Experts fear that changes to the law could undermine the original objective of conservation and sustainable use of the country’s biological resources
Days before the close of the Winter session of the Indian Parliament, on 16th December, Environment Minister Bhupender Yadav introduced a bill in the Lok Sabha to amend the Biological Diversity Act, 2002 (BDA). The reason for the amendment, the bill states, are concerns raised by the medicine, seed and research sector and their urge to the ministry to “simplify, streamline and reduce compliance burden.”
A close look at developments in the last few years though reveals precedent. The proposed amendments are “a selective pick” of a diverse set of enforcement challenges and how the legislation is designed, said Kanchi Kohli, senior researcher at the Centre for Policy Research. They are selective, she elaborated, because they only reflect concerns of the industry and the State Biodiversity Boards who are required to furnish legal paperwork for access and benefit sharing “but not concerns related to conservation and community rights.”
Primarily, BDA deals with regulating access to biological resources like plants, animals and micro-organisms and associated traditional knowledge. It was enacted by the parliament in 2002 in pursuance to the United Nations Convention on Biological Diversity (CBD). India became a party to the Convention in 1994.
BDA also provides for equitable sharing of the benefits arising out of the use of biological resources with local communities. Benefits could be in monetary terms or otherwise like research facilities that could provide better living standards for communities and joint ownership of intellectual property rights.
With the proposed changes, legal researchers and other experts are concerned that the main aim is to provide industry stakeholders easy access to biological resources by sidelining ecological concerns and local community rights, all the while being compliant with the law on paper.
In a critique of the proposed amendment, Ritwick Dutta, an environmental lawyer, founder and managing trustee of LIFE said “the main focus of the bill is to facilitate trade in biodiversity as opposed to conservation, protection of biodiversity and knowledge of local communities. More specifically, Dutta noted how the amendment “seems to be done with the sole intention of providing benefits to the AYUSH [Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homeopathy] industry. The bill exempts AYUSH practitioners from the requirement to intimate State Biodiversity Boards for accessing biological resources.
“Certified AYUSH practitioners from even multi-billion dollar companies can claim exemption [under this clause],” said Dharmesh Shah, an adviser to LIFE.
The stakes for industry become clear on analysing what exactly the bill seeks to achieve, i.e. “decriminalise certain provisions” of BDA and “bring more foreign investments.”
More specifically, the amendment seeks to omit section 58 of BDA which stated that offenses under the Act are “cognizable and non-bailable.” And instead, imposes penalties of not less than ₹1 lakh but which may extend upto ₹1 crore.
“If someone wants to misuse the law, now they will only face civil penalties and Biodiversity Boards will be reduced to clearinghouses for paperwork,” Shah said. The amendment also does away with the clause that allows authorities to take suo-motu cognisance of a crime. And so, action can only be taken following a written complaint. “The power to imprison gave teeth to the Act. Without this, the act is seriously compromised” he stressed.
Enforcement challenges brought into bill
In the last two decades, a whole set of enforcement and framework-related questions have come up with respect to BDA. A report titled ‘Litigating India’s Biological Diversity Act: A study of legal case’ states that there have been “many difficulties” in implementing BDA provisions related to access and benefit sharing. In one instance, citing lack of guidance by the National Biodiversity Board with respect to access and benefit sharing provisions, the Madhya Pradesh State Biodiversity Board issued notices to many private companies, including those in sectors like pharmaceuticals, coal extraction, liquor, sugar, oil and food processing to deposit an amount towards benefit sharing given their usage of bio-resources.
Many of these issues were also challenged in high courts and the National Green Tribunal. For instance, consider the 2016 case wherein the Uttarakhand Biodiversity Board sent a notice to Divya Pharmacy that is part of Baba Ramdev’s Patanjali Yog Peeth Trust. The notice stated that the company was in violation of BDA for using biological resources without prior intimation to the Board. The company challenged the notice in the Uttarakhand high court. Ultimately, the court decided in favour of the Board acknowledging that it has the power to regulate access to biodiversity and determine benefit sharing arrangements.
In June, 2015 representatives from Gujarat’s ayurvedic industry urged the central government to provide some relief to the sector by postponing the implementation of access and benefit sharing provisions. In response, the then environment minister Prakash Javadekar said the industry has to deposit an amount towards these provisions and that no exemption can be granted.
And so, the exemption to AYUSH too has precedent because the industry has previously sought exemptions, be it via representations to the government or various court cases.
Scant regard for legislative process
Apart from issues with the bill itself, legislative processes too were broken in the manner in which the bill was introduced in the Lok Sabha.
The bill was introduced without first seeking public comments and without being referred to the relevant Parliamentary Standing Committee (i.e. Parliamentary Standing Committee on Science and Technology, Environment and Climate Change) as is required under the Pre-legislative Consultation Policy. The policy is widely accepted as a good governance practice.
On 17th December, Jairam Ramesh, chairman of the Parliamentary Standing Committee on Science and Technology, Environment and Climate Change, expressed “strongest possible protest” for bypassing the Standing Committee.
This reporter sent a questionnaire to the environment minister and also to other officials in the ministry. They did not respond.
On 20th December, the bill was referred to a joint parliamentary committee (JPC), where it currently sits. This indicates that there is “acceptance that the bill requires greater parliamentary scrutiny and debate.” But, she added, this alone “won’t ensure a popular and public discussion on what the law is and the implications of these amendments on India’s food security and socio-ecological balance.”
Previously, amendments to the Forest Rights Act, National Green Tribunal Act and the Land Acquisition Act were presented before a JPC. The question though is to what extent the JPC processes open up the bill for review and public comments.
Biodiversity conservation with local communities
BDA provisions largely aim to regulate access to biodiversity. But its purpose, Kohli said, ought to be more in line with principles of conservation, sustainable use and benefit sharing enshrined under CBD.
The Nagoya Protocol under CBD stresses on ensuring communities’ prior informed consent. But the biodiversity act only refers to consultations with local communities and the bill also continues to talk only about consultation. Essentially, Kohli said, the law is “a top-down legal framework that grants very few powers to local communities and the bill does not course-correct this situation,” Kohli said.
More broadly, BDA and the Nagoya Protocol were designed to prevent piracy by international companies trading in biological resources like the pharmaceutical industry, biotechnology and genetic modification, including related research and development and intellectual property. “For example, many international companies would come [to India], pick up seeds, medicinal plants and associated local knowledge to repackage and sell it as their own unique product. As has been in the past with neem and basmati, claiming ownership and intellectual property over bio resources commonly available and used is an ethical question that remains unaddressed,” Kohli explained.
Elaborating on the same, Dr. Vandana Shiva, an advocate for food rights and the environment said that the proposed amendments “undermine the objective” of BDA and the Nagoya Protocol and that “the very foundations of conservation and sustainable use will be eroded” if they are finalised. Shiva is the author of a book titled ‘Origin: The Corporate War on Nature and Culture’ that documents struggles – scientific , legal, political and cultural – to secure sovereignty over biodiversity and indigenous knowledge from corporate biopiracy. And so the amendments are a “missed opportunity” to strengthen conservation and uphold community rights over bio-resources, Kohli said.