Recently, the Indian government referred the Biological Diversity Amendment Bill 2021 to a Joint Parliamentary Committee (JPC).
About Biological Diversity Amendment Bill 2021
- The Biological Diversity Act, 2002 was enacted for the conservation of biological diversity and fair, equitable sharing of the monetary benefits from the commercial use of biological resources and traditional knowledge.
- Now, according to the statement of objectives of Biological Diversity Amendment Bill 2021,
- It seeks to reduce the pressure on wild medicinal plants by encouraging the cultivation of medicinal plants;
- Exempts Ayush practitioners from intimating biodiversity boards for accessing biological resources or knowledge;
- Facilitates fast-tracking of research, simplify the patent application process, decriminalises certain offences;
- Bring more foreign investments in biological resources, research, patent and commercial utilisation, without compromising the national interest.
Why is the Biodiversity Act 2002 being amended?
- Concerns were raised by Ayush medicine, seed, industry and research sectors urging the government to simplify, streamline and reduce the compliance burden to provide for a conducive environment for collaborative research and investments.
- Simplify the patent application process, widen the scope of access and benefit-sharing with local communities.
- Ayush companies have been seeking relaxation of the benefit-sharing provisions.
- A case in point is the case relating to Divya Pharmacy founded by Swami Ramdev and Acharya Balkrishna in Uttarakhand. The Uttarakhand Biodiversity Board (UBB) sent a notice to Divya Pharmacy in 2016 stating that the company was in violation of the Biodiversity Act for using biological resources from the state for its ayurvedic formulations, without intimating the board and that it was liable to pay an access and benefit-sharing fee.
Why are legal experts criticising the bill?
- The Biological Diversity Amendment Bill 2021 has been introduced without seeking public comments as required under the pre-legislative consultative policy.
- Foreign companies might come to India and gain access to biological material or associated traditional knowledge, and then patent them, effectively locking them away under intellectual property products.
- Corporate or foreign interests could use the loophole of permissions given to traditional medicine and use it for commercial purposes, without sharing of benefits with the conservers of biodiversity.
- Registered Ayush practitioners who have been practising indigenous medicine can access any biological resource and its associated knowledge for commercial utilisation, without giving prior intimation to the state biodiversity board.
- The amendment seems to be done with the sole intention of providing benefit to the Ayush industry.
- The main focus of the bill is to facilitate trade in biodiversity as opposed to conservation, protection of biodiversity and knowledge of the local communities.
- The amendments are completely contrary to the aim and objective of the Biological Diversity Act, 2002.
- The bill has excluded the term “bio-utilisation.”
- Bio-utilization is an important element in the Act. Leaving out bio utilization would leave out an array of activities like characterization, inventorisation and bioassay which are undertaken with commercial motive.
- The bill also exempts cultivated medicinal plants from the purview of the Act but it is practically impossible to detect which plants are cultivated and which are from the wild.
- This provision could allow large companies to evade the requirement for prior approval or share the benefit with local communities under the access and benefit-sharing provisions of the Act.
What are the changes proposed to be introduced by the Biological Diversity Amendment Bill 2021?
- The bill focuses on regulating who can access biological resources and knowledge and how access will be monitored.
- Ayush practitioners have been exempted from the ambit of the Act, a huge move because the Ayush industry benefits greatly from biological resources in India.
- The role of state biodiversity boards has been strengthened and better clarified in the bill.
- There are also significant changes proposed in the offences section.
- Violations of the law related to access to biological resources and benefit-sharing with communities, which are currently treated as criminal offences and are non-bailable, have been proposed to be made civil offences.
- This bill would have been an important opportunity to reconcile the domestic law with free prior informed consent requirements of the 2010 Nagoya Protocol on ABS.
- However, this has been a missed opportunity as the proposed amendments continue to marginalise biodiversity management committees (BMCs). Their powers have not been enhanced, and the proposed amendments also allow for state biodiversity boards to represent BMCs to determine terms of benefit sharing,” said Kohli.
- Under the Biodiversity Act 2002, national and state biodiversity boards are required to consult the biodiversity management committees (constituted by every local body) while taking any decision relating to the use of biological resources.
What is access and benefit-sharing?
- Under the Convention of Biological Diversity, and the Nagoya Protocol on Access and Benefit Sharing to which India is a party, it is mandated that benefits derived from the use of biological resources are shared in a fair and equitable manner among the indigenous and local communities.
- When an Indian or foreign company or individual accesses biological resources such as medicinal plants and associated knowledge, it has to take prior consent from the national biodiversity board.
- The board can impose a benefit-sharing fee or royalty or impose conditions so that the company shares the monetary benefit from commercial utilisation of these resources with local people who are conserving biodiversity in the region.
- The December 2018 judgement of Uttarakhand high court in the Divya Pharmacy matter clarifies that the board has a core function of regulation, which also includes asking for benefit sharing and determining the terms and conditions to be imposed on the user/accessor against access said legal researchers.
- There is resentment that it went to the JPC rather than the Parliamentary Standing Committee on Science and Environment, which is the body designed to take a look at these issues. But the fact that a discussion is happening on the Amendment is a step forward.
- We should not forget that there were legitimate concerns of the Biodiversity Act being too strict, which then puts undue regulations on scientific research and the exchange of resources. Amendments with good intentions can overcome these barriers, and perhaps that may happen now with the JPC process.
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