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A Comment on the Vires of 'The Protection, Conservation and EffectiveManagement of Traditional Knowledge relating to BiologicalDiversity !les, "##$

Earlier this year the National Biological Authority, had invited comments on - TheProtection, Conservation and Effective Management of Traditional Knowledge relating toBiological iversity !ules, "##$ %TK !ules, "##$&' The rules have (een drafted (y the

NBA under )ection *+% & +" of the Biological iversity Act, "##" '.mage/ Pream(le to the Constitution of .ndia - 0rom here ')ection *+% & is an interesting 1rovision which allows the Central 2overnment tofacilitate the registration of traditional 3nowledge in relation to (iological diversity andalso initiate any other measures of 1rotection including a sui generis system' The NBAhas therefore sought to create a sui generis system to 1rotect Traditional Knowledgethrough these rules'

A glance at these rules reveals the conce1tuali4ation of of an ela(orate and e5uita(le legal

regime to 1rotect traditional 3nowledge' .f im1lemented, these rules will fulfill the long-felt need of a sui generis legislation to 1rotect traditional 3nowledge in .ndia'

The 5uestion however is whether or not these !ules are within the sco1e of the Biologicaliversity Act, "##" as it stands now, without any amendments' To 1ut it sim1ly the

5uestion that needs to (e e6amined is whether or not Parliament has delegated to the NBA the 1ower to ma3e such rules'

The rules of delegated legislation are relatively sim1le' 2iven the com1le6ity of modernday governance Parliament usually lays down only the (road 1olicy outline and delegatesthe 7o( of wor3ing out the finer nuances to the E6ecutive i'e' the government' The

E6ecutive i'e' NBA has to then draft rules and regulations to e6ecute the 1olicy laid down (y Parliament through the governing legislation, which in this case is the Biological

iversity Act, "##"'

There are however a few fundamental 1rinci1les on the delegation of legislation tostatutory (odies/

%i&The statutory authority shall confine itself to the 1arent statute and not e6ceed thesame8%ii&The statutory authority shall not frame rules contrary to the intent or 1rovisions of thestatute8

%iii&Parliament shall not delegate to the statutory authority an essential legislativefunction' This means that the statutory authority shall not attem1t to frame 1olicy (utinstead limit itself to 1rocedure'

. tried searching for accom1anying amendments to the Biological iversity Act, "##" (utwas una(le to find any on the we(site of the NBA' .f this is a valid 1resum1tion then inthat case . have serious dou(ts over the constitutionality of some of the clauses in these!ules' .9ve attem1ted to carry out a largely su1erficial analysis of the same (elow/
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The vires of the Rules

%i& Definition of Traditional Knowledge / !ule " %v& of the Act defines :TraditionalKnowledge; as the collective knowledge of a traditional community including of a groupof 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 fromtraditional 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- iversity Act, "##" which is the 1arent legislation in this domain is a legislationwhich was drafted mainly to im1lement .ndia9s o(ligations under the


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country' The (asic re5uirement of this rule is that the community holding the TK shouldgive its 1rior informed consent for the same' The definition of 9accessor9 in the !ulescovers any 1erson who see3s to access the traditional 3nowledge for 1ur1oses of either commercial utili4ation or for the 1ur1oses of research'

Although . have to agree that this is the more e5uita(le than the 1rocedure 1rescri(ed (ythe Act . will also have to 1oint out that this is a(solutely the 1ro(lem with the rules ? itis not the 1rocedure 1rescri(ed (y the Act'

%a& Firstly the Bio- iversity Act diffrentiates (etween foreign citi4ens and .ndianciti4ens'


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