The National Biodiversity Authority to organize a National Consultation on proposed ‘Benefit Sharing Protocols’ & ‘Traditional Knowledge Rules’

(i)International Regime on Access and Benefit Sharing;
(ii)Evolving sui generis system for the protection of Traditional Knowledge; &
(iii)Amendments to the Biological Diversity Act, 2002 and Biological Diversity Rules, 2004.

The Authority has now completed the process of receiving and collating the various responses that it received from interested stakeholders and academicians. The same have been posted on the website of the NBA and can be accessed here.

The process now moves on to its next stage which is a national consultation on the 23rd of April, 2010 chaired by a Minister from the Ministry of Environment and Forests. The agenda note for the same is available on the website of the NBA over here. Strangely, there is no mention on the venue for the same.

The NBA must once again be congratulated for the transparency and participatory process that it has adopted while introducing these new rules and protocols.

This of course does not change the fact that there are serious problems with the proposed Protection, Conservation and Effective Management of Traditional Knowledge relating to Biological Diversity Rules, 2009 . These problems were highlighted in an earlier post of mine under a rather drab title and which can be accessed here. The gist of my post however was the fact that key aspects of the proposed rules are unconstitutional and beyond the scope of the parent Act. Some of these features are as follows:

(i)That the Definition of ‘Traditional Knowledge’ under the proposed Rules were vastly broader than what was permitted under the Act;
(ii)That the Traditional Knowledge Fund under the proposed Rules could not undermine the statutory National Biodiversity Fund;
(iii)That the concept of ‘prior informed consent’ as understood in the proposed Rules was wholly beyond the scope of what currently exists under the parent Act; &
(iv)That the provision of penal offences and penalties was without doubt beyond the scope of delegated legislation.

At that point in time I refrained from sending in my comments as my commitments at work did not permit athe kind of intensive study that such a project would have required. I just presumed that somebody would have picked on these obvious points. Apart from one Professor of law from the School of Excellence, Madras, none of the other commentators have contributed in any way to the discussion on the constitutionality of these provisions. In any case I’ve realized that trying to have a discussion on constitutional law with most people, especially IP lawyers, is usually a lost cause.