Amendments to the Biodiversity Act let companies off the hook on having to share the benefits of using biological resources
A politically well-connected yoga teacher with a passion for business has been instrumental in bringing about significant changes in India’s pioneering law on biodiversity, which had won plaudits globally when it was enacted 20 years ago.
Some critical features of the law have now been jettisoned with Parliament passing an amendment to the Biological Diversity Act, 2002 (BDA) on August 1.
It was the Bharatiya Janata Party (BJP) government of Atal Bihari Vajpayee which had formulated BDA two decades ago to protect India’s rich but fast depleting wealth of biological resources.
The aims of BDA were in line with the goals were set by the UN Convention on Biodiversity (CBD), a global agreement to which India had acceded.
But it had a special feature that was ahead of its time. It included a provision for fair and equitable benefit sharing or FEBS from the use of biodiversity, or the knowledge associated with such resources, for local communities who had through the ages protected and maintained the planet’s biodiversity.
This rule was codified much later by CBD into a supplementary agreement as the Nagoya protocol on Access and Benefit Sharing. It is this concept that has been given short shrift in the just passed amendment.
FEBS had its drawbacks and it needed strengthening; not dilution, as has occurred now. The genesis of this development is a writ petition filed in 2016 by well-connected businessperson and yoga teacher Ramkrishna Yadav, popularly known as Baba Ramdev, who challenged the right of state biodiversity boards (SBBs) to seek equitable sharing from Indian entities for use of biological resources.
Divya Pharmacy, owned by Baba Ramdev and his partner Acharya Balakrishna, had been involved in disputes with several SBBs over the non-payment of benefit-sharing fees.
A number of other companies, too, had baulked at benefit sharing although the fees levied are a meagre 0.1-0.5 per cent of sales.
The writ petition filed by Divya Pharmacy against the Union of India and SBBs in the High Court Of Uttarakhand was dismissed in 2018, making it incumbent on Indian companies—a host of them engaged in manufacture of traditional medicines referred to by the acronym AYUSH, apart from cosmetics and food products—to ensure FEBS. Ramdev’s Patanjali Ayurved is one of the highest grossing companies in the fast moving consumer goods sector while Divya Pharmacy boasts a turnover of R1,254 crore.
While the court conceded that Divya Pharmacy does not fall in the category of entities requiring prior approval from the National Biodiversity Authority and, therefore, did not have to contribute to FEBS, it cited other provisions of BDA to show that the company had, indeed, to share benefits.
The court cited Section 7 which lays down that no person who is a citizen of India or a body corporate, association or organisation which is registered in India, can obtain any biological resources for commercial utilisation, or other things without giving prior intimation to the SBB concerned.
Only local communities, vaids and hakims are exempted from this provision. In other words, SBBs had the right to impose fees on companies.
Sudhanshu Dhulia’s judgement was notable for its holistic view of the biodiversity question. It said “the long history of the movement for conservation, together with our international commitments” had to be taken into account.
Once that is done, it becomes clear that the National Biodiversity Authority has powers to frame regulations to ensure payment of monetary compensation and other benefits to those entitled to it.
It is in the wake of this judgement, which did not clear the ambiguity altogether, that lobbying began in earnest for amendments to BDA by companies basing their products on biological resources.
As a result, in 2021, the government introduced the Biological Diversity Amendment Bill in Lok Sabha, primarily to make it easier for companies to carry on with their business.
After opposition parties objected to the provisions, it was referred to a joint parliamentary committee that had former environment minister Jairam Ramesh of the Congress on it. The committee, however, allowed the controversial changes to go through.
Ease of doing business and bringing in investments into the sector is the priority, as the current Union Environment Minister made clear in the Rajya Sabha. The objective, he clarified, is to simplify the process for AYUSH practitioners and patent applicants, and reduce their compliance burden.
And other burdens, too, it would appear. The Bill decriminalises offences under BDA and makes the offences punishable with monetary penalty. Earlier, offences were punishable with imprisonment of up to five years, and/or a fine.
But mainly, the Bill lays down that users of codified traditional knowledge and AYUSH practitioners are exempt from sharing benefits with local communities. It also removes research and bio-survey activities from the purview of such requirements. Any benefit sharing will be based on terms agreed between the user and the local management committee represented by the National Biodiversity Authority.
But for all that, the ambiguities remain and have in some cases been compounded. The Bill does not define codified traditional knowledge. How would one differentiate codified knowledge under AYUSH from the traditional knowledge of local communities who have conserved and protected biological resources?
The irony is that one of the provisions of BDA itself would facilitate exemptions that will hit local communities irreparably. Under the 2002 Act, every local body in the country had to set up a biodiversity management committee and its primary function was to prepare the People’s Biodiversity Register.
Such registrations have been prepared enthusiastically by many panchayats and contain comprehensive information on the availability of local biological resources, along with traditional knowledge associated with them on their medicinal value or any other use.
Surely, information contained in such registers could be considered codified knowledge by canny businesspersons? The net result would be that all local traditional knowledge would be exempt from benefit sharing provisions.
Another critical pass that companies get is on intellectual property rights (IPRs). Earlier, the law specified that approval of the National Biodiversity Authority was essential before applying for patents involving biological resources obtained from India and for sealing the patent. The new rule says approval is required only before the grant of patents.
Given that the government allocates a paltry amount for conservation, India’s biodiversity will face further depredation as the corporate sector is allowed a free run.
This was first published in the 1-15 September, 2023 print edition of Down To Earth
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