Ayurveda: Is Law the First Step to Save Our Traditional Knowledge?

Every time that you take an ayurvedic massage, combat a sore throat with haldi and black pepper boiled in milk, suck mulhaiti for a cough or pop pudina for an upset stomach, you are relying on India’s traditional knowledge. That’s the ancient wisdom handed down over centuries, if not millennia, that our mothers seem to magically imbibe from their mothers and use to protect us from common (and sometimes uncommon) ailments.

It wouldn’t be an exaggeration to make the claim that India has much to offer the world with its rich and diverse resources of traditional knowledge. This is especially so at a time when advancements in science and technology offer the potential to augment and transmit such knowledge to unprecedented heights and for an ever-evolving variety of purposes. Indeed, it is precisely because there is so much potential in our traditional resources, with all its range and depth, that we must urgently recognise, protect, and legally empower its custodians, while also retaining enough flexibility in that legal framework to welcome outside minds and innovations that can adapt our knowledge to the needs of the 21st century world.

Shashi Tharoor has introduced a private bill in Parliament to protect traditional knowledge.

Once passed by the Parliament, it will be called the Protection of Indian Traditional Knowledge Act -2016.

The Bill defines traditional knowledge as the knowledge and expression of culture which may subsist in codified or oral or other forms, whether publicly available or not, that is dynamic and evolving and is passed on from generation to generation.

It includes know-how skills, innovations, practices, learning, medicinal preparations, method of treatment, literature, music, art forms, designs and marks.

India’s Traditional Knowledge is Under Threat

India is rich in terms of biodiversity and cultural resources, but the lack of a comprehensive system to safeguard those who have, over generations, protected and honed these resources puts us at a disadvantage in a globalised world. Moreover, it is a fact that many indigenous communities rely on traditional knowledge for livelihood and identity; its misappropriation can severely prejudice their interests and rights. Traditional medicine, such as Ayurveda, caters to nearly 65 percent of our population in rural India, but not enough has been done to safeguard its practitioners and their store of knowledge. In an age when biopiracy is a very real threat, the safety of India’s traditional knowledge is no longer a question we can leave for later to address.

Legislation to protect and define traditional knowledge, recognise its custodians, and to create a framework for them to collaborate, without exploitation, with innovators from across the globe is, therefore, a step long overdue. It is for this reason that I have introduced a Private Member’s Bill in the Lok Sabha on the subject. What has been done so far – through the Biological Diversity Act of 2002, for instance – is inadequate, and though the conversation was begun, precious little has followed since to take talk to the realm of action. As one of the world’s oldest civilisations with a wealth of accumulated traditional resources, it is our responsibility to do what is necessary to maintain the integrity of our cultural inheritance. And if we do not take steps now, misappropriation by others may well lead us to belated, collective regret.

Intellectual Property Rights Cannot Safeguard Traditional Assets

Contemporary scientific and technological advancements when married to tradition promise great economic potential in the coming years. This explains why there have already been attempts to acquire exclusive privileges in the form of intellectual property rights over India’s traditional knowledge by those with only the vaguest connections to such knowledge. Seeing common Indian herbs patented in America gave us all a major wake-up call a few years ago.

The Intellectual Property (IP) regime, in its existing form, is not in a position to safeguard traditional assets, passed down and refined over centuries and generations by groups of people. In its desire to protect researchers and innovators, it may well do the opposite – by privileging those who come up with creative new ways of copyrighting old knowledge and exploiting the discoveries of the ancients. At its very core, the concept of “intellectual property” cannot be applied to traditional knowledge – no single person can claim as “property” something that is perennial, evolving, and in its very nature so flexible as to be almost amorphous.

Why We Need a Bill to Preserve Traditional Knowledge

This is why the Bill I have introduced defines traditional knowledge as “knowledge and an expression of culture, which may subsist in codified or oral or other forms, whether publicly available or not, that is dynamic and evolving and is passed on from generation to generation”. Who should be responsible for it? Though I am no fan of the mai-baap sarkar, it is clear that only the government can play such a role. My Bill provides custodianship of all traditional knowledge to either the state or central government, with such custodianship transferred to practitioners who can show their practices as distinct and exclusive. Once custody rights are transferred to a community, they have the power to authorise, deny, or revoke access to their knowledge and regulate its use by others. They are also empowered to market their traditional knowledge as they deem appropriate, ensuring that any commercial value in it would benefit them first.

(Photo: iStock, for representational purpose)

While the Bill does not restrict the use of traditional knowledge for scientific purposes, it provides safeguards to custodian communities, protecting them from abuse and exploitation. Any enrichment, development, or advancement of traditional knowledge remain within the legal ambit of the original knowledge, with its custodians retaining their rights on the evolved version. Researchers, scholars, and skilled professionals who work towards advancing this knowledge will, of course, have their contributions recorded and acknowledged, but developments by themselves do not divest these custodians of their longstanding traditional rights, built up and legitimised by centuries of work.

Standing Up Against Foreign Appropriation

Naturally, there are challenges that need to be outlined and addressed before we can harness the potential of traditional knowledge. To begin with, we must urgently recognise legally the interests of the original custodians. India must claim internationally its right over all traditional knowledge within its geographical boundaries to ensure that these original custodians have a voice, albeit through the medium of the state, on the global stage. India must do this even as the World Intellectual Property Organisation (WIPO) holds consultations to define and provide guidelines for traditional knowledge. Indian traditional knowledge has come under threat from foreign patents applied towards the use of turmeric and neem, among other commonly used herbs and medicines. Classifying Indian traditional knowledge and populating the database with their custodian communities will remove ambiguity regarding cultural practices and their origins.

My bill will protect us from foreign appropriation, and will provide an opportunity for Indians to learn more about their culture and practices through a legitimate system. Non-custodians will be welcomed and encouraged to work with the original communities, but if it is these communities that have preserved the knowledge, practices, or skills across generations, it is they who deserve the benefits of that sustained effort. India’s distinctive Traditional Knowledge Digital Library – a database containing 34 million pages of formatted information on some 2,260,000 medicinal formulations in multiple languages – is a major step in this direction. It has helped classify and codify India’s traditional knowledge so that it can be offered as ‘prior art’ to prevent the grant of erroneous patents under a flawed regime. None of this will be easy or without flaws, but it can be done.

While creating a database and system to manage our traditional knowledge resources, it is also essential that the evolution and development of such knowledge is not halted. Incentives for research and development, involving actively the custodians of traditional knowledge, will help distribute its benefits in ways that could be better, wider, and without risk of stagnation. There is also a vast amount of social benefit to be derived from the development of traditional knowledge, and any framework in this regard must reward those who are willing to invest in it, and to work with the communities and people who have, for generations, been part of this journey.

My bill doesn’t have to be the last word on the subject. If the government wants to improve on it, it’s welcome. But some legislation is unavoidable. We must define and protect India’s traditional knowledge. And the sooner we get to this, the better it would be for us, as we take all that our ancestors and diverse communities have created into the 21st century, for the wider benefit of the world itself.

(Former UN under-secretary-general, Shashi Tharoor is a Congress MP and an author. He can be reached @ShashiTharoor. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)