Article 1(2) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) states that intellectual property shall include protection of undisclosed information. Discuss India's National IP Rights Pol

Article 39 of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) states that member nations must ensure that natural and legal persons have the "possibility" of preventing such information, within their control, from being disclosed, acquired or used by others without their consent, in a manner contrary to honest commercial practice. It can be inferred that the "possibility" referred to implies that trade secrets should be accorded protection within the legal system and not necessarily in the IP legislative framework of the member nation. The 1989 General Agreement on Tariffs and Trade discussion paper on India establishes that trade secrets cannot be considered IP rights, because the fundamental basis of an IP right rests in its disclosure, publication and registration, while trade secrets are premised on secrecy and confidentiality. The paper goes on to state that the observance and enforcement of secrecy and confidentiality should be governed by contractual obligations and the provisions of appropriate civil law, not by Intellectual Property (IP) laws. On May 12, 2016, India approved the National IP Rights Policy, which has seven objectives. One of these objectives is to ensure an effective legal and legislative framework for the protection of IP rights. The steps to be taken towards achieving this objective include the identification of important areas of study and research for future policy development; one such area identified was the protection of trade secrets. In a discussion paper on IP rights at the subsequent US-India Trade Policy Forum held on October 20, 2016, in New Delhi, India's representatives noted that India protects trade secrets through a common law approach and reiterated the country's commitment to the strong protection of trade secrets. It was agreed that a toolkit would be prepared for industry, especially small to medium-sized enterprises, to highlight applicable laws and policies that may enable businesses to protect their trade secrets in India. A training module on trade secrets for judicial academies may also be considered. A further study of various legal approaches to the protection of trade secrets will also be undertaken in India. At present, Indian trade secrets law is a judiciary-made law, based on the principle of equity and common law actions against breach of confidence, with the jurisprudence as a whole revolving around an employee's obligations and duties towards the employer regarding confidential information gained during the course of employment. Indian jurisprudence regarding trade secrets is unclear on a number of important aspects, including: the scope of damages in the case of a breach of confidential information; theft of trade secrets by business competitors; and procedural safeguards during court litigation. Further, in the absence of a specific trade secrets law, the courts have ruled in favour of the proprietor of information as literary work as defined under copyright law. The recent creation of the National IP Rights Policy has raised hopes for the enactment of a trade secrets law, since this is one of the objectives of the policy. It can be safely deduced that India requires an exclusive legislation on Trade Secrets and Confidential Protection. It will not only boost the future of Intellectual Property in India, but also do wonders on the economic front. A country like India is supplicating now in its own mind for a legislation which will supplant the non- existing legislation on trade secrets. The initiative taken by the rest of the world in relation to the legislation on trade secrets should jolt India out of its slumber in order to be abreast with the world.