A Comment on the Vires of ‘The Protection, Conservation and Effective Management of Traditional Knowledge relating to Biological Diversity Rules, 2009

Earlier this year the National Biological Authority, had invited comments on – The Protection, Conservation and Effective Management of Traditional Knowledge relating to Biological Diversity Rules, 2009 (TK Rules, 2009). The rules have been drafted by the NBA under Section 36(5) & 62 of the Biological Diversity Act, 2002.

Image: Preamble to the Constitution of India – From here.
Section 36(5) is an interesting provision which allows the Central Government to facilitate the registration of traditional knowledge in relation to biological diversity and also initiate any other measures of protection including a sui generis system. The NBA has therefore sought to create a sui generis system to protect Traditional Knowledge through these rules.

A glance at these rules reveals the conceptualization of of an elaborate and equitable legal regime to protect traditional knowledge. If implemented, these rules will fulfill the long-felt need of a sui generis legislation to protect traditional knowledge in India.

The question however is whether or not these Rules are within the scope of the Biological Diversity Act, 2002 as it stands now, without any amendments. To put it simply the question that needs to be examined is whether or not Parliament has delegated to the NBA the power to make such rules.

The rules of delegated legislation are relatively simple. Given the complexity of modern day governance Parliament usually lays down only the broad policy outline and delegates the job of working out the finer nuances to the Executive i.e. the government. The Executive i.e. NBA has to then draft rules and regulations to execute the policy laid down by Parliament through the governing legislation, which in this case is the Biological Diversity Act, 2002.

There are however a few fundamental principles on the delegation of legislation to statutory bodies:

(i)The statutory authority shall confine itself to the parent statute and not exceed the same;
(ii)The statutory authority shall not frame rules contrary to the intent or provisions of the statute;
(iii)Parliament shall not delegate to the statutory authority an essential legislative function. This means that the statutory authority shall not attempt to frame policy but instead limit itself to procedure.

I tried searching for accompanying amendments to the Biological Diversity Act, 2002 but was unable to find any on the website of the NBA. If this is a valid presumption then in that case I have serious doubts over the constitutionality of some of the clauses in these Rules. I’ve attempted to carry out a largely superficial analysis of the same below:

(i) Definition of Traditional Knowledge: Rule 2 (v) of the Act defines “Traditional Knowledge” as the collective knowledge of a traditional community including of a group of families, on a particular subject or a skill and passed down from generation to generation, either orally or in written form, relating to properties, uses and characteristics of plant and animal genetic resources; agricultural and healthcare practices, food preservation and processing techniques and devices developed from traditional materials; cultural expressions, products and practices such as weaving patterns, colors, dyes, pottery, painting, poetry, folklore, dance and music; and all other products or processes discovered through a community process including by a member of the community individually but for the common use of the community;

The Bio-Diversity Act, 2002 which is the parent legislation in this domain is a legislation which was drafted mainly to implement India’s obligations under the United Nations Convention on Biological Diversity. The main aim of the legislation as can be ascertained from the Preamble of the legislation was to provide for conservation, sustainable utilization and equitable sharing of benefits arising out of utilization of genetic resources and also to give effect to the said Convention.

It would therefore be difficult to justify the inclusion of ‘cultural expressions’ such as poetry, weaving, painting etc. in the definition of the TK Rules, 2009 since the same would not have a rational, reasonable nexus to the aims and objectives of the Act which in itself seems to be aimed at protecting the biological/genetic diveristy of the Country. The definition of ‘Traditional Knowledge’ if therefore clearly ultra vires the Act.

(ii) The Traditional Knowledge Fund: Rule 3(7) of the TK Rules, 2009 states the following: The National Biodiversity Authority shall set up a fund called the Traditional Knowledge Fund under Section 27 of the Act and there shall be credited thereto all charges, fees, royalties and all sums received by the National Biodiversity Authority in the administration of these Rules.

Section 27 of the Biological Diversity Act provides for the Constitution of the National Biodiversity Fund. As per the Section all charges and royalties received by the National Biodiversity Authority under the Act are supported to be deposited in this Fund and then channelled to the benefit claimers apart from the purposes of conservation and promotion of biological resources. This section does not provide for any delegation of powers. Similarly even Sections 36(5) and Section 62 are silent on the power of the NBA to create its own fund.

It is my understanding that the National Biodiversity Authority, a statutory authority cannot, in matters of the treasury and revenue, attempt to create its own funds and structures which overlap or blatantly undermine those created Acts by Parliament.

(iii) Access to traditional knowledge and Prior Informed Consent: Rule 5 of the TK Rules 2009 sets down a procedure for any person to access traditional knowledge in the country. The basic requirement of this rule is that the community holding the TK should give its prior informed consent for the same. The definition of ‘accessor’ in the Rules covers any person who seeks to access the traditional knowledge for purposes of either commercial utilization or for the purposes of research.

Although I have to agree that this is the more equitable than the procedure prescribed by the Act I will also have to point out that this is absolutely the problem with the rules – it is not the procedure prescribed by the Act.

(a) Firstly the Bio-Diversity Act diffrentiates between foreign citizens and Indian citizens. Under Sections 3 and 19 all foreign citizens and companies will have to seek the ‘approval’ of the NBA before accesssing biological resources in India. Indian citizens and companies on the other hand however are only required, by Section 7, to ‘Intimate’ the State Biological Diversity Board before obtaining biological resources. Therefore under the Act there is a clear difference in standards for Indians and foreigners. The TK Rules, 2009 however fail to make this distinction and in the process impinge the rights of Indian citizens under Section 7 of the Act.

(b) Secondly the Bio-Diveristy Act, as it stands now, does not require the prior-informed consent of the community holding the traditional knowledge. At the very best under Section 21 of the Act the NBA is required to ensure that there is equitable benefit sharing on ‘mutually agreed terms’. It is debatable whether or not this is equivalent to ‘prior-informed consent’. In my opinion this is not equivalent to ‘prior informed consent’. Under Rule 5 (6) of the TK Rules, 2009 a community holding the traditional knowledge now has the right to deny acccess by turning down the applicant’s request for ‘prior informed consent’. These Rules have clearly changed the rules of the game.

The requirement of prior-informed consent may therefore be beyond the scope of the Bio-Diversity Act, 2002 as it exists.

(iv) Offences & Penalties: Rule 18 of the TK Rules, 2009 prescribe a prison term of 5 years and a fine of Rs. 10 lakhs for any violation and contravention of the TK Rules, 2009. This provision is much more severe than the equivalent Section 56 of the Act which provides only for monetary fines for violation of Orders of the Biodiversity Boards.

The fundamental problem with Rule 18 is that it is brazenly unconstitutional to deprive a person of his life or liberty through rules and regulations drafted by the Executive and not the Parliament. God Forbid the day a bureucrat gets to decide when a citizens is deprived of his liberties!

Rule 18 therefore has to be undoubtedly deleted from the TK Rules, 2009.

Conclusion: As per Section 62(3) of the Biological Diversity Act, 2002 any rules and regulations made under the Act will have to be laid before Parliament for a period of 30 days before the same can have the force of law. The Rules are then approved through a negative process i.e. if in 30 days if Parliament does not propose any modifications the rules are deemed to have passed. Given the rarity of sittings and the workload of Parliament it is very rare for rules to ever be put up for a debate. Therefore in all probability if the TK Rules, 2009 are introduced into Parliament this budget session they will sail through by the end of March or April.

My own personal comments on the Rules are that it is much more equitable and much better drafted than the Biological Diversity Act, 2002. However these rules represent a clear attempt at a backdoor entry. Given the need for a sui generis system to protect traditional knowledge it makes enormous sense to replace the word ‘Rules’ in the title-clause with ‘Bill’ and introduce the same through the frontdoor of Parliament. In fact if I didn’t know better I would have to say that the TK Rules, 2009 were actually drafted with the intention of introducing it in Parliament as a Bill.