EVEN as India has signed the Kunming-Montreal Global Biodiversity Framework deal to address the ongoing biodiversity loss, restore ecosystems and protect indigenous rights, the Union Government has been harbouring plans to amend the Biological Diversity Act, 2002, in a way that may dilute the institutional structure and checks contained within the Act.

Signed at the 15th iteration of the United Nations Biodiversity Conference by 188 countries, the agreement aims to protect at least 30 per cent of the world’s lands, inland waters, coastal areas and oceans by 2030 (currently, only 17 per cent of terrestrial and 10 per cent of marine areas are under protection). Central to the agreement is ensuring that biological resources are used in a sustainable, non-exploitative manner, and benefits accruing from utilising these resources and the associated knowledge are shared fairly and equitably.

Meanwhile, the Biological Diversity (Amendment) Bill, 2021, introduced in the Parliament in December last year and sent to a Joint Parliamentary Committee soon after, has provisions that exempt AYUSH practitioners from certain provisions of the Act, raising concerns that the motive behind the amendment might be to increase the ease of doing business rather than strengthening the existing regime.

The Biological Diversity Act, 2002 (‘BD Act’) was enacted pursuant to the UN Convention on Biological Diversity, agreed upon in Rio De Janeiro in 1992. The BD Act provides for the conservation of biological diversity, the sustainable use of its components, and the fair and equitable sharing of the benefits arising out of the use of biological resources and associated knowledge through the mechanism of access and benefit sharing. It recognises the significant role of local communities and their knowledge of flora and fauna in the conservation and sustainable use of biodiversity.

The BD Act creates a decentralised three-tiered mechanism comprising the National Biodiversity Authority (‘NBA’), the State Biodiversity Board (‘SBB’) and the Biodiversity Management Committees (‘BMCs’).

Any application for intellectual property rights involving biological resources occurring in India or associated traditional knowledge requires prior approval of the NBA. Its approval is also necessary for foreigners and foreign companies to access biological resources occurring in India and associated knowledge. Indian citizens and domestic companies are required to intimate the respective SBBs before accessing the domestic biological resources for such purposes. An SBB may revoke or refuse access if certain activities would be detrimental to biodiversity conservation or unsustainable.

The BD Act mandates the constitution of a BMC within all local bodies for the purpose of discussing how to ensure sustainable use of local resources, and documenting such information in a People’s Biodiversity Register.

Under the Act, the NBA and the SBBs have been mandated to consult BMCs while taking any decision relating to the use of biological resources and knowledge associated with such resources occurring within the territorial jurisdiction of the BMC.

Additionally, within their jurisdiction, BMCs have the power to levy charges by way of collection fees from any person accessing or collecting any biological resource for commercial purposes. The Biological Diversity (Amendment) Bill was introduced by Union Environment Minister, Bhupendra Yadav in the Lok Sabha in December 2021 without seeking public comments, as required under the Pre-legislative Consultative Policy, 2014.

One of the officially stated aims of the Bill is to bring more foreign investments in the chain of biological resources, including research, patenting and commercial utilisation. The introduction of the Bill was met with objections against it by members of Opposition parties for favouring the AYUSH industry and compromising the country’s biodiversity. It was then sent to the Joint Parliamentary Committee for scrutiny, which submitted its report in August this year. As per a report, the Government has accepted most of its suggestions and plans to introduce an amended version of the Bill.

Tracing its origin, the Statement of Objects and Reasons of the Bill discloses that “concerns were raised” by representatives of the Indian system of medicines (AYUSH), the seed industry and other industries, and the research sector urging the Government to reduce the compliance burden “in order to encourage conducive environment for collaborative research and investments, simplify patent application process, widen the scope of levying access and benefit sharing with local communities and for further conservation of biological resources.”

The Bill expands the list of those exempted from giving prior intimation to the SBBs for accessing any biological resource or its associated knowledge for commercial utilisation. Earlier, exemptions were granted to local people and communities of the area, and vaids and hakims who have been practising indigenous medicine. The Bill proposes additional exemptions to AYUSH practitioners, cultivated medicinal plants and for holders of “codified traditional knowledge”.

There are concerns that exempting the AYUSH practitioners would, in effect, give the AYUSH industry a free hand to use biological resources without having to compensate the communities. The Committee, however, did not scrutinise the exemption granted to AYUSH practitioners under this provision. (IPA)