A Comment on the Vires of 'The Protection, Conservation and Effective

Management of Traditional Knowledge relating to Biological

Diversity !les, "##$
Earlier this year the National Biological Authority, had invited comments on - The
Protection, Conservation and Effective Management of Traditional Knowledge relating to
Biological iversity !ules, "##$ %TK !ules, "##$&' The rules have (een drafted (y the
NBA under )ection *+%,& - +" of the Biological iversity Act, "##"'
.mage/ Pream(le to the Constitution of .ndia - 0rom here'
)ection *+%,& is an interesting 1rovision which allows the Central 2overnment to
facilitate the registration of traditional 3nowledge in relation to (iological diversity and
also initiate any other measures of 1rotection including a sui generis system' The NBA
has therefore sought to create a sui generis system to 1rotect Traditional Knowledge
through these rules'
A glance at these rules reveals the conce1tuali4ation of of an ela(orate and e5uita(le legal
regime to 1rotect traditional 3nowledge' .f im1lemented, these rules will fulfill the long-
felt need of a sui generis legislation to 1rotect traditional 3nowledge in .ndia'
The 5uestion however is whether or not these !ules are within the sco1e of the Biological
iversity Act, "##" as it stands now, without any amendments' To 1ut it sim1ly the
5uestion that needs to (e e6amined is whether or not Parliament has delegated to the
NBA the 1ower to ma3e such rules'
The rules of delegated legislation are relatively sim1le' 2iven the com1le6ity of modern
day governance Parliament usually lays down only the (road 1olicy outline and delegates
the 7o( of wor3ing out the finer nuances to the E6ecutive i'e' the government' The
E6ecutive i'e' NBA has to then draft rules and regulations to e6ecute the 1olicy laid down
(y Parliament through the governing legislation, which in this case is the Biological
iversity Act, "##"'
There are however a few fundamental 1rinci1les on the delegation of legislation to
statutory (odies/
%i&The statutory authority shall confine itself to the 1arent statute and not e6ceed the
same8
%ii&The statutory authority shall not frame rules contrary to the intent or 1rovisions of the
statute8
%iii&Parliament shall not delegate to the statutory authority an essential legislative
function' This means that the statutory authority shall not attem1t to frame 1olicy (ut
instead limit itself to 1rocedure'
. tried searching for accom1anying amendments to the Biological iversity Act, "##" (ut
was una(le to find any on the we(site of the NBA' .f this is a valid 1resum1tion then in
that case . have serious dou(ts over the constitutionality of some of the clauses in these
!ules' .9ve attem1ted to carry out a largely su1erficial analysis of the same (elow/
The vires of the Rules
%i& Definition of Traditional Knowledge/ !ule " %v& of the Act defines :Traditional
Knowledge; as the collective knowledge of a traditional community including of a group
of families, on a particular subject or a skill and passed down from generation to
generation, either orally or in written form, relating to properties, uses and
characteristics of plant and animal genetic resources; agricultural and healthcare
practices, food preservation and processing techniques and devices developed from
traditional materials; cultural expressions, products and practices such as weaving
patterns, colors, dyes, pottery, painting, poetry, folklore, dance and music; and all other
products or processes discovered through a community process including by a member
of the community individually but for the common use of the community;
The Bio-iversity Act, "##" which is the 1arent legislation in this domain is a legislation
which was drafted mainly to im1lement .ndia9s o(ligations under the <nited Nations
Convention on Biological iversity' The main aim of the legislation as can (e ascertained
from the Pream(le of the legislation was to 1rovide for conservation, sustaina(le
utili4ation and e5uita(le sharing of (enefits arising out of utili4ation of genetic resources
and also to give effect to the said Convention'
.t would therefore (e difficult to 7ustify the inclusion of 9cultural e61ressions9 such as
1oetry, weaving, 1ainting etc' in the definition of the TK !ules, "##$ since the same
would not have a rational, reasona(le ne6us to the aims and o(7ectives of the Act which
in itself seems to (e aimed at 1rotecting the (iological=genetic diveristy of the Country'
The definition of 9Traditional Knowledge9 if therefore clearly ultra vires the Act'
%ii& The Traditional Knowledge '!nd( !ule *%>& of the TK !ules, "##$ states the
following/ The National Biodiversity Authority shall set u1 a fund called the Traditional
Knowledge 0und under )ection "> of the Act and there shall (e credited thereto all
charges, fees, royalties and all sums received (y the National Biodiversity Authority in
the administration of these !ules'
)ection "> of the Biological iversity Act 1rovides for the Constitution of the National
Biodiversity 0und' As 1er the )ection all charges and royalties received (y the National
Biodiversity Authority under the Act are su11orted to (e de1osited in this 0und and then
channelled to the (enefit claimers a1art from the 1ur1oses of conservation and 1romotion
of (iological resources' This section does not 1rovide for any delegation of 1owers'
)imilarly even )ections *+%,& and )ection +" are silent on the 1ower of the NBA to create
its own fund'
.t is my understanding that the National Biodiversity Authority, a statutory authority
cannot, in matters of the treasury and revenue, attem1t to create its own funds and
structures which overla1 or (latantly undermine those created Acts (y Parliament'
%iii& Access to traditional )nowledge and Prior *nformed Consent( !ule , of the TK
!ules "##$ sets down a 1rocedure for any 1erson to access traditional 3nowledge in the
country' The (asic re5uirement of this rule is that the community holding the TK should
give its 1rior informed consent for the same' The definition of 9accessor9 in the !ules
covers any 1erson who see3s to access the traditional 3nowledge for 1ur1oses of either
commercial utili4ation or for the 1ur1oses of research'
Although . have to agree that this is the more e5uita(le than the 1rocedure 1rescri(ed (y
the Act . will also have to 1oint out that this is a(solutely the 1ro(lem with the rules ? it
is not the 1rocedure 1rescri(ed (y the Act'
%a& Firstly the Bio-iversity Act diffrentiates (etween foreign citi4ens and .ndian
citi4ens' <nder )ections * and @$ all foreign citi4ens and com1anies will have to see3 the
9a11roval9 of the NBA (efore accesssing (iological resources in .ndia' .ndian citi4ens and
com1anies on the other hand however are only re5uired, (y )ection >, to 9.ntimate9 the
)tate Biological iversity Board (efore o(taining (iological resources' Therefore under
the Act there is a clear difference in standards for .ndians and foreigners' The TK !ules,
"##$ however fail to ma3e this distinction and in the 1rocess im1inge the rights of .ndian
citi4ens under )ection > of the Act'
%+& Secondly the Bio-iveristy Act, as it stands now, does not re5uire the 1rior-informed
consent of the community holding the traditional 3nowledge' At the very (est under
)ection "@ of the Act the NBA is re5uired to ensure that there is e5uita(le (enefit sharing
on 9mutually agreed terms9' .t is de(ata(le whether or not this is e5uivalent to 91rior-
informed consent9' .n my o1inion this is not e5uivalent to 91rior informed consent9' <nder
!ule , %+& of the TK !ules, "##$ a community holding the traditional 3nowledge now
has the right to deny acccess (y turning down the a11licant9s re5uest for 91rior informed
consent9' These !ules have clearly changed the rules of the game'
The re5uirement of 1rior-informed consent may therefore (e (eyond the sco1e of the Bio-
iversity Act, "##" as it e6ists'
%iv& ,ffences - Penalties/ !ule @A of the TK !ules, "##$ 1rescri(e a 1rison term of ,
years and a fine of !s' @# la3hs for any violation and contravention of the TK !ules,
"##$' This 1rovision is much more severe than the e5uivalent )ection ,+ of the Act
which 1rovides only for monetary fines for violation of Brders of the Biodiversity
Boards'
The fundamental 1ro(lem with !ule @A is that it is (ra4enly unconstitutional to de1rive a
1erson of his life or li(erty through rules and regulations drafted (y the E6ecutive and not
the Parliament' 2od 0or(id the day a (ureucrat gets to decide when a citi4ens is de1rived
of his li(ertiesC
!ule @A therefore has to (e undou(tedly deleted from the TK !ules, "##$'
Concl!sion( As 1er )ection +"%*& of the Biological iversity Act, "##" any rules and
regulations made under the Act will have to (e laid (efore Parliament for a 1eriod of *#
days (efore the same can have the force of law' The !ules are then a11roved through a
negative 1rocess i'e' if in *# days if Parliament does not 1ro1ose any modifications the
rules are deemed to have 1assed' 2iven the rarity of sittings and the wor3load of
Parliament it is very rare for rules to ever (e 1ut u1 for a de(ate' Therefore in all
1ro(a(ility if the TK !ules, "##$ are introduced into Parliament this (udget session they
will sail through (y the end of March or A1ril'
My own 1ersonal comments on the !ules are that it is much more e5uita(le and much
(etter drafted than the Biological iversity Act, "##"' Dowever these rules re1resent a
clear attem1t at a (ac3door entry' 2iven the need for a sui generis system to 1rotect
traditional 3nowledge it ma3es enormous sense to re1lace the word 9!ules9 in the title-
clause with 9Bill9 and introduce the same through the frontdoor of Parliament' .n fact if .
didn9t 3now (etter . would have to say that the TK !ules, "##$ were actually drafted with
the intention of introducing it in Parliament as a Bill'
Posted (y Prashant !eddy at "/,# AM