Biological Diversity Amendment Bill 2021

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    In News

    • The legal experts are concerned about the Biological Diversity Amendment Bill 2021.

    Major Concern

    • The Biological Diversity Amendment Bill 2021, introduced in the Lok Sabha, exempts Ayush practitioners from the ambit of the Biological Diversity Act, 2002.
    • It facilitates access to biological resources and traditional knowledge by the Indian traditional medicine sector. 

    Expert’s stand

    • Legal experts have expressed concerns that easing the norms for the sector could be detrimental to ecology and go against the principle of sharing commercial benefits with indigenous communities.

    Biological Diversity Amendment Bill 2021

    • The Act: 
      • The Biological Diversity Act, 2002 was enacted for the conservation of biological diversity and fair, equitable sharing of the monetary benefits from the commercial use of biological resources and traditional knowledge. 
    • Amendment Bill:
      • Wild medicinal plants: 
        • It seeks to reduce the pressure on wild medicinal plants by encouraging the cultivation of medicinal plants; 
        • The bill focuses on regulating who can access biological resources and knowledge and how access will be monitored. 
      • Ayush practitioners: 
        • It exempts Ayush practitioners from intimidating biodiversity boards for accessing biological resources or knowledge; 
        • It is a huge move because the Ayush industry benefits greatly from biological resources in India. 
        • The role of state biodiversity boards has been strengthened and better clarified in the bill.
      • Research and offences:
        • It facilitates fast-tracking of research, simplify the patent application process, decriminalises certain offences; 
        • Violations of the law related to access to biological resources and benefit-sharing with communities, which are currently treated as criminal offences and are non-bailable, have been proposed to be made civil offences.
      • Investments: 
        • To bring more foreign investments in biological resources, research, patent and commercial utilisation, without compromising the national interest.

    Reasons for amendment

    • Provide conducive environment: 
      • According to the bill, concerns were raised by Ayush medicine, seed, industry and research sectors urging the government to simplify, streamline and reduce the compliance burden to provide for a conducive environment for collaborative research and investments. 
    • Patent application process: 
      • They also sought to simplify the patent application process, widen the scope of access and benefit-sharing with local communities. 
      • In most cases, this is a certain percentage of the sale price.
    • Benefit sharing provisions:
      • Ayush companies have been seeking relaxation of the benefit-sharing provisions. 
      • A case in point is the case relating to Divya Pharmacy founded by Swami Ramdev and Acharya Balkrishna in Uttarakhand. 
      • The Uttarakhand Biodiversity Board (UBB) sent a notice to Divya Pharmacy in 2016 stating that the company was in violation of the Biodiversity Act for using biological resources from the state for its ayurvedic formulations, without intimating the board and that it was liable to pay an access and benefit-sharing fee. 
      • Challenging the board’s notice, the company filed a writ petition before the Uttarakhand high court in December 2016 challenging the powers of the biodiversity board to determine benefit-sharing by Indian companies. The court in 2018 upheld the powers of the biodiversity board in its judgement.

    Reasons for criticism

    • Consultation not done: 
      • The Bill has been introduced without seeking public comments as required under the pre-legislative consultation policy. 
      • Although the Government stated that the bill has been only introduced. The environment ministry will also publish the bill for public comments and a month’s time will be given to respond.
    • Commercial utilisation: 
      • Registered Ayush practitioners who have been practising indigenous medicine can access any biological resource and its associated knowledge for commercial utilisation, without giving prior intimation to the state biodiversity board. 
    • Only benefitting Ayush industry:
      • The amendment seems to be done with the sole intention of providing benefit to the Ayush industry. 
    • Focussing on trade:
      • The main focus of the bill is to facilitate trade in biodiversity as opposed to conservation, protection of biodiversity and knowledge of the local communities. 
    • Contradiction with the aim of the Act:
      • The amendments are completely contrary to the aim and objective of the Biological Diversity Act, 2002.
    • Bio utilisation removed:
      • The bill has excluded the term “bio-utilisation.
      • Leaving out bio utilisation would leave out an array of activities like characterization, inventorisation and bioassay which are undertaken with commercial motive
    • Bypassing prior approval:
      • The bill also exempts cultivated medicinal plants from the purview of the Act but it is practically impossible to detect which plants are cultivated and which are from the wild. 
      • This provision could allow large companies to evade the requirement for prior approval or share the benefit with local communities under the access and benefit-sharing provisions of the Act.

    Access and Benefit Sharing

    • Under the Convention of Biological Diversity, and the Nagoya Protocol on Access and Benefit Sharing to which India is a party, it is mandated that benefits derived from the use of biological resources are shared in a fair and equitable manner among the indigenous and local communities. 
    • When an Indian or foreign company or individual accesses biological resources such as medicinal plants and associated knowledge, it has to take prior consent from the national biodiversity board
    • The board can impose a benefit-sharing fee or royalty or impose conditions so that the company shares the monetary benefit from commercial utilisation of these resources with local people who are conserving biodiversity in the region.

    Importance of Board

    • The December 2018 judgement of Uttarakhand high court in the Divya Pharmacy matter clarifies that the board has a core function of regulation, which also includes asking for benefit sharing and determining the terms and conditions to be imposed on the user/accessor against access.

    Way Ahead

    • There is an urgent need to refer the Bill to the Standing Committee on Environment rather than a Select Committee.
    • All the concerns raised by experts need to be addressed thoroughly.

    Biological Diversity Act, 2002

    • The Act was introduced to achieve the objectives of United Nations Convention on Biological Diversity (CBD), 1992
    • The Act covers conservation, use of biological resources and associated knowledge occurring in India for commercial or research purposes or for the purposes of bio-survey and bio-utilisation. 
    • It provides a framework for access to biological resources and sharing the benefits arising out of such access and use.
    • The Act also includes in its ambit the transfer of research results and application for intellectual property rights (IPRs) relating to Indian biological resources.
    • Any offence under the Act is cognizable and non-bailable. 
    • The act envisaged a three-tier structure to regulate the access to biological resources:
      • The National Biodiversity Authority (NBA)
      • The State Biodiversity Boards (SBBs)
      • The Biodiversity Management Committees (BMCs) 

    Image Courtesy: NBA

     

    Who and what is excluded by the Biological Diversity Act?

    • The Act excludes Indian biological resources that are normally traded as commodities. 
    • Such exemption holds only so far the biological resources are used as commodities and for no other purpose. 
    • The Act also excludes traditional uses of Indian biological resources and associated knowledge and when they are used in collaborative research projects between Indian and foreign institutions with the approval of the central government.

    Sources: HT + IE