ABSTRACT:
India is very rich in Plant biodiversity, with approximately 55 million species of plant varieties endemic to India. This means that India is their original and habitat. To secure the leverage of the communities who have first identified and have been historically making use of these plant resources, India became a party to the biodiversity convention of 1994[1]. Pursuant to this convention, India passed its own domestic legislation Biodiversity act 2002 (hereinafter, the act) championing the cause of promoting sustainable use, conservation of and Equitable Sharing of Benefits[2].
The Act, however left some lacunas, particularly about the obligation of citizen corporations towards benefit sharing. An attempt was made to settle the issue in the landmark judgement of Divya Pharmacy[3](hereinafter, the judgement)by the Uttarakhand High Court. This Judgement relied heavily on the Nagoya protocol[4] to the biodiversity convention, which explicitly tackles the benefit-sharing aspect of sustainable development.
The 2021 biodiversity (amendment) bill, intends to incorporate changes in this very aspect of sustainable development. This paper aims to analyse the points of impact throughout the legal timeline of biodiversity laws and specifically critique the amendment bill directed towards reducing compliance for citizen industries which in many ways run counter to the idea of benefit sharing embedded in the act’s own objectives, judgements and the International Conventions that India is part of.
What is the general scheme of the powers of the authorities in the act?
Only a glance on the bare provision of The Biodiversity Act, 2002 (hereinafter the Act), it is overtly visible that with the classification of authorities on a national, state and local level, the act has demarcated the sphere of functioning of these authorities. However, a top-down approach can be seen in the extensiveness of powers of the established authorities, in how the provisions are drafted in the act.
The NBA established at the national level[5], holds the responsibility of regulating biodiversity activities by foreign entities or transfer of material and information to foreign entities[6], issue guidelines for access to biological resources and determine fair and equitable benefit sharing for the same. In addition, The NBA is the sole authority to grant approval toany non-citizen, or non-resident citizen, or a body corporate with a foreign element to utilise any Indian bioresource for research, commercial utilisation, bio survey etc;[7].
The State Biodiversity Board[8] regulates the utilization of Indian bioresources by Indian Citizens.[9] While the Biodiversity Management Committees (BMC) are constituted on a local level for the general purposes of conservation, sustainable use and documentation of biodiversity in such local area. It is however stated that the NBA and the SBB shall consult the BMC while taking any decision relating to bioresources occurring within its local jurisdiction[10]
It can be highlighted at this point is that, whereas the NBA has been enriched with the express power to determine and grant or reject approval,to non-citizen persons or body corporates for commercial utilization or transfer of resource or information[11], the act only stated that prior intimation was to be given to State Biodiversity Board, any other regulatory functions had to be drawn from section 23(b).
This is one major aspect that is sought to be amended by the bill of 2021. According to the bill, the SBB will be conferred with express powers to determine the fair and equitable sharing of benefits while granting approvals to domestic entities for commercial utilization, subject to regulations made by the NBA.[12]
A number of State Biodiversity Boards, however, in the absence of such express powers to impose benefit sharing, had sent show cause notices to various companies utilizing bioresources. This led to a plethora of cases in the National Green Tribunal as well and the High Courts of Various states, challenging these show cause notices.[13] The Courtstoo have been very reluctant in going into the constitutionality of the biodiversity guidelines or the show cause notices by state boards.
loopholes in the parent act and its consequences:
In addition,abovementioned lacuna in the parent act, there are two points, clarification on which, could resolve a lot of litigations:
(a) what is regulated; and
(b) who are obligated to share benefits under the Act.
About 13 petitionsfiled before the Central Zone Bench of National Green Tribunal (NGT) by a number of companies against the show-cause notices issued to them by the Madhya Pradesh. SBB[14]anda number of litigationson similar grounds in various High Courts[15] prompted the Ministry of Environment, Forest and Climate Change (MoEFCC) to issue-Guidelines on Access to Biological Resources and Associated Knowledge and Benefit Sharing Regulations, 2014[16](hereafter the Guidelines). The Guidelines, clarified that in fact, there is an obligation of sharing benefits with the SBBs by citizen companies, which was not specified earlier in the biodiversity act or the allied Rules.
Another Important factor to be noted is that the guidelines were passed after the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (ABS) to the Convention on Biological Diversity[17]The object of the Guidelines clearly state that they are passed in pursuanceof the Nagoya Protocol on access to genetic resources and the fair and equitable sharing of benefits arising from theirutilization.[18]
The Common string among the orders of NGT and the Courts was that, either of the authorities have shown reluctance to go into the merits of the contentions, and have dismissed the suits at preliminary stages, directing the SBBs is at liberty to look at the issue afresh, after clarifications by the guidelines, in line with the scheme of the Act and rules.
TheseGuidelines are themselves contentious, as they created a new provision of law, without following the due procedure of legislation i.e., by passing an amending act through the legislative procedure of the parliament.
Divya Pharmacy Judgement and its impact:
Issuing of the 2014 guidelines, however did not succeed in settling the position, rather started another string of litigations by AYUSHCompanies for seeking relaxation of the benefit-sharing provisions. The Major case in point is the case is Divya Pharmacy v. Union of India[19],
As a consequence, the AYUSH companies filed a writ petition before the Nagpur bench of the High Court of Bombay[20], praying, inter alia, for a declaration that the 2014 Guidelines do not apply to Indian entities not trading in any biological resources with non-Indian entities and that they are ultra vires the BD Act and therefore unconstitutional.
The facts of the case can be summarised as;Divya Pharmacy,founded by Swami Ramdev and Acharya Balkrishna in Uttarakhand, the petitioner in this case,challenged the notice by Uttarakhand Biodiversity Board(UBB) on the ground that since the company was using biological resources from the state for its ayurvedic formulations, without intimating the board, it was in violation of the Biodiversity Act and that it was liable to pay an access and benefit-sharing fee.
The Submissions of the Petitioners was that the Biodiversity Act under Sections 2(g) and 3, states that only foreign entities using biological resources can be made to share profits. The respondents argued that the scheme of the act rules and guidelines, create no distinction between a foreign or an Indian entity and the equitable sharing of benefits with the local and indigenous communities was one of its objectives, and remarked India’s International obligations in this regard and repeatedly represented to the Court about the Nagoya Protocol.
The Court was faced with the same lingering question as to whether the State Biodiversity Board was entitled to levy benefit sharing obligation on citizen companies as part of their regulatory powers. As opposed to the Stance taken until this point, the court took the case on merits and gave the conclusion in favour of the respondents and elaborated on the power and functions of State Biodiversity Board. While doing so the court held:
“What is Fair and Equitable Benefit Sharing cannot be looked through the narrow confines of the definition clause alone. The concept of FEBS has to be appreciated from the broad parameters of the scheme of the Act and the long history of the movement for conservation, together with our international commitments in the form of international treaties to which India is a signatory.”[21]
The changes sought to be brought by the amendment:
As had been pointed out in this paper, that the guidelines were in fact a shortcut, to amend the act, and in true sense lacked the backing of law. To resuscitate this authority, the Union environment minister Bhupinder YadavpresentedThe Biodiversity Amendment bill, 2021 (hereinafter the bill), during the winter session of Parliament.
It is said by Environmentalists that the bill too, like the guidelines, is being passed trying to circumvent the procedure, receiving outrage by the opposition.[22]Legal experts too expressed concerns Bill 2021 could be detrimental to ecology and go against the principle of sharing commercial benefits with indigenous communities[23]. The Bill pursuant to the opposition, was referred to a Joint committee, which allowed a 15-day period window for receiving public opinions and Criticisms.[24] The joint committee has submitted its report on the bill on 2nd August, 2022.[25]
The bill seeks to amend the preamble of the 2002 act, seeking to give effect to the Nagoya Protocol to which India is a Party andto provide for conservation, sustainable utilisation, fair and equitable sharing of the benefits arising out of utilisation of biological resources[26].
Opposed to the general scheme of the 2002 act, however, the bill in ways more than one, seeks to dilute compliance and benefit sharing. Most benefitted from this legislation are the AYUSH practitioner, working for profit motive.[27]
The bill seeks to reduce the pressure on wild medicinal plants by encouraging the cultivation of medicinal plants, and exempts such cultivated plants from the purview of the Act. This distinction adds the cherry on the top of the cake of unclarity as to what constitutes bioresource or codified traditional knowledgeallow 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.[28]
The most contentious change introduced by the bill is that it exemptsAYUSH practitioners from intimating biodiversity boards for accessing biological resources or knowledge, as well as reduce compliance for the companies.Ritwick Dutta, environmental lawyer has stated “The amendment seems to be done with the sole intention of providing benefit to the AYUSH industry. 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. The amendments are completely contrary to the aim and objective of the Biological Diversity Act, 2002,”[29]
Conclusion:
From the Inferences pointed in the preceding paras, it is very clear that the bill rather seems to undo the effect of the Divya Pharmacy Judgement. It is one step away from the Wholistic approach towards benefit sharing as contemplated by the Nagaya Protocol. Categorically these provisions, if implemented would unfairly distinguish between Indian AYUSH Industries and other drug Industries, on the usage of Bioresources. Moreover, it is definitely in contravention with the principles of The Nagoya Protocol as well as the Basic feature of Socialism instilled in our constitution. Most striking is the distinction between wild and grown medicinal plants, which at the stake of repetition has to be stated that would be ultra vires the act itself.
For solving the long-term impacts, that will impact adversely the endemic plant and animal bioresources of India, the government need to consider the biodiversity act in conjunction with other Environment protection laws and their protection mechanisms, environment Impact Assessment is one such notable impact.
Another important idea to bear in mind that commercial benefits can be said to benefit the nation when the monetary resources do not unidirectionally flow in the hands of the private players of the economy but, multi-directionally, in accordance with the scheme of the act, and for this purpose, clarify and strengthen the powers of the Authorities at the local and state level.
[1]The Convention on Biological Diversity, known informally as the Biodiversity Convention, https://www.cbd.int/
[2]The Biodiversity Act, 2002, https://www.indiacode.nic.in/bitstream/123456789/2046/1/200318.pdf.
[3]2018 SCC OnLineUtt 1035, decided on 21-12-2018, http://scconline.com/DocumentLink/Dr671Wr9.
[4]The Nagoya Protocol on Access and Benefit-sharing, https://www.cbd.int/abs/
[5]The Biodiversity Act, 2002, Section 8.
[6]Id, Sections 3,4,6.
[7]Id, Section 19.
[8]Id, Section 22.
[9]Id, Section 23.
[10]Id, Section 41.
[11] Id, Section 19
[12] The Biodiversity amendment bill, 2021, para 21.
[13]Alphonsa Jojan, The Curious Case of the Indian Biological Diversity Act, https://thewire.in/environment/india-biological-diversity-act, Last Visited 06/03/22.
[14] This includes the following cases: Original Application No.62/2013 (CZ) (Som Distilleries Pvt. Ltd. Vs. MP State Biodiversity Board &Ors.); Original Application No.63/2013 (CZ) (Associated Alcohols & Breweries Ltd. Vs. MP State Biodiversity Board and Others); Original Application No.64/2013 (CZ) (Regent Breweries & Wines Ltd. Vs. MP State Biodiversity Board &Ors.); Original Application No.65/2013 (CZ) (Mount Everest Breweries Ltd. Vs. MP State Biodiversity Board &Ors.); Original Application No. 67/2013 (CZ) (M.P. Beer Products Ltd. Vs. MP State Biodiversity Board &Ors.); Appeal No. 06/2013 (CZ) (Agro Solvent Products Pvt. Ltd. Vs. MP State Biodiversity Board &Ors.); Appeal No. 03/2013 (CZ) (Lilasons Breweries Ltd. Bhopal Vs. MP State Biodiversity Board &Ors.); Appeal No. 07/2013 (CZ) (Ruchi Soya Industries Vs. MP State Biodiversity &Ors.);Appeal No. 02/2014 (CZ) (Great Galleon Limited Vs. M.P. State Biodiversity Board & Three Ors.(CZ)); Appeal No. 01/2014 (CZ) (Dabur India Ltd. Vs. M.P. State Biodiversity Board and Others); Original Application No. 46/2014 (CZ) (Gwalior AlcobrewPvt. Ltd. Vs. M.P. State Biodiversity Board & 2 Ors).; Original Application No. 47/2014 (CZ) (SanwariaAgro Oils Ltd. Vs. M.P. State Biodiversity Board & 3 Ors.); Original Application No. 136/2014 (CZ) (M/s Som Distilleries & Breweries Pvt. Ltd. Vs. MP SBB)
[15]M/s Vishwanath &Ors. v. State of Uttarakhand, https://www.legitquest.com/case/ms-vishwanath-paper-and-boards-ltd-v-state-of-uttarakhand/1add50.
[16]Guidelines on Access to Biological Resources and Associated Knowledge and Benefits Sharing Regulations, 2014,http://nbaindia.org/uploaded/pdf/Gazette_Notification_of_ABS_Guidlines.pdf
[17]The Nagoya Protocol on Access and Benefit-sharing,https://www.cbd.int/abs/.
[18]Ibid, note 12.
[19]2018 SCC OnLineUtt 1035, decided on 21-12-2018, http://scconline.com/DocumentLink/Dr671Wr9
[20] Central India AYUSH Drugs Manufacturers Association and Ors. V. State of Maharashtra and Ors. 2016, https://indiankanoon.org/doc/178757236/Last Visited 06/03/22.
[21] Id, note 16, para 105
[22]Biodiversity (Amendment) Act 2021: Government Intent and Public Concern, Visited:06/03/2022,https://www.downtoearth.org.in/hindistory/wildlife-biodiversity/biodiversity/biodiversity-amendment-act-2021-government-intent-and-public-concern-81304.
[23]Jayashree Nandi, Biodiversity act: Balancing investments and sustainability, Updated on Dec 17, 2021 10:23 PM IST, https://www.hindustantimes.com/opinion/biodiversity-act-balancing-investments-and-sustainability-101644494372825.html.
[24]Satyam Shrivastava, Supra, note 16.
[25] Report of the joint committee, http://164.100.47.193/lsscommittee/Joint%20Committee%20on%20the%20Biological%20Diversity%20(Amendment)%20Bill,%202021/17_Joint_Committee_on_the_Biological_Diversity_(Amendment)_Bill_2021_1.pdf
[26]The biodiversity amendment bill 2021, para, Amendment to Preamble.
[27] Id, para 9.
[28] Flavia Lopes, IndiaSpend, Biodiversity Act Amendments Shift Focus From Conservation To Commercial Exploitation: Experts, https://www.indiaspend.com/earthcheck/biodiversity-act-amendments-shift-focus-from-conservation-to-commercial-exploitation-experts-802693 last visited 13-09-2022.
[29]Jayashree Nandi, Why legal experts are concerned about the Biological Diversity Amendment Bill 2021,https://www.hindustantimes.com/india-news/why-legal-experts-are-concerned-about-the-biological-diversity-amendment-bill-2021-101639759979049.html Last Visited 06/03/22.