IN his recent book, The Nutmeg’s Curse (2021), the author Amitav Ghosh dispels the myth that in the present time human-made goods take precedence over natural products. “We are today even more dependent on botanical matter than we were three hundred years (or four hundred, or five hundred) ago. And what are coal, oil, and gas other than fossilised forms of botanicals.” While fossil fuels may not qualify as biological wealth, Ghosh’s analysis does point to our increasing dependence on natural resources of biological origin in the present world.
The Biological Diversity Act (BDA), 2002, marked a significant departure from the “command and control” approach of other environmental laws since it recognised the significant role of local communities in the conservation and sustainable use of biodiversity. The Act was enacted pursuant to the 1992 Rio Declaration on Environment and Development and the Convention on Biological Diversity, to which India is a party. It recognised the value of local knowledge with respect to flora and fauna and the role this has played in human civilisation, and it required that there should be fair and equitable sharing of benefits with communities (through the mechanism of access and benefit sharing, or ABS) who are the custodians of biological resources.
It is therefore significant that the Central government has for the first time in two decades introduced a Bill to amend the BDA. Introduced in the Lok Sabha in December 2021 by Union Environment Minister Bhupender Yadav, the Biological Diversity (Amendment) Bill, 2021 (Bill No. 158 of 2021), has been referred to a Joint Parliamentary Committee (JPC) headed by Dr Sanjay Jaiswal, and its report is awaited. This article focusses on the Bill and its implications for biodiversity conservation, the rights of local communities, and environmental governance in general. However, it is first important to understand why the government felt the need to amend the law that is currently in force.
The working BDA, 2002
The BDA has been ignored not only by successive governments but also by civil society groups and people’s movements. The implementation was limited largely to setting up State Biodiversity Boards (SBBs) and the National Biodiversity Authority (NBA). The common defining characteristic of the boards, which are essentially manned by officers on deputation from the Forest Department, is the lack of staff and finance. The situation with respect to the Biodiversity Management Committees (BMCs) and People’s Biodiversity Registers (PBRs) was more dismal. The BMCs form the foundation of the BDA since they are responsible for preparing and validating the PBRs and utilising the ABS fees. Despite the statutory requirement that each and every local body in India should constitute a BMC and prepare a PBR, until 2016 only 9,700 out of approximately 2,70,000 local bodies in India had constituted BMCs and only 14 per cent of these had prepared PBRs. The fair and equitable sharing also remained only in the statute book. It was a law that was stillborn.
All this changed with two legal developments that took place after 2016. The first is the strong and continuous oversight by the National Green Tribunal since 2016, which led to the setting up of BMCs in each and every local body. As of date there are 2,76,836 BMCs in India, and 2,66,135 PBRs have been prepared (NBA, April 2022). The second was the judgment of the Uttarakhand High Court in Divya Pharmacy vs Union of India (2018), which upheld the validity of the Guidelines on Fair and Equitable Sharing of Benefits issued by the NBA to implement the Nagoya Protocol on ABS (which came into effect in October 2014). This paved the way for the implementation of the third pillar of the Act, that is fair and equitable sharing of benefits. The High Court held that all entities, Indian or foreign, are required to pay fees under the ABS mechanism. The court said: “Biological resources are definitely the property of a nation where they are geographically located, but these are also the property, in a manner of speaking, of the indigenous and local communities who have conserved it through centuries.”
The amendment Bill
The “Statement of Objects and Reasons” of the Bill says that the amendment was introduced to address concerns raised by stakeholders representing the sectors of Indian systems of medicine, seed, industry ,and research and to reduce compliance burden. A plain reading makes it clear that the principal aim of the amendment Bill is to facilitate ease of doing business for those sectors dependent on biological resources. Conservation and benefits to local communities are only a footnote in the Bill, and it does not even consider local communities and forest dwellers “stakeholders”.
The cause for concern is also that the amendment aims to undermine the positive developments that have taken place with respect to the BDA in recent years. In fact, a close analysis of the Bill reveals that its aim is to undo the progress that has happened in ensuring democratisation of biodiversity governance in the country.
Free access to corporates
Under the existing Act, any entity with any non-Indian participation or foreign association, including in share capital and management, even if incorporated/registered in India will have to take prior approval from the NBA before obtaining any biological resource or knowledge associated thereto for any research, commercial utilisation, bio-survey and bio-utilisation. However, the amendment Bill limits access only to foreign companies that are incorporated outside India. Thus, a foreign company, including multinational and transnational corporations, will no longer be considered a foreign company if it is registered in India. Similarly, a company registered in India with foreign shareholders and foreigners in management positions will also not require prior approval from the NBA to obtain biological resources. This will open the floodgates to the use of Indian biological resources by large corporate entities.
Under the existing law, while foreign and Indian entities (with foreigners in the management and as shareholders) have to approach the NBA to get approvals, Indian entities have to get approvals from the SBBs before extracting any biological resources. The SBB is empowered to conduct inquiries and hold consultations with BMCs before taking a decision on whether to grant approval. While looking at an application, boards have to consider issues with respect to sustainability and conservation and decide on the amount to be charged as fees under the ABS mechanism to be shared with communities. The existing law exempts local communities, growers and cultivators, vaids and hakims, and those practising indigenous medicine from the requirement of prior approval.
The Bill of 2021, however, expands the list of those exempted from seeking approval from SBBs, which in effect would mean exemption from the purview of the Act itself. Thus, the Bill states that prior approval will not be required for codified traditional knowledge, cultivated medicinal plants and its products, and registered AYUSH (Ayurveda, yoga and naturopathy, Unani, Siddha, and homeopathy) practitioners. In fact, one of the key sectors that the amendment Bill aims to benefit is the AYUSH industry. The Ayurveda market itself was valued at Rs.30,000 crore in 2018 and is expected to more than double by 2024 (Research and Markets, 2018). This sector could have passed on the financial gains from the sale of its products to local communities responsible for the conservation of these resources.
One of the most problematic parts of the Bill is the exclusion of “codified traditional knowledge” from the purview of the BDA. Traditional knowledge exists in two forms: (i) traditional knowledge that has been codified, that is traditional knowledge which appears in written form and is in the public domain; (ii) traditional knowledge that is not codified and forms part of the oral traditions of indigenous communities.
Given that Ayurveda, Unani, and Siddha are codified, farmers, forest dwellers, and tribal people who collect or grow biological resources for use by the AYUSH industry and other industries/sectors will no longer be regarded as benefit claimers, and consequently, no monetary and non-monetary benefit will accrue to them. Furthermore, the AYUSH industry will no longer be obligated to equitably share benefits arising out of the use of biological resources that are grown, conserved, and collected by local communities. Additionally, since codification is an ongoing process, once a traditional knowledge is codified into a PBR, the knowledge holders are automatically excluded from the definition of benefit claimers and in effect from the Act itself.
The Bill’s “Statement of Objects and Reasons” claims that excluding cultivated medicinal plants from the purview of the Act will encourage farmers to grow them and reduce dependence on the wild. Nothing could be further from the truth. Under the existing Act, farmers who cultivate medicinal plants that are used by the AYUSH sector and others get the benefit of fees under the ABS mechanism. So excluding cultivated medicinal plants from the purview of the Act, will benefit only the AYUSH sector and others financially because they will no longer have to contribute any fees through ABS.
The other significant change proposed in the Bill is to decriminalise offences under the BDA. Thus, instead of a trial by a judicial magistrate, all offences will now be adjudicated by a Joint Secretary to the Central government or a Secretary to the State government, who will have the power to impose only a monetary fine as opposed to the present penalty provision that provides for imprisonment.
The problem with the Bill is that it does not anywhere reflect that there is a global or national biodiversity crisis, one that is resulting in scarcity, decimation, and extinction of biological diversity. It views nature as an inexhaustible, infinite resource to be exploited for profit. The Bill marks a significant shift from the democratic thrust of the existing law to one that favours corporate control over biodiversity. The law needed an amendment to address some key concerns: making the BMCs truly functional, ensuring that the PBRs are actually prepared by local people, and ensuring that ABS benefits go to the community. Instead, the Bill only keeps the interest of industry in mind and makes no no mention of the need to conserve biodiversity or protect the rights of communities.
India is today seen as one of the global leaders in terms of implementation of the Convention on Biological Diversity by effectively ensuring the democratisation of biodiversity conservation. If the Bill is passed, it will make India an example of how a country has corporatised its biological diversity and all the traditional knowledge associated with the same.
Ritwick Dutta is an environmental lawyer and founder of the Legal Initiative for Forest and Environment, which received the Right Livelihood Award 2021, also known as the “alternative Nobel Prize”.