Another tribunal gone to seed

Even transitional provisions in plant varieties and farmers' rights law have not been enforced in 12 years

It has been the constant gripe of the legal profession that the government is continuing to set up specialised tribunals, some 50 by one count, but ignoring them after passing the law. The Supreme Court has described their plight in several judgments, the latest being the predicament of the debt recovery tribunals in its February judgment, Union of India vs DRT Bar Association. Currently, the worst scenario is in the topless Securities Appellate Board and the Telecom Disputes Settlement and Appellate Tribunal.

During court hearings involving tribunals that are deprived of presidents, staff and infrastructure, judges have been even more vocal. A few months ago, a bench hearing the sinking state of the inter-state water disputes tribunal asked the government: "How long can you sleep? You want the court to wake you up from the slumber. Why do you compel us to do something which we refrain from doing? If this is the situation, then may God help you and God help this country!"

The Delhi High Court has not invoked divine help yet, but only fired sarcastic darts at the mandarins as another atrocious case of executive neglect unravelled before it last fortnight. This time, it was in a vital field, that covered by the Protection of Plant Varieties and Farmers' Rights Act of 2001. After 12 years, even the transitional provisions for setting up a tribunal have not been implemented. After a long description of government negligence, the judgment in the case, Nuziveedu Seeds Ltd vs Union of India, ended with "a sanguine hope that at least the transition policy is implemented on an urgent basis".

Recognising the urgent need for protection of plant varieties and the right of farmers and plant breeders to encourage development of new varieties, India ratified the agreement of Trade-Related Aspects of Intellectual Property Rights in 1994. The 2001 Act was passed to give effect to it. What followed was a sordid story. It was not till four years later that some of the provisions were brought into force. They only dealt with procedural aspects. Substantial provisions were notified a year later.

The Act has a transitional provision. According to it, the Intellectual Property Appellate Board (IPAB) established under the Trade Marks Act will exercise jurisdiction of the plant varieties tribunal till the one under the 2001 Act is established. Despite the lapse of almost six and a half years, there is no sight of the 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 2001 Act. On top of that, there was a problem about the appointment of a technical member, who should be expert in plant varieties, not trademarks and patents.

These facts came to be highlighted when two seed companies brought their disputes before the high court. In the absence of a forum, the high court took it upon itself the burden of deciding the issues in writ petitions.

The court asked the government to explain the delay in implementing the law, or at least the transitional provisions. An affidavit filed on behalf of the agriculture ministry dragged in the Department of Industrial Policy and Promotion. To complete the mess, the ministry asked IPAB to suggest the procedure for appointment of the technical member.

Meanwhile, IPAB was reluctant to take up the work of the plant varieties tribunal as that board lacked infrastructure even for its own work. So another affidavit was called for from the government. This one put forth the "sensitiveness" of the issues, the lengthy process required to sort them out, inter-departmental correspondence, and the earnest efforts being done by all concerned. As usual there were several committees like the expenditure finance committee and the appointments committee to oversee the operations. They had not been assigned any time limit to complete their roles. The judges observed: "So much for the interest in protection of plant varieties and rights of farmers!"

The high court judgment lamented that "almost four years hence, there appears to be no development. Not only that, even now no date has been specified as to when the transitional provision would be given effect to".

One major problem in drafting laws seems to be the mindlessness of lawmakers who put the cart before the horse. Before passing a Bill, a number of steps should be taken and considerable groundwork is required. The impact of the law at several levels, the expenses involved in infrastructure and staff, and the generation of litigation are serious issues. But in the hurry to pass Bills (often one a minute on the last day of a disrupted Parliament session), all these are short-circuited and a new statute carrying a tribunal in its womb is born. While it is on the ventilator, the regular courts, already crippled in several ways, are further burdened with the new laws which involve technical and specialised knowledge.