Biodiversity (Amendment) Act 2023: Profits First
THE president of India recently gave her assent to the Biological Diversity (Amendment) Act 2023, amending the original Act of 2002, despite strong objections by the ministry of tribal affairs. Most opposition parties, activists from different sections, and other stakeholders had also opposed the amendment in parliament. Nevertheless, the amendment was pushed through both the houses during the monsoon session by voice vote without allowing members to discuss its pros and cons.
The Act as now amended opens the door to crass commercialisation of diverse and scarce or rare bio-resources, depriving tribals and other forest-dwellers of their rights to use these resources for medicinal purposes and to supplement meagre cash incomes. It also violates rights of these communities over traditional knowledge, and deprives them of benefit-sharing rights as enshrined in several hard-fought international treaties to which India is signatory and as entitlements earlier legislated in India.
The Uttarakhand High Court in 2018 held that Divya Pharmacies owned by Yoga guru Ramdev and his aide Balkrishna had violated provisions of the Biodiversity Act (2002) by denying payments due under their Access and Benefit Sharing (ABS) rights to the tribal traditional knowledge holders of the state while using that precious knowledge to make commercial medical formulations from which the company had benefited enormously. The Uttarakhand State Biodiversity Board (USBB) had also not given consent to use this traditional knowledge for the “Ayurvedic” medicines being made.
Traditional knowledge of tribals, forest dwellers, and traditional healers have been poorly studied in India. Most tribal communities and forest dwellers especially in relatively remote areas depend to a considerable extent on plant and animal resources for medicinal purposes. There are ample scientific grounds for studying this traditional empirical knowledge evolved and utilised over centuries, not only at the biochemical level for the active principles in these resources, but also at the genetic level.
The UN Convention on Biological Diversity (CBD) of 1992 states that “access and benefit-sharing (ABS) refers to the way in which genetic resources may be accessed, and how the benefits that result from their use are shared between the people or countries using the resources (users) and the people or countries that provide them (providers)”. CBD further states that these genetic resources “provide a crucial source of information for better understanding of the natural world and can be used to develop a wide range of products and services for human benefit. This includes products such as medicines and cosmetics, as well as agricultural and environmental practices and techniques.” The Nagoya Protocol on Access and Benefit Sharing of 2010, a supplementary agreement to the CBD, stipulates that “indigenous and local communities, who either grow biological resources, or have a traditional knowledge of these resources, are the beneficiaries under the Act.” Certain benefits accrue to them as fair and equitable benefit sharing in return for their parting with this traditional knowledge. India is a signatory to this protocol.
Almost a decade after the CBD was ratified by India, the Biodiversity Act (2002) was passed by parliament, providing for access and benefit sharing (ABS) through a three-tier system comprising the National Biodiversity Authority (NBA), the State Biodiversity Board (SBB) and the Biodiversity Management Committees (BMC).The 2002 Act states that “for the interest of the local people and to allow research by Indian citizens within the country, free access to biological resources for use within India for any purpose other than commercial use for Indian people has been given to traditional healers like vaid and hakims and other citizens.” For commercial use, however, NBA and SBBs are given powers to deal with matters relating to access to bio-resources by Indians, and to restrict any activity which violates the objectives of conservation, sustainable use and equitable sharing of benefits. Therefore, for commercial uses, the SBB is empowered to specify rules governing access and benefit sharing with the concerned community.
PREPARING GROUNDS TO
EXEMPT DIVYA AND OTHERS
Divya Pharmacy used natural resources like plant materials, minerals etc and associated traditional knowledge of people for producing “Ayurvedic” medicines and marketed them in a big way. The business of this firm saw remarkable growth after 2014. In any case, they did not approach the Uttarakhand SBB for permission to commercially exploit these resources or to share the benefits with the persons or institutions holding associated traditional knowledge. A case filed in the Uttarakhand High Court found in favour of the complainants in 2018, holding that “all Indian companies which are extracting biological resources are liable to seek prior approval as well as share part of their revenue with the local communities that are responsible for conserving and protecting such resources.”
In response to an RTI application, it was revealed that the environment ministry started looking into changes in the Biodiversity Act 2002 after the above verdict so as to remove obstacles faced by corporate houses in exploiting natural resources and associated traditional knowledge. Accordingly, a committee was formed to suggest changes in the Act.
The Bill to amend the Biodiversity Act (2002) was placed before parliament in December 2021 and was then referred to a joint parliamentary committee. The bill said that concerns had been expressed by different stakeholders such as AYUSH (Ayurveda-Yoga-Unani-Siddha-Homeopathy) pharmaceutical industries, seed industries and researchers regarding “harassment” by institutions established for protecting biodiversity. Not a single sentence in the bill expressed concern about the on-going erosion of India’s bio-diversity and natural resource base or proposed any measures to tackle the present-day crisis in biodiversity conservation. Nor did the amendment consider tribal communities, other forest dwellers, and other holders of traditional knowledge as ‘stakeholders.’ It is plainly evident that the amended Act was done specifically to deregulate the commercial utilisation of natural resources, disempower tribals, other forest dwellers and grassroots traditional healers, and to facilitate corporate interests.
PAST SUCCESS STORIES
We may assess what has been lost by briefly looking at earlier experience in India with the access and benefit sharing system (ABS).
One of the earliest cases was the agreement signed between the Tropical Botanical Garden and Research Institute (TBGRI) in Kerala and the reputed Arya Vaidya Pharmacy on the one side and the Kani tribe on the other. The agreement recognised the traditional knowledge of the Kani tribe with a plant species called Arogypachya (Trichopuszeylanicus) and accordingly decided to sharing benefits from the use of these local resources. The pharma company developed an immune-modulator branded as ‘Jeevani,’ while TBGRI conducted further research and isolated 12 useful active compounds from the plant.
In 2015 the National Biodiversity Authority and the State Board of Andhra Pradesh shared benefits with local communities on harvesting and utilisation of Red Sanders (sandalwood). 95 per cent of the total benefits were transferred to the Biodiversity Management Committee comprising local people who had conserved and used this plant in a sustainable manner for many centuries, while the remaining 5 per cent was taken by NBA and SBB. Even PepsiCo India has shared benefits with the fishing community in the Gulf of Mannar for the export of a local seaweed being exported since 2007.
Novozymes Biologicals Inc. of USA also shared benefits with local communities in Malampuzha forest division in Kerala from utilisation of bacteria of Bacillus and Psuedomonas to screen for plant growth.
Various state governments are now preparing people’s biodiversity registers (PBR) to take stock of biological resources in their region.
Questions may, and indeed have, been asked about the actual efficacy and the real value of the benefits shared with local communities by corporate houses. Some have also raised the issue of whether traditional knowledge can be so localised to a particular small community or cluster of villages, rather than to gradual diffusion of knowledge over the ages. These niceties apart, the earlier Biodiversity Act of 2002 certainly protected the interests of tribals, forest dwellers, local communities and traditional healers from these groups as custodians of natural resources and traditional knowledge passed down through the ages, rather than throw open these resources to unscrupulous and unsustainable exploitation by corporate houses.