India has adopted a sui generis system for protection of plant varieties and enacted a legislation that explicitly provides for plant breeders’ rights along with farmers’ rights and community rights. Previously we had discussed the rights of plant breeders over commercial production and marketing of plant varieties and seeds. The article gave an insight into the provisions of plant breeders rights as well as the downsides of the Act.

All said and done, the Indian legislation is path-breaking in its own way, granting recognition to farmer’s varieties as well as extant varieties. This meant that the UPOV would denounce the legislation for non-adherence to its standards and pro-agrarian leanings. The IPR policy of our country does not cater to the highly corporatized farming methods of the west that the UPOV supports, simply because our framing techniques have been part of our folkgeist, wildly different and competitive in their effectiveness.

The Act does due deliverance to the considerable unexplored potential of our traditional knowledge, which comprises one of India’s many unexplored breakthroughs. But, practically quite a lot has not been considered enough. Case in point: Registration of a plant variety in India.

Any person as described under Sec.16 of the Act can apply for the registration of a new variety of plant with the Office of the Registrar, Protection of Plant Varieties and Farmers’ Rights Authority. The applicant can file a completely filled application with all the necessary statements with the Registrar for registration of any variety of such genera and species as specified under sub-section (2) of Section 29 or which is an extant variety or which is a farmer’s variety. The applicant must also make available to the Registrar such quality of seeds of the variety for registration along with the prescribed fee.

Following this, a Distinctiveness, Uniformity and Stability (DUS) test shall be conducted. The guidelines for this test, their framing and the differentiation are a complicated discussion by itself. When an application for registration of a variety has been accepted without opposition or if the opposition has been quashed, the Registrar will issue a certificate of registration to the applicant.

Seems quite simple, doesn’t it? But the problem begins with the very first step: Identifying the genre and species to which a plant variety belongs. The PV&FR authority specifies species for the purposes of registration by way of power granted to it under sub-section (2) of Section 29 of the Act. This specification comes through an official notification in the Gazette, the latest of which was notified on 12th May 2017.  This lists one hundred and thirty species under which registration of plant varieties can be applied for. While progress is being made, it is nowhere near as quick as it must be. Those species or genera which are not listed in the notification issued by the Central Government cannot be protected. For instance, while Mangoes, Mandarin, and Japanese Plums feature in the list, blueberries do not. And as long as Blueberries do not feature, they cannot be protected. This situation is particularly difficult because there are no guidelines as to how this list is decided and released, no clarity on how to include new varieties in it, nor any idea as to when the next list would be released. This excludes multiple interested parties from an essential part of the protection chain, essentially rendering the policy crippled.

If this Act is here to stay, a complete survey of the kinds of commercial and traditional crops to be protected must be made and its implementation must be fast-tracked. Stakeholder feedback from all avenues to keep laws updated must be the foremost prerogative- why it has so far not been included in the design of the policy-making process in a more transparent way is conundrum by itself. This might be the finest example of how laws and more jargon alone do not mean that farmer’s rights establish themselves. The Act has made itself cogent at the International level; it is past time to become a representative in the domestic level too.