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Recognizes the sovereign rights over the biological and intellectual heritage. Therefore, evolves a jurisprudence and legal framework appropriate to the protection of our biological and cultural diversity and the protection of biological and intellectual commons; and creates the balance of public and private interest as the main objective of our legal system.

The recovery of the commons is different from the open access system of ‘common heritage of mankind’. Commons are based on community control and community management and are not open access systems. In fact, community control over common resources is the only real mechanism for ensuring sovereign control over natural resources.

Again, India chose the sovereign issue to frame her laws to implement CBD and the TRIPS Agreement. However, the forces that wanted to use both CBD and TRIPS to colonize our biological and intellectual heritage by having unregulated access to our rich biodiversity, taking patents on biodiversity, living resources and seeds, are still trying to undermine the legal framework we have evolved. Both the colonial option as well as the sovereign option recognize the value of biodiversity and the value of indigenous knowledge systems. However, they differ in the fact that in the colonial option, India’s biological and intellectual heritage will not serve the economic interests of India’s people as it is based on corporate values. In the sovereign option, the biodiversity and knowledge that has evolved in India will continue to meet the economic needs of India’s people, and continue to evolve on the basis of the value on which it has been sustained over centuries.

The sovereign option and colonial option emerge from two different paradigms and worldviews, leading to two conflicting ownership systems: an age-old system based on community rights, still the dominant one in rural and indigenous communities, combined with national sovereignty, and the ownership system of corporate defined IPRs based on individual private property and enclosures of the commons. The sovereign option in the context of traditional knowledge and biodiversity requires the reinvention of sovereignty to be centered on people since local communities are the conservers of both the resources and knowledge.

The reinvention of sovereignty has to be based on the reinvention of the state so that the state becomes a partner of the people and is thus not reduced to a corporate state. Sovereignty cannot only reside in the centralized state structures, nor does it disappear when the protective functions of the state, with respect to its people, start to wither away. The partnership for national sovereignty needs empowered communities which assign and set the duties and obligations on which the state structures itself. On the other hand, TNCs and international agencies promote not only the separation of community interests from state interest, but also the fragmentation and divisiveness of communities.

The sovereign option adopted by India for its legal systems for biodiversity, conservation, and protection of traditional knowledge, recognize the sovereign rights of the country as well as the rights of communities, and not merely the rights of corporations. In the IPRs context, we have evolved articles that recognize real inventions and do not reward biopiracy and patents of living resources which are not inventions.

As we look back over the last thirty years, we feel grateful that we have been of service to the earth, our country, our farmers, and our tribals. We feel satisfied that the laws we were struggling to put in place when we first wrote The Enclosure and Recovery of the Commons are now the law of the land. I was personally part of the expert groups that drafted our Biodiversity Act, our Plant Variety Protection and Farmers’ Rights Act, and our Tribals, and Forests Dwellers Rights Act.

Today, there is a renewed attempt by the privateers to own life on earth by eroding the sovereign laws of India. The arguments they use are the same tired arguments of two decades ago–of presenting biopiracy as ‘invention’, with the assumption of colonial superiority. We are therefore bringing out a new edition, highlighting the uniqueness of India’s biodiversity related laws to protect our unique natural heritage, our civilization, revisiting the timeless debates about the commons and their enclosures, sovereignty vs colonialism, and sustainability vs non-sustainability.

As the ‘miracle’ of globalization and of new GMO technologies fades, the limits of the greed driven global market and the mechanistic paradigm of the dominant stream of Western corporate science are recognized, the potential of biodiversity, biodiversity-based knowledge systems, and of biodiversity-based economies to the common good become signposts for the future.

Reclaiming the Commons is about the thirty-year journey on the recovery of the biological and intellectual commons. Commons for communities are not the same as the open access unregulated systems industry has been trying to create. The commons as managed by communities and defended through laws of national sovereignty are vital to protect the common good, to protect the web of life, hence protecting life itself. They are vital in protecting our humanity, and to help us remember we are part of one earth family. Especially for the two-thirds of India who live outside the livelihood provided by the state, and the market, in what is referred to as the biodiversity-based economy. The biodiversity-based economy of India represents the poorest communities in marginalized regions, their access to biodiversity and use of their indigenous knowledge and skills is their primary means of livelihood security.

Additionally, this book touches on the evolution of Navdanya’s efforts in protecting our biological and intellectual commons over the last three decades, our contribution to the legal framework for the protection of biodiversity; as well as the foundation of our civilization, our culture, our economies, and our knowledge systems.

The main contributions we have made are:

•Conservation of biodiversity and creation of community seed banks to defend seed as a commons

•Strengthening of Farmers’ Rights in the area of agricultural biodiversity

•Strengthening Rights of traditional medical practitioners in the area of medical plants

•Strengthening Rights of craft communities using biodiversity

•Providing alternatives to the western industrial corporate model of IPRs as experts in drafting the Biodiversity Act, the Plant Variety Protection Act, and working with Parliamentarians on amendments to the Patent Act, specially the introduction of Art 3(j)

•Monitoring cases of biopiracy, legally challenging and winning the cases of biopiracy of our neem, basmati, and wheat

The IPR system as it has evolved in western industrial societies is, in effect, a denial of the collective innovation our people that has been developed over thousands of years. The expansion of such narrowly defined IPRs to biodiversity and knowledge of its utilization results in enclosures of the biological and intellectual commons which have supported local communities and indigenous cultures over millennia. Biopiracy becomes the inevitable outcome of such a regime.

The piracy of the indigenous innovation through patents on nature and the diversion of their biological resources to global markets without regulation through laws like our Biodiversity Act have prevented the undermining of the livelihood of two-thirds of India: women, tribals, peasants, pastoralists, and fisher folk. It also threatens the biodiversity base which they have protected because their survival depends on it.

The defense of the rights of traditional communities to their biodiversity and traditional knowledge is based on recognition by the state that communities have their own rights, knowledge, and values, needing protection by the state. This recognition by the formal legal systems does not give the state the right to intrude in local biodiversity utilization patterns based on community rights, but it creates an obligation on the state to prevent external actors from “pirating local resources and indigenous knowledge, and from imposing property rights regimes that counter community rights, and cultural values.” This is precisely what our national Biodiversity Act has ensured.

This rectification is necessary because in the absence of strong community rights protection, the state is merely an instrument of the protection of foreign investment and a promoter of the predation of biodiversity and indigenous knowledge.

The implementation of the Panchayati Raj Act in scheduled areas (the provision of the Panchayats {extension to the scheduled areas} Act 1996), has already set precedent for the recognition of communities as their own competent authority for decision making on resource use, cultural values, traditions, and community rights to common resources as the building blocks of a decentralized democracy.

Global corporations are still trying to establish an unfair regime in which biological and intellectual resources flow freely from poor countries to rich countries, without regulation, and from the poorest communities to the richest corporations. Biological resources come back in patented form resulting in a double loss for poor countries and their communities; the first through the theft of their intellectual and biological wealth, and second through royalty payments for what has been derived from their collective, cumulative innovation and biodiversity.

Two decades ago, they tried to prevent regulation for the fair, equitable, sustainable, and just use of biodiversity. Today the laws for equity and sustainability are in place both nationally and internationally. The attempt now is to dilute and subvert them. Our work today, as thirty years ago when we started Navdanya, is to protect our biodiversity, our sovereignty, our commons.

We are at a new watershed. In the 1990s we were defining a new partnership between the sovereignty of the country and the sovereignty of local communities. Today–with strong laws that exclude the false claim to invention of life forms, laws for Biodiversity Conservation, and regulation for access and benefit sharing–we can take the next quantum leap in the form of a new partnership between the creativity of nature and her diverse species, the innovation of traditional communities, and our sovereignty as a nation.

During the next thirty years of India’s formal independence, it is appropriate to expand our policies to reflect our civilizational philosophy of Vasudhaiva Kutumbkam, that the Earth is one family, one community in diversity. Living as one family in a diverse, complex, fragile world requires the evolution of living democracies and living economies. Navdanya has catalyzed the living democracy, and living economy movement by creating community seed banks, community biodiversity registers, and local living biodiversity economies. India’s true democratic spirit rests on deepening movements for decentralized democracy throughout the country by recognizing the knowledge, innovation, and biodiversity that have evolved through community rights and community responsibility. What is more, the recognition of community rights is a precondition for both the protection of biodiversity and the protection of people’s rights. This recognition is also the only means for protecting our natural wealth in the form of our biological and intellectual heritage and our national sovereignty.

Species are disappearing at more than 10,000 times the normal rate. Scientists are now talking of the sixth mass extinction, including the imminent threat to the survival of our own species. Conserving biodiversity and cultures that conserve biodiversity is not an issue we can ignore or devalue. It has become imperative to our very survival.

We dedicate this book to the human potential and human will to cultivate the possibility of a better future.

– Dr. Vandana Shiva

WHERE THE MIND IS WITHOUT FEAR . . .

Where the mind is without fear and the head is held high;

Where knowledge is free;

Where the world has not been broken up into fragments by narrow domestic walls;

Where words come out from the depths of truth;

Where tireless striving stretches its arms towards perfection;

Where the clear stream of reason has not lost, it’s way into the dreary desert sand of dead habit;

Where the mind is led forward by thee into ever-widening thought and action–

Into that heaven of freedom, my Father, let my country awake.

– Rabindranath Tagore