LEADLawEnvironment and

DevelopmentJournal

VOLUME

3/1

ACCESS AND BENEFIT SHARING FROM THE INDIGENOUS PEOPLES’ PERSPECTIVE:THE TBGRI-KANI ‘MODEL’

C.R Bijoy

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This document can be cited as‘Access and Benefit Sharing from the Indigenous Peoples’ Perspective: The TBGRI-Kani ‘Model’’,

3/1 Law, Environment and Development Journal (2007), p. 1,available at http://www.lead-journal.org/content/07001.pdf

ACCESS AND BENEFIT SHARING FROM THE INDIGENOUSPEOPLES’ PERSPECTIVE: THE TBGRI-KANI ‘MODEL’

C.R Bijoy*

C.R Bijoy, (Independent Researcher and Activist), Doctor’s Quarters, Sri Ramakrishna Hospital, 395 AvarampalayamRoad, Coimbatore, Tamil Nadu – 641 044, INDIA, Email: cr.bijoy@gmail.com

Published under a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 License

* Based on a study for Asia Indigenous Peoples Pact (AIPP).

TABLE OF CONTENTS

1. Transfer of Kani Adivasi Knowledge: A Benefit Sharing Model 31.1 The ‘Discovery’ 31.2 The Transfer of Technology and The ‘Model’ 41.3 The Commercialisation of ‘Jeevani’ 51.4 The Kanikar 7

2. Customary Law and Protection of Adivasi/Indigenous Peoples’Territories and Knowledge 82.1 An Overview 82.2 Historical Injustice 10

2.2.1 Forest Rights 102.2.2 Land Rights 112.2.3 Governance 11

3. National and International Policy and Law: The Context 123.1 CBD and the National Biodiversity Act 2002 123.2 TRIPS and the Emerging Regulatory System 153.3 Legitimising Bio-prospecting and Market Rights 16

4. Analysis of The Kani Access and Benefit Sharing Model 18

5. Conclusions 19

1TRANSFER OF KANI ADIVASIKNOWLEDGE: A BENEFIT SHARINGMODEL

1.1 The ‘Discovery’

In 1987, a team of scientists was surveying the ethno-botanical knowledge of the Kani community in theThiruvananthapuram forest in the southern part of theWestern Ghat region in the state of Kerala as part ofthe All India Coordinated Research Project onEthnobiology (AICRPE).1 Mallan Kani andKuttimathan Kani, the Kani guides felt no tirednessduring the long treks, while the scientists felt fatigued.The Kani guides constantly ate some fruits and offeredthese to the scientists. When consumed the fruits gavethe scientists a jolt of energy. The Kani guides said thatknowledge about the fruits was sacred and not to berevealed to outsiders. The scientists promised not to‘misuse’ the information and offered an equal share inthe rewards if the plant was made into a product and

marketed. After much persuasion, the guides identifiedthe plant as ‘arogyapacha’ (which translates roughly to‘evergreen health’), trichopus zeylanicus spp. travancoricus, aperennial rhizomatous herb. Detailed scientificinvestigation, including chemical screening to isolate theactive principles was carried out. Though documentedand described earlier, its traditional use and specialproperties were not known to the ‘outside’ world.

Detailed investigations carried out at the RegionalResearch Laboratory (RRL) in Jammu confirmed theanti-fatigue property of arogyapacha. Phytochemicalscreening and pharmacological studies revealed thepresence of certain glycolipids and non-steroidalcompounds (polysaccharides) with profoundadaptogenic immuno-enhancing anti-fatigue properties.Each plant bore only two to three fruits. Therefore, itsevergreen leaves weighing 100-200 gm were a betteroption to provide a larger source for commercialproduction of a product with this anti-fatigue property.

The scientists moved to the Tropical Botanic Gardenand Research Institute (TBGRI) at Thiruvananthapuramin Kerala in 1990.2 The Herbal Product DevelopmentDivision (Ethno-pharmacology) of TBGRI developedthe product ‘Jeevani‘, a polyherbal drug with three othermedicinal plants, namely withanis somnifera (ashwagandha),piper longum, and evolvalus alsinoides, in addition toarogyapacha.3 The main clinical efficacy of anti-fatiguewas from arogyapacha. Further investigations revealedhealth promoting properties, which were scientificallyvalidated. Evaluations of shelf life and clinical properties

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1 Dr P. Pushpangadan was the Chief Coordinator of the AllIndia Coordinated Research Project on Ethnobiology(AICRPE) and also a scientist at the Regional ResearchLaboratory, Jammu—one of the 40 laboratories functioningunder the Council of Scientific and Industrial Research(CSIR), the premier autonomous Research and Development(R & D) organisation established by the Government ofIndia in 1957, and Dr S. Rajasekharan was the head of anAICRPE unit based at Thiruvananthapuram, Kerala. TheDepartment of Science and Technology of the Governmentof India launched the All India Coordinated Research Projecton Ethnobiology (AICRPE), a multi-institutional andmultidisciplinary project, in 1982 under the Man andBiosphere Programme (MAB). With the creation of Ministryof Environment and Forests (MoEF) by the Governmentin 1983, the MAB programme along with AICRPE wastransferred to it. A coordination centre for AICRPE wasestablished at the Regional Research Laboratory (RRL). DrP. Pushpangadan, then a scientist at this institute, wasappointed as the Principal Investigator and ChiefCoordinator of this project that operated at 27 centres acrossthe country. One of the units of this project was at theGovernment Ayurvedic College, Thiruvananthapuramheaded by Dr S. Rajasekharan and another at the Foundationpromoted by Arya Vaidya Pharmacy (AVP) at Coimbatore.AICRPE documented the rich knowledge system of Adivasison over 10,000 plants, many wild animal and birds.

2 The Tropical Botanic Garden and Research Institute(TBGRI) was established by the Government of Kerala,India, in 1979 as an autonomous body. In 1997, the Ministryof Environment and Forests, Government of India,accorded it the status of grant-in-aid Centre of Excellencein Conservation and Sustainable Utilisation of Tropical PlantDiversity.

3 This division with its research facilities and expertise inethno-pharmacology was established under a project signedbetween TBGRI, DANIDA (Danish Development AidAgency) and the Royal Danish School of Pharmacy,Copenhagen, Denmark as a joint research programme onIndian Medicinal Plants. While the research data is jointlyowned and published, patents, if any, arising out of the workwas to be the sole property of TBGRI. TBGRI was toacknowledge the technical and financial support ofDANIDA in their development efforts in R & D capacitybuilding (from Personal communication with Dr P.Pushpangadan).

were also carried out.4 After appropriate clinical trials, astandardised herbal product was formulated that had anti-fatigue, adaptogenic and immuno-enhancing properties.The product was ready by the end of 1994.

To obtain a license for the production of apharmaceutical product, the product must be testedeither in the modern pharmacological framework orthrough the codified formulary of Indian systems ofMedicine (Ayurveda, Sidha or Unani). The modernpharmacological framework involves activity-guidedisolations of single molecules, which means the creationof a commercial product requires a wait of fifteen yearsor more as well as a huge investment. On the other hand,the codified formulary of the Indian systems ofMedicine, based on which the license for productionand marketing under the Drug Control Act could beobtained, does not however recognise local knowledge.Therefore the product Jeevani was explained in termsof the codified Ayurvedic formulary. Arogyapacha wasreferred to in Ayurvedic parlance as Diwya Varahi.5 Thisstrategy enabled TBGRI to obtain license for theproduction of Jeevani from the Drug ControlDepartment of the Government of Kerala in 1996. Thiscould then allow TBGRI to transfer technology forproduction and marketing. The process of preparationof the novel immuno-enhancing anti-fatigue, anti-stressand hepato-protective herbal drug Jeevani was also filedin India in 1996 but was yet to be awarded.6 The patent

application does not mention the Kani informers or theKanis. The Executive Committee of TBGRIdisapproved of the filing of an international patentunder Patent Cooperation Treaty administered by theWIPO (World Intellectual Property Organisation) dueto ‘paucity of funds’.

1.2 The Transfer of Technologyand The ‘Model’

TBGRI transferred the technology for production ofJeevani to Arya Vaidya Pharmacy (Coimbatore) Limited(AVP),7 through an agreement.8 The license came intoforce on 10 November 1995 for a limited period ofseven years. As per the agreement, AVP was to payTBGRI (a) a license fee of Rs 1,000,000 of which halfwas to be transferred to TBGRI on signing theagreement and the balance on transfer of the know-how by TBGRI and (b) royalty at the rate of two percent of the ex-factory sale price of the product madeby AVP for a period of ten years from the date ofcommercial production. The seven-year license periodended in 2002 and was not renewed with AVP. Nor hasTBGRI struck fresh deals with any other company.

TBGRI technology transfer was based on the Councilof Scientific & Industrial Research (CSIR) pattern oftechnology transfer wherein 60 per cent of the licensefee and royalty received from such technology transfergoes to the institute. 80 per cent of the remaining 40per cent is given to the inventors and twenty per cent tothe supporting staff.9 However, TBGRI’s significantdeparture from the CSIR pattern was a ten per centreduction in the license and royalty to the institute anda ‘voluntary’ surrender of the portion that was due tothe ‘inventors’ and supporting staff (both from withinTBGRI) to the members of the Kanis. In effect, TBGRI

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4 Studies revealed anti-fatigue, anti-tumour, anti-gastric ulcer,anti-stress, anti-allergic, anti-oxidant, adaptogenic, aphrodisiac,immunomodulatory and hepatoprotective properties.

5 This is one of the 18 ‘divine’ herbs mentioned in the ancientAyurvedic treatises Charaka Samhita and Susrutha Samhita.

6 Twelve active compounds were isolated from arogyapacha.Five process patent applications were filed since 1994. Aprocess of preparation of novel immunoenhancing anti-fatigue, anti-stress and hepato-protective herbal drug, Jeevani(Pushpangadan, S. Rajasekharan and George V., Patentapplication number 959/MAS/96, 4 June 1996); K.K. Butani,D.K. Gupta, B.S. Taggi, K.K. Anand, R.S. Kapil,Pushpangadan P, and Rajasekharan S, A process for theIsolation of a Glycolipid Fraction from Trichopus ZelyanicusPossessing Adpatogenic Activity, Patent application number8/Del/94 (1994). Three more patent applications in whichthis plant was included were made. One was for diabetes(957/MAS/96, June 4, 1996), the second a sport medicine,Vaji (958/MAS/96, 4 June 1996) and third, a process toprepare an herbal preparation for cancer (MAS/650/2001).Of these five, ‘benefit-sharing’ was attempted for the herbaldrug ‘Jeevani’. The patent was sealed only in late 2005 andwas yet to be awarded (as on October 2005 vide personalcommunication by Dr S. Rajasekharan, TBGRI).

7 AVP is an Ayurvedic drug manufacturing companyheadquar tered in Coimbatore, Tamil Nadu, withmanufacturing facilities in Kerala, was established in 1948.

8 The Agreement for Licensing of Know-how signed betweenTropical Botanic Garden & Research Institute and The AryaVaidya Pharmacy (Coimbatore) Ltd., 10 November 1995.Full text of the agreement is available at http://www.wipo.int/tk/en/databases/contracts/texts/html/tbgri.html.

9 The Council of Scientific and Industrial Research (CSIR) isthe premier industrial R&D organisation in India constitutedin 1942 by a resolution of the then Central LegislativeAssembly. It is an autonomous body registered under theRegistration of Societies Act of 1860.

parted with 50 percent of the license fee as well as royaltyto an autonomous institutional mechanism to benefitthe Kani informers who provided the original lead forthe development of the drug, those who hoped to getsome economic gain from the commercialisation ofarogyapacha through collection, cultivation and sales, andto the Kanis of Kerala in general as a community asindicated in the by-laws of the Trust. This did notinclude the Kanis of Tamil Nadu. The ExecutiveCommittee and the Governing Body of TBGRIapproved this major departure from the acceptedpractice in this specific instance in 1994. This was alsofacilitated by Article 8(j) and Article 15.7 of theConvention on Biodiversity (CBD),10 which requiredthe member countries to ensure equitable sharing ofbenefits accrued from the use of biodiversity andassociated knowledge system — the stakeholders/knowledge providers.11 CBD had been ratified by Indiajust then in February 1994 and was therefore obliged topromote its provisions despite the absence of nationallegislation to this effect.

‘Kerala Kani Samudaya Kshema Trust’ (KKSS) wasregistered as a society in November 1997 as theinstitutional mechanism to receive the share in licensefee and royalty received by TBGRI from AVP. It was toundertake economic activities for the continued supplyof arogyapacha to AVP for a sustained production ofJeevani as well as welfare activities for the members.KKSS was formed with nine members and itsmembership since then is reported to be about 1000.About Rs 650,000 (this included about Rs 150,000 byway of half of the two per cent royalty) was transferredby TBGRI since 1999 (after the KKSS was constituted)till date.12 A sum of less than Rs 20,000 remained to betransferred by TBGRI under the benefit sharing. Therewas no formal agreement between TBGRI and KKSSon this ‘benefit-sharing’ arrangement that was anexperiment. In the prevailing policy and legal vacuum,the Government of Kerala has not officially declared

this ‘model’ or any modified version as its policy orformula. Therefore this ‘model’ is not TBGRI’s officialpolicy or formulation.

The Executive Committee of the Trust in its firstmeeting on 19 March 1999 at the Kallar MattammodhuKani tribal settlement decided in consultation withTBGRI to invest Rs 500,000 (half the license fee) as afixed deposit and also decided to pay Rs 20,000 each toMallan Kani and Kuttimathan Kani (secretary of theTrust), and Rs 10,000 to Eachan Kani, the individualKani informers in this bio-prospecting. These specialincentives were from the Rs 50,000 accrued as interestin the first year from the deposit. Subsequently, KKSSwas constructing a community hall-cum-office for itselfat Chonampara tribal settlement, Kottoor,Thiruvananthapuram District.

1.3 The Commercialisation ofJeevani

Jeevani sold at Rs 160 for a 75-gram jar, was successfullymarketed in India and abroad, including countries suchas USA and Japan. With this commercialisation,arogyapacha from the forest began to be extensivelycollected and the traders moved in. Moreover the plantwas considered endangered. The Forest Departmenttook steps to clamp down on the natural collection byseizing harvests and filing cases. With this, the traditionaland customary practice of collection and use ofarogyapacha by Kanis, hitherto ignored by forest officials,became severely restricted and more significantly‘criminalised’ and punishable under law. Objection tothe collection of arogyapacha for the market stemmedfrom arogyapacha not being listed under the ‘minor forestproduce’ for the purpose of collection andtransportation for sales from the reserve forest.13

Increased illegal and destructive collection of arogyapacha,intensified policing by forest officials and consequentconfiscation of large quantities of the plant, increasingdemand and need for regular supply of fresh leaves toAVP led TBGRI scientists to develop a protocol forcultivating this plant. TBGRI scientists also promotedfast multiplication through both vegetative and tissue

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10 Convention on Biological Diversity (hereafter BiodiversityConvention), Rio de Janeiro, 5 June 1992, reprinted in 31 Int’lLeg. Mat. 818 (1992).

11 Personal communication dated 6 October 2005 from Dr P.Pushpangadan, Director, National Botanical ResearchInstitute, Lucknow and former Director of TBGRI whenthe TBGRI-Kani ‘model’ was experimented with.

12 Total royalty received by TBGRI from AVP during the period10 September 1996 to 30 September 2004 was Rs 232,888.55(Personal communication by Dr S.Rajasekharan, TBGRI)

13 The Forest Department subsequently agreed to includearogyapacha in the list of Minor Forest Produce but by thenthe manufacturing license given to AVP had expired.

culture methods to produce large scale planting materialsfor supply to Adivasis or indigenous people forcultivation, including any other Adivasi group who couldcultivate and meet the increasing demand for theproduct.

It was attempted to ensure a regular supply of arogyapachato AVP through the cultivation of this perennialundergrowth. But it was found that the medicinalqualities of the plant were lost, unless grown in thenatural forest habitat in the shade of the forest canopy.So TBGRI organised 50 Kani families living inside theforest to cultivate and pre-process the plant under thesupervision of the TBGRI scientists. It was calculatedthat each family with one or two acres of arogyapachaunder cultivation could earn about Rs. 20,000 to Rs30,000 per acre in the initial years and more insubsequent years. In October 1997, AVP proposed tothe Kerala Forest Department and Tribal WelfareDepartment to pay Kanis some seed money forcultivation with a buy-back arrangement. But this couldnot go forward as non-forestry activities are notpermissible within the forest under existing laws.

As the areas for collection and some part of thecultivation were within the Reserve Forest under theState Forest Department, the department also demandeda share of the license fee and royalties as due to them.The Kerala Forest Department later permitted the‘cultivation’ of arogyapacha within the adivasi settlementarea that continues to be illegally controlled by the ForestDepartment in violation of the Forest Act and the 1990circulars of the Ministry of Environment and Forestrelated to settlement of forest rights.14

Meanwhile NutriScience Innovation LLC Ltd.Connecticut USA, the US distributor for AVP, registeredJeevani as a trademark at the United States Patent andTrademark Office bearing Serial No. 75692281 on 27April 1999.15 AVP did not contest this infringementnor did it attempt to register Jeevani as a trademark inthe US.16

The TBGRI-Kani ‘model’ is claimed to be unique, andpost-facto claimed to be the ‘only known case whereArticle 8(j) and Article 15 of the Convention onBiodiversity (CBD) was fully implemented’ (emphasisadded).17

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14 Ministry of Environment and Forests, Government of India,Circular No. 13-1/90-FP, 18 September 1990, addressed tothe Secretaries of Forest Departments of all States/ UnionTerritories. The six circulars under this are:1) FP (1) Review of encroachments on forest land2) FP (2) Review of disputed claims over forest land, arising

out of forest settlement3) FP (3) Disputes regarding pattas/ leases/ grants involving

forest land4) FP (4) Elimination of intermediaries and payment of

fair wages to the labourers on forestry works5) FP (5) Conversion of forest villages into revenue villages

and settlement of other old habitations6) FP (6) Payment of compensation for loss of life and

property due to predation/ depradation by wild animals

15 Trademarks in the US are protected by Trademark Act of1946, 60 Stat. 427, as amended, codified in 15 USC 1051-1127 and is administered by the United States Patent andTrademark Office (USPTO). The law is entirely enforcedthrough private lawsuits. An applicant residing outside theUnited States may list a domestic representative, that is, thename and address of any person residing in the US uponwhom notices or process may be served for proceedingsaffecting the mark. In the case of Jeevani, NutriScience laterwithdrew its claim under pressure on 13 July 2001. GreatEarth Enterprises Inc, New York filed ‘Jeevani Jolt’ as atrademark bearing Serial No. 75955444 on 8 March 2000with the same formulation. See Ministry of Health and FamilyWelfare, Patenting of Traditional Indian Medicine by USA(Delhi: Press Information Bureau, Ministry of Health andFamily Welfare, 08 March 2006).

16 A few more companies such as Herbal Holistics Internationalare reported to be marketing Jeevani in the US at rates rangingfrom US Dollar 16 to US Dollar 39 per pack.

17 This is mentioned in most discussions on the TBGRI-Kani‘Model’. For instance see P. Pushpangadan, P. PushpangadanModel of Benefit Sharing (Lucknow: National BotanicalResearch Institute, 2000); Anil K. Gupta, RewardingConservation of Biological and Genetic Resources andAssociated Traditional Knowledge and ContemporaryGrassroots Creativity (Ahmedabad: Indian Institute ofManagement, Working PaperNo.2003-01-06, 2003); R.V.Anuradha, Sharing With Kanis: A Case Study from Kerala,India (Delhi: Kalpavriksh, 1998); Anil K Gupta, WIPO-UNEP Study on the Role of Intellectual Property Rights inthe Sharing of Benefits Arising from the Use of BiologicalResources and Associated Traditional Knowledge(Ahmedabad: World Intellectual Property Organisation(WIPO) and the United Nations Environment Programme(UNEP), 2004); Vijesh V. Krishna and Unai Pascual, OptimalCompensation for Indigenous Knowledge Holders inBiodiversity Contracts: A Case Study from India (Cambridge:Department of Land Economy, University of Cambridge,2004).

1.4 The Kanikar

The Kanikar (Kani) inhabit the southern part of theWestern Ghats. The British in their time had colonisedthe natural wealth of the Kanikar’s ancestral domainwhich the states of Kerala and Tamil Nadu managed asinternal colonies.20 With the creation the two statesKerala and Tamil Nadu their ancestral domain wasdivided. The states pushed them further to the peripheryof smaller administrative units, that is, the districts,taluks and panchayats. They live in par ts ofThiruvananthapuram and Kollam districts in Kerala andTirunelveli and Kanyakumari districts of Tamil Nadu.Their population is about 25,000 of whom over three-fourths live on the Kerala side while the rest inhabitTamil Nadu.21 The revenue and forest departments ofthese two southern states now hold most of these landswhile the remaining parts of the lands have beenappropriated and converted as estates and plantationsby powerful non-tribals. The Kanikars are pushed intomarginal enclaves scattered across the southern part ofWestern Ghats.

A part of the ancestral domain of Kanikar covering128 sq km in the Thiruvananthapuram district has beendeclared the Neyyar Wildlife Sanctuary. Contiguous toNeyyar is the Kalakkadu Wild Life Sanctuary (a tigerreserve) covering an area of 223 sq kms and theMundanthurai Wildlife Sanctuary of another 567 sq kms,both in the Tirunelveli District of Tamil Nadu. A largerarea (that includes the Neyyar Wildlife Sanctuary) of1,701 sq kms was declared the Agasthyamala BiosphereReserve in 2001. Access to these areas is severelyrestricted, many thousands have been evicted and theremaining faces the threat of eviction. In addition, largetracts of the Kanikar’s habitat are classified as forestsin both the states.

While at one end of the spectrum the TBGRI-Kani‘model’ has been internationally acclaimed as apioneering model in benefit sharing,18 at the other end,the model is seen as ‘more or less a public relationsexercise for the policy makers, academics and some civilsociety groups who needed a justification for their owninvolvement in facilitating exploitation of biodiversityand the traditional knowledge that comes along with itnow turned into a global showcase for biological theft’.19

The hype that this departure generated also broughtprevailing inadequacies and conflicts into the open. ManyKani elders believe that their traditional knowledge issacred and should remain exclusive; that the ‘Plathis’(Kani healers or medicine men who are the repositoriesof medical wisdom) nor ‘Moottukanis’ (Kani chiefs) wereconsulted and that the informers had no right to divulgethis sacred knowledge for monetary consideration. InSeptember 1995, a group of nine Kani healers protestedto the Chief Minister of Kerala, who is also theChairman of TBGRI Governing Body, opposing thesale of their knowledge to a private company. The KeralaInstitute for Research, Training and Development ofScheduled Castes and Scheduled Tribes (KIRTADS), aseparate Directorate of the state government under theScheduled Castes and Schedules Tribes DevelopmentMinistry, has been publicly critical of the TBGRI-Kani‘model’. KIRTADS had in 1995 drafted a state level billfor the protection of the Intellectual Property Rightsof the Scheduled Tribes of Kerala through exclusiverights to Adivasi communities - yet another uniqueinitiative that has been lying in limbo.

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18 The TBGRI-Kani ‘model’ has won the UNDP (UnitedNations Development Programmes) ‘Equator InitiativePrize’ 2002 for innovation in poverty eradication andsustainable development and is invariably top in the list ofcase studies on ‘benefit sharing’ models mentioned in variousreports and documents, for instance by such organisationsas UNDP. This was one and the only one from India of 27groups selected from amongst 420 nominated projects from77 countries from within the equatorial belt. The awardcarries US Dollar 30,000 for each group and a certificate ofappreciation.

19 Devinder Sharma, Selling Biodiversity: Benefit Sharing is aDead Concept (2004), available at http://www.mindfully.org/WTO/2004/Selling-Biodiversity-Sharma3may04.htm; see also J. John and Sindhu Menon,Kerala Tribe Accuses Indian Biologists of StealingKnowledge (London: PANOS Biopiracy, 1998).

20 The Attingal princely rulers recognised large parts of theirancestral domain in olden times. In the eighteenth century,Marthandavarma Maharaja allotted 36,000 acres through aroyal neetu (royal order) to 21 prominent Kanikars. Of this25,954 acres and 82 cents are in Thiruvananthapuram and10,045 acres and eighteen cents are in Kanyakumari districts.The Indian state refuses to recognise this.

21 Raymond Gordon Jr. ed., Ethnologue: Languages of theWorld, SIL Code: KEV, ISO 639-2: dra (Dallas: SILInternational, 2005).All the existing studies on the TBGRI Kani ‘Model’ mentiontheir population at about 16,000 confined only toThiruvananthapuram district.

2CUSTOMARY LAW AND PROTECTIONOF ADIVASI/ INDIGENOUS PEOPLES’TERRITORIES AND KNOWLEDGE

2.1 An Overview

The symbiotic relationship between the Adivasis withtheir ancestral domain led to their distinct and soundunderstanding of their surroundings developing aknowledge system often referred to as ‘indigenousknowledge’ (IK) which has been transmitted overgenerations. This manifests in their culture, customs andbeliefs with biodiversity facilitating the evolution of acomplex ecological map of knowledge.

The practices of protecting biodiversity and theirsustainable use are amply reflected in the customs ofmost indigenous and local communities. Customary lawsand traditional institutions of governance constitute thebasis of biodiversity conservation, sustainable use andpreservation; and development of IK. Territorial rightsand self-determination are fundamental to this. Nationaland international laws and policies, along with themodern development paradigm, criminalise thesetraditions by not recognising and providing effective legalstatus to them. Through the process of colonisingterritories and expropriating natural resources asenclosures to be secured and policed for the market withthe state as an instrument of this colonisation, customarylaws and practices in fact, are adversely affected. Thisundermines indigenous knowledge and in effect deniesindigenous peoples’ right to produce knowledge.

This has been made possible with the adoption of apredominantly individual-based rights system and thecommodification of natural resources with the state asthe eminent domain denying indigenous notions ofcollective heritage and a community perspective of landand resources. Common good is replaced by exploitationof resources for profit or personal aggrandisement.

Matters such as natural resource management, whichused to be a community domain were a prime casualtywith the colonial imperatives for appropriation. Thecurrent Indian legal system establishes a unified Indian

law except in matters of family, religion and inheritance.Their concept of a common heritage facilitating thedevelopment of knowledge had very little space in themodern legal system. However, they continued in socialpractice and started to decline, with the body of statelaws systematically eroding and destroying such socialpractices using the precedence of state made laws overcustomary law. This is in spite of the Constitution ofIndia recognising customary law, which, in reality,subjected them to a requirement of being in consonancewith state-made law. Laws were progressively enactedwithout due consideration towards existing customarylaws.

The Indian Evidence Act, 1872 is one of the earliestlegislation that formally recognised customs to establishmatters related to rights through the examination ofpractices recorded in village administration or settlementrecords. These records invariably do not exist or aregrossly incorrect and incomplete and hence were ignoredby the state. The judiciary, relying on such officialrecords, too often denies customary rights. The IndianEasements Act, 1882 provides for securing private rights,public rights and rights to certain classes of persons orsections of the public based on examination ofcustomary rights. The forests, essentially a communitydomain, under the state forest laws since 1865 furtherreplaced by the 1927 Indian Forest Act, transformedcustomary rights of communities into privileges andconcessions sanctioned by the state and enjoyed at thewill of the state and its forest officials despite scope fortheir recognition in law. This rapidly eroded IK andpractices.

As said earlier, the Constitution of India recognisescustoms and customary practices. The term ‘law’ inArticle 13 includes ‘customs’ and ‘usages’ having theforce of law but not infringing any of the fundamentalrights conferred by part III of the Constitution. Article21 on fundamental rights confers Right to Life, notmerely of animal existence but life with human dignity,and right to livelihood except according to a due processof law. Article 39(b) enjoins a duty upon the state todirect its policy towards ensuring that the ownershipand control of the material resources of the communityare so distributed as best to serve the common good.Under Article 46, the State is obliged to see thatScheduled Tribes are not open to exploitation anddeprived of their rights on account of their illiteracy

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and low status. Part IV-A of the Constitution imposes aduty on the citizens to value and preserve the richheritage of the composite culture; and to protect andimprove the natural environment including forests,lakes and rivers, which are great reservoirs of IK.However, these are directives to be promoted throughlegislations.

Most of the indigenous communities have little exposureto modern systems of judicial redress. As against this,people are well aware of their own customary laws;therefore it is easy for them to approach their traditionalinstitutions for the administration of justice. Besides,cases are decided keeping in mind the needs of thesociety and the victim, and the capacity of the accusedto withstand justice.

Article 244 of the Constitution is a specific provisionfor Administration of Scheduled Areas and Tribal Areasthrough the Fifth Schedule and Sixth Schedule. Theprovisions of the Fifth Schedule apply to theadministration and control of the Scheduled Areas andScheduled Tribes in any State except the states of Assam,Meghalaya, Tripura and Mizoram for whom theprovisions of the Sixth Schedule apply.

Under the Panchayat (Extension to Scheduled Areas)Act (PESA) of 1996 for the Fifth Schedule, for the firsttime, there is a clear direction that the Legislature of aState shall not make any law that is not in consonancewith the customary law, social and religious practicesand traditional management practices of communityresources (Clause 4a). This law was enacted after anationwide mobilisation of Adivasis to enact such a law.Removal of dissonance between tribal tradition of self-governance and modern legal institutions was the mostimportant outcome that was expected of the PESA. Avillage itself is defined as a habitation or a group ofhabitations or a hamlet or a group of hamlets comprisinga community and managing its affairs in accordance withtraditions and customs (Clause 4b) and the villageassembly shall be competent to safeguard and preservethe traditions and customs of the people, their culturalidentity, community resources and the customary modeof dispute resolution (Clause 4d). Though the Act wasenacted a decade ago, none of the states with FifthSchedule areas have passed legislations in totalconformity with the provisions of PESA. The statesdisregarded the major components of PESA, did notamend existing laws to be in consonance with PESA

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and continue to violate PESA.22 In addition,23 thePresident of India and the concerned governors of theState have the duty to preserve, protect and defend boththe Constitution, including this special featureconcerning the Scheduled Areas, and the law includingthe customs and usage of Adivasis subject to only onecondition, namely that it does not affect the basicstructure of the Constitution. The Governor is givenimmense power to apply or not to apply any Act to theScheduled Area, and make regulations for peace andgood governance of the Scheduled area. But these toohave been belied. The consequence of these acts ofomissions and commissions is the further exasperationof the crises and conflicts in Adivasis’ areas creating asituation of a virtual breakdown of the Constitutionitself. Most of the Adivasi homelands have officiallybecome conflict areas.24

In the Sixth Schedule areas, the District Councils andRegional Councils in the North Eastern states of Assam,Tripura, Meghalaya and Mizoram have the powers toenact laws related to social customs. There are the formalmodern central laws, traditional customary laws fromwithin the community, and laws by Autonomous DistrictCouncils. Consequently there are three institutions forjustice administration – traditional institutions dealingwith customary and folk laws, formal administrativebodies and the Autonomous District Councils. The SixthSchedule Areas bar application of Acts of Parliamentand State Legislature to areas in the subject matter whereAutonomous Council is authorised to make and extend

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22 According to a study commissioned by the National Instituteof Rural Development, Hyderabad between 2001 and 2003,Fifth Schedule areas are constituted within the states ofMadhya Pradesh, Himachal Pradesh, Jharkhand, Chattisgarh,Andhra Pradesh, Orissa, Maharashtra, Gujarat andRajasthan. However, states such as Kerala, Tamilnadu,Karnataka and West Bengal have continued to ignore thedemand by Adivasis to declare their habitations under theSchedule till date.

23 See Constitution of India, Para. 2 and 3 of the Fifth Scheduleand Article 60 and 159.

24 According to a Home Ministry Report, there were 156districts in 13 states that were considered to be under thesway of the Maoists as on September 2004 which hadincreased to 170 districts in 15 states by mid-2005. Manyof them are tribal dominated districts. See Communist Partyof India-Maoist (CPI-Maoist), Left-wing Extremist Group,available at http://www.satp.org/satporgtp/countries/india/terroristoutfits/CPI_M.htm and ‘India’s Naxalites:A Spectre Haunting India’, The Economist, 17 August 2006.

laws. These provide scope for bodies to evolveappropriate laws that recognise the customary rights,provided the political space is evolved through ademocratisation process. All of this takes place in thecontext of intense conflicts with the formal modernadministrative bodies and, to a lesser extent, theAutonomous District Councils trampling on traditionalsystems.

Article 371A and 371G of the Constitution are specialprovisions that recognise customary laws in the NorthEastern states of Nagaland and Mizoram respectively.Under these provisions, no Act of Parliament in respectof religious or social practices of the Nagas and Mizos,their customary law and procedure, administration ofcivil and criminal justice involving decisions accordingto customary law, and ownership and transfer of landand its resources, shall apply to the States of Nagalandand Mizoram unless the Legislative Assembly of theconcerned states so decides. The historic politicalassertion, often militant, along with these enablingconstitutional provisions ensure relatively better andeffective command over resources and strong traditionalgovernance systems as compared to the other Adivasiregions in the sub-continent.

For the first time, the ‘right of access to bio-diversityand community right to intellectual property andtraditional knowledge related to forest biodiversity andcultural diversity’ features in the law ‘Scheduled Tribesand Other Traditional Forest Dwellers (Recognition ofForest Rights) Act, 2006’ in 3(k) under ‘Forest Rights’.This too emerged only through a nation-wide struggleby Adivasi movements.

2.2 Historical Injustice

Roughly about twenty per cent of the land area in thecountry, considered the most inhospitable areas,constitutes the traditional habitat of Scheduled Tribes(ST) who are 8.8 percent of the total population. Thereare also people who identify themselves as Adivasis butare not formally recognised as Scheduled Tribes.Between 1951 and 1990 alone, nearly 8,539,000 havebeen displaced constituting at least 55.16 per cent ofthe total displaced25 and about eleven per cent of the

total ST population. Displacements since 1990 haveescalated exponentially for development projects,conservation of forests and protected areas.

2.2.1 Forest Rights

Of the lands that were the traditional habitat ofScheduled Tribes, about 70 per cent have been takenover as forests. There are 187 tribal districts in thecountry covering 33.6 per cent of the land area but hasas much as 37 per cent of the nation’s forest cover andan overwhelming 63 per cent of the dense forests.26

The area classified as forest has been increasing in orderto reach an arbitrary target of 33 per cent set in the ForestPolicy of 1952. At present 20.64 per cent (678,333 sqkms) of the total land area is under this category. 23 percent of the forest area (156,700 sq kms) or about fiveper cent of the total land area has been declared protectedareas with the establishment of 92 national parks and500 wildlife sanctuaries. About four million people,mostly Adivasis, continue to inhabit the forest area,hounded, starved and under threat of forced eviction.

While declaring an area as ‘forests’, the colonial IndianForest Act 1927 required that their rights be recordedand settled. However, this was not carried out at all orwas carried out in a grossly unjust manner as in mostother parts of the country.27 The Wildlife ProtectionAct of 1972 further drastically curtailed the fewconcessions that they enjoyed and at the mercy of theforest officials, in the areas declared as protected areas— the wildlife sanctuaries and national parks. The ForestConservation Act 1980 threatens to evict large numbersof those still inhabiting the ‘forests’ whose rights werenot recorded and settled as per law till date, but insteadtreating them as illegal ‘encroachers’.

The issue of denial of the legal rights of forest dwellersacross the country in the areas declared as ‘forests’reached an explosive situation erupting into a nationalcrisis because of the intervention of the Supreme Courtof India in a case popularly known as the ‘forest case’28.

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25 See Draft National Tribal Policy, Ministry of Tribal Affairs,Government of India, available at http://tribal.nic.in/finalContent.pdf.

26 See State of Forest Report 2003, Ministry of Environmentand Forest, Government of India.

27 B. D Sharma, Resolution of Conflicts Concerning ForestLands - Adoption of a Frame by Government of India(1990), available at http://www.doccentre.net/docsweb/adivasis_&_forests/land_conflicts_report.pdf.

28 T.N. Godavarman Thirumalpad v. Union of India and Others,Supreme Court of India, Writ Petition (Civil) No. 202 of 1995.

The Court intervention provided the Forest Departmentextra-constitutional powers that was used liberally andbrutally across the country until it resulted in thenational crisis. The crisis led the Ministry ofEnvironment and Forests to acknowledge that ‘thehistorical injustice done to the tribal forest dwellersthrough non-recognition of their traditional rights mustbe finally rectified’.29 To partially rectify this historicinjustice, the Ministry of Tribal Affairs passed theScheduled Tribes and Other Traditional Forest Dwellers(Recognition of Forest Rights) Act, 2006.30 The billseeks to settle land rights; rights to forest produce andgrazing, usufruct rights, restoration of illegal cancellationof titles, grants and leases to lands, traditional andcustomary rights, rights to common communityresources, habitat rights for primitive tribal groups, rightto access to bio-diversity and community right tointellectual property and traditional knowledge, and rightto protect forests.

2.2.2 Land Rights

Large tracts outside the ‘forests’ are designated asrevenue lands under state control. Most of the villagecommons and family holdings are not recorded andtherefore either encroached by non-tribals or controlledby the state as state property. Collective rights to landsare not permissible under the present legislativeframework. Lack of notions of land as a propertyamong the Adivasis and the failure of the state officialsto record actual enjoyments resulted only in a smallsection of the Adivasis managing to obtain titles to partof their holdings. These too have been systematicallyalienated. This is despite Article 244 of the IndianConstitution that demands protection of land rightsbesides others.

In Kerala, the Kerala Scheduled Tribes Act (Restrictionon Transfer of Lands and Restoration of AlienatedLands) was enacted in 1975. But the rules were framedafter a decade in 1986. Despite the explicit orders of

the Kerala High Court in 1993, most of the alienatedlands were not restored. Instead the state sought toreplace the 1975 law with another law in 1999, which ineffect denies restoration of alienated lands. The KeralaHigh Court struck down this part of the law asunconstitutional. The case still lies pending in theSupreme Court.31

Large sections of the Adivasi population who could notget their lands recorded and became landless fall outsidethis protective land law as this is applicable only to thosefew who managed to get their land holdings officiallyrecorded. Marginalised and pushed to starvation, Adivasiassertions in Kerala led to an agreement on 16 October2001 between the State government and the leaders ofthe movement. Under this agreement, all landlessAdivasis and those owning less than an acre were toreceive up to five acres within one year. This too hasnot been fulfilled yet.32

In the state of Tamil Nadu, the situation is much worse.There are no protective land laws for Scheduled Tribesin the state. The Constitution has been blatantly ignoredand therefore violated. The absence of constitutionallyrequired protection to the Scheduled Tribes hasintensified the crisis of survival.

2.2.3 Governance

With the colonisation of Adivasi territories, thecontinued perpetuation of the legacy of colonisationthrough the instrument of law and the authorityestablished under these laws, the Adivasi areas in the

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29 See T.N. Godavarman Thirumalpad, note 28 above, the affidavitfiled in the Supreme Court by the Ministry of Environmentand Forest, Government of India on 21 July 2004.

30 The original draft was modified by the Joint ParliamentCommittee for finalisation of the Bill in February 2006. TheBill passed on 15 December 2006 in the Lok Sabha and 18December 2006 in the Rajya Sabha received the President’sassent on 29 December 2006. Full text of the Act is availableat http://tribal.nic.in/actTA06.pdf.

31 These acts of the Kerala government violate Articles 3, 13and 14 of ILO Convention 107 (ratified by India) that relateto protection of properties, respect of customary proceduresof transmission of traditional ownership of lands,prevention of non-tribes from securing ownership or useof lands belonging to tribals and provision of more landwhen they have not the area necessary for providing theessentials of normal existence. They also violate Section IIof the ILO Convention 169 on Indigenous and TribalPopulations (which India is yet to ratify), which explicitlyrecognises the concept of territoriality of the tribals andthe relationship it has with their identity, and their right toownership and possession over lands traditionally occupied.These ignore Part VI of the UN draft Universal Declarationof the Rights of Indigenous Peoples.

32 C.R. Bijoy and K. Ravi Raman, ‘Muthanga: The Real StoryAdivasi Movement to Recover Land’, 38 Economic and PoliticalWeekly 1975 (2003).

The TBGRI-Kani ‘model’ is to be contextualised in thismilieu of denial of fundamental rights for livelihoodand survival leading to a constitutional break down inthe Adivasi areas, repeatedly pointed out in the variousofficial documents of the Government of India.34 Theprotection of cultural and intellectual property isconnected fundamentally with the realisation of theterritorial rights and self-determination.35

The Adivasis’ knowledge system and cultural heritagehave developed in relation to the natural environmentand is due largely to the spiritual and material relationshipAdivasis share with their land and territories — arelationship that continues to strongly influenceindigenous cultures. Hence, Adivasis’ cultural andintellectual rights cannot be enjoyed and developed ifthey are deprived of their territorial rights and self-governance. ‘Benefit sharing’ essentially deals with theissue of the rights of traditional communities over theirresources and knowledge. The success of any ‘benefit-sharing’ system depends on the bargaining capability ofthe community and its members and their ability todictate the transaction. Therefore, a benefit-sharing‘model’ has to satisfy these fundamental requirementsfor it to be a ‘model’.

3NATIONAL AND INTERNATIONALPOLICY AND LAW: THE CONTEXT

3.1 CBD and The NationalBiodiversity Act 2002

India, a party to the CBD, is obliged to take legislative,administrative and policy measures with the aim toconserve biodiversity. Equally, it is expected to ensurethat a framework for fair and equitable access and benefitsharing for biological and genetic resources that is

country have been systematically taken over for purposesof conservation and extraction. The Constitutionhowever, provides for various degrees of self-governance under Article 244 through the Fifth Scheduleand Sixth Schedule providing scope for the developmentof a self-determining, self-governing system based ontraditions. But instead an alien political, administrativeand judicial system was systematically imposed throughthe subversion of Article 244. The loss of territory, themassive instability created, for instance, by state-sponsored development and conservation that hasdisplaced, by a conservative estimate, ten million Adivasisand the waves of migration into these areas, often statesponsored or mediated, have resulted in the weakeningof and the break up of traditional governance system.At the same time, these have not been supplanted withalternate governance systems. These areas are left adriftand so poorly administered that most of the Adivasiareas are now designated as disturbed areas. Theintroduction of the Panchayat Raj (Extension toScheduled Areas) Act in 1996 (PESA 1996) in the FifthSchedule Areas formally recognised the primacy of thevillage assembly thus opening up a new sense of hopefor revitalisation and reconstruction of communities.However, state governments have resisted their cominginto operation through various means.

Both Kerala and Tamil Nadu have not brought Adivasihabitations under the Fifth Schedule despiterecommendation from the Dilip Singh BhuriaCommittee constituted by the central government torecommend the framework for PESA 1996. Also, oneof the terms of the agreement on 16 October 2001between the Kerala government and the leaders of theAdivasi movements was to pass a cabinet resolution tobring Adivasi habitations in the state under the FifthSchedule. This has not materialised. In Tamil Nadu thereis a recommendation in 2002 that ‘All tribal habitations(hamlets/ villages) should be declared as ‘ScheduledArea’ under article 244(1) of the Constitution’, butnothing has come out of it.33 The scope for revitalisationof Adivasi villages and the constitutional provision forself-governance available at least in law have been deniedto the Adivasis of these two states.

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33 Adi Dravida and Tribal Welfare Department, Report onTenth Five Year Plan 2002-2007 (Chennai: Adi Dravida andTribal Welfare Department, 2002).

34 See Government of India, Twenty-Ninth Report of theCommissioner for Scheduled Castes and Scheduled Tribes(1987-89) (New Delhi: Government of India, 1990).

35 Discrimination Against Indigenous Peoples: Study on theProtection of the Cultural and Intellectual Property ofIndigenous Peoples, UN Sub-Commission on Preventionof Discrimination and Protection of Minorities, UN Doc.

justiciable evolves. More specifically, the concerns relateto how these resources are acquired, and what wouldbe the formal relationship between those who havehistorically held these resources and associated IK (IKholders) and those parties who seek the knowledge forcommercial purposes.

The sixth meeting of the Conference of Parties to theCBD in April 2002 (COP 6) deliberated on theinterpretation of Article 15,36 and arrived at DecisionVI/24. This brought forth ‘the Bonn Guidelines onAccess to Genetic Resources and Fair and EquitableSharing of the Benefits Arising out of their Utilisation’,37

which are voluntary. They are the first widely acceptedcriteria for the licensing of access to genetic resources.These Guidelines are to serve as inputs in developingand drafting legislative, administrative or policy measureson access and benefit-sharing with particular referenceto provisions under Articles 8(j), 10 (c), 15, 16 and 19;38

and contracts and other arrangements under mutuallyagreed terms for access and benefit-sharing.

The Guidelines, amongst others, provide for thedevelopment of a national competent authority who mayincorporate the following with specific reference toindigenous and local communities in the developmentof mechanisms and procedures for access, and fair andequitable benefit-sharing regimes (Article 16 of theConvention), prior informed consent (in conformitywith Article 15, paragraph five of the Convention) andmutually agreed terms recognising the protection oftraditional knowledge, innovations and practices ofindigenous and local communities:

• effective participation and involvement of indigenousand local communities in the process of access andbenefit-sharing in general and in a case-to-case basis;

• ensuring that decisions are made available to relevantindigenous and local communities ;

• enhancing indigenous and local communities’ capacityto represent their interests fully at negotiations;

• respecting customs, traditions, values and customarypractices of indigenous and local communities;

• ensuring that the knowledge, innovations andpractices of indigenous and local communities havebeen respected, preserved and maintained;

• ensuring legal certainty and clarity;

• respecting established legal rights of indigenous andlocal communities associated with the geneticresources being accessed or where traditionalknowledge associated with these genetic resources isbeing accessed;

• obtaining prior informed consent of indigenous andlocal communities and the approval and involvementof the holders of traditional knowledge, innovationsand practices in accordance with their traditionalpractices;

• making provision to ensure the continued customaryuse of genetic resources and related knowledge;

• possibility of joint ownership of intellectual propertyrights according to the degree of contribution.

The CBD recognises national governments as theauthority to determine access to genetic resources. Butit is silent about the ownership or property rights ofthese resources.

The Biological Diversity Act 2002 was enacted to strictlyregulate international access to bioresources for researchand commercial use with heavy fines for breach of theAct.39 The Act provides for establishment of bodies atdifferent levels – national, state and local. The Actregulates access to biological materials and/or IK byIndian and non-Indian citizens. Non-Indian citizens ornon-resident Indians or a corporate body not registeredin India cannot use biological material originated fromIndia for any research or commercial activity withoutprior permission of the National Biodiversity Authority(NBA) set up under the Act. The Act prohibits the

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36 See Biodiversity Convention, note 10 above, Article 15,Access to Genetic Resources.

37 The Bonn Guidelines on Access to Genetic Resources andFair and Equitable Sharing of the Benefits Arising out oftheir Utilisation, Conference of Parties to the BiodiversityConvention, Decision VIII/4, April 2002. The full text ofthe guidelines is available at http://www.biodiv.org/decisions/default.aspx?m=cop-06&d=24.

38 See Biodiversity Convention, note 10 above, Articles 10, 16and 19.

39 India, the Biological Diversity Act, 2002. The full text ofthe Act is available at http://envfor.nic.in/divisions/biodiv/act/bio_div_act.htm.

transfer of results of research (except for the existingcollaborative research project) related to such biologicalmaterial or associated IK to non-citizens of India,without prior approval of NBA. There are penalties fornot adhering to this provision. These provisions are toget control over expropriation and exploitation ofbioresources and IK. Any person who is seekingprotection of IPR generated out of bioresources or IKhas to take prior permission of the NBA, before s/hecan even file for such protection. This provision appliesnot only to non-Indians but to Indians also. The Acthas the main aim of conservation and sustainable useof biodiversity. While doing so, the Act also recognisesand provides for rewards to the developer of the newbiological material.

However the regulation of access for the Indian citizensapplies only when there is commercial involvement ormonetary gain. For research purpose, Indians are notrequired to obtain permission from the NBA. The Actempowers the NBA to impose royalties (andcompensation when somebody is doing somethingwrong) to ensure equitable sharing of benefits to allconcerned parties. Furthermore, the NBA can stopaccess to any bioresources that are in danger of gettingextinct.

The Act constitutes a fund raised through fees, royaltiesand fines to help in sharing benefits, supportconservation efforts and socio-economic developmentof areas from where bioresources are accessed.

Prior Informed Consent (PIC) is not required in theIndian legislation; rather prior intimation of the Nationaland State Biodiversity Boards is required. No explicitlinks are provided between the State and the holders ofknowledge or biological resources; the decision liesultimately in the hands of state rather than the holdersthemselves. The Material Transfer Agreement (MTA)in the Indian legislation is to set up a NationalBiodiversity Fund to ‘channel benefits to the benefitclaimers’. However, the legislation does not state whatis required to be the precise elements of the MTA.

Institutions of self-governance are to constituteBiodiversity Management Committees for primarilydocumentation of biodiversity and chronicling ofknowledge related thereto. They have no powers vis-à-vis giving recognition to the customary rights of the localpeople over the biodiversity, access to biological and

genetic resources or benefit-sharing as per the rules,which were notified in 2004.

Access of local people and communities to biologicalresources are subject to existing laws and conservationneeds as determined by the Act. Intellectual PropertyRights (IPR) through grant of joint ownership of IPRto the NBA, or where benefit claimers are identified, tosuch benefit claimers, are permissible under the Act.Therefore, while the bill refers to the CBD, the aim andspirit of the Convention is not put into place. Theprimary aim is to affirm national (read ‘state’) sovereigntyover the country’s biodiversity through the establishmentof a regulatory mechanism to control, regulate accessto and use of bioresources in India.

Article 8(j) of CBD recognising the claims of indigenouspeople and communities find no concrete expression inthe Act. Article 6 of the CBD requires countries toprepare a National Biodiversity Strategy Action Plan(NBSAP). The report ‘Securing India’s Future’ wasfinalised by a Technical and Policy Core Groupappointed by the Ministry of Environment and Forestsin late 2003. Development of NBSAP was the mostextensive environmental planning process everundertaken in the country. The report, for instance,recommends innovative legal or other means oftraditional knowledge rights that do not fall into the trapof privatised IPR like patents. However, the Ministryhas rejected its own report as ‘for the major partscientifically invalid.’40

The problem associated with the implementation ofbenefit sharing also emerges out of the existence oftwo inconsistent international agreements, theConvention on Biological Diversity (CBD) and the TradeRelated Aspects of Intellectual Property Rights (TRIPS).While the CBD urges, national sovereignty overbiological resources; access to biological resourcesthrough mutually agreed terms and prior informedconsent; and fair and equitable benefit-sharing resulting

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40 See Ministry of Environment and Forests, National Bio-Diversity Strategy and Action Plan Submitted by the NGO– Kalpavriksh has Been Rejected (Delhi: Press InformationBureau, Government of India, 5 October 2005). See also KalpavrikshEnvironmental Action Group, Towards the Formulation ofIndia’s National Biodiversity Strategy and Action Plan: ABackground Paper (Delhi: Kalpavriksh EnvironmentalAction Group) available at www.rupfor.org/downloadq/BEG%20Background%20paper%20for%20IIED%20workshop.pdf.

out of the use of biological resource and associatedknowledge, the TRIPS Agreement does notacknowledge these, but propagates a proprietorshipregime and monopolistic intellectual protection. Thelegislative process in the country is clearly dictated inthis instance by World Trade Organisation (WTO) —TRIPS and the market dictates rather than CBD.

3.2 TRIPS and The EmergingRegulatory System

At present there are no formal laws to prevent anyonefrom appropriating knowledge from the indigenouscommunities. TRIPS is now the key internationalagreement promoting the harmonisation of national IPRregimes. It covers four types of intellectual propertyrights namely patents, geographical indications,undisclosed information (trade secrets), and trademarks.

The Patents Act of 1970 as amended in 1999 and 2002does not grant patents (extended from process patentto product patent) to subject matter which was availableto the public by means of use, written description or inany manner in any country, or which was used by localand indigenous communities prior to the date of filingthe application for patents. The Act considers knowledgeavailable (oral or otherwise) within local/indigenouscommunities ‘to be anticipated’, a ‘prior art’, and hencenot patentable. Patenting requires satisfying the criteriaof novelty and inventiveness. The Patent (Amendment)Act 2005 added technical advance and/or economicsignificance as a criterion of ‘inventive step’.

In the absence of laws that recognise and regulate formaltransactions of Traditional Knowledge (TK), the scopefor benefit sharing in law is almost absent. Instances ofknowledge in the public domain being patentedelsewhere are widely in vogue. However, this does notprevent or regulate formulation of products derivedfrom TK or IK that are not patented or patented or thepatent period of which is expired from being licensedfor production and marketed under other relevant lawsas has been in the case of Jeevani for instance.

Traditional knowledge does not meet the conditionsrequired of the legally defined IPR regime as they donot fulfil the legally defined criteria of novelty,inventiveness and industrial applicability. IPR regimesare based on individual rights where as TK is by andlarge collective.

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The Indian patent laws, which were amended in 2002,contain provisions for mandatory disclosure of sourceand geographical origin of the biological material usedin the invention while applying for patents in India.Provisions are also incorporated to include non-disclosure or wrongful disclosure of the same as groundsfor opposition and for revocation of the patents, ifgranted. To ensure TK is not patented, provisions havealso been incorporated in the law to include anticipationof invention by available local knowledge, including oralknowledge, as one of the grounds for opposition as alsofor revocation of patent. In order to further strengthenthese provisions, a new provision has been added toexclude innovations, which are basically TK oraggregation or duplication of known properties oftraditionally known component or components frombeing patented.

The Geographical Indications of Goods (Registrationand Protection) Act, 1999 is derived from Articles 22,23, and 24 of the TRIPS Agreement that aims to createa register (for purposes of establishing protection)indicators which identify a good as originating in aterritory or region or locality, where a given quality,reputation or other characteristics of the good isessentially attributable to its geographical origin. This isto prevent the encroachment into the markets and theprotection of markets for communities that havetraditionally produced these varieties. It is meant for thecommunity and not for individuals as against patents.The Act permits any association of persons or producersor any organisation or authority established by lawrepresenting the interest of the producer of goods toregister a geographical indication.41

The Trade and Merchandise Marks Act, 1958 protectstrademark on physical goods or commodities tradedconsisting of a word or invented word, phrases, symbol,design, signature, device, letter, numeral, brand, heading,label, name written in a particular style, the shape ofgoods other than those for which a mark is proposed tobe used, or any combination thereof or a combinationof colors and so forth including those symbolised bythe name of a person, living or dead. To be inconformity with TRIPS, the Trade Mark Act 1999 wasenacted and notified on 15 September 2003 extending

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41 Anitha Ramanna, ‘Policy Implications of India’s PatentReforms: Patent Applications in the Post-1995 Era’, 37Economic and Political Weekly 2065 - 2075 (2002).

the trademark registration to services also and includingspecific protection for well known marks. The new Actalso seeks to make internationally acclaimed brandnames freely available for use in India. Under the newAct, the term of registration is extended to ten yearsfrom seven years, subject to renewal. The offences underthe Act have been now made cognisable and non-bailablewith increase in the punishment.

The mark chosen should not be similar to an existingmark of another person nor be one expressly prohibitedunder the Act. The marks devoid of any distinctivecharacter, or which are only indicative of the kind,quality, quantity, purpose, value or geographical originof the goods, or which are marks already in vogue inthe trade due to their customary use may not beregistered. But these disqualifications do not apply tomarks, which have already acquired distinction due totheir popularity and consistent use. The registrationprovides protection only in India. Registering the markseparately in the respective country under the relevantlaws is required for protection in that country.

The Madrid system, an international registration systemadministered by the International Bureau of the WorldIntellectual Property Organisation (WIPO) in Geneva,Switzerland, facilitates registration of trademarks inmultiple jurisdictions around the world. It consists ofthe International Registration of Marks 1891 and theProtocol Relating to the Madrid Agreement 1989 whichcame into operation on 1 April 1996. The Union cabinetof the Government of India acceded to the MadridProtocol in early 2007 entailing amendment to the TradeMark Act 1999 to enable transfer of technology throughtrademarks licensing and franchising and speedyregistration of Indian marks in different marketsworldwide to be in conformity with the emerging TRIPSregime.42

Protection of Plant Varieties and Farmers’ Rights Act2001 is another legislation to meet India’s obligation toTRIPS to encourage trade and market of seeds throughregulation. This Act provides for the farmers to claim ashare for their contribution in development andregistration of a variety, if it has been derived using a

farmers’ variety. The Act acknowledges farmers asconservers, cultivators, preservers, developers andbreeders. A Gene Fund for sharing of benefits and tosupport conservation efforts is also envisaged. The Actalso protects extant varieties. The Government haspowers to regulate varieties to be protected. For instance,it may restrict certain varieties if it feels that the varietyshould not be developed further on account of somedamage to the society at large. Compulsory licensingprovisions are also incorporated in the Act. The breedersof new plant varieties using genetic material from publicsources like the gene banks will get a breeder’s right andwill be entitled to make profits. They must be requiredto pay for germplasm they access, whether they succeedin getting a new variety commercially established or not.Mandatory disclosure of the geographical location fromwhere the genetic material has been taken andinformation relating to the contribution, if any, of thefarming community involving such variety, has beenmade. The protection provided to a plant variety bredby a breeder can be cancelled if there is an omission orwrongful disclosure of such information. It alsoprovides for preservation jointly or severally of wildspecies or a traditional variety, with or without addedvalue, which has an economic use.

These regulatory laws and mechanisms which areemerging as a result of issues raised by TRIPS areessentially to protect the domestic market interests ratherthan the explicit recognition of rights to resources, access,benefit sharing and protection of related IK or TK.43

3.3 Legitimising Bio-Prospectingand Market Rights

Benefit sharing in the emerging IPR regime, it is argued,requires documenting TK to identify both theknowledge and knowledge holders. Documentation andregistration, it is believed, would establish the knowledge

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42 Government of India, Accession to the Madrid Protocol, 1989relating to the Madrid Agreement, 1891, administered by TheWorld Intellectual Property Organisation (Delhi: PressInformation Bureau, Government of India, 8 February 2007).

43 R.A. Mashelkar, ‘Intellectual Property Rights and the ThirdWorld’, 81(8) Current Science 955-965 2001). See also AjeetMathur, ‘Who Owns Traditional Knowledge?’, 38 Economicand Political Weekly 4471- 4481 (2003); K. Mukhopadhyay,Traditional Medicinal Knowledge of India: An Overviewof Commercialisation and Benefit Sharing (New Delhi:UNCTAD, February 2002); Sophia Twarog and PromilaKapoor eds, Protecting and Promoting Traditional Knowledge:Systems, National Experiences and International Dimensions (NewYork and Geneva: United Nations Conference on Trade andDevelopment, UNCTAD/DITC/TED/10, 2004).

in the public domain and therefore prevent patentinganywhere under the IPR regimes in the form in which itexists. But by itself, documentation is not expected tofacilitate benefit sharing with the holders of TK norhow they should be benefited. Documentation couldof course enable patenting and commercialisation ofinnovations based on TK.

Documentation of IK in an organised manner startedas early as 1982. A number of government institutionsare involved in this work such as the Council forScientific and Industrial Research, National BotanicalResearch Institute, Central Drug Research Institute,National Institute of Immunology, Tropical BotanicalGarden and Research Institute, National Medicinal andthe Aromatic Plant Institute.

The opening up of the globalised market, externalpressures from TRIPS and the emergence of asignificant interest group within the country thatsupports the new market and IPR regimes have led Indiato attempt to be in the forefront through pioneeringinitiatives in this arena in the rush to garner anadvantageous position in the global market. The Indiangovernment set up the Traditional Knowledge DigitalLibrary (TKDL), an electronic database, to documentpublic-domain information about medicinal plantsincluding traditional systems such as Ayurveda, Unani,Sidha, Naturopathy and folklore. The information is thenclassified under Traditional Knowledge ResourceClassification (TKRC), an information retrieval systemlinked to International Patent Classification (IPC).44 Thisis to make the information available worldwide tonational patent offices through the IPC system toestablish ‘Indian’ rights to that knowledge so that theyare not awarded patents since a claim could be laid thenthat the knowledge is already in the public domain.

The National Innovation Foundation (NIF) of India,established in 2000 by the Department of Science andTechnology, Government of India, provides institutionalsupport in scouting, spawning, sustaining and scaling

up grassroots innovations and helping their transitionto self-supporting activities. NIF established theNational Register of Innovations and Unique TraditionalKnowledge (NRITUK). These innovations are to besupported for incubation and conversion into viablebusiness opportunities. Society for Research andInitiatives for Sustainable Technologies (SRISTI), a non-governmental initiative based in Ahmedabad in Gujaratestablished in 1993, promoted the ‘Honey Bee Network’to document and promote innovations throughentrepreneurship. The Honey Bee database of 12,000innovations collected and documented by SRISTI wouldbe part of the National Register of Innovations to bemanaged and supported by NIF. Grassroots InnovationsAugmentation Networks (GIANs) in various geographicregions have been established to link up innovations,investments and enterprises. Input of formal scienceand technology, design, handholding support for projectplanning and management, finance and marketingintelligence to enable transition of an innovation intoproduct and then into enterprise. The NationalBiodiversity Act also indicates village or communitybiodiversity chronicles/ registers to be carried out at anational level.

However, this opens up innumerable possibilities tocommercialise the knowledge through marketableproducts. Anyone could improve a piece of TK andestablish novelty within a narrow range. The innovationcould be patented without as much as a reference to theoriginal knowledge holder. The owner of the patentedproperty is also under no legal obligation to share anypart of the profit gained with the original holders ofthat TK.

These processes have anyway been the prevalentpractice. But with the establishment of a harmonisedinternational IPR regime, these processes gain furtherlegitimacy, gets systematised and organised, and alsoregulated. More decisively, TK that is most often notamenable to concepts of ‘private property’ in any formof known IPRs could now be brought within the ambitof ‘private property’.

Bio-prospecting requires harvesting tangible organicmaterial for genetic manipulation or for extracting andexploiting the information provided by the organicmaterial, informational resources available in the publicdomain and/or ethno-biological knowledge. Acommercial enclosure of privatised ecosystems and

44 IPC of World Intellectual Property Organisation (WIPO)is used by the national patent offices worldwide in classifyingthe subject matter contained in patent documents. Eachpatent document bears one or more IPC codes assigned toit by the respective Patent Office. The data available isprimarily useful to determine the validity of the patentapplication for sealing of patents that are applied for.

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knowledge in commodified global commons requiresexclusion of vast sections of peoples from access toresources while resources are increasingly regulated andpoliced. Living traditions gets stored as ex situ collectionswhile traditional communities as indigenous peoplesdivorced from heritage would rapidly lose both TK andTK holders. For these reasons, Adivasis have evendemanded a moratorium on registering of TK.45

Finally, Adivasis are painfully aware of the extremelimitations of the dominant discourse on ‘rights’ thatrevolves around notions of ‘property’ and ‘ownership’which are alien to and in contradiction with theirworldview. For Adivasis, custodianship and stewardship,which are duty-based, is closer to their relationship withthe living world. Therefore intellectual heritage need tobe protected while TK needs to be protected from IPR.When Adivasis talks of Adivasi rights, it also includesthe right to have this different worldview.

4ANALYSIS OF THE KANI ACCESSAND BENEFIT SHARING MODEL

Assessment of the TBGRI-Kani ‘model’ of ‘Access andBenefit-Sharing’ require the assessment of nationallegislations or absence of national legislations in relationto the CBD implementation, issues that relates to theimplementation of the national legislations or absenceof national legislations with respect to the recognitionand respect to rights of indigenous peoples besides theissues of territorial rights, rights to resources and self-governance/self-determination.

TBGRI-Kani ‘model’ of ‘Access and Benefit-Sharing’was simply a voluntary initiative of primarily thescientists involved and TBGRI, which was not legallyobligatory or mandatory. The formulation Jeevani, whichwas yet to be awarded patent, though derived from theKanis, the IPR of Kanis or their contribution to the

formulation was not attempted to be formally accordeddue recognition. The knowledge informers, whothemselves are members of the Kanis in this case,violated customary rights of Kanis by not obtaining thefree and prior informed consent of either the knowledgeholders or their traditional chiefs or generally obtainingconsent of the community. The resource rights of theKanis consequent to the commercialisation ofarogyapacha worsened and criminalised their limitedaccess (in violation of relevant forest laws) to theresource that they had traditionally enjoyed. Neither theKanis nor the Kani informers have any say indetermining either the extent of access to the resourceswhich customarily fell within their ancestral domain norwere they a party to the negotiation in benefit-sharing.Neither were they involved in defining benefits(monetary or non-monetary) and the quantum ofbenefits. Moreover, the voluntary benefit sharing thatemerged was not formalised between the Kani informersand the institutional mechanism of interested membersof Kanis set up by TBGRI with TBGRI. These violatedthe features explicitly contained in CBD 8(j) read with 15.

At another level, the legal obligation of the state torecord and accord rights to the people living in theforests as well as to prevent alienation of lands andrestoration of illegally alienated lands to the Adivasis/IPs remain unfulfilled. The constitutional provisions toland, forest and natural resources remain wilfully violatedby the state and private interests forcing the Adivasis toresist the state’s continued violation of laws and to forcethe implementation of its own laws. The constitutionalprovisions, to some extent of the self-governance thatis legally available elsewhere in the country, have beendenied to the Kanis.

Notwithstanding the inadequacies in CBD, the nationallegislations and actions to fulfil the obligations of CBDfurther limits and dilute the CBD obligations. Fulfilmentof TRIPS is itself not in harmony with CBD and moreoften in contradiction with CBD. IPR regimes in linewith TRIPS override CBD obligations. Together, thenew legal regimes, rather than recognising the rights ofAdivasis/IPs, further infringes their rights accorded innational and international laws.

45 See Report on the Workshop on Traditional Knowledge andBiodiversity organised by the Secretariat of the Conventionon Biodiversity in November 1997, UNEP/CBD/TKBD/1/3 (15 December 1997).

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5CONCLUSIONS

The right to permanent sovereignty of indigenouspeoples over natural resources is implicit in internationallaw particularly in the right of ownership of the landsthey historically or traditionally use and occupy, the rightsto self-determination and autonomy, the right todevelopment, and the right to be free fromdiscrimination amongst others.46 This right is a collectiveright that requires the States to respect, protect, andpromote the governmental and property interests ofindigenous peoples (as collectivities) in their naturalresources. The legal expropriation of the resources thatonce belonged to indigenous peoples, by the State, isdiscriminatory and contrary to international law andconstitutes vestiges of colonialism. This ought to bediscarded to ensure that Adivasis enjoy ownership ofand benefits from the natural resources on or under orotherwise pertaining to the lands they historically occupyand use. The authority of indigenous peoples to manage,conserve and develop their resources according to theirown institutions and laws must be adhered to. WhereAdivasis, for valid legal reasons, do not own or controlthe natural resources pertaining to all or a part of theirlands or territories, the Adivasis concerned mustnevertheless share in the benefits from the developmentor use of these resources without any discriminationand must be fairly compensated for any damage thatmay result from development or use of the resources.

Self-determination, under certain conditions, collectiveownership of lands and territories, exercise of customarylaw according to social and cultural practices, legal andpolitical representation through their own institutions

and control over their own indigenous knowledge arerights claimed by Adivasis/IPs that are not claimednormally by other sections. These explicitly calls forsecuring legal recognition and lived experiences of therights of governance of communities (i) over theirbiological resources; (ii) to collectively decide overdevelopment project/programmes by recognising thefree, prior and informed consent of the Adivasi/IPsthrough the use of indigenous customary laws; (iii) tocollectively benefit from the use of their biologicalresources; (iv) to their innovations, practices, knowledgeand technologies acquired through generations; (v) tocollectively benefit from the utilisation of theirinnovations, practices, knowledge and technologies; (vi)to use their innovations, practices, knowledge andtechnologies in the conservation and sustainable use ofbiological diversity; and (vii) to the exercise of collectiverights as legitimate custodians and users of theirbiological resources.

46 Erica-Irene A Daes, Prevention of Discrimination andProtection of Indigenous Peoples: Indigenous Peoples’Permanent Sovereignty Over Natural Resources (Geneva:Final Report of the Special Rapporteur, E/CN.4/Sub.2/2004/30, UN Sub-Commission on the Promotion andProtection of Human Rights, Commission on HumanRights, Economic and Social Council, 13 July 2004). See alsoArticle 3, 12, 24, 26 and 29 of the UN Draft Declaration onthe Rights of Indigenous Peoples Relating to IndigenousKnowledge and Cultural Heritage (Geneva: Office of theUnited Nations High Commissioner for Human Rights, 26August 1994).

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