A Critical Analysis of Legal Frameworks Protecting Indigenous Knowledge and Environmental Heritage in India

Abstract

Tribal art forms, traditional knowledge systems, sacred motifs and intergenerational cultural expressions are priceless living heritage that are integral to the ecological identity and connection with nature of indigenous communities all over India. However, traditional property systems, which are geared towards individual authorship and commercial innovations, are structurally not well suited to safeguard the communal, oral and time immemorial nature of such heritage. In this paper, the author critically analyses whether sui generis legal frameworks - systems of law which go beyond the traditional IP paradigm - can provide a viable and justicebased approach for the protection of indigenous art and cultural heritage in India.
This paper examines the issue of the loss of indigenous cultural heritage in the context of indigenous rights and environmental protection and suggests that the loss of indigenous cultural heritage is not only a legal or a question of intellectual property it is an environmental justice issue. Indigenous traditional ecological knowledge (TEK), culture, and tradition which are embodied in sustainable land use, conservation of biodiversity, and ecological worldviews are being appropriated and commodified, thus compromising the biocultural integrity of the communities whose knowledge, culture and tradition are encoded in their land use. The paper highlights the existing lacunae in the legal protection by tracing the interface between the Convention on Biological Diversity (CBD), the Nagoya Protocol, the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and the existing domestic laws in India, such as, the
Biological Diversity Act, 2002 and the Protection of Plant Varieties and Farmers' Rights Act, 2001.
This paper examines proposals for community-based geographical indications, folklore registers and defensive publication mechanisms as sui generis tools, and evaluates the claims of these tools in the context of the analysis of key cases of cultural appropriation that include the use and commercialization of Warli, Madhubani and Gond art forms. It also discusses the constitutional aspect of such protection in Article 29, 51A(f) and the Fifth and Sixth Schedules and studies the role of judicial activism in closing legislative lacunas. The paper finds that a reworking of the legal architecture is required if protection is to be effective, with a shift towards placing community sovereignty, free prior informed consent and benefit-sharing at its heart, not just as IP policy, but as a duty arising from environmental justice and constitutional morality.

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