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Environment and


C.R Bijoy


LEAD Journal (Law, Environment and Development Journal)
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p. 395 Avarampalayam Road. Tamil Nadu – 641 Published under a Creative Commons Attribution-NonCommercial-NoDerivs 2. Doctor’s Quarters. Coimbatore. (Independent Researcher and Activist). . available at http://www.R Sri Ramakrishna Hospital.ACCESS AND BENEFIT SHARING FROM THE INDIGENOUS PEOPLES’ PERSPECTIVE: THE TBGRI-KANI ‘MODEL’ C.R Bijoy* This document can be cited as ‘Access and Benefit Sharing from the Indigenous Peoples’ Perspective: The TBGRI-Kani ‘Model’’.pdf C. 1.lead-journal. 3/1 Law.0 License * Based on a study for Asia Indigenous Peoples Pact (AIPP). Environment and Development Journal (2007). INDIA. Email: cr.

Analysis of The Kani Access and Benefit Sharing Model 18 5.2 The Transfer of Technology and The ‘Model’ 4 1.2 Historical Injustice 10 2.3 Legitimising Bio-prospecting and Market Rights 16 4.3 The Commercialisation of ‘Jeevani’ 5 1.1 CBD and the National Biodiversity Act 2002 12 3.TABLE OF CONTENTS 1.3 Governance 11 3. Conclusions 19 . Transfer of Kani Adivasi Knowledge: A Benefit Sharing Model 3 1.4 The Kanikar 7 2.2.2 TRIPS and the Emerging Regulatory System 15 3.1 The ‘Discovery’ 3 1.1 An Overview 8 2.2 Land Rights 11 2.1 Forest Rights 10 2.2.2. National and International Policy and Law: The Context 12 3. Customary Law and Protection of Adivasi/Indigenous Peoples’ Territories and Knowledge 8 2.

Jammu—one of the 40 laboratories functioning under the Council of Scientific and Industrial Research health promoting properties. When consumed the fruits gave the scientists a jolt of energy. Phytochemical botanical knowledge of the Kani community in the screening and pharmacological studies revealed the Thiruvananthapuram forest in the southern part of the presence of certain glycolipids and non-steroidal Western Ghat region in the state of Kerala as part of compounds (polysaccharides) with profound the All India Coordinated Research Project on adaptogenic immuno-enhancing anti-fatigue properties. Kerala. including chemical screening to isolate the KNOWLEDGE: A BENEFIT SHARING active principles was carried out. a multi-institutional and of Environment and Forests. With the creation of Ministry in Conservation and Sustainable Utilisation of Tropical Plant of Environment and Forests (MoEF) by the Government Diversity. and Dr S. multidisciplinary project. in 1979 as an autonomous body. while the scientists felt fatigued. Though documented MODEL and described earlier.3 The main clinical efficacy of anti-fatigue (AICRPE) and also a scientist at the Regional Research was from arogyapacha. Thiruvananthapuram was to be the sole property of TBGRI. 1 Mallan K ani and Each plant bore only two to three fruits. option to provide a larger source for commercial The Kani guides constantly ate some fruits and offered production of a product with this anti-fatigue property. Pushpangadan. the premier autonomous Research and Development validated. the MAB programme along with AICRPE was 3 This division with its research facilities and expertise in transferred to it. TBGRI was to headed by Dr S. patents. these to the scientists. and evolvalus alsinoides. DANIDA (Danish Development Aid P. The Kani guides said that The scientists moved to the Tropical Botanic Garden knowledge about the fruits was sacred and not to be and Research Institute (TBGRI) at Thiruvananthapuram revealed to outsiders. appointed as the Principal Investigator and Chief Copenhagen. was Agency) and the Royal Danish School of Pharmacy. in addition to India Coordinated Research Project on Ethnobiology arogyapacha. The scientists promised not to in Kerala in 1990. a polyherbal drug with three other medicinal plants. In 1997. Pushpangadan). the Ministry on Ethnobiology (AICRPE). trichopus zeylanicus spp. Ethnobiology (AICRPE). Dr between TBGRI. Rajasekharan and another at the Foundation acknowledge the technical and financial support of promoted by Arya Vaidya Pharmacy (AVP) at Coimbatore. if any. Detailed scientific TRANSFER OF KANI ADIVASI investigation. its Kuttimathan Kani. Denmark as a joint research programme on Coordinator of this project that operated at 27 centres across Indian Medicinal Plants. Rajasekharan was the head of an AICRPE unit based at Thiruvananthapuram. namely withanis somnifera (ashwagandha). which were scientifically (CSIR). After much persuasion. While the research data is jointly the country. Pushpangadan was the Chief Coordinator of the All piper longum.000 plants. its traditional use and special properties were not known to the ‘outside’ world. One of the units of this project was at the owned and published. arising out of the work Government Ayurvedic College.1 The ‘Discovery’ Detailed investigations carried out at the Regional Research Laboratory (RRL) in Jammu confirmed the In 1987. a perennial rhizomatous herb. then a scientist at this institute. travancoricus. 1 Dr P. Therefore. Government of India. on over 10. of India launched the All India Coordinated Research Project India. in 1982 under the Man and accorded it the status of grant-in-aid Centre of Excellence Biosphere Programme (MAB). Environment and Development Journal 1 marketed. Evaluations of shelf life and clinical properties (R & D) organisation established by the Government of India in 1957. in 1983. Law. 1. The 2 The Tropical Botanic Garden and Research Institute Department of Science and Technology of the Government (TBGRI) was established by the Government of Kerala. many wild animal and birds. a team of scientists was surveying the ethno- anti-fatigue property of arogyapacha. Further investigations revealed Laboratory. the guides identified the plant as ‘arogyapacha’ (which translates roughly to ‘evergreen health’). DANIDA in their development efforts in R & D capacity AICRPE documented the rich knowledge system of Adivasis building (from Personal communication with Dr P. the Kani guides felt no tiredness evergreen leaves weighing 100-200 gm were a better during the long treks. A coordination centre for AICRPE was ethno-pharmacology was established under a project signed established at the Regional Research Laboratory (RRL). 3 .2 The Herbal Product Development ‘misuse’ the information and offered an equal share in Division (Ethno-pharmacology) of TBGRI developed the rewards if the plant was made into a product and the product ‘Jeevani‘.

Arogyapacha was cent of the ex-factory sale price of the product made referred to in Ayurvedic parlance as Diwya Varahi. a process to tk/en/databases/contracts/texts/html/tbgri.8 The license came into or more as well as a huge investment. 9 The Council of Scientific and Industrial Research (CSIR) is Of these five. On the other hand.6 The patent fee and royalty received from such technology transfer goes to the institute.wipo. June 4. 4 June 1996) and third.. Jeevani TBGRI) to the members of the Kanis. based on which the license for production TBGRI (a) a license fee of Rs 1. with Isolation of a Glycolipid Fraction from Trichopus Zelyanicus manufacturing facilities in Kerala.K. It is an autonomous body registered under the communication by Dr S. anti-oxidant. the supporting staff. Patent application number 959/MAS/96. adaptogenic and immuno-enhancing properties. Patent application number 8 The Agreement for Licensing of Know-how signed between 8/Del/94 (1994). Tamil Vaji (958/MAS/96. 1996). Rajasekharan. aphrodisiac.India were also carried out. 4 . the second a sport medicine. Full text of the agreement is available at http://www.. does not however recognise local knowledge. the product must be tested either in the modern pharmacological framework or 1. anti-stress. prepare an herbal preparation for cancer (MAS/650/2001). Possessing Adpatogenic Activity. pharmaceutical product. anti-stress and hepato-protective herbal drug.5 This by AVP for a period of ten years from the date of strategy enabled TBGRI to obtain license for the commercial production. under Patent Cooperation Treaty administered by the WIPO (World Intellectual Property Organisation) due To obtain a license for the production of a to ‘paucity of funds’. TBGRI’s significant 5 This is one of the 18 ‘divine’ herbs mentioned in the ancient departure from the CSIR pattern was a ten per cent Ayurvedic treatises Charaka Samhita and Susrutha Samhita. 4 June 1996). Nor has Department of the Government of Kerala in 1996.2 The Transfer of Technology through the codified formulary of Indian systems of and The ‘Model’ Medicine (Ayurveda. Registration of Societies Act of 1860. 7 AVP is an Ayur vedic dr ug manufacturing company Pushpangadan P. anti-gastric ulcer. D. TBGRI). Access and Benefit Sharing . disapproved of the filing of an international patent The product was ready by the end of 1994.000 of which half and marketing under the Drug Control Act could be was to be transferred to TBGRI on signing the obtained. Rajasekharan and George V. The patent was sealed only in late 2005 and in 1942 by a resolution of the then Central Legislative was yet to be awarded (as on October 2005 vide personal Assembly. A process for the headquar tered in Coimbatore. Tag gi. K.S.S. could then allow TBGRI to transfer technology for production and marketing. was established in 1948. Three more patent applications in which Tropical Botanic Garden & Research Institute and The Arya this plant was included were made. force on 10 November 1995 for a limited period of the codified formulary of the Indian systems of seven years. One was for diabetes Vaidya Pharmacy (Coimbatore) Ltd.7 through an agreement. A process of preparation of novel immunoenhancing anti- the ‘inventors’ and supporting staff (both from within fatigue. Gupta. TBGRI (Pushpangadan. As per the agreement. The seven-year license period production of Jeevani from the Drug Control ended in 2002 and was not renewed with AVP. anti-allergic. anti-stress of Scientific & Industrial Research (CSIR) pattern of and hepato-protective herbal drug Jeevani was also filed technology transfer wherein 60 per cent of the license in India in 1996 but was yet to be awarded. K. This TBGRI struck fresh deals with any other company. 10 November 1995. The process of preparation TBGRI technology transfer was based on the Council of the novel immuno-enhancing anti-fatigue. anti-tumour. which means the creation Jeevani to Arya Vaidya Pharmacy (Coimbatore) Limited of a commercial product requires a wait of fifteen years (AVP). reduction in the license and royalty to the institute and 6 Twelve active compounds were isolated from arogyapacha.K. a ‘voluntary’ surrender of the portion that was due to Five process patent applications were filed since 1994.4 After appropriate clinical trials. Butani. The Executive Committee of TBGRI fatigue.K. Kanis. Sidha or Unani). The modern pharmacological framework involves activity-guided TBGRI transferred the technology for production of isolations of single molecules. S. R. (957/MAS/96.9 However. K apil. In effect. adaptogenic. agreement and the balance on transfer of the know- Therefore the product Jeevani was explained in terms how by TBGRI and (b) royalty at the rate of two per of the codified Ayurvedic formulary. Anand.html. a application does not mention the Kani informers or the standardised herbal product was formulated that had anti. B.000. 80 per cent of the remaining 40 4 Studies revealed anti-fatigue. ‘benefit-sharing’ was attempted for the herbal the premier industrial R&D organisation in India constituted drug ‘Jeevani’. and Rajasekharan S. per cent is given to the inventors and twenty per cent to immunomodulatory and hepatoprotective properties. AVP was to pay Medicine.

Director. the development of the drug. This was also Kani informers in this bio-prospecting. Subsequently.000 by became severely restricted and more significantly way of half of the two per cent royalty) was transferred ‘criminalised’ and punishable under law. associated knowledge system — the stakeholders/ Thiruvananthapuram District.13 on this ‘benefit-sharing’ arrangement that was an experiment. This did not TBGRI to invest Rs 500. and Rs 10. institutional mechanism to receive the share in license arogyapacha from the forest began to be extensively fee and royalty received by TBGRI from AVP. Mat. Kottoor. 12 Total royalty received by TBGRI from AVP during the period 13 The Forest Department subsequently agreed to include 10 September 1996 to 30 September 2004 was Rs 232. TBGRI) the manufacturing license given to AVP had expired. With this commercialisation. 818 (1992). cultivating this plant.000 accrued as interest Convention on Biodiversity (CBD).000 to Eachan Kani. TBGRI scientists also promoted 11 Personal communication dated 6 October 2005 from Dr P. These special facilitated by Article 8(j) and Article 15.55 arogyapacha in the list of Minor Forest Produce but by then (Personal communication by Dr S.000 (this included about Rs 150. Moreover the plant undertake economic activities for the continued supply was considered endangered. Law. There produce’ for the purpose of collection and was no formal agreement between TBGRI and KKSS transportation for sales from the reserve forest. Increased illegal and destructive collection of arogyapacha. increasing 10 Convention on Biological Diversity (hereafter Biodiversity demand and need for regular supply of fresh leaves to Convention). knowledge providers. The Executive fixed deposit and also decided to pay Rs 20.7 of the incentives were from the Rs 50. cultivation and sales. the individual practice in this specific instance in 1994. and meeting on 19 March 1999 at the Kallar Mattammodhu to the Kanis of Kerala in general as a community as Kani tribal settlement decided in consultation with indicated in the by-laws of the Trust. reprinted in 31 Int’l AVP led TBGRI scientists to develop a protocol for Leg.3 The Commercialisation of promote its provisions despite the absence of national Jeevani legislation to this effect.10 which required in the first year from the deposit. In the prevailing policy and legal vacuum. The Forest Department of arogyapacha to AVP for a sustained production of took steps to clamp down on the natural collection by Jeevani as well as welfare activities for the members. KKSS the member countries to ensure equitable sharing of was constructing a community hall-cum-office for itself benefits accrued from the use of biodiversity and at Chonampara tribal settlement. It was to collected and the traders moved in. seizing harvests and filing cases. Rio de Janeiro.12 A sum of less than Rs 20.Rajasekharan. 5 June 1992. With this. fast multiplication through both vegetative and tissue Pushpangadan. About Rs 650. the Government of Kerala has not officially declared intensified policing by forest officials and consequent confiscation of large quantities of the plant. those who hoped to get some economic gain from the commercialisation of The Executive Committee of the Trust in its first arogyapacha through collection.000 (half the license fee) as a include the Kanis of Tamil Nadu.11 CBD had been ratified by India just then in February 1994 and was therefore obliged to 1. Therefore this ‘model’ is not TBGRI’s official the Kani informers who provided the original lead for policy or formulation. 5 . Environment and Development Journal parted with 50 percent of the license fee as well as royalty this ‘model’ or any modified version as its policy or to an autonomous institutional mechanism to benefit formula. the traditional KKSS was for med with nine members and its and customary practice of collection and use of membership since then is reported to be about 1000.000 remained to be from arogyapacha not being listed under the ‘minor forest transferred by TBGRI under the benefit sharing.888.000 each to Committee and the Governing Body of TBGRI Mallan Kani and Kuttimathan Kani (secretary of the approved this major departure from the accepted Trust). arogyapacha by Kanis. including countries such registered as a society in November 1997 as the as USA and Japan. was successfully ‘Kerala Kani Samudaya Kshema Trust’ (KKSS) was marketed in India and abroad. Jeevani sold at Rs 160 for a 75-gram jar. National Botanical Research Institute. Lucknow and former Director of TBGRI when the TBGRI-Kani ‘model’ was experimented with. hitherto ignored by forest officials. Objection to by TBGRI since 1999 (after the KKSS was constituted) the collection of arogyapacha for the market stemmed till date.

Access and Benefit Sharing . 13-1/90-FP. In October 1997. NutriScience later cultivation were within the Reserve Forest under the withdrew its claim under pressure on 13 July 2001. 18 September 1990. 20. Vijesh V. Patenting of Traditional Indian Medicine by USA ‘cultivation’ of arogyapacha within the adivasi settlement (Delhi: Press Information Bureau. 2003). the department also demanded trademark bearing Serial No.V. See Ministry of Health and Family The Kerala Forest Department later permitted the Welfare. and qualities of the plant were lost. The law is entirely enforced cultivation with a buy-back arrangement. It was calculated that each family with one or two acres of arogyapacha under cultivation could earn about Rs. Ministry of Health and area that continues to be illegally controlled by the Forest Family Welfare. codified in 15 USC 1051- Department to pay Kanis some seed money for 1127 and is administered by the United States Patent and Trademark Office (USPTO).000 per acre in the initial years and more in subsequent years.16 to AVP through the cultivation of this perennial undergrowth. University of Cambridge. R. Working PaperNo. the permissible within the forest under existing laws. 427. Associated Traditional Knowledge and Contemporary Circular No. The six circulars under this are: Anuradha. Pushpangadan.14 17 This is mentioned in most discussions on the TBGRI-Kani ‘Model’. registered cultivation. for supply to Adivasis or indigenous people for Connecticut USA. that is. 1998). addressed to Grassroots Creativity (Ahmedabad: Indian Institute of the Secretaries of Forest Departments of all States/ Union Management. Pushpangadan Model of Benefit Sharing (Lucknow: National Botanical Research Institute.India culture methods to produce large scale planting materials Meanwhile NutriScience Innovation LLC Ltd. 2000). the US distributor for AVP. 75692281 on 27 product.2003-01-06. 75955444 on 8 March 2000 a share of the license fee and royalties as due to them. Optimal 5) FP (5) Conversion of forest villages into revenue villages Compensation for Indigenous Knowledge Holders in and settlement of other old habitations Biodiversity Contracts: A Case Study from India (Cambridge: 6) FP (6) Payment of compensation for loss of life and Department of Land Economy. Article 8(j) and Article 15 of the Convention on So TBGRI organised 50 Kani families living inside the Biodiversity (CBD) was fully implemented’ (emphasis forest to cultivate and pre-process the plant under the added). unless grown in the post-facto claimed to be the ‘only known case where natural forest habitat in the shade of the forest canopy. In the case of Jeevani. 1) FP (1) Review of encroachments on forest land India (Delhi: Kalpavriksh. Krishna and Unai Pascual. 08 March 2006). Government of India. property due to predation/ depradation by wild animals 2004). An applicant residing outside the not go forward as non-forestry activities are not United States may list a domestic representative. Anil K. name and address of any person residing in the US upon whom notices or process may be served for proceedings As the areas for collection and some part of the affecting the mark. with the same formulation. P. as amended. 60 Stat. related to settlement of forest rights.000 to Rs 30. including any other Adivasi group who could Jeevani as a trademark at the United States Patent and cultivate and meet the increasing demand for the Trademark Office bearing Serial No. Great Earth Enterprises Inc. 6 . But it was found that the medicinal The TBGRI-Kani ‘model’ is claimed to be unique. Anil K Gupta. WIPO- 2) FP (2) Review of disputed claims over forest land.15 AVP did not contest this infringement nor did it attempt to register Jeevani as a trademark in It was attempted to ensure a regular supply of arogyapacha the US. Rewarding Conservation of Biological and Genetic Resources and 14 Ministry of Environment and Forests. 2004). Sharing With Kanis: A Case Study from Kerala. AVP proposed to 15 Trademarks in the US are protected by Trademark Act of the Kerala Forest Department and Tribal Welfare 1946. New York filed ‘Jeevani Jolt’ as a State Forest Department.17 supervision of the TBGRI scientists. arising UNEP Study on the Role of Intellectual Property Rights in out of forest settlement the Sharing of Benefits Arising from the Use of Biological 3) FP (3) Disputes regarding pattas/ leases/ grants involving Resources and Associated Traditional Knowledge forest land (Ahmedabad: World Intellectual Property Organisation 4) FP (4) Elimination of intermediaries and payment of (WIPO) and the United Nations Environment Programme fair wages to the labourers on forestry works (UNEP). For instance see P. Territories. Gupta. But this could through private lawsuits. April 1999. 16 A few more companies such as Herbal Holistics International Department in violation of the Forest Act and the 1990 are reported to be marketing Jeevani in the US at rates ranging circulars of the Ministry of Environment and Forest from US Dollar 16 to US Dollar 39 per pack.

.18 at the other International. 1. many thousands have been evicted and the remaining faces the threat of eviction. Selling Biodiversity: Benefit Sharing is a 21 Raymond Gordon Jr.701 sq kms was declared the Agasthyamala Biosphere Reserve in 2001. Ethnologue: Languages of the Dead Concept (2004). of the Scheduled Tribes of Kerala through exclusive both in the Tirunelveli District of Tamil Nadu. that the ‘Plathis’ Their population is about 25. Contiguous to Ministry. In the eighteenth century. The states pushed them further to the periphery of smaller administrative units. A larger rights to Adivasi communities . 1998). Environment and Development Journal While at one end of the spectrum the TBGRI-Kani 1. a group of nine Kani healers protested appropriated and converted as estates and plantations to the Chief Minister of Kerala.954 acres and 82 cents are in Thiruvananthapuram and carries US Dollar 30. Of this 77 countries from within the equatorial belt. The Indian state refuses to recognise this.000 acres through a groups selected from amongst 420 nominated projects from royal neetu (royal order) to 21 prominent Kanikars. SIL Code: KEV.000 for each group and a certificate of 10. see also J. Institute for Research. available at http:// World. Prize’ 2002 for innovation in poverty eradication and sustainable development and is invariably top in the list of case studies on ‘benefit sharing’ models mentioned in various 20 The Attingal princely rulers recognised large parts of their reports and documents. KIRTADS had in 1995 drafted a state level bill reserve) covering an area of 223 sq kms and the for the protection of the Intellectual Property Rights Mundanthurai Wildlife Sanctuary of another 567 sq kms. that is. Many Thiruvananthapuram and Kollam districts in Kerala and Kani elders believe that their traditional knowledge is Tirunelveli and Kanyakumari districts of Tamil Nadu. Training and Development of Scheduled Castes and Scheduled Tribes (KIRTADS). has been publicly critical of the TBGRI-Kani Neyyar is the Kalakkadu Wild Life Sanctuary (a tiger ‘model’.mindfully. Thiruvananthapuram district.yet another unique area (that includes the Neyyar Wildlife Sanctuary) of initiative that has been lying in limbo.21 The revenue and forest departments of consulted and that the informers had no right to divulge these two southern states now hold most of these lands this sacred knowledge for monetary consideration.000 confined only to Knowledge (London: PANOS Biopiracy. The Kerala Western Ghats. ed. The British in their time had colonised exercise for the policy makers.20 With the creation the two states and the traditional knowledge that comes along with it Kerala and Tamil Nadu their ancestral domain was now turned into a global showcase for biological theft’. The award 25. Law.045 acres and eighteen cents are in Kanyakumari districts. John and Sindhu Menon. The Kanikars are pushed into Chairman of TBGRI Governing Body. for instance by such organisations ancestral domain in olden times. sacred and should remain exclusive.000 of whom over three- (Kani healers or medicine men who are the repositories fourths live on the Kerala side while the rest inhabit of medical wisdom) nor ‘Moottukanis’ (Kani chiefs) were Tamil Nadu. ISO 639-2: dra (Dallas: SIL www. 2005). as UNDP. the districts. large tracts of the Kanikar’s habitat are classified as forests 18 The TBGRI-Kani ‘model’ has won the UNDP (United Nations Development Programmes) ‘Equator Initiative in both the states. They live in par ts of prevailing inadequacies and conflicts into the open. a A part of the ancestral domain of Kanikar covering separate Directorate of the state government under the 128 sq km in the Thiruvananthapuram district has been Scheduled Castes and Schedules Tribes Development declared the Neyyar Wildlife Sanctuary.4 The Kanikar ‘model’ has been internationally acclaimed as a pioneering model in benefit sharing. The Kanikar (Kani) inhabit the southern part of the the model is seen as ‘more or less a public relations Western Ghats.htm. 7 . This was one and the only one from India of 27 Marthandavarma Maharaja allotted 36. opposing the marginal enclaves scattered across the southern part of sale of their knowledge to a private company. 19 Devinder Sharma. who is also the by powerful non-tribals. The hype that this departure generated also brought taluks and panchayats. All the existing studies on the TBGRI Kani ‘Model’ mention Kerala Tribe Accuses Indian Biologists of Stealing their population at about 16. academics and some civil the natural wealth of the Kanikar’s ancestral domain society groups who needed a justification for their own which the states of Kerala and Tamil Nadu managed as involvement in facilitating exploitation of biodiversity internal colonies.19 divided. In while the remaining parts of the lands have been September 1995. Access to these areas is severely restricted. In addition. Sharma3may04. appreciation.

basis of biodiversity conservation. This rapidly eroded IK and the state as an instrument of this colonisation. customs and legislation that formally recognised customs to establish beliefs with biodiversity facilitating the evolution of a matters related to rights through the examination of complex ecological map of knowledge. in reality. are adversely affected. not the eminent domain denying indigenous notions of merely of animal existence but life with human dignity. Their concept of a common heritage facilitating the development of knowledge had very little space in the modern legal system. The Indian and traditional institutions of governance constitute the Easements Act. direct its policy towards ensuring that the ownership and control of the material resources of the community Matters such as natural resource management. used to be a community domain were a prime casualty Under Article 46. Access and Benefit Sharing . National customary rights. along with the domain. Common good is replaced by exploitation of law. with the body of state OF ADIVASI/ INDIGENOUS PEOPLES’ laws systematically eroding and destroying such social TERRITORIES AND KNOWLEDGE practices using the precedence of state made laws over customary law. The term ‘law’ in Article 13 includes ‘customs’ and ‘usages’ having the This has been made possible with the adoption of a force of law but not infringing any of the fundamental predominantly individual-based rights system and the rights conferred by part III of the Constitution.India 2 law except in matters of family. practices recorded in village administration or settlement records. the State is obliged to see that with the colonial imperatives for appropriation. and development of IK. Article commodification of natural resources with the state as 21 on fundamental rights confers Right to Life. which. criminalise these replaced by the 1927 Indian Forest Act. 1872 is one of the earliest generations. customary practices. The judiciary. This is in spite of the Constitution of 2. However. Article 39(b) enjoins a duty upon the state to of resources for profit or personal aggrandisement. customs and customary practices. Territorial rights sections of the public based on examination of and self-determination are fundamental to this. collective heritage and a community perspective of land and right to livelihood except according to a due process and resources. essentially a community and international laws and policies. under the state forest laws since 1865 further modern development paradigm.1 An Overview India recognising customary law. Through the process of colonising concessions sanctioned by the state and enjoyed at the territories and expropriating natural resources as will of the state and its forest officials despite scope for enclosures to be secured and policed for the market with their recognition in law. The forests. This undermines indigenous knowledge and in effect denies As said earlier. Customary laws records. relying on such official most indigenous and local communities. knowledge system often referred to as ‘indigenous knowledge’ (IK) which has been transmitted over The Indian Evidence Act. The Scheduled Tribes are not open to exploitation and current Indian legal system establishes a unified Indian deprived of their rights on account of their illiteracy 8 . laws and practices in fact. religion and inheritance. they continued in social CUSTOMARY LAW AND PROTECTION practice and started to decline. transformed traditions by not recognising and providing effective legal customary rights of communities into privileges and status to them. These records invariably do not exist or are The practices of protecting biodiversity and their grossly incorrect and incomplete and hence were ignored sustainable use are amply reflected in the customs of by the state. Laws were progressively enacted their ancestral domain led to their distinct and sound without due consideration towards existing customary understanding of their surroundings developing a laws. sustainable use and public rights and rights to certain classes of persons or preservation. This manifests in their culture. subjected them to a requirement of being in consonance The symbiotic relationship between the Adivasis with with state-made law. the Constitution of India recognises indigenous peoples’ right to produce knowledge. which are so distributed as best to serve the common good. too often denies customary rights. 1882 provides for securing private rights.

formal administrative Act (PESA) of 1996 for the Fifth Schedule. concerning the Scheduled Areas. The Regional Councils in the North Eastern states of Assam. 2 and 3 of the Fifth Schedule and Article 60 and 159. which are great reservoirs of IK. the Constitution. Meghalaya and Mizoram have the powers to administration and control of the Scheduled Areas and enact laws related to social customs. 22 According to a study commissioned by the National Institute Removal of dissonance between tribal tradition of self. Gujarat and village itself is defined as a habitation or a group of Rajasthan. modern central laws. namely that it does not affect the basic structure of the Constitution. community resources and the customary mode districts in 13 states that were considered to be under the of dispute resolution (Clause 4d). The Governor is given Most of the indigenous communities have little exposure immense power to apply or not to apply any Act to the to modern systems of judicial redress. The Economist. Environment and Development Journal and low status. However. of Rural Development. Many Schedule areas have passed legislations in total of them are tribal dominated districts. social and religious practices Autonomous Council is authorised to make and extend and traditional management practices of community resources (Clause 4a). Orissa. Para. and make regulations for peace and people are well aware of their own customary laws. states such as Kerala. condition. Maharashtra. omissions and commissions is the further exasperation cases are decided keeping in mind the needs of the of the crises and conflicts in Adivasis’ areas creating a society and the victim. Though the Act was sway of the Maoists as on September 2004 which had enacted a decade ago. The Sixth time. protect and defend both improve the natural environment including forests. Tamilnadu. As against this. their cultural 24 According to a Home Ministry Report. A Andhra Pradesh. See Communist Party of India-Maoist (CPI-Maoist). Hyderabad between 2001 and 2003. But these too therefore it is easy for them to approach their traditional have been belied. 9 . important outcome that was expected of the PESA. Councils. assembly shall be competent to safeguard and preserve 23 See Constitution of India. good governance of the Scheduled area. Most of the Adivasi homelands have officially become conflict areas. traditional customary laws from Meghalaya. itself. Law.23 the duty on the citizens to value and preserve the rich President of India and the concerned governors of the heritage of the composite culture. there were 156 identity. for the first bodies and the Autonomous District Councils. provisions of the Fifth Schedule apply to the Tripura. The consequence of these acts of institutions for the administration of justice. these are directives to be promoted through the customs and usage of Adivasis subject to only one legislations. Left-wing Extremist Group. none of the states with Fifth increased to 170 districts in 15 states by mid-2005. Scheduled Area.24 Article 244 of the Constitution is a specific provision for Administration of Scheduled Areas and Tribal Areas In the Sixth Schedule areas. and the law including However. did not india/terroristoutfits/CPI_M. Besides. and to protect and State have the duty to preserve. Himachal Pradesh. conformity with the provisions of PESA. and laws by Autonomous District provisions of the Sixth Schedule apply. Chattisgarh. habitations or a hamlet or a group of hamlets comprising Karnataka and West Bengal have continued to ignore the a community and managing its affairs in accordance with demand by Adivasis to declare their habitations under the traditions and customs (Clause 4b) and the village Schedule till date. the District Councils and through the Fifth Schedule and Sixth Schedule. This law was enacted after a nationwide mobilisation of Adivasis to enact such a law. the traditions and customs of the people. Consequently there are three institutions for justice administration – traditional institutions dealing Under the Panchayat (Extension to Scheduled Areas) with customary and folk laws. there is a clear direction that the Legislature of a Schedule Areas bar application of Acts of Parliament State shall not make any law that is not in consonance and State Legislature to areas in the subject matter where with the customary disregarded the major components of PESA. The states available at http://www. There are the formal Scheduled Tribes in any State except the states of Assam. Tripura and Mizoram for whom the within the community. Jharkhand. including this special feature lakes and rivers. 17 August 2006. and the capacity of the accused situation of a virtual breakdown of the Constitution to withstand justice. governance and modern legal institutions was the most Fifth Schedule areas are constituted within the states of Madhya Pradesh.22 In addition. Part IV-A of the Constitution imposes a and continue to violate PESA.htm and ‘India’s Naxalites: amend existing laws to be in consonance with PESA A Spectre Haunting India’.satp.

democratisation process. Supreme Court of India. no Act of Parliament in respect The area classified as forest has been increasing in order of religious or social practices of the Nagas and Mizos. 2006’ in 3(k) under ‘Forest Rights’. effective command over resources and strong traditional governance systems as compared to the other Adivasi While declaring an area as ‘forests’. shall apply to the States of Nagaland per cent of the total land area has been declared protected and Mizoram unless the Legislative Assembly of the areas with the establishment of 92 national parks and concerned states so decides. The Forest This too emerged only through a nation-wide struggle Conservation Act 1980 threatens to evict large numbers by Adivasi movements. constitutional provisions ensure relatively better and hounded. along with these enabling mostly Adivasis. nearly 8. to reach an arbitrary target of 33 per cent set in the Forest their customary law and procedure. These provide scope for bodies to evolve total ST population. administration of Policy of 1952.Adoption of a Frame by Government of India (1990). adivasis_&_forests/land_conflicts_report. often militant. Forest Act 1927 required that their rights be recorded and settled. an overwhelming 63 per cent of the dense forests. but instead 2. the ‘right of access to bio-diversity was carried out in a grossly unjust manner as in most and community right to intellectual property and other parts of the country. Union of India and Others.333 sq civil and criminal justice involving decisions according kms) of the total land area is under this category. finalContent. 202 of 1995.doccentre. About four million people. D Sharma. the total displaced25 and about eleven per cent of the 27 B.N.26 Under these provisions.nic.pdf. Resolution of Conflicts Concerning Forest Lands . continue to inhabit the forest area.8 percent of the total population. across the country in the areas declared as ‘forests’ constitutes the traditional habitat of Scheduled Tribes reached an explosive situation erupting into a national (ST) who are 8.000 have 26 See State of Forest Report 2003. Government of India. Scheduled Tribes. Access and Benefit Sharing . in the areas declared as protected areas Forest Rights) Act.64 per cent (678. to a lesser extent. provided the political space is evolved through a conservation of forests and protected areas.16 per cent of and Forest. and ownership and transfer of land cent of the forest area (156. Ministry of Environment been displaced constituting at least 55. Writ Petition (Civil) No. The historic political 500 wildlife sanctuaries. 10 . the Autonomous District Councils trampling on traditional Of the lands that were the traditional habitat of systems. the colonial Indian regions in the sub-continent. Godavarman Thirumalpad v.539. available at http://tribal. Displacements since 1990 have appropriate laws that recognise the customary rights.1 Forest Rights administrative bodies and. about 70 per cent have been taken over as forests.pdf. considered the most inhospitable areas. Government of India. assertion. this was not carried out at all or For the first time.2. There are 187 tribal districts in the Article 371A and 371G of the Constitution are special country covering 33.2 Historical Injustice treating them as illegal ‘encroachers’.700 sq kms) or about five and its resources. All of this takes place in the context of intense conflicts with the formal modern 2.6 per cent of the land area but has provisions that recognise customary laws in the North as much as 37 per cent of the nation’s forest cover and Eastern states of Nagaland and Mizoram respectively. There crisis because of the intervention of the Supreme Court are also people who identify themselves as Adivasis but of India in a case popularly known as the ‘forest case’28. available at http://www. Between 1951 and 1990 alone. Roughly about twenty per cent of the land area in the The issue of denial of the legal rights of forest dwellers country. are not formally recognised as Scheduled Tribes.27 The Wildlife Protection traditional knowledge related to forest biodiversity and Act of 1972 further drastically curtailed the few cultural diversity’ features in the law ‘Scheduled Tribes concessions that they enjoyed and at the mercy of the and Other Traditional Forest Dwellers (Recognition of forest officials. starved and under threat of forced eviction. However. — the wildlife sanctuaries and national 25 See Draft National Tribal 28 T. At present 20.India laws. 23 per to customary law. Ministry of Tribal Affairs. escalated exponentially for development projects. of those still inhabiting the ‘forests’ whose rights were not recorded and settled as per law till date.

31 These acts of the Kerala government violate Articles 3. Collective rights to lands are not permissible under the present legislative 2. not been fulfilled yet. restoration of illegal cancellation recorded. the relationship it has with their identity. Committee for finalisation of the Bill in February 2006. December 2006 in the Rajya Sabha received the President’s 32 C. which explicitly filed in the Supreme Court by the Ministry of Environment recognises the concept of territoriality of the tribals and and Forest. Instead the state sought to brutally across the country until it resulted in the replace the 1975 law with another law in 1999.30 The bill this protective land law as this is applicable only to those seeks to settle land rights. The Constitution has been blatantly ignored revenue lands under state control. The case still lies pending in the through non-recognition of their traditional rights must Supreme Court. 13 and 14 of ILO Convention 107 (ratified by India) that relate to protection of properties. most of the alienated extra-constitutional powers that was used liberally and lands were not restored. Government of India on 21 July 2004. The These ignore Part VI of the UN draft Universal Declaration Bill passed on 15 December 2006 in the Lok Sabha and 18 of the Rights of Indigenous Peoples.N. and their right to 30 The original draft was modified by the Joint Parliament ownership and possession over lands traditionally occupied. right the movement. Despite the explicit orders of when they have not the area necessary for providing the essentials of normal existence. the Ministry of Tribal Affairs passed the Large sections of the Adivasi population who could not Scheduled Tribes and Other Traditional Forest Dwellers get their lands recorded and became landless fall outside (Recognition of Forest Rights) Act. Ravi Raman. Most of the village and therefore violated. They also violate Section II of the ILO Convention 169 on Indigenous and Tribal 29 See T. usufruct rights. which in national crisis. There are no protective land laws for Scheduled Tribes Large tracts outside the ‘forests’ are designated as in the state. by the state as state property. 11 .in/actTA06. on Transfer of Lands and Restoration of Alienated prevention of non-tribes from securing ownership or use Lands) was enacted in 1975.nic. traditional and assertions in Kerala led to an agreement on 16 October customary rights.R. the Adivasi areas in the alienated. These too have been systematically established under these laws. the to record actual enjoyments resulted only in a small continued perpetuation of the legacy of colonisation section of the Adivasis managing to obtain titles to part through the instrument of law and the authority of their holdings. Law.2 Land Rights In the state of Tamil Nadu. Marginalised and pushed to starvation.2. Under this agreement. the situation is much worse.2. respect of customary procedures In Kerala. Adivasi of titles. Lack of notions of land as a property among the Adivasis and the failure of the state officials With the colonisation of Adivasi territories. The Kerala Environment and Forests to acknowledge that ‘the High Court struck down this part of the law as historical injustice done to the tribal forest dwellers unconstitutional. 38 Economic and Political at http://tribal.3 Governance framework. ‘Muthanga: The Real Story assent on 29 December 2006. rights to forest produce and few who managed to get their land holdings officially grazing. rights to common community 2001 between the State government and the leaders of resources. But the rules were framed of lands belonging to tribals and provision of more land after a decade in 1986. Bijoy and K.29 To partially rectify this historic injustice. the affidavit Populations (which India is yet to ratify). This is despite Article 244 of the Indian Constitution that demands protection of land rights besides others. This too has to protect forests. Full text of the Act is available Adivasi Movement to Recover Land’. grants and leases to lands. all landless to access to bio-diversity and community right to Adivasis and those owning less than an acre were to intellectual property and traditional knowledge. Environment and Development Journal The Court intervention provided the Forest Department the Kerala High Court in 1993. the Kerala Scheduled Tribes Act (Restriction of transmission of traditional ownership of lands. The crisis led the Ministr y of effect denies restoration of alienated lands.pdf.31 be finally rectified’. habitat rights for primitive tribal groups. 2006. and right receive up to five acres within one year. note 28 above. Godavarman Thirumalpad. Weekly 1975 (2003). The absence of constitutionally commons and family holdings are not recorded and required protection to the Scheduled Tribes has therefore either encroached by non-tribals or controlled intensified the crisis of survival.32 2.

Hence.35 the subversion of Article 244. by state. indigenous cultures. a benefit-sharing for revitalisation and reconstruction of communities. UN Doc. have resulted in the weakening relationship that continues to strongly influence of and the break up of traditional governance system. a party to the CBD. self-governing system based on protection of cultural and intellectual property is traditions. Report on Protection of the Cultural and Intellectual Property of Tenth Five Year Plan 2002-2007 (Chennai: Adi Dravida and Indigenous Peoples. often state Adivasis share with their land and territories — a sponsored or mediated. 12 . the massive instability created. But instead an alien political. administrative connected fundamentally with the realisation of the and judicial system was systematically imposed through territorial rights and self-determination. 1990). provides for various degrees of self. 3 Both Kerala and Tamil Nadu have not brought Adivasi habitations under the Fifth Schedule despite recommendation from the Dilip Singh Bhuria Committee constituted by the central government to recommend the framework for PESA 1996. of Discrimination and Protection of Minorities. but administrative and policy measures with the aim to nothing has come out of it. repeatedly pointed out in the various and Sixth Schedule providing scope for the development official documents of the Government of India. Also. The Adivasis’ knowledge system and cultural heritage sponsored development and conservation that has have developed in relation to the natural environment displaced. 2002). ‘model’ has to satisfy these fundamental requirements However.India country have been systematically taken over for purposes The TBGRI-Kani ‘model’ is to be contextualised in this of conservation and extraction. This has not materialised. The loss of territory. for instance. state governments have resisted their coming for it to be a ‘model’. Access and Benefit Sharing . The success of any ‘benefit- Scheduled Areas) Act in 1996 (PESA 1996) in the Fifth sharing’ system depends on the bargaining capability of Schedule Areas formally recognised the primacy of the the community and its members and their ability to village assembly thus opening up a new sense of hope dictate the transaction. 34 See Government of India.1 CBD and T he National Schedule. ‘Benefit sharing’ essentially deals with the areas are now designated as disturbed areas. The Constitution milieu of denial of fundamental rights for livelihood however.34 The of a self-determining. by a conservative estimate. Twenty-Ninth Report of the Commissioner for Scheduled Castes and Scheduled Tribes (1987-89) (New Delhi: Government of India. These areas are left adrift they are deprived of their territorial rights and self- and so poorly administered that most of the Adivasi governance. is obliged to take legislative. Therefore. UN Sub-Commission on Prevention Tribal Welfare Department. Adivasis’ cultural and At the same time. The issue of the rights of traditional communities over their introduction of the Panchayat Raj (Extension to resources and knowledge. these have not been supplanted with intellectual rights cannot be enjoyed and developed if alternate governance systems. 35 Discrimination Against Indigenous Peoples: Study on the 33 Adi Dravida and Tribal Welfare Department. one NATIONAL AND INTERNATIONAL of the terms of the agreement on 16 October 2001 between the Kerala government and the leaders of the POLICY AND LAW: THE CONTEXT Adivasi movements was to pass a cabinet resolution to bring Adivasi habitations in the state under the Fifth 3. In Tamil Nadu there Biodiversity Act 2002 is a recommendation in 2002 that ‘All tribal habitations (hamlets/ villages) should be declared as ‘Scheduled India. Area’ under article 244(1) of the Constitution’. it is expected to ensure of Adivasi villages and the constitutional provision for that a framework for fair and equitable access and benefit self-governance available at least in law have been denied sharing for biological and genetic resources that is to the Adivasis of these two states. Equally. and survival leading to a constitutional break down in governance under Article 244 through the Fifth Schedule the Adivasi areas. ten million Adivasis and is due largely to the spiritual and material relationship and the waves of migration into these areas. into operation through various means.33 The scope for revitalisation conserve biodiversity.

and what would to represent their interests fully at negotiations. But mutually agreed terms recognising the protection of it is silent about the ownership or property rights of traditional knowledge.37 local communities associated with the genetic which are voluntary. paragraph five of the Convention) and authority to determine access to genetic and 19. The Act • ensuring that decisions are made available to relevant regulates access to biological materials and/or IK by indigenous and local communities . incorporate the following with specific reference to indigenous and local communities in the development • possibility of joint ownership of intellectual property of mechanisms and procedures for access. state and local.htm. administrative or policy measures on access and benefit-sharing with particular reference • obtaining prior informed consent of indigenous and to provisions under Articles 8(j). indigenous and local communities: The Biological Diversity Act 2002 was enacted to strictly • effective participation and involvement of indigenous regulate international access to bioresources for research and local communities in the process of access and and commercial use with heavy fines for breach of the benefit-sharing in general and in a case-to-case basis. • ensuring that the knowledge. They are the first widely accepted resources being accessed or where traditional criteria for the licensing of access to genetic resources. the Biological Diversity Act. CBD in April 2002 (COP 6) deliberated on the interpretation of Article 15. 15. This brought forth ‘the Bonn Guidelines on Access to Genetic Resources and Fair and Equitable • respecting established legal rights of indigenous and Sharing of the Benefits Arising out of their Utilisation’. note 10 above. equitable benefit-sharing regimes (Article 16 of the Convention). 39 India. innovations agreed terms for access and benefit-sharing. Article 15. April 2002. Law. prior informed consent (in conformity The CBD recognises national governments as the with Article 15. The full text of the guidelines is available at http://www. Act. Indian and non-Indian citizens.aspx?m=cop-06&d=24. Conference of Parties to the Biodiversity Convention. note 10 above. 16 and 19. Environment and Development Journal justiciable evolves. 10 (c). provide for the • making provision to ensure the continued customary development of a national competent authority who may use of genetic resources and related knowledge. innovations and practices of indigenous and local communities have The sixth meeting of the Conference of Parties to the been respected. and fair and rights according to the degree of contribution. Decision VIII/4. be the formal relationship between those who have historically held these resources and associated IK (IK • respecting customs.39 The Act provides for establishment of bodies at different levels – national. act/bio_div_act. The Act prohibits the their Utilisation. More specifically. 16 the Act is available at decisions/default. The full text of 38 See Biodiversity Convention. 13 . commercial purposes. India for any research or commercial activity without 37 The Bonn Guidelines on Access to Genetic Resources and prior permission of the National Biodiversity Authority Fair and Equitable Sharing of the Benefits Arising out of (NBA) set up under the Act. preserved and maintained. 2002.36 and arrived at Decision • ensuring legal certainty and clarity.38 local communities and the approval and involvement and contracts and other arrangements under mutually of the holders of traditional knowledge. amongst others. and practices in accordance with their traditional practices. traditions. Non-Indian citizens or non-resident Indians or a corporate body not registered 36 See Biodiversity Convention. values and customary holders) and those parties who seek the knowledge for practices of indigenous and local communities.nic. and drafting legislative. The Guidelines. knowledge associated with these genetic resources is These Guidelines are to serve as inputs in developing being accessed. Articles 10. innovations and practices of these resources.biodiv. the concerns relate • enhancing indigenous and local communities’ capacity to how these resources are acquired. VI/24. in India cannot use biological material originated from Access to Genetic Resources.

the links are provided between the State and the holders of Convention on Biological Diversity (CBD) and the Trade knowledge or biological resources. 14 .rupfor. See also Kalpavriksh documentation of biodiversity and chronicling of Environmental Action Group. They have no powers vis-à. Government of India. No explicit two inconsistent international agreements. However. 5 October 2005). the aim and not only to non-Indians but to Indians also. undertaken in the country. The Act spirit of the Convention is not put into place. scientifically invalid. Intellectual Property bioresources and IK. access to biological and BEG%20Background%20paper%20for%20IIED%20workshop. recommends innovative legal or other means of The Act constitutes a fund raised through fees. This provision applies Therefore. Access and Benefit Sharing . Furthermore. The report ‘Securing India’s Future’ was compensation when somebody is doing something finalised by a Technical and Policy Core Group wrong) to ensure equitable sharing of benefits to all appointed by the Ministry of Environment and Forests concerned parties. for instance. material or associated IK to non-citizens of India. national sovereignty over themselves. However the regulation of access for the Indian citizens Article 8(j) of CBD recognising the claims of indigenous applies only when there is commercial involvement or people and communities find no concrete expression in monetary gain.’40 Prior Informed Consent (PIC) is not required in the The problem associated with the implementation of Indian legislation. the NBA can stop in late 2003. before s/he such benefit claimers. Any person who is seeking Rights (IPR) through grant of joint ownership of IPR protection of IPR generated out of bioresources or IK to the NBA. can even file for such protection.India transfer of results of research (except for the existing genetic resources or benefit-sharing as per the rules. while the bill refers to the CBD. ultimately in the hands of state rather than the holders While the CBD urges. regulate access biological material. or where benefit claimers are identified. Background Paper (Delhi: Kalpavriksh Environmental vis giving recognition to the customary rights of the local Action Group) available at www. Development of NBSAP was the most access to any bioresources that are in danger of getting extensive environmental planning process ever extinct. There are penalties for Access of local people and communities to biological not adhering to this provision. Article 6 of the CBD requires countries to required to obtain permission from the NBA. the Ministry conservation efforts and socio-economic development has rejected its own report as ‘for the major part of areas from where bioresources are accessed. These provisions are to resources are subject to existing laws and conservation get control over expropriation and exploitation of needs as determined by the Act. Towards the Formulation of India’s National Biodiversity Strategy and Action Plan: A knowledge related thereto. Indians are not the Act. The Act prepare a National Biodiversity Strategy Action Plan empowers the NBA to impose royalties (and (NBSAP). rather prior intimation of the National benefit sharing also emerges out of the existence of and State Biodiversity Boards is required. the legislation does not state what is required to be the precise elements of the MTA. collaborative research project) related to such biological which were notified in 2004. The report. without prior approval of NBA. The has the main aim of conservation and sustainable use primary aim is to affirm national (read ‘state’) sovereignty of biodiversity. the decision lies Related Aspects of Intellectual Property Rights (TRIPS). to and use of bioresources in India. While doing so. 40 See Ministry of Environment and Forests. and fair and equitable benefit-sharing resulting claimers’. However. the Act also recognises over the country’s biodiversity through the establishment and provides for rewards to the developer of the new of a regulatory mechanism to people over the biodiversity. royalties traditional knowledge rights that do not fall into the trap and fines to help in sharing benefits. The Material Transfer Agreement (MTA) biological resources. For research purpose.pdf. National Bio- Diversity Strategy and Action Plan Submitted by the NGO Institutions of self-governance are to constitute – Kalpavriksh has Been Rejected (Delhi: Press Information Biodiversity Management Committees for primarily Bureau. access to biological resources in the Indian legislation is to set up a National through mutually agreed terms and prior informed Biodiversity Fund to ‘channel benefits to the benefit consent. are permissible under the Act. support of privatised IPR like patents. to has to take prior permission of the NBA.

device. Environment and Development Journal out of the use of biological resource and associated The Indian patent laws. or any organisation or authority established by law representing the interest of the producer of goods to In the absence of laws that recognise and regulate formal register a geographical indication. or which was used by local territory or region or locality. but propagates a proprietorship and geographical origin of the biological material used regime and monopolistic intellectual protection. this does not consisting of a word or invented word. where a given quality. In order to further strengthen from appropriating knowledge from the indigenous these provisions. prevent or regulate formulation of products derived design. It covers four types of intellectual property traditionally known component or components from rights namely patents. heading. IPR regimes 41 Anitha Ramanna. ‘Policy Implications of India’s Patent are based on individual rights where as TK is by and Reforms: Patent Applications in the Post-1995 Era’. being patented. and trademarks. and hence protection of markets for communities that have not patentable. Law. The in the invention while applying for patents in India. However. 15 . Act 2005 added technical advance and/or economic The Act permits any association of persons or producers significance as a criterion of ‘inventive step’. which were amended in 2002. the Trade Mark Act 1999 was required of the legally defined IPR regime as they do enacted and notified on 15 September 2003 extending not fulfil the legally defined criteria of novelty.41 transactions of Traditional Knowledge (TK). a ‘prior art’. undisclosed information (trade secrets). a new provision has been added to communities. including oral knowledge. as one of the grounds for opposition as also At present there are no formal laws to prevent anyone for revocation of patent. This is available (oral or otherwise) within local/indigenous to prevent the encroachment into the markets and the communities ‘to be anticipated’. To ensure TK is not patented. does not grant patents (extended from process patent 23. if granted. and 24 of the TRIPS Agreement that aims to create to product patent) to subject matter which was available a register (for purposes of establishing protection) to the public by means of use. symbol. Economic and Political Weekly 2065 . the TRIPS Agreement does not contain provisions for mandatory disclosure of source acknowledge these.2075 (2002). It is meant for the of novelty and inventiveness. written description or in indicators which identify a good as originating in a any manner in any country. To be in Traditional knowledge does not meet the conditions conformity with TRIPS. the shape of patent period of which is expired from being licensed goods other than those for which a mark is proposed to for production and marketed under other relevant laws be used. living or dead. knowledge. 1999 is derived from Articles 22. numeral.2 TRIPS and T he Emer ging also been incorporated in the law to include anticipation Regulatory System of invention by available local knowledge. brand. which are basically TK or agreement promoting the harmonisation of national IPR aggregation or duplication of known properties of regimes. 37 large collective. The Patent (Amendment) community and not for individuals as against patents. signature. and indigenous communities prior to the date of filing reputation or other characteristics of the good is the application for patents. the scope for benefit sharing in law is almost absent. The Act considers knowledge essentially attributable to its geographical origin. Instances of The Trade and Merchandise Marks Act. provisions have 3. geographical indications. letter. The Geographical Indications of Goods (Registration The Patents Act of 1970 as amended in 1999 and 2002 and Protection) Act. name written in a particular style. from TK or IK that are not patented or patented or the label. Patenting requires satisfying the criteria traditionally produced these varieties. 1958 protects knowledge in the public domain being patented trademark on physical goods or commodities traded elsewhere are widely in vogue. TRIPS is now the key international exclude innovations. inventiveness and industrial applicability. of colors and so forth including those symbolised by the name of a person. for opposition and for revocation of the patents. legislative process in the country is clearly dictated in Provisions are also incorporated to include non- this instance by World Trade Organisation (WTO) — disclosure or wrongful disclosure of the same as grounds TRIPS and the market dictates rather than CBD. or any combination thereof or a combination as has been in the case of Jeevani for instance. phrases.

1891. worldwide to be in conformity with the emerging TRIPS requires documenting TK to identify both the regime. Compulsory licensing The mark chosen should not be similar to an existing provisions are also incorporated in the Act. Development. They must be required quality. whether they succeed of the goods. National Experiences and International Dimensions (New World Intellectual Property Organisation (Delhi: Press York and Geneva: United Nations Conference on Trade and Information Bureau. Protecting and Promoting Traditional Knowledge: relating to the Madrid Agreement.43 of the Government of India acceded to the Madrid Protocol in early 2007 entailing amendment to the Trade 3. The Act Act. Switzerland. will be entitled to make profits. developers and also seeks to make internationally acclaimed brand breeders. Mashelkar. which have already acquired distinction due to information relating to the contribution. 1989 Kapoor eds. the Act have been now made cognisable and non-bailable it may restrict certain varieties if it feels that the variety with increase in the punishment. purpose. The new Act conservers. The registration farming community involving such variety. an international registration system species or a traditional variety. it is believed.A. administered by The Systems. 2004). facilitates registration of trademarks in These regulatory laws and mechanisms which are multiple jurisdictions around the world. Documentation and registration. access. which has an economic use. value or geographical origin to pay for germplasm they access. 16 . Access and Benefit Sharing . would establish the knowledge Protection of Plant Varieties and Farmers’ Rights Act 2001 is another legislation to meet India’s obligation to 43 R. A Gene Fund for sharing of benefits and to names freely available for use in India. Sophia Twarog and Promila 42 Government of India. The Union cabinet benefit sharing and protection of related IK or TK. It consists of emerging as a result of issues raised by TRIPS are the International Registration of Marks 1891 and the essentially to protect the domestic market interests rather Protocol Relating to the Madrid Agreement 1989 which than the explicit recognition of rights to resources. should not be developed further on account of some damage to the society at large. Registering the mark made. The protection provided to a plant variety bred separately in the respective country under the relevant by a breeder can be cancelled if there is an omission or laws is required for protection in that country. if any. or which are only indicative of the kind. cultivators. came into operation on 1 April 1996. it is argued. But these disqualifications do not apply to where the genetic material has been taken and marks.3 Legitimising Bio-Prospecting Mark Act 1999 to enable transfer of technology through and Market Rights trademarks licensing and franchising and speedy registration of Indian marks in different markets Benefit sharing in the emerging IPR regime. It also provides for preservation jointly or severally of wild The Madrid system. Accession to the Madrid Protocol. wrongful disclosure of such information.42 knowledge and knowledge holders. ‘Intellectual Property Rights and the Third TRIPS to encourage trade and market of seeds through World’.India the trademark registration to services also and including farmers’ variety. Intellectual Property Organisation (WIPO) in Geneva. This Act provides for the farmers to claim a Mathur. ‘Who Owns Traditional Knowledge?’. The Act acknowledges farmers as specific protection for well known marks. The Government has from seven years. See also Ajeet regulation. For instance. has been provides protection only in India. The breeders mark of another person nor be one expressly prohibited of new plant varieties using genetic material from public under the Act. the term of registration is extended to ten years also protects extant varieties. registration of a variety. of the their popularity and consistent use. with or without added administered by the International Bureau of the World value. 38 Economic share for their contribution in development and and Political Weekly 4471. quantity. UNCTAD/DITC/TED/10. The offences under powers to regulate varieties to be protected. the trade due to their customary use may not be Mandatory disclosure of the geographical location from registered. preservers. The marks devoid of any distinctive sources like the gene banks will get a breeder’s right and character. 81(8) Current Science 955-965 2001). 8 February 2007). if it has been derived using a Traditional Medicinal Knowledge of India: An Overview of Commercialisation and Benefit Sharing (New Delhi: UNCTAD.4481 (2003). subject to renewal. Mukhopadhyay. or which are marks already in vogue in in getting a new variety commercially established or not. February 2002). K. Under the new support conservation efforts is also envisaged. Government of India.

The information is then establish novelty within a narrow range. Initiatives for Sustainable Technologies (SRISTI). and also established in 2000 by the Department of Science and regulated. Naturopathy and folklore. Unani. The innovation classified under Traditional Knowledge Resource could be patented without as much as a reference to the Classification (TKRC). promoted the ‘Honey Bee Network’ as early as 1982. documentation is not expected to National Register of Innovations and Unique Traditional facilitate benefit sharing with the holders of TK nor Knowledge (NRITUK). establish ‘Indian’ rights to that knowledge so that they are not awarded patents since a claim could be laid then These processes have anyway been the prevalent that the knowledge is already in the public domain. A number of government institutions to document and promote innovations through are involved in this work such as the Council for entrepreneurship. be part of the National Register of Innovations to be National Institute of Immunology. handholding support for project pressures from TRIPS and the emergence of a planning and management. Tropical Botanical managed and supported by NIF. More decisively. provides institutional amenable to concepts of ‘private property’ in any form support in scouting. TK that is most often not Technology. Grassroots Innovations Garden and Research Institute. sustaining and scaling of known IPRs could now be brought within the ambit of ‘private property’. Society for Research and innovations based on TK. The data available is material. Law. Central Drug Research Institute. these processes gain further The National Innovation Foundation (NIF) of India. National Medicinal and Augmentation Networks (GIANs) in various geographic the Aromatic Plant Institute. a non- governmental initiative based in Ahmedabad in Gujarat Documentation of IK in an organised manner started established in 1993. informational resources available in the public primarily useful to determine the validity of the patent domain and/or ethno-biological knowledge.44 This property is also under no legal obligation to share any is to make the information available worldwide to part of the profit gained with the original holders of national patent offices through the IPC system to that TK. design. Environment and Development Journal in the public domain and therefore prevent patenting up grassroots innovations and helping their transition anywhere under the IPR regimes in the form in which it to self-supporting activities. finance and marketing significant interest group within the country that intelligence to enable transition of an innovation into supports the new market and IPR regimes have led India product and then into enterprise. The owner of the patented linked to International Patent Classification (IPC). this opens up innumerable possibilities to public-domain information about medicinal plants commercialise the knowledge through marketable including traditional systems such as Ayurveda.000 Scientific and Industrial Research. Input of formal science The opening up of the globalised market. These innovations are to be how they should be benefited. practice. to document However. Anyone could improve a piece of TK and Sidha. spawning. an information retrieval system original knowledge holder. The Honey Bee database of 12. National Botanical innovations collected and documented by SRISTI would Research Institute. commercial enclosure of privatised ecosystems and 17 . government set up the Traditional Knowledge Digital Library (TKDL). But with the establishment of a harmonised international IPR regime. regions have been established to link up innovations. NIF established the exists. Each exploiting the information provided by the organic patent document bears one or more IPC codes assigned to it by the respective Patent Office. gets systematised and organised. The National to attempt to be in the forefront through pioneering Biodiversity Act also indicates village or community initiatives in this arena in the rush to garner an biodiversity chronicles/ registers to be carried out at a advantageous position in the global market. Documentation could supported for incubation and conversion into viable of course enable patenting and commercialisation of business opportunities. 44 IPC of World Intellectual Property Organisation (WIPO) Bio-prospecting requires harvesting tangible organic is used by the national patent offices worldwide in classifying material for genetic manipulation or for extracting and the subject matter contained in patent documents. A application for sealing of patents that are applied for. legitimacy. Government of India. But by itself. products. external and technology. an electronic database. investments and enterprises. The Indian national level.

policed. Therefore intellectual heritage need to Neither were they involved in defining benefits be protected while TK needs to be protected from IPR. These violated 4 the features explicitly contained in CBD 8(j) read with 15. IPR regimes in line scientists involved and TBGRI. is closer to their relationship with were they a party to the negotiation in benefit-sharing. 18 . have been of national legislations with respect to the recognition denied to the Kanis. Together. though derived from the Adivasis/IPs. rather than recognising the rights of was yet to be awarded patent. issues that relates to the provisions. Living traditions gets stored as ex situ collections violated customary rights of Kanis by not obtaining the while traditional communities as indigenous peoples free and prior informed consent of either the knowledge divorced from heritage would rapidly lose both TK and holders or their traditional chiefs or generally obtaining TK holders. forest and natural resources remain wilfully violated Assessment of the TBGRI-Kani ‘model’ of ‘Access and by the state and private interests forcing the Adivasis to Benefit-Sharing’ require the assessment of national resist the state’s continued violation of laws and to force legislations or absence of national legislations in relation the implementation of its own laws. 45 See Report on the Workshop on Traditional Knowledge and Biodiversity organised by the Secretariat of the Convention on Biodiversity in November 1997. (monetary or non-monetary) and the quantum of When Adivasis talks of Adivasi rights. the national governance/self-determination. to some extent of the self-governance that implementation of the national legislations or absence is legally available elsewhere in the country. For these reasons. rights to resources and self- Notwithstanding the inadequacies in CBD. The constitutional provisions to land. At another level. The formulation Jeevani. UNEP/CBD/TKBD/ 1/3 (15 December 1997). the legal obligation of the state to record and accord rights to the people living in the ANALYSIS OF THE KANI ACCESS forests as well as to prevent alienation of lands and restoration of illegally alienated lands to the Adivasis/ AND BENEFIT SHARING MODEL IPs remain unfulfilled. further infringes their rights accorded in Kanis. the IPR of Kanis or their contribution to the national and international laws. which customarily fell within their ancestral domain nor which are duty-based. the living world. Adivasis have even consent of the community. which was not legally with TRIPS override CBD obligations. The knowledge informers.45 Kanis consequent to the commercialisation of arogyapacha worsened and criminalised their limited Finally. it also includes benefits. For Adivasis. Fulfilment TBGRI-Kani ‘model’ of ‘Access and Benefit-Sharing’ of TRIPS is itself not in harmony with CBD and more was simply a voluntary initiative of primarily the often in contradiction with CBD. legislations and actions to fulfil the obligations of CBD further limits and dilute the CBD obligations. The constitutional to the CBD implementation. and respect to rights of indigenous peoples besides the issues of territorial rights. who resources while resources are increasingly regulated and themselves are members of the Kanis in this case. which new legal regimes. custodianship and stewardship. Neither the revolves around notions of ‘property’ and ‘ownership’ Kanis nor the Kani informers have any say in which are alien to and in contradiction with their determining either the extent of access to the resources worldview.India knowledge in commodified global commons requires formulation was not attempted to be formally accorded exclusion of vast sections of peoples from access to due recognition. emerged was not formalised between the Kani informers and the institutional mechanism of interested members of Kanis set up by TBGRI with TBGRI. the voluntary benefit sharing that the right to have this different worldview. the obligatory or mandatory. Access and Benefit Sharing . Moreover. Adivasis are painfully aware of the extreme access (in violation of relevant forest laws) to the limitations of the dominant discourse on ‘rights’ that resource that they had traditionally enjoyed. The resource rights of the demanded a moratorium on registering of TK.

Prevention of Discrimination and Protection of Indigenous Peoples: Indigenous Peoples’ Permanent Sovereignty Over Natural Resources (Geneva: Final Report of the Special Rapporteur. practices. The legal expropriation of the resources that biological diversity. knowledge development. and (vii) to the exercise of collective once belonged to indigenous peoples. the right to resources. 12. 13 July 2004). prior and informed consent of the Adivasi/IPs law particularly in the right of ownership of the lands through the use of indigenous customary laws. Self-determination. constitutes vestiges of colonialism. practices. Where Adivasis. by the State. Environment and Development Journal 5 and control over their own indigenous knowledge are rights claimed by Adivasis/IPs that are not claimed normally by other sections.4/Sub. 26 and 29 of the UN Draft Declaration on the Rights of Indigenous Peoples Relating to Indigenous Knowledge and Cultural Heritage (Geneva: Office of the United Nations High Commissioner for Human Rights. the rights collectively benefit from the use of their biological to self-determination and autonomy. under certain conditions. exercise of customary law according to social and cultural practices. the Adivasis concerned must nevertheless share in the benefits from the development or use of these resources without any discrimination and must be fairly compensated for any damage that may result from development or use of the resources.2/ 2004/30. legal and political representation through their own institutions 46 Erica-Irene A Daes. for valid legal reasons. conserve and develop their resources according to their own institutions and laws must be adhered to. knowledge and technologies. 24.46 This right is a collective collectively benefit from the utilisation of their right that requires the States to respect. These explicitly calls for securing legal recognition and lived experiences of the CONCLUSIONS rights of governance of communities (i) over their biological resources. and the right to be free from and technologies acquired through generations. (iv) to their innovations. (v) to discrimination amongst others. See also Article 3. This ought to be discarded to ensure that Adivasis enjoy ownership of and benefits from the natural resources on or under or otherwise pertaining to the lands they historically occupy and use. (vi) promote the governmental and property interests of to use their innovations. and innovations. knowledge and indigenous peoples (as collectivities) in their natural technologies in the conservation and sustainable use of resources. (iii) to they historically or traditionally use and occupy. collective ownership of lands and territories. is rights as legitimate custodians and users of their discriminatory and contrary to international law and biological resources. UN Sub-Commission on the Promotion and Protection of Human Rights. 19 . Commission on Human Rights. Law. Economic and Social Council. The authority of indigenous peoples to manage. E/CN. practices. (ii) to collectively decide over The right to permanent sovereignty of indigenous development project/programmes by recognising the peoples over natural resources is implicit in international free. protect. do not own or control the natural resources pertaining to all or a part of their lands or territories. 26 August 1994).

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