Sunday, April 14, 2024

Reap What You Sow

The passing of the Bill decriminalises biodiversity offences and provides for a three-tiered mechanism to allow benefit sharing of the resources for research, patents and commercial utilisation

In the current monsoon session, the Biological Diversity (Amendment) Bill, 2022 was passed in the Lok Sabha. The Bill was introduced on December 16, 2021, by Bhupender Yadav, Union minister for environment, forest and climate change. But due to concerns that the amendments favoured industry and contradicted the spirit of the Convention on Biological Diversity (CBD), it was sent to a joint committee on December 20, 2021. 

On August 2, 2022, the committee submitted its report, with the recommendation that the Bill may be passed after small changes. The Bill amends the Biological Diversity Act of 2002 which was enacted for the conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits.

The Act of 2002 provides for a decentralised three-tiered mechanism comprising the National Biodiversity Authority, the State Biodiversity Board or Union Territory Biodiversity Councils, as the case may be, and Biodiversity Management Committees. All are inter-connected and ensure access and benefit sharing while accessing biological resources for research, patents, transfer of results and commercial utilisation of biological resources. The Committees are an integral part of local self-governing bodies, including panchayats and municipalities. Each Committee prepares People’s Biodiversity Registers which keep a record of all the flora and fauna, including details of traditional knowledge available in their region.

However, concerns were raised by the stakeholders representing the Indian system of medicines, seed sector, industry sector and research sector. They urged simplification, streamlining and reducing the compliance burden in order to encourage a conducive environment for collaborative research and investments. They also wanted simplification of the patent application process, widening the scope of levying access and benefit sharing with local communities and for further conservation of biological resources.

The Biological Diversity (Amendment) Bill seeks to:

(i) Reduce the pressure on wild medicinal plants by encouraging cultivation of medicinal plants.

(ii) Encourage the Indian system of medicine.

(iii) Facilitate fast-tracking of research, patent application process, transfer of research results while utilising the biological resources available in India without compromising the objectives of United Nation Convention on Biological Diversity and its Nagoya Protocol.

(iv) Decriminalise certain provisions.

(v) Bring more foreign investments in the chain of biological resources, including research, patent and commercial utilisation without compromising the national interest.

As amended by the Bill, Section 3 of the Act requires specified persons to seek approval from the National Biodiversity Authority for accessing biological resources in India or associated knowledge.

Clause 9 of the Bill amends Section 7 of the Act. It provided that no person other than one covered under sub-section (2) of Section 3 shall access any biological resource and its associated knowledge for commercial utilisation, without giving prior intimation to the concerned State Biodiversity Board.

Clause 16 of the Bill seeks to amend Section 18 of the Biological Diversity Act so as to empower the National Biodiversity Authority to make regulations with the approval of the central government to provide for access to biological resources and associated traditional knowledge and for determination of fair and equitable sharing of benefits.

Clause 17 of the Bill seeks to amend Section 19 of the Act so as to empower the National Biodiversity Authority to make regulations to provide for the manner of determination of the benefit sharing while granting approval by that Authority.

Clause 42 of the Bill seeks to amend sub-section (2) of Section 62 of the Act relating to the power of the central government to make rules. The said clause seeks to empower the centre to make rules in respect of matters relating to—issuing certificate of origin for cultivated medicinal plants; terms and conditions of service of the member-secretary and other functions to be performed by him; the form of application and payment of fees for grant of approval to transfer the results of any research on biological resources; the manner of holding inquiry by the adjudicating officer and other powers required for carrying out inspection, survey or any such activity by an authority or officer empowered by the centre. 

Clause 43 of the Bill seeks to amend sub-section (2) of Section 63 of the said Act relating to the power of the state government to make rules. The clause seeks to empower the state to make rules to provide for the composition of the Biodiversity Management Committee.

The Bill has not defined the term codified traditional knowledge and exempts access to it from benefit-sharing provisions. The Bill provides that the central government may prescribe a manner of issuing certification of origin for cultivated medicinal plants and exempts access to them from benefit-sharing provisions.

The Bill provides that a company incorporated in India, which is a foreign-controlled company, will require approval from National Biodiversity Authority for specified activities. Under the Bill, a foreign-controlled company means a foreign company as per Section 2(42) of the Companies Act, 2013, which is under the control of a foreigner. 

The amended Bill removes reference to the promotion of biological resources as the Act provides that funds set up under it will be utilised for specified purposes, including the promotion and conservation of biological resources.

The Act requires every local body in the country to create a Biodiversity Management Committee. The Bill removes the reference to conservation of habitats. It removes the direct role of local bodies and benefits claimants in deciding mutually agreed terms. The Bill exempts registered AYUSH medical practitioners and people accessing codified traditional knowledge from sharing benefits with local communities.

The Bill decriminalises offences under the Act and makes them punishable with a penalty between Rs 1 lakh and Rs 50 lakh. Under the Act of 2002, offences are punishable with imprisonment of up to five years or a fine, or both. Further, the Bill provides that in case of continuing contravention, there may be an additional penalty of up to Rs 1 crore.  

Incidentally, in August last year, a joint parliamentary committee headed by Sanjay Jaiswal (BJP MP) had reviewed the contentious draft legislation and accepted several amendments proposed by the government. 

—By Shivam Sharma and India Legal Bureau


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