India's biological diversity act of 2002 is a reflection of the principles spelt out in the Convention of Biodiversity . It's also a response to the need to create sui generis legislation that can secure rights for traditional Indian communities in the face of wto strictures. There are other legislations to protect community rights: the National Seeds Policy, 2002; the National Agriculture policy, 2000; the Patents Act, 1970 and the Geographical Indications of Goods Act, 1999. These clearly spell out the challenges but bypass possible solutions. Overarching economic considerations outweigh the notions of conservation for posterity.
The biodiversity act assumes, mistakenly, that the Indian corporate sector acts responsibly towards the environment or towards local communities. Also, representation of the local community in both the state biodiversity board and the National Biodiversity Authority (nba) is restricted. The law does not provide citizens the power to directly approach courts. Access is restricted to a mere appeal in the high court. The power of declaring a heritage site lies with the state government, so that affected communities are neither consulted, nor their consent taken.
The act suggests community rights as a way to justice and equity. But the community is not clearly defined. So who benefits? How will beneficiaries be identified? What if more than one community holds the same knowledge? What will consultation with local bodies look like? Do local bodies have the capacity and information to consult on their own?
Such questions remain unanswered, as do others such as: what are the non-monetary awards? How does one put a monetary value on the resources? What are the key components of evaluating the value of the knowledge or the bio-resources? What happens to Indian ex situ germplasm? Moreover, can India use the legislation to enforce its commitment to the Bio-safety Protocol and regulate risks associated with genetically modified crops?
The rules directly relate to the bio-diversity management committee (bmc) at the local level. They specify that the main function of the body is to prepare a biodiversity register in consultation with local people. The register is supposed to contain comprehensive information on local biological resources and their availability, or medicinal properties and such-like knowledge. But the main concern here is that such a document, when put together, is not legally protected: it is possible it could be misappropriated. The rules do not prohibit intellectual property rights (iprs), and so could facilitate the privatisation of India's traditional knowledge. It is claimed that a new legislation -- to protect confidential information/ knowledge such registers contain -- is required, for there is no existing mechanism for this purpose.
If an instance of bio-piracy occurs, the act makes it possible for the nba to take necessary action, on behalf of the government, to oppose the grant of ipr in any country outside India. But in the absence of a globally agreed forum wherein such cases can be challenged, the nba may have to only engage in fire-fighting different patents and trademarks.
The act envisages a variety of benefit-sharing arrangements. Past experience shows that this only boils down to contracts, material transfer agreements, or cash payments that divide the community. One of the critical problems confronting the nba is to balance revenue considerations and conservation goals.
Vanaja Ramprasad heads the Bangalore-based non-governmental organisation Green Foundation