Prabhakar Rao
The ET recently reported that the Ministry of Agriculture has appointed Prabhakar Rao, Chairman of Nuziveedu Seeds to the Plant Varieties and Farmers’ Rights Authority (“Authority”), a statutory body that is created under Section 3 of the Plant Varieties and Farmers’ Rights Act, 2001 (PVPFRA). As per this provision, the Authority is to consist of 15 members plus a chairperson, all of whom are appointed by the Central Government. This provision also requires the Central Government to appoint one representative from the seed industry to the Authority. According to the same ET report, Prabhakar Rao is replacing Usha Zehr of Mahyco on the Authority. Mahyco is in a joint venture with Monsanto and as readers may be aware Nuziveedu is currently involved in a massive IP litigation with Monsanto – we’ve written about it over here and here.
Apart from the industry representative, the remaining members on the Authority are mostly ex-officio positions – bureaucrats from various ministries and departments. This model of administration is not entirely unknown in Indian law. The Drugs & Cosmetics Act, 1940 and the Insecticide Act, 1968 both have similar models wherein technical boards with an advisory or policy making function are staffed with representatives from across the government and nominated representatives from industry and academia. As per this legislation, the job of actually administering the legislation is left to administrative officers who exercise quasi-judicial roles. Similarly, the PVPFRA splits functions between the Authority and the Registrar-General/Registrars although the distinction isn’t quite that clear.
Although it is only the Registrars who can examine new PVP applications, adjudicate oppositions and issue registration certificates, it is the Authority which appoints the Registrars under Section 12 of the PVPFRA. In other words, the legislative design of this law allows for the industry to have a say in the appointment of Registrars who will then examine and register PVP applications and conduct oppositions. Incidentally, Nuziveedu is one of the largest filers of PVP applications for new plant varieties. Obviously there are going to be concerns regarding ‘conflict of interest’ with the appointment of Rao. This is not to say that there was no conflict of interest with the presence of Zehr on the Authority.
Apart from the appointment of Registrar/s, the Authority also has a policy role. It is required under the law to set the criteria of distinctiveness, uniformity and stability for registration of extant varieties, the standards for evaluating seeds under tests required under the law etc.
In addition, the Authority also plays an adjudicatory role while discharging some of the other functions under the PVPFRA. The first adjudicatory role is under Section 26, when the Authority deals with “benefit-sharing” claims. As explained in an earlier post, Section 26 is one of the pivots of Nuziveedu’s IP strategy in its battle with Monsanto. The second adjudicatory role is with regard to compulsory licences when certain seeds are not meeting the reasonable requirements of the public. The Authority and not the Registrars are responsible for determining compulsory licensing requests.
Of course, you could argue that there are 14 other members on the Authority but the fact of the matter is that these are technical issues and industry representatives like Rao will have the upper hand in any decision making because they are the ones who understand the technicalities the best. Section 4 of the same law which lays down the rule for conducting the authority’s proceedings requires all proceedings to be conducted through a vote of all members of the Authority. As per the same provisions, members who may have a conflict of interest are required under the law to declare their conflict and not attend the meeting. It is therefore necessary that going ahead, the Authority conducts its proceedings with the utmost transparency and exclude the industry representatives in all meetings wherein they may have a conflict of interest.