Biological Diversity Amendment Bill, 2021: Provisions and Concerns – Explained, pointwise

Introduction

The Union Budget 2022-23 highlighted the need for energy transition and mitigating the climate change. At the same time, the proposals for single-form clearances for ease of doing business seem contrary to the climate concerns and commitments. The reflection of such opposite nuances is very much evident in the recently proposed amendments to the Biological Diversity Act, 2002. To reduce the compliance burden, facilitate investments and encourage a conducive environment for research, the Government has proposed various changes to the existing Biodiversity law through the Biological Diversity Amendment Bill, 2021, that completely change the fundamental principles of conservation of biodiversity.

About the Biodiversity Act, 2002

The Biodiversity Act, 2002 was brought with an aim to conserve India’s biological diversity and ensure sustainable use of biological resources. The Act ensures that the benefits accrued from the use of traditional and genetic resources are shared with the local communities with prior and informed consent-approval of local communities in a fair and equitable manner.

The Act was an outcome of the Convention on Biological Diversity, 1992  (which India has adopted and ratified). Later, India also notified Access and Benefit Sharing Regulations, 2014 to give effect to the Nagoya protocol, 2010 (India became a party in the year 2014).

The act provides that the benefits accrued from the use of traditional knowledge should benefit the communities and if the conserver is not specifically known, the access and benefit-sharing amount can be used for conservation activities.

This was done to protect the biological resources and prevent the commercial and intellectual property use of associated traditional knowledge without sharing the benefits with the conservers of biodiversity.

The Biodiversity Act, 2002 was brought with a three-tier decentralised system, involving the National Biodiversity Authority (NBA), State Biodiversity Boards (SBB) and the Biodiversity Management Committees (BMC) at the local level.

What are the salient provisions of Biological Diversity Amendment Bill, 2021?

– Firstly, the Bill exempts registered AYUSH medical practitioners from giving prior intimation to State Biodiversity Boards for accessing biological resources for certain purposes.

– Secondly, the Bill exempts cultivated medicinal plants from the purview of the Act.

– Thirdly, the Bill facilitates fast-tracking of research, and patent application process.

– Fourthly, violations of the provisions of the law (related to access to biological resources and benefit-sharing with communities) that are currently treated as criminal offences and are non-bailable have been proposed to be made civil offences.

– Fifthly, the Bill allows foreign investment in research in biodiversity. But, this investment has to be made through Indian companies involved in biodiversity research alone.

– Sixthly, the new Bill introduces a ‘member secretary’ post to be appointed by the Central Government. The Member-Secretary shall be the chief coordinating officer and the convener of the National Biodiversity Authority and shall assist that Authority in the discharge of its functions under of the Biodiversity Act

What are the advantages of the Biological Diversity Amendment Bill, 2021?

First, Boosting Indian Medicine System: The Bill is expected to give much-needed fillip to the “Indian system of medicine” through a) Facilitating research and patent filing for AYUSH Practitioners, b) Encouraging farmers to increase the cultivation of medicinal plants, c) Empowering local communities to utilise resources, particularly of medicinal value, such as seeds.

Second, The Bill is expected to reduce the pressure on wild medicinal plants by encouraging the cultivation of medicinal plants.

Third, the Bill intends to expand the composition of the NBA by adding many ex-officio members from different Ministries of the Central Government. This might facilitate the adoption of biodiversity in national policymaking.

Fourth, the changes proposed in the Bill are expected to provide a conducive business environment: By simplifying the patent application process, widening the scope of access and benefit-sharing with local communities, the Bill will provide a conducive environment for collaborative research and investments.

What are the concerns associated with the Biological Diversity Amendment Bill, 2021?

Legal experts have expressed concerns that easing the norms for the sector could be detrimental to ecology for reasons like,

Paving the way for biopiracy: According to the 2002 Act, the benefits accrued from the use of traditional knowledge should benefit the communities. The Bill has excluded the term “bio-utilisation.” Bio-utilization is an important element in the parent Act. The Bill excludes such codified traditional knowledge from the definition of benefit claimants. Excluding ‘codified traditional knowledge’ would be detrimental to the interests of rural and tribal communities. Further, the Bill allows commercial utilisation and intellectual property rights within or outside India with prior approval of the NBA.

The new changes would open a floodgate for biopiracy and commercial utilisation of the biological resources that have been conserved and protected by the local communities for generations.

Exemption of AYUSH companies from the purview of law: AYUSH industries or Indian companies are not the traditional knowledge keepers. In the Divya Pharmacy vs Union of India, 2018 case, the Uttarakhand High Court mandated that all foreign and Indian companies, institutions, individuals must seek prior consent and approval for access and benefit-sharing with the local community.

The Bill exempts registered AYUSH practitioners from intimating SBBs before obtaining biological resources. This is a clear violation of the 2018 judgement.

Violation of Forest Rights Act, 2006: The new Bill violates the Forest Rights Act, 2006 that recognises and authorises the Gram Sabha for prior permission and approval in case of any access to forests. More than 85% of the raw materials for AYUSH medicines come from the forests.

The Bill exempts cultivated medicinal plants. This would allow companies to show the biological resources of the forests (owned or leased under them) as cultivated areas and escape from the requirement of prior approval or share of benefits with local communities. It is practically impossible to detect which plants are cultivated and which are from the wild.

Dilution of penal provisions: The Bill has not only diluted the penalty provision by replacing imprisonment with fines in the proposed legislation but also replaced the Judge (Court) with a joint secretary-level officer to determine the penalties.

The monetary penalty would be nothing for big corporations in the cases of contravention or attempts to contravene.

What should be done to preserve Biological Diversity?

Respect and recognise the indigenous communities: Recent international conventions and conferences on biodiversity have recognised the indigenous communities as environmental defenders, whose voice is irrepressible and critical. So, the Government has to recognise the role of indigenous communities and ask AYUSH practitioners/industries to work in coordination.

The Government must build trust between its agencies and the people. This will facilitate effective implementation of the Forest Rights Act (FRA):

Prevent bio-piracy: India has its own share of experiences and struggles on biopiracy cases, such as for neem and turmeric. So, at no cost should India allow commercial utilisation of traditional knowledge withouts the benefits accruing to the custodians of the knowledge.

Document study under PBRs: The People’s Biodiversity Registers (PBRs) entail complete documentation of biodiversity in the area like the plants, food sources, wildlife, medicinal sources, etc. The Government should use the PBRs to document traditional knowledge of status, history, uses, ongoing changes in biodiversity resources etc. This documentation can be useful to preserve the rights of the traditional knowledge holders.

The new amendments might violate the constitutional provisions of the Right to Environment and the International Environmental Conventions and the Protocols that India is a party of. So, all the concerns raised by experts need to be addressed thoroughly.