Changes to biodiversity law will weaken it

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Last Updated19/05/2022

Rajya Sabha member Jairam Ramesh has expressed concern over the Biological Diversity (Amendment) Bill, 2021.

It was introduced in Parliament in December 2021 by Union Environment Minister and was referred to the Joint Parliamentary Committee.
The Bill amends the Biological Diversity Act, 2002 to simplify compliance requirements for domestic companies.

The Act specifies that approval of National Biodiversity Authority (NBA) is required before:
- Applying for IPR involving biological resources obtained from India, or
- Sealing of patent.
The Bill provides that approval will be required before the grant of IPR instead of before the application itself.
The Bill specifies distinct approval processes based on the origin of the entity.
Foreign entities will require approval from the NBA whereas domestic entities will be required to register with NBA.
However, domestic entities will need approval from NBA at the time of commercialisation of IPR.
The Bill also extends the approval requirement to IPR on associated knowledge.

The Act requires prior approval or intimation to the regulatory authority based on the origin of the entity for obtaining biological resources occurring in India or associated knowledge.
The regulatory authorities under the Act for these purposes are National Biodiversity Authority (NBA) and State Biodiversity Boards (SBB).
The Bill amends the classification of entities, list of activities requiring intimation, and adds exemptions as listed below

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Under the Act, NBA is required to determine terms of benefit sharing while granting approvals for various activities.
Benefit sharing refers to requiring applicants to share monetary and non-monetary benefits with benefit claimants and local people.
The Act makes benefit sharing provisions applicable to research, commercial utilisation, as well as bio-survey and bio-utilisation for certain entities.
The Bill removes its applicability from research, and bio-survey and bio-utilisation.
The Bill adds that SBB will determine benefit sharing while granting approvals to domestic entities as per the regulations by NBA.

Under the Act, offences include failing to take approval or providing prior intimation for various activities.
These offences are punishable with imprisonment of up to five years, or a fine, or both.
The Bill decriminalises the offences and makes offences punishable with a penalty between one lakh rupees and Rs 50 lakh.
Continuing contravention may attract an additional penalty of up to one crore rupees.

Jairam Ramesh questioned the exemption given to AYUSH practitioners from the provisions of the law.
As per him, this exemption could open the law for abuse.
He is one of the members of the Joint Parliamentary Committee scrutinising the bill.

The Ministry is drawing a distinction between a registered AYUSH practitioner and a company by exempting the former from the Act.
- AYUSH - Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy
This is an artificial distinction since the registered AYUSH practitioner may well be having informal links with a collective [family or otherwise], which may or may not have a company structure.
This may well open doors for large-scale exemptions.

Ramesh also sounded an alarm on the distinction made in the law between cultivated biodiversity and forest-based biodiversity.
It is not at all clear what the basis for this distinction will be and whether it can be sustained in practice.
Diluting the authority of the National Biodiversity Authority (NBA)
As per Mr Ramesh, multiple provisions of the Bill are aimed at diluting the authority of the National Biodiversity Authority.
The appointment of 16 ex-officio officers of the Government of India is one such.
Also, the new bill provides that the NBA approval is required only at the time of commercialisation of a patent and not at the time of application for a patent.

Analysts believe the NBA approval at the time of commercialisation will be reduced to a formality and will become a fait accompli.

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