Meta Description:The bill appears to centralize biodiversity management, granting more power to the Union Government, potentially deviating from the Act's decentralized structure. It also raises apprehensions about biopiracy by exempting certain industries, like AYUSH, from biodiversity rules, impacting indigenous communities' rights. The proposed decriminalization of offenses and lack of legislative guidance on penalties raise questions about legal accountability. Ambiguities and inconsistencies within the bill, such as conflicting definitions and contradictory provisions, add complexity.
Keywords: Biodiversity Amendment Bill, Conservation challenges, Indigenous rights, Legal ambiguities
ANALYSIS OF THE BIOLOGICAL DIVERSITY (AMENDMENT BILL) 2021
India is a party to the Convention on Biological Diversity.1 To meet the obligations of the Convention on Biological Diversity (now referred to as CBD) Indian parliament enacted the Biological Diversity Act (now referred to as the Act). The Act is India's first attempt to make laws to conserve Biodiversity. This Act was passed on February 5, 2003, and was commenced on October 1, 2003, and July 1, 2004. With time, the need for the Law gets changed. The biodiversity law should also get progressive to promote the use of biological resources without harm to the indigenous communities. A recent Amendment bill was introduced in the parliament and is being discussed.
BACKGROUND
The term Biodiversity is a short name for Biological Diversity. In a simple sense, Biodiversity means all the living organisms on the planet. At the Earth Summit, the Convention on Biological Diversity in 1992 was adopted by various countries. India adopted the Act of 2002 to be at par with the CBD. This Act was introduced to conserve India's Biological Diversity and ensure sustainable use of Biological Resources. Biological Diversity under sec 2(b) of the Act as under:
"Biological Diversity" means the variability among living organisms from all sources and the ecological complexes of which they are part and includes Diversity within species or between species and of eco-systems;2
This Act also talks about one more term, which is Biological Resources. Biological Resources is defined under section 2(c) as under:
"Biological Resources" means plants, animals and micro-organisms or parts thereof, their genetic material and by-products (excluding value-added products) with actual or potential use or value, but does not include human genetic material;3
CBD recognizes sovereign rights over biological resources. CBD empowers countries to regulate access to biological resources per their national laws. Under the CBD, two protocols were adopted: a) Cartagena Protocol on Biosafety and b) Nagoya Protocol on Access and Benefit Sharing. These Protocols were ratified by India in 2003 and 2014, respectively.
The amendment bill was introduced in December 2021 by the Union Minister of environment, forest, and climate change. The Bill aims to amend to encourage the Indian system of medicine and cultivation of wild medicinal plants, to facilitate fast-tracking processes for research, patent applications and transfer of research results, decriminalize offenses and encourage foreign investments. This Bill has been referred to a Joint Parliamentary Committee.4 The Amendment Bill also focuses on adding a reference to the Nagoya Protocol.
At the 26th conference of parties to the United Nations framework convention on climate change,5 the Hon'ble Prime Minister expressed his concern about climate change. The rights of the indigenous communities or the customary practices that have contributed to the protection of Biodiversity are not mentioned.
ANALYSIS OF THE AMENDMENT
Centralization of biodiversity system in India: The Act was drafted in a decentralized manner. Three-tier system having national biodiversity authority (from now on referred to as NBA), state Biodiversity Authority and Biodiversity Management Committeesat the local level. The new Bill introduces a member secretary appointed by the Union Government. The power of the member secretary would be the same as that of the chairperson of the NBA. The NBA has to take prior Approval from the Central Government, which makes it centralized.
The emergence of Biopiracy: The Act states that the benefits derived from using traditional knowledge should benefit the communities. The access and benefit sharing amount can be used for conservation activities if the conserver is known. As per the Bill, the Definition of benefit claimants has excluded the "codified traditional knowledge ."The Bill has not defined the term 'codified traditional knowledge .'It has yet to be defined in the Convention on Biological Diversity or the Nagoya and Cartagena protocol.6 The world intellectual property organization (WIPO) defines traditional knowledge as " traditional knowledge which is in some systematic and structured form, in which the knowledge is ordered, organized, classified, and categorized in some manner."7
The exemption would be detrimental to the interest of the rural and tribal communities. This Amendment helps the AYUSH industry to be free from the Biodiversity act rules. Does the query arise whether the AYUSH industries are under the purview of traditional knowledge keepers such as Vaidya or hakim? Yes. As per the Biodiversity Act, the Vaidya and Hakim are the traditional knowledge keepers. This Amendment would give the Ayush industries will get an unfair advantage. The Bill also allows commercial use and intellectual property rights within or outside India before Approval from the NBA.8 This depicts the intention of commodification and taking the biodiversity heritage for granted, ignoring the rights of the indigenous communities.
The exemption to AYUSH companies: It was directed in the case of Divya pharmacy v. Union of India, 2018 that all foreign and Indian companies, institutions, and individuals seek permission and consent for access and Benefit Sharing with the local community. The Divya pharmacy judgment gave the principle of fair and equitable Benefit Sharing with the communities. The Judgment was in conformity with international conventions. After the Amendment, the Bill exempts the AYUSH companies from intimating SBBs before obtaining Biological Resources.9 This Amendment is in contrast with the Nagoya protocol. Nagoya protocol requires the signatory country to make sure that prior Approval and consent are taken from the indigenous and local communities for access to genetic resources and traditional knowledge. This Amendment will overtake the Divya pharmacy judgment. The Bill also exempts cultivated medicinal plants. This newly proposed Amendment will allow the companies to show the Biological Resources of the forest as developed areas and escape from the share of benefits of local communities. This change also violates the provisions of the Forest Rights Act, of 2006 10that authorizes the Gram Sabha for prior Approval in case of any access to the forest.
Decriminalization of offence: The act states offences are punishable with imprisonment of up to five years or a fine,11 or both. The proposed Bill decriminalizes the offence and proposes a penalty punishable. The Bill introduces an Adjudicating officer, who will decide the punishment. The Adjudicating officer will be at least the rank of Joint Secretary in the Central Government or Secretary in the State Government.
No legislative guidance on adjudging the penalty: The Bill discusses the punishment imposed for violating the provisions. the fine ranges from a minimum of one lakh Rupees to one crore Rupees. The Bill does not have any provision bifurcating the type of offense on which it will be assessed. There is no guidance to the adjudicating officer to determine the basis for such a penalty. Punishment for transferring the research result without Approval and failing to take Approval for a bio survey is the same. Another issue with the Bill is whether it is appropriate to change the Adjudicating Authority from a judge to a Government official.
Inconsistency in the Bill
The Bill seeks to remove the Definition of Bio Utilization. However, the Act amended by the Bill under section 3 still contains the term Bio-Utilisation.
Section 3 of the Act, as amended by the Bill, requires a specific person to seek Approval from the NBA for accessing biological resources or purpose of research, commercial utilization and Bio survey and bio utilization. However, the Application to NBA for Approval only covers Commercial utilization. The manner for application for research and bio survey and bio utilization has yet to be specified.
Contradiction in the Definition of "foreign-controlled company". As per the Bill, the company incorporated in India, which is a "foreign-controlled company," will require Approval from the NBA. Under the Bill, as per section 2(24) of the Companies Act, 201312a "foreign-controlled company" means a companythat is under the control of a foreigner.Section 2 (42) of the Companies Act,2013 defines a foreign company or a corporate body incorporated outside India. Therefore, the Bill is contradictory in the Definition of a foreign-controlled company.
CONCLUSION
The proposed amendments can be seen as a complete change in the fundamental principle of the conservation of Biodiversity. The amendments mainly focus on creating an encouraging environment for research and investments. There are some contradictions in the amendments which generate ambiguity in the Law. The Law is dynamic and cannot be static in the coming times. But the change in the Law must not lose its essence. Therefore, it would be more vigorous if the ambiguity is removed to enable a smooth understanding of the Bill for the citizens.
REFERENCES
1 Convention on Biological Diversity (CBD) | The Official Website of .... https://moef.gov.in/en/division/environment-divisions/conservation-and-survey-cs/convention-on-biological-diversity-cbd/
2 https://www.indiacode.nic.in/bitstream/123456789/2046/1/200318.pdf
3 https://www.indiacode.nic.in/bitstream/123456789/2046/1/200318.pdf
4 https://prsindia.org/billtrack/the-biological-diversity-amendment-bill-2021#:~:text=In%20light%20of%20India's%20commitments,by%20foreign%20and%20domestic%20entities.
5 List of parties to the United Nations Framework Convention on Climate .... https://en.wikipedia.org/wiki/List_of_parties_to_the_United_Nations_Framework_Convention_on_Climate_Change
6 https://prsindia.org/billtrack/the-biological-diversity-amendment-bill-2021#:~:text=In%20light%20of%20India's%20commitments,by%20foreign%20and%20domestic%20entities.
7 https://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_41/wipo_grtkf_ic_41_inf_7.pdf
8 https://www.downtoearth.org.in/blog/wildlife-biodiversity/biodiversity-act-do-recent-changes-consider-climate-concerns-commitments--81397
9 9
10 Development, Displacement, and Biodiversity: With ... - Himachal Watcher. https://himachalwatcher.com/2021/07/13/development-displacement-and-biodiversity-with-special-emphasis-on-the-forest-rights-act-2006/
11 The Biological Diversity (Amendment) Bill, 2021 - PRS Legislative Research. https://prsindia.org/billtrack/the-biological-diversity-amendment-bill-2021
12 Some Important Terms and Definitions. https://mcacdm.nic.in/docs/Definitions_Article.pdf
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