A scene in Vellarimala, Kerala. Photo: fahad pgd/Unsplash
- An Amendments Bill to the Biological Diversity Act 2002 will weaken existing legislative and judicial protections for India’s biodiversity and the communities that have preserved it.
- The law creates and empowers several bodies to regulate the collection of biological resources for commercial or research purposes.
- Basically, before extracting biological resources or using traditional knowledge associated with them, entities are required to seek permission from official bodies.
- The law also requires that the revenues these entities derive from the use of these resources and the knowledge associated with them be shared with local and indigenous communities.
- The implications of this bill go beyond the pharmaceutical industry and significantly benefit the AYUSH ministry.
On December 16, 2021, Bhupender Yadav, the Union Minister of Environment, tabled the Biodiversity (Amendment) Bill 2021 in the Lok Sabha. The Bill seeks to amend certain provisions of the Biological Diversity Act 2002, which was enacted to implement the 1993 Convention on Biological Diversity.
The founding pillars of the law are mentioned in its preamble:
…ensure the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising from the use of biological resources…
The Act defines these biological resources as including plants, animals and micro-organisms.
The bill aims to make India’s biological resources more accessible to facilitate scientific research and expand the reach of traditional Indian systems of medicine. It also aims to reduce pressure on wild medicinal plants by encouraging their cultivation.
However, the changes he proposes are far from benign. The bill will actually weaken existing levels of legislative and judicial protection for India’s biodiversity and the communities that have managed it for generations.
The law creates and empowers several agencies – the National Biodiversity Authority (NBA) and the National Biodiversity Boards (SBB) – to regulate the collection of biological resources for commercial or research purposes. All sorts of entities, Indian and foreign, fall within the regulatory scope of agencies under the law.
Basically, before extracting biological resources or using traditional knowledge associated with them, entities are required to seek permission from official bodies.
Consistent with the “Fair and Equitable Benefit Sharing” (FEBS) requirement in its preamble, the law requires that the revenues these entities earn, using these resources and the knowledge associated with them, must be shared with communities. local and indigenous. .
The Landmark Divya Pharmacy judgement
Divya Pharmacy, a Haridwar-based business venture of Indian Ayurveda giant Divya Yog Mandir, which includes Patanjali Ayurved, is one such entity. The company uses biological resources to manufacture and sell Ayurvedic and nutraceutical products.
The Uttarakhand SBB imposed a sum of money on FEBS from Divya Pharmacy for its use of these resources. In response, the company filed a lawsuit in the Uttarakhand High Court challenging the decision. The company argued that Indian entities like itself were not required to pay any contribution to FEBS and only foreign entities were required to share revenue with local communities.
However, the single judge bench presided over by Judge Sudhanshu Dhulia disagreed, finding that the council had the power to demand the FEBS. This landmark Divya Pharmacy The 2018 judgment categorically declared that communities who cultivate biological resources or who possess significant traditional knowledge about these resources are “beneficiaries under the law”.
Certain benefits accrue to these communities in exchange for their separation from their traditional resources, and this is the raison d’être of FEBS. These benefits are, according to the judgment, “beyond the market price of the biological resources”. The judgment cites the long movement of indigenous communities, particularly in developing countries, to conserve and protect the biodiversity of the lands and waterscapes they inhabit.
Indeed, even international law, dating back to the Stockholm Declaration of 1972, the Convention on Biological Diversity of 1993 and the Nagoya Protocol of 2014, recognizes and advances this movement, via principles like the FEBS.
Basically, the court established that if international biodiversity law creates no distinction between “domestic” and “foreign” entities with respect to FEBS, there is no reason to create such distinctions when neither does the interpretation of the 2002 law.
However, the Union Ministry disagrees, relying on the changes it has proposed to the law. The bill creates distinctions where none exist and exceptions to statutory mandates that are totally unwarranted. The proposed changes go against the strong protections for the rights of local and indigenous communities put in place by the 2018 judgment and by international law.
The bill narrows the scope of those who can claim benefits under the law by excluding holders of “codified traditional knowledge”. While the bill is silent on its definition, the World Intellectual Property Organization defines “codified traditional knowledge” as “knowledge that is documented and systematically organized”. The systems of traditional Indian medicine of Ayurveda, Unani and Siddha, the precepts of which have been documented in ancient scriptures, represent examples of such knowledge.
The law, however, does not justify this distinction between ‘codified’ and ‘non-codified’ TK – nor does it exist under the Convention or the Nagoya Protocol. The ruling also cautions against creating distinctions where none exist or are justified. This would mean that entities such as pharmaceutical companies could use this “codified” knowledge without obtaining prior approval from regulatory authorities and would not need to share the benefits.
The implications of this bill go beyond the pharmaceutical industry and significantly benefit the AYUSH ministry. The Ayurveda, Unani, Siddha and Homeopathy medicinal systems are largely based on codified traditional knowledge. The bill proposes to exempt AYUSH practitioners registered with the ministry from seeking prior approval from the relevant SBBs.
Biological resources such as medicinal and aromatic plants are the first raw material of the AYUSH industry. Absent any regulatory oversight, large AYUSH companies, such as Dabur India, Patanjali, GlaxoSmithKline and others will have unlimited access to India’s vast wealth of medicinal plant species – including, according to the Botanical Survey of India, there are more than 8,000 species.
In addition, the survival of approximately 1,000 species in the wild is already threatened due to unsustainable collection practices, overharvesting or unskilled harvesting, and habitat loss and fragmentation.
Indigenous communities often manage their local herbs and depend on them for their sustenance and livelihoods.
Unrestrained license granted to commercial entities to extract these resources can therefore have serious implications for the conservation and protection of the rights of these communities. Incidentally, the promotion of the AYUSH system has been a political priority for the current Indian government, indicated by the budget increases granted to the ministry: the Rs 3,050 crore currently allocated to the ministry exceeds the government’s allocation to the Ministry of Environment, i.e. 3,030 crores of rupees.
In another exemption, the bill allows entities to bypass review for the use of medicinal plants that are not grown in the “wild” state but are “cultivated.” The proposed threshold for establishing the origin of a plant is a certification process. The bill leaves it up to the government to decide “how” such a process will work.
Local and indigenous communities hold important knowledge relating to local herbs, including seasonality, character, qualities, etc. These herbs can be those grown by these communities or those found naturally, in the commons. Again, the concept of FEBS as set out in the 2018 judgment does not distinguish in terms of origin biological resources. The law on biological diversity imposes the FEBS on communities regardless of the origin of these medicinal plants.
In the wings
Even before the amendments were made public, the AYUSH ministry in October 2021 announced plans to invest over Rs 120 crore to boost the resurgence of AYUSH medicine across the country, especially in the North East. The latter region straddles some of the biodiversity hotspots of the Himalayas and Indo-Burma, is home to almost 50% of the country’s floral wealth and is home to around 225 tribal communities. The ministry has planned
…that the diversity of the region’s flora as well as the rich heritage of traditional medicine will act as a catalyst for the development of AYUSH-based industries in the region.
To implement this, it seeks to build AYUSH training colleges, open 1,000 health and wellness centers and strengthen the existing infrastructure for Ayurveda research.
With proposed amendments to the 2002 Act allowing registered AYUSH practitioners free reign over the country’s medicinal plant diversity, it should not be difficult to imagine the impact of these investments on biodiversity conservation and rights of indigenous communities.
Perhaps the recent appointment of Justice Dhulia as Chief Justice of the High Court of Guwahati in the northeastern state of Assam, which is home to nearly 350 species of medicinal plants, can offer a little hope.
The authors would like to thank their colleagues Debadityo Sinha and Tairka Jain for their contributions.
Mridhu Tandon and Utkarsh Jain work for the Climate and Ecosystems Vertical, Vidhi Center for Legal Policy, New Delhi. The opinions expressed here are personal.