Confused and weak

The Biological Diversity Act has lost sight of what it originally set out to do

By Suman Sahai
Published: Friday 31 January 2003

-- Sometime in 1996, fed up with the refusal of the ministry of environment and forests (mef) to prepare a biodiversity legislation for India, two non-governmental organisations, Gene Campaign and Forum for Biotechnology and Food Security, swung into action. Consultations among people interested in biodiversity and the environment began. Gene Campaign drew upon the experiences of many grassroots-level experts to get feedback from the ground. Finally, there were consultations with legal experts, with whose help a draft Biological Diversity Bill was prepared in 1997.

This draft Bill was to generate awareness about the urgent need for a law to affirm Indian ownership over biodiversity in its territories and to force the government's hand. Despite being a signatory to the Convention on Biological Diversity, the Indian government had taken no steps to act on the convention's pro-community provisions to protect biodiversity and the rights of adivasi (tribal) and rural communities. It had no legal instruments to check biopiracy at its borders.

The draft Bill was sent to the then president of India, S D Sharma, and to a number of parliamentarians. Sustained advocacy and pressure paid off. The mef constituted an expert committee to prepare a draft law on biodiversity, with M S Swaminathan as chair. The committee's deliberations produced a draft released for public discussion and comments. This went on for a few years, and the new draft Bill became more and more confused.

Despite all its good intentions, the final Biological Diversity Act (bda) now passed by both Houses of Parliament is a confused and weak document. It is, however, the section on intellectual property rights (iprs) that will do the greatest damage. The only stipulation in bda is that ipr applications will have to go through the national biodiversity authority (nba) set up by bda. There is no thought given to what kind of ipr is permissible. bda, in fact, runs counter to the larger national and international campaign against patents on life forms. nba could, theoretically, permit a patent on a medicinal plant or a rare species of turtle or bee. The ambiguity is alarming, because it has the potential to lead to unending legal tangles on what could constitute a legitimate iprs regime.

The other Indian legislations dealing with bioresources have taken clear positions on what iprs are permissible. The Plant Variety Protection and Farmers Rights Act 2001 does not allow patents, only 'breeders right'. The Patent Amendment Acts i and ii specify that while patents on microorganisms are permitted, no patents will be allowed on plants and animals. bda thus conflicts with, or even runs counter to other Indian legislations -- Environment Protection Act 1986, Forest Conservation Act 1980, Wildlife Act 1972, and the Indian Forest Act 1927. bda is drafted as though it is a stand-alone piece of legislation.

Unthinkingly, bda sets up parallel structures that will create conflicts if implemented. Its proposed biodiversity heritage sites are a case in point. India already has a comprehensive network of protected areas in the biodiversity-rich parts of the country. What is the standing of these new heritage sites? What is their status with respect to existing protected areas?

Further, bda might hamper, not encourage, research. Its provisions are so bureaucratic that they are likely to intimidate potential researchers. Not only will nba vet new research proposals (thereby causing infinite delays), even publications and dissemination of information will have to be in accordance with government guidelines.

The nba and the central and state governments will have the power to arbitrarily decide the nature and extent of benefit-sharing. Local communities seem to have little say in implementation. They cannot, for example, oppose patents on biological material taken from them, nor have they any say in what 'equitable' sharing of benefits will be. What started out as an effort to make a participatory, enabling legislation has ended up as yet another law framed by bureaucrats, where the local communities are left out of the general scheme of things apparently set in place for them.

Suman Sahai is convenor of Gene Campaign, India, and was part of the expert committee that prepared a draft law on biodiversity

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