What is the significance of the biodiversity amendment bill?

On Monday, the Indian government referred the Biological Diversity Act Amendment Bill (2021) to a Joint Parliamentary Committee (JPC). The Bill was developed to amend certain provisions of the Biological Diversity Act (2002). India was one of the earliest countries to have a biodiversity legislation.

The main purpose of enacting the Biodiversity Act was to ensure legal implementation of the Convention on Biological Diversity (CBD) provisions, one of the three conventions that came out of the 1992 Rio Summit (or the United Nations Conference on Environment and Development), to which India is a signatory. One of the fundamental principles of the CBD and also, in turn, the Biological Diversity Act, 2002 is that biological diversity – the diversity of flora and fauna in the country and the associated knowledge of its use – is sovereign property, that is belongs to India.

The three main objectives of the CBD, which the Biodiversity Act enacted, are: to conserve biological diversity along with the traditional knowledge of its use, to promote its sustainable use and to ensure equitable sharing of any benefits that arise out of the use of this biological diversity and traditional knowledge.

What is the significance of the amendment?

The Biological Diversity (Amendment) Bill, 2021, that was tabled in Parliament on December 9, by Environment Minister Bhupendra Yadav, aims to make scientific research and use of biological diversity for traditional medicines. What the government stated in the objective of the biodiversity amendment bill is that the amendment seeks to reduce the pressure on wild medicinal plants by encouraging the cultivation of medicinal plants, that is, ex-situ conservation of medicinal plants, increasing the farming of medicinal plants, increasing the scope of the AYUSH system (the traditional medicine systems in India), facilitating fast-tracking of research patent application process, transfer of research results by utilising the biological research resources available in India, without compromising the objectives of the Nagoya Protocol (which promotes access and benefit sharing of resources).

This is the stated objective of the biodiversity amendment bill. It allows people practising traditional Indian systems of medicine – vaids, hakims, registered AYUSH practitioners, companies making medicinal products – to continue their business without needing to take permission from the National Biodiversity Authority (NBA) for the use of biological resources.

The second significant point was that it expanded the NBA composition by adding many ex-officio members from different central government ministries. This might be a welcome step in a way since it positions biodiversity into national policymaking.

The third point is that it aims to give more importance to the position of the secretary of the NBA. The position was upgraded to member secretary and gave it more power, such as the signature of the chairperson or member secretary would be enough to pass orders. This could put to rest the constant tug-of-war the two positions had been having in the past, with the environment ministry seeing the secretary as its representative in the Authority, while considering the chairperson as somebody from outside.

The Biological Diversity Act had created a three-tier structure: the NBA, located in Chennai;  29 State Biodiversity Boards (SBBs) in each state headquarters; and more than 250,000 Biodiversity Management Committees (BMC) set up at local self-governing bodies, i.e. gram panchayats and giants and urban panchayats. The amendment Bill enables state governments to constitute intermediate level biodiversity management committees at the district level.

One of the provisions in the amendment is that if a seed company or a farmers’ group has an approval or a right granted under the Protection of Plant Varieties and Farmers Rights Act, 2001 (PPVFR Act), then similar permissions are not needed under the Biodiversity Act. The PPVFR Act gives intellectual property protection for seed companies for the seeds they have developed, and also gives rights to farmers for their traditionally conserved varieties.

What were the concerns raised?

The Biodiversity Act followed the 1992 Convention on Biological Diversity. In 1994, India was also part of the World Trade Organization (WTO). During this period, concerns arose that foreign companies might come to India and gain access to biological material or associated traditional knowledge, and then patent them, effectively locking them away under intellectual property products. This was the time of the turmeric patent controversy.

The major concern with the amendment Bill is that corporate or foreign interests could use the loophole of permissions given to traditional medicine and use it for commercial purposes, without sharing of benefits with the conservers of biodiversity

Why is the Biological Diversity Act important?

The Act is the only piece of legislation that protects the country’s natural wealth. It is umbrella legislation in that it protects India’s natural resources, flora and fauna, and the traditional knowledge associated with them. It designed for conservation, sustainable use and equitable sharing of benefits.

The Act also created the three-tier mechanism in the national biodiversity authority, state biodiversity boards and local panchayat-level biodiversity management committees. This structure was put in place to give value to India’s biological diversity and the associated traditional knowledge.

How does it link to India’s intellectual property system?

The Biodiversity Act was being developed when the intellectual property system was also being refined. The WTO Agreement came in 1994 and the CBD happened in 1992.

The idea was that through the intellectual property system India’s biological resources should not be taken into the private sector and locked, and the traditional conservers of biological diversity are cheated from the benefits these resources bring. The Act talks about access and benefit-sharing. The other traditional conservers of biological diversity, like farmers who have been generating their seeds are protected under the Protection of Plant Varieties and Farmers Rights Act, 2001 (PPVFR Act). This is the link to the intellectual property regime of India and in turn to the Trade Related Intellectual Property System (TRIPS) of the World Trade Organization.

India’s leadership with the Biological Diversity Act

There is a bit of history about how India was the leader in the development of the Biodiversity Act. We were one of the earliest countries to work on a biological diversity act and bring legislation that included all the principles of the CBD. We also created a structure that today translates into the three-tier structure of the national biodiversity authorities, state biodiversity boards and the and the biodiversity management committees.

Why is there opposition to the biodiversity amendment Bill?

One of the major reasons why there is much of controversy and opposition now, and which was non-existent when the Act first came out, is because of the way it is happening. The Amendment is being pushed through rather fast and without much public discussion.

When I was a young reporter in the 1990s and was following the development of the biological diversity act in the country. It went through multiple stages of public discussion and drafting, starting from 1995-96. In 1997, the central government set up a committee to work on this draft. It had multiple meetings in multiple parts of the country and even a parliamentary committee which travelled across the country to meet multiple stakeholders.

They tried to work out how the Act could merge and work synergistically with other legislations in the pipeline, like the PPVFR Act and amendments to the Patent Act. All this went through a rather elaborate public discussion process, which is absent now, and that’s perhaps the reason why there’s been greater opposition to the amendment Bill.

What’s the way forward?

A part of this has already happened, with the government forwarding the biodiversity amendment bill to a Joint Parliamentary Committee (JPC), instead of just pushing forward with it. There is resentment that it went to the JPC rather than the Parliamentary Standing Committee on Science and Environment, which is the body designed to take a look at these issues. But the fact that a discussion is happening on the Amendment is a step forward.

We should not forget that there were legitimate concerns of the Biodiversity Act being too strict, which then puts undue regulations on scientific research and the exchange of resources. Amendments with good intentions can overcome these barriers, and perhaps that may happen now with the JPC process.

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