained inaction in implementing the mandate of the Parliament, we called upon the Union of India to file an affidavit setting out the steps taken for constitution of the Tribunal for the implementation of the transitional provision from 2001 till date and to produce the relevant records in respect thereof. An affidavit affirmed by the Assistant Commissioner (Seeds), Department of Agriculture and Cooperation, Ministry of Agriculture referred to only the aforesaid dates and the factum of the Ministry of Agriculture being the Nodal Ministry for Protection of Plant Varieties and Farmers‟ Rights Authority. It appears that the first communication in this behalf was addressed only vide letter dated 02.07.2009 to the Department of Industrial Policy and Promotion requesting to take note of Section 59 of the said Act and intimate the modalities for operationalization of the transitional provision. A request was also made to the IPAB to suggest the procedure for appointment of the Technical Member. Almost four years hence there appears to be no development. Not only that, even now no date was specified before us as to when the transitional provision of Section 59 of the said Act would be given effect to. One of the reasons stated before us was that the IPAB was reluctant to take up the work especially on account of lack of infrastructure even for its existing work. We thus called upon the Secretary of the two concerned Ministries to discuss the matter and to file an affidavit before us setting out the details of what prevented them from bringing into force at least the transitional provision through properly constituted consisting of a technical member.
An affidavit was filed by the Assistant Commissioner (Seeds) affirmed on 21.02.2013 itself. It is stated that the Act deals with sensitive issues pertaining to farmers rights; determination of “extant varieties”, “farmer‟s variety” and “varieties of common knowledge”. The criteria for registration of the plant/seed varieties requires a lengthy process that includes field testing of the plant/seeds varieties in different conditions and it is after completing this extensive process, that the government formulated the Protection of Plant Varieties and Farmers‟ Rights (Criteria for Distinctiveness, Uniformity and Stability for Registration) Regulations, 2009, which were notified on 29.06.2009 and came into force with effect from 30.06.2009. The Ministry of Agriculture being the Nodal Ministry addressed a communication dated 02.07.2009 as referred to aforesaid for the transitional provision to be implemented and the Department of Industrial Policy and Promotion in turn is stated to have referred the matter to IPAB on 26.08.2009. It furnished its comments on 14.09.2009. The Department of Industrial Policy and Promotion vide a communication dated 15.10.2009 furnished the requisite information to the Ministry of Agriculture. The Plant Varieties Protection Appellate Tribunal (Applications and Appeals) Rules, 2010 are stated to have been notified on 21.09.2010. The Protection of Plant Varieties and Farmers‟ Rights Rules (Recognition and Reward from the Gene Fund) Rules, 2012 were notified on 31.07.2012 while the Protection of Plant Varieties and Farmers‟ Rights (Use of Denomination and Registered Variety) Rules, 2012 were notified on 17.12.2012.
The aspect of implementation of Section 59 of the said Act is stated to be receiving the attention of the concerned Ministry, but there is stated to be some circumspection of this being unchartered territory.
In view of our order dated 21.02.2013, the same officer has filed another affidavit affirmed on 28.02.2013 stating that the IPAB has given its consent for invoking the transitional provision under Section 59 of the said Act and the Chairman and Vice Chairman of the IPAB will act as judicial members along with the Technical Member to be appointed under the said Act for purposes of exercising the transitional power and authority conferred on the Appellate Tribunal under the said Act. Earnest efforts are stated to be made by the Ministry of Agriculture for appointment of the Technical Member. However, it appears that the same is also at the stage of approval of the Expenditure Finance Committee whereafter the Search-cum-Selection Committee would decide the modalities of recruitment of the Technical Member. The time schedule laid down is of one year apart from the time required for approval of the Appointments Committee of the cabinet for which no time limit can be assigned. Thus, we are talking about a period of more than a year, which is stated to be realistic. So much for the interest in protection of plant varieties and rights of farmers‟!
We need to only emphasize what we have observed in our order dated 21.02.2013. Prior to the introduction and passage of a Bill in the Parliament, a number of steps are taken and considerable ground work is required. This ground work envisages not only the legislative drafting but the legislative impact of the legislation. The legislative impact in turn includes the litigation which it will generate, provisions for appropriately strengthening the judiciary to face the increase in litigation, creation of infrastructure and where specialized tribunals are envisaged, taking steps towards establishment of the same. The assent of the President is the culmination of this process. The will of the Parliament as reflected in the enactment of the said Act, which received the assent of the President, remained unimplemented for five years when only the basic provisions were brought into force without really the substantive provisions, which in turn were brought into force after six and a half years. Was this time not sufficient to analyze all aspects? Since the disputes would have aspects of scientific knowledge, the Appellate Tribunal envisaged a Technical Member. Leave aside the constitution of the Tribunal, even the transitional provision has not been brought into force. The absence of any such specialized Tribunal implies that it is the regular courts, which are already short of adequate number of judges to handle matters apart from technical issues which may arise, that will have to examine the controversy. The result is that neither are these specialized tribunals being brought into force nor is the existing judicial system strengthened to take care of the extra workload, a painful aspect to note. We would end this chapter with a sanguine hope that at least the transition policy is implemented on an urgent basis!
- It is quite relevant that the Ministry has failed to implement such an important provision of the Act which is to provide a effective remedy, despite such an observation by the Hon’ble High Court. Today the only recourse available to a party in any dispute under the Act is to file Writ Petition before the Hon’ble High Court.
The question still remain the same is when the Ministry of Agriculture will act in implementing such an important provision of the Act, which was specifically inserted with a view of setting up transitional effective remedy till an effective Authority is set up under the Act. Will the Section 59 of the Act will be given its importance or will it be redundant.
About the Author: Mr. Amarjeet Kumar, Senior Associate (Litigation), Khurana & Khurana, Advocates and IP Attorneys and can be reached at:Amarjeet@khuranaandkhurana.com.