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Mainstream, VOL LX No 6, New Delhi, January 29, 2022

Amendments to Biodiversity Legislation Weaken Conservation Efforts | Soma Marla

Friday 28 January 2022

by Soma Marla

During the last winter session [Dec 2021] of Parliament, Union government has introduced amendments to the existing Biological Diversity Act, 2002. It was said that the proposed amendments would ease access to biological resources (including rare medicinal plants, seeds, and Traditional knowledge) by the Indian traditional medicine sector. The objective of the proposed legislation is also to simplify the patent application process, widen the scope of levying access and benefit-sharing with local communities.

Opposing the amendments biologists, conservationists and legal experts feel liberalizing the existing norms could be detrimental to ongoing biodiversity conservation efforts and run against the principle of sharing commercial benefits with indigenous communities and traditional farmers.

The Biological Diversity Act, 2002 was enacted for conservation of biological diversity and fair, equitable sharing of the monetary benefits arising from commercial use of biological resources and traditional knowledge. The Act safeguards from biopiracy and protects biological diversity and traditional custodians through a three-tier central and state National Biodiversity Authority (NBA), State Biodiversity Boards (SBBs) and Biodiversity Management Committees (BMCs) in local bodies. The NBA will have the power of a civil court. Plant Genetic Resources (PGR) referred as germplasm, are any genetic material of plant origin such as seeds, plants, tissue, cells, pollen including DNA molecules with potential use in crop improvement and pharma industry.

Today the PGRs are being lost at a rapid rate due to biopiracy, climate change and various other reasons. India is very rich in biodiversity and the birthplace of Tulsi (sanctum Ocimum), Neem, Turmeric, and many other medicinal and crop species. Tribal people and traditional farmers are the age-old natural custodians of PGRs in forests and in their fields. A wide variety of fauna and flora is a gift of nature and the germplasm needs to be protected through appropriate conservation strategies for the benefit of future generations. National Bureau of Plant Genetic Resources under Indian Council for Agricultural Research (ICAR NBPGR) conserves nearly half-million plant germplasm accessions of seeds, plants, pollen, tissues, DNA and isolated genes in field locations and as well as in state of the art low temperature-controlled Genbanks and DNA banks. Nation’s rare plant germplasm stocks are securely preserved for future generations and the material is being shared with domestic and foreign organizations abiding to strict guidelines and approvals of NBA.

When an individual or Indian or foreign company accesses biological resources such as medicinal plants and associated knowledge, it has to take prior consent from the national biodiversity board. The board charges benefit-sharing fee or royalty or imposes conditions so that the company shares the monetary benefit from commercial utilization of these resources with local people who are conserving biodiversity in that region. India is a party to the Convention of Biological Diversity, and the Nagoya Protocol on Access and Benefit Sharing. It is mandatory under article 5 of the Protocol that provides benefit-sharing from the use of biological resources are shared in a fair and equitable manner among the indigenous and local communities.

Benefits Biopharmaceutical industry

The proposed amendments exempt Ayush practitioners from the ambit of the existing Biodiversity Act 2002. It was stated that exclusion of complex approval procedures of State Biodiversity Boards would ease access of biological resource and its associated knowledge for commercial utilization, Also said, it facilitates inflow of more foreign investments in biopharma industry, patents, research and commercial utilization.

India during the last two decades have had enough experience fighting lengthy legal battles internationally against violating Indian laws and patenting Neem, Turmeric or Basmathi rice to name. In 2016, the Uttarakhand Biodiversity Board served a notice to Divya Pharmacy, with links to Mr. Ramdev Baba, in violation of the Biodiversity Act for using biological resources from the state for it’s ayurvedic formulations, without informing the board and evading benefit-sharing fees. When the firm challenged against the notice in the Uttarakhand High court, the Court in its 2018 verdict upheld the powers of the State Biodiversity Board.

De-licencing to ease access PGR is a major proposed provision that would allow large companies to evade prior approval or share the benefit with local communities. This is contentious because a large section of India’s population has inextricable economic, social, political, and cultural linkages with its rich biodiversity. Nearly 200 million people are directly dependent on forests as a primary livelihood source while around 100 million people live on land classified as forest. The proposed bill has diluted the non-bialability of offenders by replacing the latter with imprisonment and fines. There are other ambiguous provisions in the proposed amendments that permit free access to rare medicinal plants even with commercial motives. For example, Amendment to section 3(2)(c)(ii) of the Biodiversity Act (2002) permits free access to foreign nationals or entities having any non-Indian participation without seeking approvals of State Biodiversity Boards. Amendment to section 6 (1A) & (1B) proposed in the Bill largely diminish the regulatory authority of NBA& State Biodiversity Boards. Adivasis and traditional farmers are custodians of biological resources and entities in section 6 (1A) & (1B) proposed in the Bill is against the spirit of Convention of Biological Diversity, and the Nagoya Protocol on Access and Benefit Sharing (article 5) to which India is a party. It largely deprives forest people and traditional farmer benefits from profit sharing arising from commercial exploitation of medicinal plants and local crop land races. The bill has excluded the term Bio-utilization which is an important element in the Act. This omission would leave out activities like characterization, incentivisation, and bioassay which are undertaken with commercial motive.

No consultation:

The bill has been introduced without seeking public comments as required under the pre-legislative consultative policy. The bill either has been forwarded to the Parliamentary Standing Committee on environment and forests. While the government has stated that it is amending the Act to reduce pressure on medicinal plants by encouraging their cultivation, environment, experts claim the main intention of the amendment is contrary to the aims and objectives of the Biological Diversity Act, 2002. The principal aims of the proposed legislation was to "reduce the compliance burden" and "facilitate investment" thereby facilitating free trade of rare and valuable plant wealth. It appears, Conservation of biological resources is clearly the last priority and the main focus of the Bill is to facilitate the trade in biodiversity. The Amendment Bill will undo all the efforts made in the last few years to conserve Biodiversity and the Government should withdraw the proposed amendments.

(Author: Dr. Soma Marla, Principal Scientist (retd), ICAR NBPGR. Web: http://www.nbpgr.ernet.in/Personnel/Scientists/sid/118.aspx)

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