Guardians of Wisdom, Victims of Silence: Legal Gap in Protecting Traditional Knowledge.

vidhigulati0509
May 23
4 min read

"Vidya Dadati Vinayam, Vinaya Dadati Paatrataam |

Paatratva Dhanamaapnoti, Dhanaat Dharmam Tatah Sukham||"(1)

This ancient Sanskrit Shloka, originating from the times of gurukuls, underscores how knowledge fosters discipline, well-being, and worthiness.(2) For centuries, the Vedic Guru's shielded and imparted wisdom as a fundamental societal pillar, in contrast to today's reliance on scientific discoveries. As the world faces environmental difficulties, this traditional knowledge offers transformative solutions to climate change and sustainability.

Though the Indian Government in 1992 strongly advocated for the sovereignty of biological resources and traditional knowledge, it failed to protect that knowledge. That is where the issue of protection of traditional knowledge on India's end arises.

Cases involving neem, turmeric, and basmati rice triggered India's commitment to protecting traditional knowledge. During the Uruguay round of discussions of TRIPS, India made a strong case for preserving traditional knowledge as a local community's human right. Particularly at the Rio de Janeiro Summit, the 1992 Convention on Biological Diversity (CBD) acknowledged the role of traditional knowledge in environmental sustainability.(3) The 2002 Johannesburg Declaration advanced the preservation of indigenous biodiversity knowledge along with the Nagoya Protocol in 2010.

After a long period of 10 years, India enacted Biological Diversity Act (BDA),(4) which focused on access and benefit-sharing (ABS) with prior informed consent (PIC) from indigenous communities. Article 8(j) of the CBD (5) and Section 21 of the BDA (6) recognizes the right of equitable benefit-sharing, which was witnessed in the case of the Kani Tribe agreement over the development of the drug Jeevani based on their traditional knowledge.(7)

However, the act's enactment gave rise to the issue with the implementation of the legislation, and India needed to catch up in guaranteeing rights to the Indigenous community. Despite strongly advocating for the sovereignty of the community, India did not become a signatory to the UN Declaration on the Rights of Indigenous Peoples, arguing that all "Indians are Indigenous." This stance of India was proved controversial when, in movements like "Pathalgadi and Naga Conflict," the communities fought for the right to self-determination, which the Government suppressed by criminalizing them.(8)

The implementation issue was majorly highlighted in the 2016 judgment of Chandra Bhal Singh's V. Union of India (9) judgment. The 2016 judgment revealed that out of the 252,709 Panchayat BMCs mandated to be formed, only 9,700 (10) had been constituted, due to inadequate implementation. The National Green Tribunal (NGT) called upon states for poor maintenance and failure to fulfil their national duty of forming Biodiversity Management Committees to handle the protection at the panchayat level. The NGT had emphasized that even though traditional knowledge was protected under the BDA, Patent Act, Copyright Act, and Geographical Indication Act, the Government must have made the concerned society aware of these protections available to them. This raises a critical question: “why has India, which actively advocated for the protection of traditional knowledge on the global stage, been so slow in implementing the Biological Diversity Act?”

The Biological Diversity Act remains one of India’s most underutilized laws. Despite its enforcement in 2002 and rules established in 2004, it wasn’t until the 2016 Chander Bhal Judgment that the NGT intervened, urging states to comply with the law.

The problem with proper enactment of laws and recognition of self-determination rights makes it hard for the communities to share their knowledge; indigenous knowledge has been proven beneficial by various international conferences like the 28th Conference of Parties (COP 28)(11) and the Paris Agreement,2015 for curbing climate change.(12) Thus, to resolve these issues, the Indian Government needs to keep a check and balance on the policies or the legislation they have already implemented. For instance, the Government has taken a great initiative to protect knowledge from biopiracy by introducing the Traditional Knowledge Digital Library (TKDL). The library requires expansion to include ecological practices addressing climate change. Where the knowledge is sensitive, it should be treated as a trade secret to prevent exploitation, as this would help restore the community's trust.

The legal strategy for this issue would be a sui generis system for traditional knowledge, which has previously been merged and incorporated into either Intellectual Property Laws or the Biodiversity Act. However, it is time for the Government to appreciate the communities' connection to nature and the assets they bring with them, namely their knowledge, which could answer various environmental concerns.

The strategy to protect that knowledge from biopiracy could be introducing a compensatory trust fund. It would play an important role in any violation of the Indigenous right, as the trust would ensure that the knowledge's owner receives fair and equitable compensation in case of any breach. This strategy came to mind after witnessing the Garhwali community's dilemma in Divya Pharma V. Union of India(13). In this case, the court stated that whether it is an Indian or a foreign entity, obtaining prior informed consent from the National Biodiversity Board is mandatory before accessing any traditional knowledge, and the community must receive compensation.

Therefore, resolving the issues addressed above requires bridging gaps in implementation, aligning domestic policies with international commitments, and fostering collaboration with Indigenous communities. India can honour its ancestral heritage while securing a sustainable future.

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