Biological Diversity Amendment Bill 2021
28th Dec, 2021
The Biological Diversity Amendment Bill 2021 has been tabled in the Lok Sabha.
- India’s Biological Diversity Act is rooted in the Convention on Biological Diversity (CBD), an international treaty that India ratified in 1994.
- The treaty calls on its signatories to conserve their biodiversity and sustainably use their biological resources in a fair and equitable manner.
- India responded to the CBD by creating the Biological Diversity Act 2002.
- The Act aims to conserve India’s biological diversity, ensure biological resources – including genetic resources and traditional ecological knowledge – are used in sustainable fashion, and that the benefits accrued from their use are shared with local communities in a fair and equitable manner.
- The last bit is formally derived from the ‘Access and Benefit Sharing’ model defined by the Nagoya Protocol.
Three-tier decentralised system
Biological Diversity Act 2002 has a three-tier, decentralised system to achieve its goals:
- Local level: Biodiversity Management Committees (BMCs) at the level of local self-government bodies such as panchayats implement conservation activities.
- These include developing ‘Peoples’ Biodiversity Registers’ that document the flora, fauna and associated traditional knowledge of people in the area.
- State level: State Biodiversity Boards (SBBs) advise their respective state governments on issues related to biodiversity conservation and sustainable use.
- National level: The National Biodiversity Authority (NBA) performs “facilitative, regulatory and advisory functions” to conserve genetic resources and ensure benefits are shared fairly – including issue permits to use certain resources.
Key-highlights of the Bill
- A biological resource is any plant, animal or microorganism – including their parts, genetic material and by-products – that has any known or potential scientific or commercial application.
- Biological Diversity (Amendment) Bill, 2021 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
Traditional Indian systems of medicines
- The Bill 2021 exempts Ayush practitioners from the ambit of the Biological Diversity Act, 2002, and facilitates access to biological resources and traditional knowledge by the Indian traditional medicine sector.
- It allows people practising traditional Indian systems of medicine – vaids, hakims, registered AYUSH practitioners, companies making medicinal products – to continue their business without needing to take permission from the National Biodiversity Authority (NBA) for the use of biological resources.
National Biodiversity Authority (NBA)
- The National Biodiversity Authority (NBA) was established by the Central Government in 2003 to implement India’s Biological Diversity Act (2002).
- It is a Statutory Body.
- It performs facilitative, regulatory and advisory functions for the Government of India on issues of conservation, sustainable use of biological resources and fair and equitable sharing of benefits arising out of the use of biological resources.
How does the 2002 Act link to India’s intellectual property system?
- The Biodiversity Act, 2002 was being developed when the intellectual property system was also being refined.
- The World Trade Organization (WTO) Agreementcame in 1994 and the Convention on Biological Diversity (CBD) happened in 1992.
- The idea was that through the intellectual property system India’s biological resources should not be taken into the private sector and locked, and the traditional conservers of biological diversity are cheated from the benefits these resources bring.
- The Act talks about access and benefit-sharing.
- The other traditional conservers of biological diversity, like farmers who have been generating their seeds are protected under the Protection of Plant Varieties and Farmers Rights Act, 2001 (PPVFR Act).
- This is the link to the intellectual property regime of India and in turn to the Trade Related Intellectual Property System(TRIPS) of the World Trade Organization.
Reasons behind the amendment
- 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.
- They also sought to simplify the patent application process, widen the scope of access and benefit-sharing with local communities.
- In most cases, this is a certain percentage of the sale price.
- 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.
- Challenging the board’s notice, the company filed a writ petition before the Uttarakhand high court in December 2016 challenging the powers of the biodiversity board to determine benefit-sharing by Indian companies.
- The court in 2018 upheld the powers of the biodiversity board in its judgment.
Criticism of the Bill
- Without consultation: The Bill has been introduced without seeking public comments as required under the pre-legislative consultative policy.
- Benefits to Ayush industry: With the Bill, 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.
- Sole focus on facilitating trade: 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.
- Exclusion of bio-utilisation: The bill has excluded the term “bio-utilisation.” “Bio-utilization is an important element in the Act.