Study On The Protection Of Plant Varieties and Farmers Rights Act, 2001

On the eve of independence, 85% of India's population derived its livelihood from agriculture.^[1] As per the 2019-20 Economic Survey, the Indian agricultural sector accounted for 15.2% of the total Gross Value Added (GVA) to the Indian economy, with a declining rate over the years, indicative of an unfulfilled potential of the agricultural sector and the plight of Indian farmers.^[2] Moreover, the 2023 Global Hunger Index (GHI) ranked India in the 111^th position, which puts it in the serious category on the GHI Severity Scale.^[3] Accelerated agricultural development in the country is, therefore, crucial to combat the hunger problem and to provide adequate food to all.

Protection of Plant Varieties & Farmers' Rights Act, 2001

To facilitate agricultural development in the country, it is necessary to protect the rights of plant breeders, and to stimulate investment for research and development of new plant varieties. Such protection accorded to plant breeders on an institutional level would encourage the growth of the seed industry, which would in turn ensure the availability of high-quality seeds and planting material to the farmers. Further, the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), which India has ratified, directs members to provide for the protection of plant varieties either by patents or by an effective sui generis system.^[4]

To give effect to the aforesaid objectives and obligations, the Protection of Plant Varieties & Farmers Rights Act ("the Act”) was introduced, with its objects and reasons being to provide 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. Even though it's purpose is commendable, the Act itself is not as widely known, and litigation arising from it is not as common, especially when compared to some other intellectual property statutes.

The scheme of the Act shows that numerous diverse aspects relating to the protection and development of new plant varieties have been taken into account, and care has indeed been taken in its enactment to encourage the development of new plant varieties, while at the same time protecting the rights of the farmers.

The Act establishes a multi-member Protection of Plant Varieties and Farmers Rights Authority (“the Authority”), serving functions such as the registration, indexing and cataloguing of new plant varieties, and ensuring the availability of seeds of such varieties to the common farmer, even when the breeder fails to arrange for their production and sale.

It further establishes a National Register of Plant Varieties, to contain the names of all the registered plant varieties along with their salient features and parental lines. Every breeder, whose developed variety is granted registration under the Act, is conferred the exclusive right to produce, sell, market, distribute, import and export such plant variety. Interestingly, the Act constitutes a National Gene Fund, from which the expenditure for strengthening the capability of the farmer and panchayats in carrying out conservation and sustainable use of genetic resources are to be met.

For registration under the Act, every new plant variety ought to be distinct (clearly distinguishable by at least one essential characteristic from any other variety), uniform (sufficiently uniform in its essential characteristics) and stable (its essential characteristics remaining unchanged after repeated propagation). These are known as the DUS characteristics of the newly developed plant variety. The Authority established under the Act is mandated to conduct its own DUS testing of every variety submitted for registration, and if the results reveal the variety to possess these DUS characteristics, then it advertises its findings to invite opposition. Thereafter, only if the oppositions are rejected, the Authority shall register the variety as a new plant variety by entering it into the National Register established under the Act.

Thus, the Act has in place a robust system of checks and balances to, on the one hand, promote and permit the registration of new plant varieties, while on the other, to protect the rights of the common farmer by ensuring rigorous testing prior to registration and making available to them the seeds of such new varieties.

However, an institution is only as good as the people that work them. Even though the objective of the Act is laudable, and its provisions reflect consideration of myriad diverse aspects to further its intention, a study of the judgments passed by the Delhi High Court reveal that the Act is not functioning at its full potential, with the result that the objectives of the Act are being defeated.

STUDY OF CASE-LAW UNDER THE ACT

Applications for registration being accepted and advertised without the Authority conducting the mandatory DUS Test:

Recently in December 2023, the Delhi High Court passed judgment^[6] in a batch of petitions which challenged the practice being adopted by the Authority in accepting applications, and advertising them, without even conducting its own DUS testing, and as such, without even being aware of whether the variety possessed any DUS characteristics, and if so, what they were. The issue involved was whether the Authority, once it receives an application for registration, was required under the Act to conduct its own DUS testing before accepting and advertising such application. In this batch of cases challenging the actions of the Authority in accepting five applications for registration and issuing advertisements for different varieties of cotton before conducting its DUS testing, it was argued that the very purpose of an advertisement was to publish all the known and verified details of the plant variety seeking registration, which could only be ascertained by the Authority after the DUS testing had been conducted by it, and without it, opposition invited from farmers, breeders and the public at large would be futile and meaningless. Agreeing with this, the Court held that DUS testing by the Authority was mandatory prior to accepting applications and advertising them.

The said decision is important because as a result, the common farmer would be aware, upon the publication of an advertisement, of the DUS features of the plant variety, and how the same may be of benefit to her. Further, if advertisements are published without conduct of a DUS test, its very purpose would be defeated, and the checks and balances built in the Act would be set at naught. The Court here approved the principle that one cannot be expected to meaningfully oppose anything it does not know the details of.

Plant varieties being registered on the sole ground of having qualified the DUS Test:

In many instances, it was noticed that the Authority was issuing certificates of registration to all varieties on the sole basis of having qualified the DUS test, without looking at it through the prism of public interest. In a landmark decision rendered^[7], it was the stand of the Authority that once a candidate variety qualifies the DUS test, it was deemed to be a newly developed plant variety, and as such, it was entitled to registration under the Act. Though on first blush this appears reasonable, however, the Court, keeping the larger purpose of the Act in mind, held that all new varieties possessing DUS traits were not ipso facto entitled to registration. What also necessarily has to be considered is the kind of impact such variety may have on the environment, and in the event it had the potential to be adverse, or if the grant of registration may not be in public interest, or if there was evidence of another farmer having developed a variety possessing the same DUS characteristics, the Authority was bound to reject the grant of registration. Thus, DUS testing, although important, is not the only sine qua non for registration, and public interest and environmental impact is also to be assessed before registration of a new plant variety.

Authority abusing powers conferred to it under the Act:

Under the Act, no time duration is prescribed for the Authority within which it shall decide upon a registration application after it is made to the Registrar. A power with wide reaching effects is conferred to the Authority to issue any direction to protect the interests of a breeder against any abusive act committed by a third party during the pendency of a registration application. In one instance, two breeders had filed applications seeking registration of a plant variety that both were claiming to have developed. That during the pendency of its applications for registration, an application under Section 24(5) of the Act was filed before the Authority by one of the breeders to injunct the other from selling and marketing its variety. During pendency of these proceedings before the Authority, the breeder against whom the injunction was sought approached the Delhi High Court, challenging the vires of the provision granting such unrestrained powers to the Authority to issue any directions in favour of a breeder whose variety was merely pending registration, and which ultimately perhaps may even be rejected. The Court opined that the said provision was prima facie meant for protection of genuine breeders, however, the possibility of the provision itself being a tool of abuse by the bogus breeders far outweighed its bona fide intended purpose. The Court noted that by way of this provision, any breeder with inchoate rights could injunct a genuine breeder from taking advantage of its claimed variety, and as such, held the said provision to be unconstitutional and ultra vires Article 14 of the Indian Constitution.

Curtailment of such unbridled powers conferred upon the Authority is important since the purpose of the Act is to further the protection of rights of farmers and seed breeders, which includes the protection from monopolization of the seed industry. Although the said decision has been appealed before the Supreme Court, and an interim order of stay of operation of the said judgment has been passed^[9], the binding nature and precedential value of the reasoning continues to exist. In any event, this decision reduced the scope of arbitrary and far-reaching directions being passed by the Authority without basis, since the Act does not define what may be 'abusive' acts.

Authority revoking the grant of registration without valid justification:

In another instance, the Authority had granted registration to a breeder for development of a new plant variety. However, upon seeking clarification, the breeder admitted to a clerical error, and stated that the variety so developed by it was an extant variety, and not a new variety. As such, registration was granted to it under the extant category. However, subsequently, the Authority revoked the certificate of registration granted to the breeder on the ground that incorrect and misleading information had been furnished by it. Upon a challenge being made to the revocation of the certificate of registration, the court held that the Authority had acted in an unjustified manner, since the alleged discrepancy was not of such a nature to invalidate the registration, especially since a clarification had also been provided by the breeder. The court further held that the registration granted was under the correct category, and the Authority would be justified to revoke a certificate only where the original grant was fundamentally flawed.

The Protection of Plant Varieties and Farmers' Rights Act was intended to protect the rights of the common farmers, to establish an effective system of seed development, and to encourage development of new plant varieties – all with the intention of accelerating the development of agriculture in the country. However, though the Act in letter does exactly that, its implementation in spirit leaves a lot to be desired. Through the judgments above, it can be seen that there are numerous examples of the provisions of the Act not being complied with. Strict compliance would result in the following advantages:

• Conduct of DUS testing prior to advertisements would enable objectors to file meaningful oppositions;
• The Authority would further ascertain details of a candidate variety and its DUS features based on its own test results;
• Verified information and details of candidate varieties would be available to the farmers, empowering them to take decisions based on them;
• If a candidate variety fails the DUS test, the Authority may reject the application at that stage, without going into a futile exercise of advertising and inviting opposition;
• Curtailment of arbitrary exercise of powers by the Authority;
• Limiting monopolization of the seed market;
• Fewer cases being filed in courts.

It is hoped that with the Courts clarifying the law and the procedure to be followed under the Act, and on strict compliance of the provisions by the Authority in the future, the intended objective – the protection of the rights of farmers and accelerated agricultural development in the country – would turn into a reality.