The Plant Variety Authority and Bt cotton: A case of regulatory capture?

In India, the creation of a new plant variety by any breeder, whether a seed or a biotech research company or an individual farmer, is protected under the Protection of Plant Variety and Farmers Right Act, 2001 (“the PPVFR Act”). The PPVFR Act is administered by the PPVFR Authority (“Authority”).

A transgenic plant variety is a plant variety that has one or more genes from a foreign organism, such as bacteria, incorporated in it by a biotechnology process in a lab. These genes confer certain additional ‘traits’ to the plant variety. Once a transgenic plant variety is developed and approved for release in to the environment, other transgenic plant varieties can be created from it by transferring the relevant genes to other plants by natural biological processes, such as selecting and crossing of plants.

Ordinarily, a transgenic plant variety ought to be registrable under the PPVFR Act so long as it satisfies the NDUS criteria (Novelty, Distinctiveness, Uniformity and Stability). To register a transgenic variety, additionally, the Authority requires an applicant to submit a No Objection Certificate (“NOC”) obtained from the entity that first introduced the gene into the plant. In the case of Bt cotton, that entity is Monsanto, and every Indian breeder who has since wanted to protect a new Bt plant variety has had to obtain an NOC from Monstanto as part of its application for registration. As it turns out, Monsanto has rarely offered an NOC unconditionally. As a result, Indian breeders who want to register a new Bt plant variety must enter into an agreement with Monsanto in exchange for the NOC, an agreement that the Indian seed companies find exploitative[1].  This article attempts to understand how the requirement of an NOC came about, and whether it has any legal basis at all or not.

[1] Pleadings in W.P No 30734/2016 filed by M/s Seedsmen Association before the HC of Hyderabad.