Usufructuary Mortgages in Malabar Whether a Kanam

(Sri. K.E. Gopinath, B. Sc, BL., Advocate, Kozhikode)

In the article under the above heading at page 86 of 1959 K.L.T. Sri. M. Velayudhan Nair, has embarked upon a roving enquiry and discussion as to the basic difference between a kanom and a mortgage. He has proceeded on the basis that the Kerala High Court has taken the view that a usufructuary-mortage in Malabar is ipsofacto a kanom within the ambit of the Malabar Tenancy Act. According to him the decisions in Janardanan vs. Kuppandi (1959 K.L.J. 119:1959 K.L.T. 118) and Emmunni Panikar vs. Krishna Panicker (1958 K.L.J. 805; 1958 K. L. T. 756) lay down the rule that all usufructuary mortages in Malabar are to be treated as kanoms. I would respectfully submit that he has started on wrong premises. As a matter of fact those decisions do not warrant such a conclusion. The only question decided in both the cases was whether the transaction under consideration satisfied the definition of kanom in Section 3(14) of the Malabar Tenancy Act, 1951. It is too much to assume that their Lordships were, in those judgments, laying down the proposition that all usufructuary mortgages are really kanoms. The argument underlying the article would have been well understood if the attempt was to show that the amended definition of kanom has failed to recognize the essential features of a kanom tenure. In my humble opinion those decisions do not create an anomalous situation of having to treat all usufructuary mortgages as kanoms, as the learned critic seems to suggest or apprehend.

In janardanan Vs. Kuppandi, which arose from a suit for redemption, the Pull Bench confirmed the judgment of the lower court disallowing the claimfor redemption on the basis that the transaction was proved to be a kanom having fixity of tenure. It was proved and admitted in evidence that no amount in cash passed under the document (claiming to be a mortgage) and that the only consideration was the kanartham under a prior kanom. The simple and solitary point urged in appeal was that in as much as the terms “kanomdar” and “kanartham” found in the definition of kanom in Section 3 (14) of the 1951 Act, were absent in the document the transaction can never be a kanom. If the absence of those terms is the sine quo non of a kanom, the problem would have been very easy. It passes beyond one’s comprehension how such a plea could be expected to have found favour with the judges. In view of the facts stated in para 10 of the judgment it is incorrect to state that their Lordships do not indicate their reasons for holding that the transaction spells a kanom. So much so, on the facts and circumstances of the case and the argument advanced in the appeal there is absolutely no basis and scope for arriving at a different conclusion. Without proving the transaction to be a mortgage how can it be expected that the mortgage was held to be a kanom?

In Bmmuni Panikkar vs. Krishna Panikkar the question that came up for consideration was whether the suit for redemption of a kaivasapanayam was liable to be stayed under Act I of 1957. The decision turned on the question whether the transaction would satisfy the definition of kanom in Section 3 (14) of the Tenancy Act. His Lordship Sri N. V. Iyengar J. held that the transaction was a kanom within the meaning of the definition. It was argued that the transaction to be a kanom, besides the incidents referred to in the definition, the incidents of renewal fee and twelve years’ period should still bedeemed subsisting, to be satisfied in spite of their deletion from their definition-a proposition not easy to accept.

It is a well known fact that the name given to a document is not the conclusive proof of its character. From a study of the origin of kanom and its customary incidents later modified by statute, it will be evident that no hard and fast rule has been laid down to test if a transaction is a kanom or a mortgage. In fact these terms have been used as synonymous. This fact has been well recognized by the legislature and Section 22 of the Tenancy Act and Section 25 (6) of the Kerala Act 31 of 1958 are significant for the purpose. Under these sections the parties are at liberty to plead and prove that a transaction purporting to be a usufructuary mortgage is not in fact such but a kanom within the purview of the tenancy Act and vice versa.

The Malabar Tenancy Act of 1930 was enacted on the basis of the Raghaviah Committee. The report stated that the renewal fee was being granted to jenmies as a concession because it was thereby assuring a sort of qualified fixity. In 1951 the legislature was not fettered by the considerations of the said committee and that was the reason why the incidents of the renewal fee and the 12 years’ period found in the old definition of kanom were deleted. Now, what exactly is this renewal fee? Is it an incident of a kanam tenure? Various textbooks on the subject reveal two different views. One view is that renewal fee is a soujanyam or a voluntary gift and the other view is that it is a succession duty. But all are agreed that there is no basis for this renewal fee and that its non-payment would not invalidate a kanom contract. The pay­ment of renewal fee is not dependent on any rule or custom and is not a necessary or customary incident of a kanom tenure. It is neither an inherent right of the jenmi, nor a part of the customary law of Malabar. It is only a statutory right conferred by the 1930 Act.

By amending the definition of kanom it was intended by the legislature that the demises of land purporting to be a kanom or a usufructuary mortgage satisfying the definition should be brought within the ambit of the Act. It is worthwhile to note that the 1951 Act contampiates kanoms having fixity of tenure and kanoms which do not have. Kanoms wherein consideration is less than 40% in North Malabar and 60% in South Malabar have fixity of tenure, subject to eviction on specified grounds. It is only a truism to say that the amended definition of kanom would embrace usufructuary mortgages as well. That is all the more made clear by the fact that the provisions of the Act were made applicable to certain portions in South Kanarn, with the result that what had been considered as usufructuary mortgage pure and simple, had come thereby within the definition of kanom. Hence the incidents of renewal fee and 12 years period were not intended to be recognized by the Legislature as a sine quanon of a kanom tenure.

Under the circumstances, one fails to see how it is difficult to realise that the amended definition of kanom has the effect of bringing within the ambit of the Malabar Tenancy Act, transactions in the nature of usufructuary mortgages as well as a consequence of which the rights of the mortgagee get enlarged and he is elevated to the status of a kanomdar, .entitled to the benefits under the Act, for which he might not have bargained for. It is also impossible to see how any anomalous position is thereby created, much less by the decisions.

"Alarming Arrears"

(P.V. Aiyappan, Advocate, Ernakulam)

1. The other day, the Union Law Minister, Shri Shiv Sankar revealed in the Lokh Sabha that more than 36,000 cases are awaiting their fate in the Supreme Court, but did not disclose the alarming Dockets in the High Courts. Fortunately, the Law Minister is an Ex-High Court Judge, yet he was not able to tackle this problem of accumulation of cases in various courts because he has -miserably failed to diagnose the disease and to prescribe the remedy. There is no use of bewailing over the sad state of affairs obtaining in the various High Courts in India and subordinate Courts. The decision reported in 1978 SCC. (Criminal) Page 23 onwards "Hassainera Khatoon v. Home Secretary, State of Bihar, proclaims the urgent necessity of salvaging human life, and liberty by adopting efficacious remedies. It would appear "that almost all the States are unconcerned with the administration of justice, for, according to them, law will take its own course and take care of itself. This marks the beginning of the end of "Rule and Law" zealously guarded by-our Constitution. The alarming and astonishing arrears in courts is not commendable to the judiciary as a whole, because so many suffer by waiting for the verdicts.

2. Informed sources suggest, increasing the number of judges in every High Court, to cope with the situation but the only difficulty the Government feels is the problem of accommodation. According to me it is an unwise suggestion. This malady cannot be cured by increasing the number of judges. The courts in India, want efficient judges with remarkable legal equipments and proven ability as of old but in the present method of recruitment, and conditions of service, efficiency, ability and equipments are casualties. At present, the qualification for the appointment of High Court Judges is laid down in Article 217 of the Constitution. In the said Article 10 years' Judicial service or ten years' practice as an advocate in any High Court alone is the qualification prescribed for appointment of High Court Judges. The total absence of an efficiency test is accountable for the deplorable state, obtaining in almost every High Court in India. Sri. Sivasankar, because he was also an High Court Judge, is incapable of suggesting an efficacious panacea for this incurable disease of deterioration in quality of the judges recruited under Article 217 of the Constitution I am aware of the, limitations of a citizen to entrench more upon the High Court and the judges presiding over it, for every High Court in India, is court of record under Article 215 of the Constitution.

3. Instead of the present method of recruitment, why not the Central Government try to secure the services of renowned jurists and legal luminaries to adorn the High Courts, of course, after introducing drastic changes in their conditions of service and emoluments, by setting up a "Recruitment Council" consisting of at least three or more Supreme Court Judges with unquestionable integrity to make recommendation to the President of India direct for appointment, without routing through the Chief Justice of the respective High Court and the Governor through Government and Law Ministry to Chief Justice of Supreme Court. Since politics play an important role in government level, the would be judges would have to sacrifice their dignity and self respect sometimes in waiting at the doors of politicians and other influential persons—a deplorable state of affairs—for those who have got an iota of self respect in them. Could we expect an impartial and independent judiciary if the present-set up for recruitment of judges is allowed to continue? Rule of Law is the Guardian Angel of Democracy and an Independent and fearless judiciary could only safeguard the "Rule of Law" and in a democratic set up, these are indispensables. The Law Minister, since he is an Ex-High Court Judge, will be more zealous in safeguarding the independence, and efficiency of the Indian Judiciary and with that idea in view, I expect him to suggest suitable amendments to the Constitution by deleting the present Articles governing the appointment of judges and by introducing suitable Articles enabling the establishment of a "Recruiting Council" from among the Supreme Court Judges, so that efficiency, ability and common sense in abundance alone should, be the criterion for appointment of Judges both in High Courts and Supreme Court. If extraneous considerations and nepotisom make their entry into the recruitment, the sacred precinct of court hall will give free entry to politics and favouritism, too poignant an enemy to the judicial independence and a sad day for the Indian judiciary.

6. In the Federal Republic of Germany: Article 103(1) of the Constitution provides “Every individual has a right to a fair hearing before a court”. Code of Criminal Procedure Para 137 provides that in criminal proceedings the accused has the right to be represented by a lawyer of his own choice. Code of Criminal Procedure paras 140, 141, 145 provide that in important cases, the services of a lawyer is imperative and if none is chosen, the President of the court appoints one. Para 149 provides that the close relatives such as the wife or husband or other relatives should be admitted during the proceedings. Para.338(5) provides that non-appearance of a defence counsel is a good ground for setting aside the conviction. If there was no fair hearing, the conviction will be set aside by the Federal constitutional court on that ground alone, apart from the merits of the case.

7. in Italy: Art. 24 of the Constitution guarantees the right of defence and freedom of appeal to higher tribunals by a lawyer and in serious cases if the accused does not engage a lawyer, the court will engage one and lawyers accept the engagement and conduct of the proceedings free of remuneration as part of their duty to that court. Non-appearance of a lawyer for the accused in such cases makes the proceedings void. Article 24(3) provides that “Indigent persons are assured through suitable institutions the means of conducting pro­ceedings and defending themselves in any jurisdiction”. There are institutions regulated by the State which offer legal assistance to poor accused. In large cities there are associations of lawyers for free legal assistance to the poor parties, senior lawyers undertaking the work with the instinct of helping the poor and juniors undertaking the work with the idea of gaining experience in practice of law.

8. In the U.S.S.R. these rights do not appear to have been recognized. The subordinate criminal judiciary do not seem to be an independent judi­ciary; the appointments are made by the procurator. Article 50 of the Indian Constitution provides for the separation of the judiciary from the executive, so that the judiciary should be uninfluenced by the executive in any manner. It is difficult to understand how an accused can have a fair trial from a magistrate who owns his position to a procurator. A lawyer has no place in the pre-trisil proceedings; accused is left to himself in the early stages of the proceedings. A lawyer can appear only during trial and that at the hearing stage when the court has already come to a decision about the matter pending. Even during trial, lawyer can appear only if the prosecutor appears; courts can conduct preceedings in the absence of both parties. According to the Indian Law, the evidence can be taken only in the presence of the accused, otherwise the evidence is inadmissible. Even during trial, proceedings in court can be conducted secretly. Under Section 352 of the Indian Criminal Procedure Code, trials had to be conducted in public. Article 76 of the Republic of China makes it imperative that proceedings shall be in public. The presiding judge can refuse to allow a particular counsel from appearing for an accused, so that the right of the accused to have a lawyer of his own choice is denied. Sentence by order i. e. the party secretary instructing the judges as to the judgment to be pronounced, the extent of punishment to be awarded and the judge acting up to that direction appears to be a normal feature. “Sentence ex post facto” i.e. the sentenceand execution of the sentence preceding the trial and conviction is followed in some cases.

9. It is hoped that those States in which there are no adequate provisions for safe-guarding a fair trial of accused in criminal proceedings, adequate provisions will be made and those States in which there are provisions which curtail the rights of accused, will repeal those provisions.

ACCESS AND BENEFIT SHARING: A WELFARE MEASURE LACKING IMPLEMENTATION

Ebee Antony (4th Year, B.A.LL.B (Honours), School of Law, Christ (Deemed to be University)

ABSTRACT

Access and Benefit Sharing is a scheme that came into picture with full thrust act the Convention of Biological Diversity, the purpose of such a measure was to compensate the traditional knowledge holders of the loss that they would face, as a result of scientific and technological advancement. Science and Technology has created an atmosphere which is not conducive for the life of the persons who lag behind or those who prefer to stay without indulging into it. The ABS scheme was given further shape through the Nagoya Protocol, which mandated that every party to the convention should formulate domestic legislations to effectuate the ends of the protocol. A pertinent issue facing all the authorities under the act is the determination of the value of the biological resource. Right now there is a confusion regarding whether local industries should pay the ABS fees as the wording of the legislation are ambiguous about this. The difference between the marginal benefit of the user and the marginal benefit of the stakeholders should be decreased to attain the actual purpose of the scheme. The establishment of several administrative authorities under the act which are empowered to impose fines for the purpose of enforcing the provisions of the act, the need for the involvement of various stakeholders and empowering the Biodiversity Management Committee is also necessary as it is the institution that has first-hand knowledge about the realities of the locality.

I. Introduction

Of the Convention of Biological Diversity and the Nagoya Protocol on Access to Genetic Resources and In pursuance Equitable Sharing of Benefits Arising from their Utilization, the signatories to it have drafted and passed local legislations and other administrative policies for the purpose. India became a signatory to this convention on the 19th May 1994.

Mostly resource rich countries are developing and poor when it comes to the technical know-how required to tap into these resources. As a result the developed countries tend to barge into the biological resources of the developing countries and illegal means extract these resources and claim a patent protection over them. Instead of a plant patent they go for a utility patent which covers the entire niche of the DNA and other genetic material, thus depriving the local community of their right to access the livelihood security systems. It is the fear of this IP ambush that has triggered the International Community to present such a convention and other protocols under it.[1]

The IPR system provides uninterrupted rights over the commodity on which such rights prevail, this will give the holder the incentive to commercially exploit the same. The holder will not consider keeping enough for the indigenous/local community for sustainable growth. Our present understanding of the genetic knowledge owes a good deal towards the traditional knowledge of indigenous communities, hence it is our duty to consider their rights as well.

The ABS regime comes into picture at this juncture, it brings in the idea of sharing out of the benefits accrued from the utilization of resources. This is done through a contract which involves the Mutually Agreed Terms (MAT) which highlights the commitments from the side of the biological resource supplier (State) and the user (Individuals/Corporations). The goal of ABS is to make an environment suitable for sustainable development. ABS is also helpful in the achievement of two Sustainable Development Goals (SDGs):

SDG 2: Zero Hunger.

SDG 15: Protect, restore and promote sustainable use of terrestrial resources. [2]

According to the Bonn Guidelines on Access and Benefit Sharing, ABS can be carried out either in monetary as well as in non-monetary terms. The examples of these are provided in Appendix II to the Bonn Guidelines, some of which will be discussed here for the benefit of the reader:

Monetary forms of ABS: [3]

•     Access Fee.

•     Fee for the collection of samples.

•     Joint ownership of IPRs

Non-Monetary forms of ABS: [4]

•     Sharing R&D results with the state.

•     Locating production and R&D facility in the region for the purpose of improving the living standard.

•     Research directed to the priority needs of the supplier state.

II. Convention on Biological Diversity, 1992

The convention took shape as one which was for the purpose of protecting the biological resources of the planet, but it has got relevance to the topic of this paper as one of the three objectives of the act is, “…ensuring fair and equitable sharing of benefits arising out of utilization of genetic resources.” States have been roped in to play a major role in drafting domestic legislations in pursuance of Article 15(7) of the Convention which states that it is mandatory for every contracting to state to frame domestic laws and rules for attaining the objectives of the convention. There has been a departure from the earlier belief that biological resources are part of the common heritage of mankind, the convention through Article 3 has reaffirmed the position of the state as the custodian of the natural resources found within its territory. [5]

India had ratified this convention on 19th May 1994 and hence have the liability to carry out the obligations laid down under the Act. The deadline for the countries that have ratified this convention to effectuate the aspirations of the convention is mentioned in the Aichi Biodiversity Targets, Target 16 states that the Nagoya Protocol should be inforce and operational by the year 2010.

III. Nagoya Protocol

It is an additional agreement to the Convention on Biological Diversity, 1992. The purpose of this Protocol is to convey to the signatories their obligations under the third objective of the CBD. Article 5 of the Nagoya Protocol mandates the sharing of the benefits accrued out of the utilization of genetic resources, it further goes on to state that this sharing should be based on a formal agreement which will be known as the Mutually Agreed Terms (MAT).[6] The Nagoya protocol has a wide scope as compared to the earlier ABS regime under the International Treaty on Plant Genetic Resources for Food and Agriculture (IT PGRFA) which covered only seeds. The Nagoya Protocol on the other hand covers in its ambit all kinds of genetic material and the benefit arising out of its utilisation, also it covers under it wide net the Traditional Knowledge of the indigenous communities.

Mutually Agreed Terms

The two parties (State-Individual) will come into a contract on how to carry out the terms of the ABS. It is a bilateral agreement, to provide access to genetic resources by the supplier state and on the part of the user to reciprocate by granting both monetary and non-monetary benefits. Negotiating the MAT is the most crucial part in arriving at a equitable contract as provided under the Convention. As the state is the sovereign it has to exercise his power to restrict the way in which collection is done, all natural resources of a country are within the sovereign powers of the state and it is their duty to protect it. The state can prescribe regulations, the only qualification being that it should not be restrictive in nature. [7]

IV. Bonn Guidelines on Access and Benefit Sharing

The main purpose of these guidelines is to serve as a pole star for different states to help them in drafting local legislations, rules, regulations and policies.

It also tries to enhance the compliance with the Mutually Agreed Terms (MATs) by including in it the names of the indigenous tribe as well as the user of the resource. Further in the absence of MAT, i.e., when they are under negotiation other IP clauses have to be developed to fix the vacuum. They have also mandated the setting up of a Competent National Authority which look into the matters relating to Biodiversity conservation and protection of the indigenous and tribal community. The have been given the authority to decide on whether to admit a certain user and to decide on the quantum of compensation to be paid to the local community via the fund created by it. [8]

In India the Competent National Authority is the National Biodiversity Board, established under the provisions of the National Biodiversity Act, 2002.

V. National Biological Diversity Act, 2002

The objective of the Act as provided in the objects and reasons,’…fair and equitable sharing of benefits arising out of the utilization of biological resources, knowledge and of matters connected with or incidental thereto.” Section 2(g) defines Fair and Equitable benefit sharing as those acts of ABS as provided under Section 21(2) which is nothing more than the non-exhaustive list of monetary and non-monetary modes of benefit sharing. The Act goes onto to mention that the NBA is duty bound to ensure the existence of a contract for benefit sharing before grant of access and at the same time should ensure that there was prior informed consent.

The money deposited with the National Biodiversity Fund should be utilized only for those purposes purpose as specified by the Act under Section 27(2):

•     For the benefits of the stakeholder.

•     Development of the areas from where the biological resources have been sourced.

•     Socio-Economic development of the community.

VI. Biodiversity Rules, 2004

These rules prescribe the duty of the Biodiversity Authority and the State Biodiversity Board, both these bodies in consultation with the Biological Management Committee and the local community will have to negotiate with the user about the terms of the Mutually Agreed Terms, the clauses should guarantee that there will exist equal bargaining power. Neither access nor the benefit should be disproportionate. Rule 14(6) lists the information that should be included in the application for the receipt of the informed consent. Rule 14(10) is a hallmark rule which should be implemented with and carried out can reduce the asymmetry between access to the genetic resource and the benefit that has to be paid to the local community on each level of commercialization of the bio resource. A look at Rule 20 of the Rules says that there is no blanket formula for determining the value of the benefit sharing and this should be done in a case to case basis. In most cases this valuation is below the actual value this can be countered by the introduction of an ABS Cess/ABS Tax, which is a percentage calculated upon the difference of the ex-factory cost of the commodity and the taxes.

VII. ABS Guidelines, 2014

The guidelines have been issued by the Ministry of Environment, Forest and Climate Change after the action taken by the Madhya Pradesh and Maharashtra State Biodiversity Board’s action against the domestic users of biological resources.

The guidelines include within it the matters that need to be taken into consideration before evaluation the monetary consideration. They also present ration in which the National Biodiversity Authority and the State Biodiversity Board should devolve the money to the locals, which is to be done through the Biological Management Committee (BMC) which is the grass root level institution to secure the rights of the inhabitants. The money to be paid to the authority is 1%-3% or 3%-5% as the case maybe, which is worked on the net of the ex-factory price and the applicable government taxes. [9]

VIII. Benefit sharing under Protection of Plant Varieties & Farmer’s Rights Act, 2001

The Act has nuances of benefit sharing but the scope of the Act is limited to plant varieties and not as wide as the Biodiversity Act, 2002. Special reference should be laid on Section 26 of the Act which provides for determination of the worth of benefit that has to be transferred to the indigenous community. The authority under the Act is empowered for the purpose which listens the matter from the side of the user and the claimants of the benefit, it has to dispose the matter in an expedient manner and this order shall also contain the value of the monetary benefit that has to be paid if any, this has to be accompanied by reasons for the same. Some grounds on which the amount has to be determined: [10]

•     Commercial utility and demand in the market of the variety relating to which the benefit sharing is claimed.

•     The extent and the nature of the use of genetic material of the claimant in the development of the variety relating to which the benefit sharing has been claimed.

IX. Conclusion- Keeping pace with the changing landscape for the effective implementation of ABS regime

Valuation of the potential of the Biotechnology resource is a tricky business, no one is able to readily tell the monetary value of the resource that is being extracted from a particular area. There have been certain suggestions regarding what elements should be taken into consideration while making this decision, these can the found in the Nagoya Protocol itself and in the Indian domestic framework, in the ABS Guidelines, 2014 published by the Ministry of Environment, Forest & Climate Change along with the National Biodiversity Authority which is the competent authority in India to determine whether the access should be granted. These are the matters to be considered while determining the value of the compensation that is to be made to the National Biodiversity Fund for distribution among the benefit claimers:

•     Market Potential.

•     Investment in Research and Development.

•     Likelihood of commercial success of research or product.

•     Intention to secure IPR on the outcome.

•     Annual Turnover of the applicant from the previous years. [11]

These will be considered only as a guiding light, the competent national authority has to construe other factors for determination with the help of an expert research group. Drawing inspiration from the Brazilian ABS framework, they have  a concept of Ad hoc compensation to be paid to the Biodiversity Fund, which is in line with the environmental law concept of ‘Polluter Pays’ [13], i.e., a percentage as set by the authority calculated on the amount of genetic resource taken. The authorities in that country have realized that collection of a sum at different stages of commercialization will increase the cost of monitoring and actually eat up the finances which have to be made available to the domestic community.

Another suggestion is to widen the powers and the function of the Biological Management Committee, to increased participation of the affected stakeholders for better understanding of the situation, it should be invested with greater powers of advising the National Biodiversity Authority on which areas should be allowing to be subject to bio surveying/bioprospecting and which areas should be left out so as to maintain sustainability in the area. Furthermore, the Intellectual Property Office of the country should be allowed to participate in the decision making process to advice the Authority in framing the MAT.

The convention while mandating that access should be granted in all cases, upholds the spirit of sovereignty over the natural resources under its territorial jurisdiction, this gives unfettered rights to the state to put in place restrictions of its choice which it finds appropriate in consultation with the local community. The only requirement for the parties to the convention is that they should lift the blanket ban on access to technology. Moreover, the convention does not provide for a definition to the term ‘Prior Informed Consent’, this leaves space for the individual nation to frame case to case PIC requirement. The PIC may specify the territorial limit of bioprospecting. [13]

The local legislation should also be made applicable to domestic land grabbers and other individuals who make use of the biological resources, this is because if they are left unattended by any law, they will become brazen. If order to tackle this a very novel method is to conduct frequent and timely audit of the user of the genetic resources, this can be done without hassles by the inclusion of a ‘licensor audit’ clause in the Mutual Agreed Terms.

The aspirations of ABS cannot be achieved all of a sudden, this can be done only through constant research and analysis of the results of such research findings needs to be incorporated, the Authority in every country ought to work without vested interest and work towards attaining the best interest of its people especially the persons living in the geographical area being subject to bioprospecting activity. In situations where the access is truly for academic or research purpose the authority should place an obligation to the researcher to publish the work and conduct workshops for the local community to understand the results of the work, this should be done in non-technical language to facilitate better understanding of and to make useful application of the research finding. The competent authority can direct the user to make their research and development directed to certain particular end that might be useful for the country of origin to tackle some of their domestic problems. [14]

The National Green Tribunal (Central Zone) has made certain observation regarding the tardy implementation of the Biodiversity Act and the Rules under it that the State Biodiversity Boards in many of the Indian states have not yet been given guidelines pertaining to the demarcation of certain geographical locations as Biological Heritage Zones. The following was noted by the National Biodiversity Authority and the guidelines for the demarcation of Biological Heritage Zones were issued by the Authority in its 19th meeting and now it is open to the state governments to notify the rules for enforcing the guidelines.[15] The National Biodiversity Authority has in its 19th meeting passed guidelines regarding designation of ecologically fragile zones and those with other peculiar characteristic as Biological Heritage Zones, this is a step towards sustainable growth and protection from commercial exploitation.

I am of the personal opinion that the provision of the national legislation in India is not far behind the international standards, in fact the Biodiversity Act, 2002 from it conception had all the provisions other nations like Brazil, Costa Rica & Brazil are coming up with, the issue here lies with the implementation of the provisions. The illiteracy that prevails with regard to the provisions of the Act and the lack of awareness of such mechanisms in the part of the local community who are finally the victims of exploitation as they are deprived of human food, livelihood security systems and human health in the name of technological development. The government and the people of the region should realize that sustained use of biological resources is important for growth and development, economic growth without development in other sectors will result in nothing less than perpetual poverty and over dependence on external sources for basic needs. In order to satisfy the concern of the holder of the patent holder that disclosure in the PIC be prejudicial to their interest, such a disclosure maybe made in a separate form with a confidentiality clause attached to it, which will enable the applicant to hold the Competent National Authority liable for any breach in a court with relevant jurisdiction. And another key suggestion would be the introduction a digital library in line with the Traditional Knowledge Digital Library so that the search cost of the potential users can the reduced to a minimal and the job of maintaining of the PBR can be stopped, hence providing a single point of contact to derive all the necessary information.

That perfect balance between access and equitable benefit sharing is a farfetched goal, this can be arrived at only by constant research in this regard, development of various parameters for the calculation has to be seen, till then the local communities will have to settle with the valuation that prevails, the technology transfers and the capacity building initiatives.[16] Access and Benefit sharing is a novel idea that has blossomed in the hindsight of the international community which has duly found that the IPR system is acting in a manner which is inconsistent to the interest of the local communities and those who depend on it for their livelihood. The objective of implementing newer mechanisms to make sharing efficient is pertinent as now the ABS system is only in its nascent stage and even though in theory they have to balance economic growth and welfare, the reality is antithetical to that objective. New valuation mechanisms, distribution mechanisms and check point systems which ensure that prompt implementation of the scheme should be in place. The gulf between the marginal benefit of the user and the marginal benefit of the stakeholders are widening, the ABS system should attempt to bring this closer and finally achieve a level playing field, where no one gets an upper hand.

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Foot Note:

1Neeti Wilson, Guidelines for Access and Benefit Sharing for Utilization of Biological Resources based on the Nagoya Protocol, 20 J Intellec Prop Rights, pp. 67-70.

2http://www.fao.org/sustainable-development-goals/news/detail-news/en/c/1045012/.

3ABS Guidelines, 2014.

4Ibid.

5171st Law Commission Report on Biodiversity Bill, 2000.

6BavikatteKabir, Robinson, Daniel.F, Towards a people history of the law: BiocultureJuisprudence& the Nagoya protocol on Access and Benefit Sharing, pp.37-49.

7Ibid.

8Supra, n.3.

9Supra, n.1.

10Section 26, The Protection of Plant Varieties and Farmer’s Rights Act, 2001.

11Biodiversity Rules, 2004.

12Juliana Santilli, Genetic Resources common pools in Brazil, Common Pools and Genetic Resources: Equity and Innovation in International Biodiversity law (EvansonChegeKamau&Gerd Winter).

13Ibid.

14SrividhyaRaghavan, India’s attempt to reconcile diversity, Indian Journal for Intellectual Property, NALSAR.

The Voice of the People is the Voice of God

Vox populi est vox Dei

M.S. Kurien, B.A., B.L., Advocate, Ernakulam

Kerala is focusing world attention today. And Judases have not been wanting even in the mass struggle for deliverance & liberation that is now going on against the Communist regime in Kerala. Even as the Iscoarriat, Pandits there are who ask: what is the meaning of this waste of energy? Like those who lamented and deplored the precious ointment is poured on the head of Christ, these few people tell us that all agitations against a lawfully elected ministry are mere creations of unhealthy conventions and undemocratic traditions. The people after the general election have become fundus officio, they seem to think. They are blissfully ignorant of the Tibetan tragedies. That the people . at last get a right to rebel and revolt, they ignore. How was the Magna Carta obtained? What was the history of Charles land James II? Are we not happy over the results of those agitations?

Every problem has a solution. The mere fact that a ministry has come into power democratically legally or constitutionally does not mean that it can run amok and continue autocratically and despotically murdering and butchering, shooting and firing. If the salt loses its taste, what is there left to give taste to it? There is no more to be done with it, hut throw it out of doors for men to tread it under foot.

Sovereignty always resides in the people, the people politically organized. The people of Kerala are now so organized in determinate form for the exercise of that sovereignty. All non-communist parties and an overwhelming majority of the people of Kerala have in clear terms declared from the housetops that they will no more put up with a Communist Government. The innocent blood of the victims of the Communist carnage in Ankamally, Pullu Vila, Vettu Kadu and Cheria Thurai is crying to heaven for vengeance. And so when the Totalitarian and their hirelings lisp and whisper about democracy and the constitution, everybody knows that it is a case of the Satan anathematizing sin, quoting the Gospel.

The ministry and the legislature, whether good, bad or indifferent, timid or bold, tragic or comic are only the servants and agents of the people. They, and not the ministers and legislators, are the masters and principals, “Believe me, no slave can be greater than his own master, no apostle greater than he by whom he was sent”. The people are always and everywhere primary and prior. A legis­lature is only secondary and incidental.

In addition to all these general principles universally applicable, ours is a centripetal Constitution, elastic and strong at the center, where a rotten limb has to be cut off and cast away at once. Under Articles 164 and 174, when the non-communist parties joined together in view of the common danger, the State Governor himself ought to have dismissed and dissolved the Communist ministry. It is a Government of the party by the party for the party that is in vogue to-day in Kerala. It is nothing but a Rule of the Rifle. All lovers of civil liberties and all who want to avoid concentration camps and liquidation, all that befell Hungary and Tibet, now appeal to the President of India to declare an emergency and assume to himself all powers conferred under Article 356 of the Constitution.