Pressed for sharing

The Uttarakhand high court order on Ramdev's firm to pay for use of bioresources has put herbal companies on notice

By Latha Jishnu
Published: Tuesday 08 January 2019
Credit: Reuters

Divya Pharmacy, owned by yoga teacher Baba Ramdev and his partner Acharya Balakrishna in a writ petition filed in the Uttarakhand High Court had, after a long dispute over payment of benefit-sharing fees with the State Biodiversity Board (SBB), challenged the latter’s right to demand fair and equitable benefit sharing, and whether such a rule can be imposed on domestic companies.

Ramdev, who has in the past four years conducted an abrasive campaign against multinationals in the fast moving consumer goods segment, has pitted his companies, Patanjali and Divya, which produce ayurvedic medicines, cosmetics and food, as swadeshi or home-grown enterprises.  Although several other companies selling ayurvedic products have been engaged in disputes with several SBBS, it was Divya Pharmacy that filed a writ petition challenging the right of these bodies to impose the rules notified by the National Biodiversity Authority (NBA). On December 21 last, Uttarakhand High Court judge Sudhanshu Dhulia put paid to their hopes by dismissing Divya Pharmacy’s petition.

There is a two-pronged assault on the laws of biological conservation of genetic resources—by scientists and the industry, and in both cases, India has become the launch pad for the campaigns. The first led by Indian scientists is an international movement against the Convention on Biological Diversity (CBD), which they say has spawned national regulatory regimes on access and benefit sharing (ABS) with “unintended consequences”. They want the regulations to be watered down or eliminated to allow unfettered global research.

In an article in the June 2018 edition of Science Magazine, K Divakaran Prathapan from the Kerala Agricultural University, Thiruvananthapuram, argued that “not-for-profit research, such as inventories and taxonomic studies should be differentiated from commercial research leading to proprietary rights. Access has to be open when the benefits are in the public domain.” The article was backed by a signature campaign by scientists from across 35 countries.

CBD is an agreement signed by 196 nations to conserve biological diversity, use its components sustainably and share fairly and equitably the benefits accruing from the use of genetic resources. To further the aims of the last goal, CBD especially instituted the Nagoya Protocol (NP), which came into force in 2014.

Although CBD acknowledges the importance of research and sharing of knowledge, scientists claim that the abs regime put in place by many countries are restrictive. “Though well-intentioned, the regulations are inimical to the pursuit of basic biodiversity science,” according to Prathapan and his co-authors who warned that unless there is “close cooperation between scientists and national policy-making bodies, the broader goals of CBD will be difficult to achieve”.

Profit motto

Tracing the history of CBD and NP, Dhulia said that “biological resources are definitely the property of a nation where they are geographically located, but these are also the property, in a manner of speaking, of the indigenous and local communities who have conserved it through centuries”. Ordering Divya Pharmacy to share its profits with local and indigenous communities, Dhulia upheld the order passed by the Uttarakhand SBB asking Divya Pharmacy to fork out its dues, estimated at some Rs 2 crore in some reports, as part of Fair and Equitable Benefit Sharing (FEBS), since it would be invidious to differentiate between foreign and Indian companies.

While this argument does have merit, the attack by industries on abs is profit-driven. Here, commercial outfits have been refusing to abide by the benefit-sharing regulations in the Biological Diversity Act, 2002, claiming that only foreign entities are obliged to do so.

Fair share

FEBS rates are minuscule given the huge turnovers of ayurvedic companies. The sales of Divya Pharmacy in 2017, for instance, was Rs 870 crore while Patanjali Ayurved accounted for Rs 9,346 crore in an overall turnover of Rs 10,561 crore for Ramdev’s ventures. Dhulia’s ruling that SBBS have the powers to demand FEBS under several sections of rules framed by NBA means companies using biological resources will have to fall in line.  The problem is the wording of the Biodiversity Act, specially Section 7.

Acknowledging this, the court observed that “a simple textual interpretation,” would, indeed, show that the petitioner is not liable to contribute to FEBS. “But then a plain and textual interpretation here defeats the very purpose, for which the law was enacted!” It then went on to define the importance of purposive interpretation of law when the legislation being considered is a socially or economically beneficial one, like in the case at hand.

So, while there is general celebration of the Divya Pharmacy verdict as a “landmark judgement”, lawyers speaking for the corporate lobby have warned that the judgement will not stand if challenged, glossing over the fact that Dhulia has cited several precedents for issuing a “purposive interpretation” of the Act. One would have to wait for further developments to test the veracity of the claims made by such lawyers.

What is needed though is to clear the myriad confusions in the way sbbs function. There have been many a whimsical decision by these boards and transparency in the way these bodies reach their decisions would help everyone involved. Laudable as the claims of the sbbs are, we have no information of how the FEBS monies have been shared with communities, if at all. This has given rise to suspicion that sbb is just a new order of bureaucrats out to secure their own turf with little idea of the goals of biodiversity conservation. It is time that legal ambiguities are removed to ensure clarity in the way it is implemented. This would assuage the fears of all: scientists, communities and industry.

(This article will appear in Down To Earth's January 16-31 print edition)

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