On July 25, 2023, the Lok Sabha passed the Biological Diversity (Amendment) Bill, 2021, with the objective of modifying the Biological Diversity Act of 2002.
The bill brings amendments to the Biological Diversity Act of 2002, originally enacted to assist India in fulfilling the objectives of the United Nations Convention on Biological Diversity (CBD). The CBD, established in 1992, emphasises the sovereign rights of nations over their biological diversity.
On December 16, 2021, Bhupender Yadav, the Union Minister for Environment, Forest, and Climate Change, introduced the bill in Parliament. However, due to concerns that the amendments favoured industry and went against the spirit of CBD, it was referred to a joint committee on December 20, 2021.
Highlights Of The Bill
Access To Biological Resources And Associated Knowledge
- The Bill brings about several modifications to the Biological Diversity Act. Under the Act, entities seeking access to biological resources or associated knowledge originating from India had to get prior approval or notify the regulatory bodies, namely the National Biodiversity Authority (NBA) and State Biodiversity Boards (SBB).
- The amendment redefines the categories of these entities, enumerates activities now necessitating intimation, and adds a provision for certain exceptions.
Benefit Sharing
- The Bill brings about significant changes to the benefit sharing provisions outlined in the Act.
- Originally, the National Biodiversity Authority (NBA) was mandated to set the terms of benefit sharing, which applies to research, commercial utilization, as well as bio-survey and bio-utilisation for certain entities.
- This sharing of benefits, both monetary and non-monetary, involve the applicants, local communities, and the claimants of the benefits, who are often the conservers of biodiversity or the holders of traditional knowledge.
- However, the Bill proposes to remove the application of benefit sharing from the areas of research, and bio-survey and bio-utilization. S
- The bill also suggests that the State Biodiversity Board (SBB) will now be the body to determine benefit sharing terms when sanctioning approvals to domestic entities; this decision-making will follow regulations prescribed by the NBA.
- The Bill amends the agreement process for determining benefit sharing terms. Instead of being a tripartite agreement between the applicant, local bodies, and the benefit claimants as per the Act, the Bill mandates that these terms should rest on mutually agreed terms between the applicant and the Biodiversity Management Committee (BMC), with representation from the NBA
Offences And Penalties
- The Amendment Bill brings significant changes to the provisions regarding offences and penalties under the Act.
- Originally, any failure to obtain necessary approval or provide prior intimation for certain activities were considered offences, punishable by up to five years of imprisonment, a fine, or both.
- However, the newly passed Bill eliminates the criminal nature of these offences, replacing them with monetary penalties. These revised penalties range from 1 lakh rupees to 50 lakh rupees.
Addressing Bio-piracy Through International Protocols
- Biodiversity encapsulates the myriad of life forms inhabiting our planet. However, human activities have posed significant threats to this biodiversity, leading to habitat destruction, ecological breakdown, species extinction, and looming threats for certain species.
- Another pressing concern is bio-piracy, where biological resources and the associated indigenous knowledge are unlawfully exploited.
- To counter these issues, the United Nations Convention on Biological Diversity (CBD) was enacted in 1992. This significant international treaty acknowledges the sovereign rights of countries over their biological resources, enabling them to control access as per their national laws.
- The CBD also acknowledges the role of local and indigenous communities in conservation efforts and sustainable use, recognizing their traditional knowledge, practices, and innovations.
- It mandates that benefits derived from utilising these resources must be distributed equitably among these communities.
- India became a signatory to CBD in 1994.
Under CBD, two protocols have been adopted: (i) Cartagena Protocol on biosafety (2003), and (ii) Nagoya Protocol on access and benefit sharing (2014). India ratified the Cartagena Protocol in 2003 and the Nagoya Protocol in 2014.
Biological Diversity Act 2002
In accordance with India’s obligations under the CBD, Parliament passed the Biological Diversity Act in 2002. This legislation governs the access to biological resources and the traditional knowledge associated with them.
The Act establishes separate frameworks for regulating access by both foreign and domestic entities, ensuring compliance and effective management.
It sets up a three-tier structure for regulation: (i) National Biodiversity Authority at the national level, (ii) State Biodiversity Boards at the state level, and (iii) Biodiversity Management Committees at the local body level.
The Act ensures the equitable sharing of benefits with those who conserve biodiversity, as well as with those who hold and create associated knowledge.
Benefits may be shared in various forms such as: (i) monetary compensation, (ii) sharing of intellectual property rights, or (iii) technology transfer.
What Does Biological Diversity (Amendment) Bill Seek To Achieve?
In December 2021, the Biological Diversity (Amendment) Bill, 2021 was presented in Lok Sabha and later referred to a Joint Parliamentary Committee for further deliberation.
The Bill seeks to amend the Biological Diversity Act, 2002 to: (i) encourage the Indian system of medicine and cultivation of wild medicinal plants, (ii) facilitate fast-tracking of processes for research, patent application, and transfer of research results, (iii) decriminalise offences, and (iv) encourage foreign investment in the sector. The Bill also amends the Act to include references to the Nagoya Protocol.
India must take appropriate measures to meet the new conservation targets established at the 15th Conference of Parties to CBD, which took place in Montreal in December 2022. The world has a mere seven years to achieve these ambitious goals.
Key Issues
Ambiguity In The Exemption For Codified Traditional Knowledge
- The 2002 Act mandates a requirement to share benefits with local communities for individuals utilising biological resources and associated knowledge.
- However, the Bill introduces an exception for users of “codified traditional knowledge”, a term left undefined. Neither the Convention on Biological Diversity nor the Nagoya and Cartagena protocols under it clarify this term.
- Without a clear definition, there is room for broad interpretation of “codified traditional knowledge”, potentially leading to a situation where almost all traditional knowledge could be exempt from the benefit sharing requirements.
- The legislation paves the way for those using established traditional knowledge and Ayush practitioners to exploit biological resources without sharing any resulting benefits with the local communities who are the traditional custodians of such knowledge.
- This provision in the bill, as argued by various experts, could open the floodgates for unrestrained commercialization of biological resources, all without having to uphold any form of reciprocal benefit-sharing obligations.
Local Communities May Not Have A Direct Say In Benefit Sharing
- The proposed Bill removes the local bodies and benefit claimers’ direct involvement in setting mutually agreed terms for benefit sharing.
- The National Biodiversity Authority (NBA) will now determine these terms during the approval process.
- The terms will be set according to agreements between the applicant and the Biodiversity Management Committee, represented by NBA.
- As a result, the local people and benefit claimers, who are essentially conservers of biological resources or holders of traditional knowledge, will not directly participate in defining the terms and conditions.
- Additionally, the Bill lacks any mechanism for securing prior informed consent from local and indigenous communities. This omission goes against the Nagoya Protocol’s framework, which mandates securing consent from such communities for access to genetic resources and traditional knowledge.
- The exclusion of “Codified Traditional Knowledge” from the definition of ‘benefit claimers’ is seen as harmful to farmers, forest dwellers, and conservers, as expressed by the parliamentary panel in its report.
Offences And Penalties
- The Act allowed for punishments that included imprisonment up to five years, fines, or both for offences. The Bill, however, removes these criminal charges, instead opting for penalties. This shift grants discretion to government officials, whose decisions may be scrutinised for appropriateness.
- Large corporations now only face monetary penalties. This raises concerns about the effectiveness of such sanctions, as these fines may be negligible for such entities when they contravene or attempt to breach the rules.
- The joint committee had recommended a fresh perspective on the penalty structure, advising that fines should not be unduly low. Instead, they propose a structure where the penalties align with the profits obtained by organisations through the use of biological resources. This approach could have potentially acted as a more effective deterrent and uphold the spirit of the law.