A scene in Vellarimala, Kerala. Photo: fahad pgd/Unsplash
- A Bill of amendments to the Biological Diversity Act 2002 will weaken existing legislative and judicial protections for India’s biodiversity and the communities that have stewarded it.
- The Act creates and empowers multiple agencies to regulate the collection of biological resources for commercial or research purposes.
- Crucially, before extracting biological resources or using the traditional knowledge associated with them, entities are required to seek permission from statutory agencies.
- The Act also requires that the revenue these entities earn by using these resources and the knowledge associated with them needs to be shared with local and indigenous communities.
- The implications of this Bill move beyond the pharmaceutical industry and significantly benefit the AYUSH Ministry.
On December 16, 2021, Bhupender Yadav, the Union environment minister, tabled the Biological Diversity (Amendment) Bill 2021 before 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 foundational pillars of the Act are mentioned in its preamble:
… to provide for the conservation of biological diversity, sustainable use of its components and fair and equitable sharing of the benefits arising out of the use of biological resources…
The Act defines these biological resources to include plants, animals and microorganisms.
The Bill seeks to make India’s biological resources more accessible to facilitate scientific research and increase the scope of traditional systems of Indian medicine. It also aims to reduce pressure on wild medicinal plants by encouraging their cultivation.
However, the amendments it proposes are far from benign. The Bill will actually weaken existing levels of legislative and judicial protection of India’s biodiversity and communities that have stewarded it for generations.
The Act
The Act creates and empowers multiple agencies – the National Biodiversity Authority (NBA) and the State Biodiversity Boards (SBBs) – to regulate the collection of biological resources for commercial or research purposes. All kinds of entities, Indian and foreign, come within the regulatory scope of the agencies under the Act.
Crucially, before extracting biological resources or using the traditional knowledge associated with them, entities are required to seek permission from statutory agencies.
In line with the requirement of ‘fair and equitable benefit sharing’ (FEBS) in its preamble, the Act requires that the revenue these entities earn, by using these resources and the knowledge associated with them, needs to be shared with local and indigenous communities.
The landmark Divya Pharmacy judgment
Divya Pharmacy, a Haridwar-based business undertaking of the Indian Ayurveda giant Divya Yog Mandir, which includes Patanjali Ayurved, is one such entity. The company uses biological resources to manufacture and sell Ayurveda and nutraceutical products.
The Uttarakhand SBB imposed a monetary amount towards FEBS on Divya Pharmacy for its use of these resources. In response, the company filed a case before the Uttarakhand high court challenging this decision. The company contended that Indian entities such as itself were not required to pay any contribution towards FEBS and that only foreign entities were required to share revenues with local communities.
However, the single judge bench presided by Justice Sudhanshu Dhulia disagreed, holding that the board has powers to demand FEBS. This landmark Divya Pharmacy judgement of 2018 categorically stated that communities that either grow biological resources or have important traditional knowledge of these resources are “beneficiaries under the Act”.
Certain benefits accrue to these communities in return for them parting with their traditional resources, and this is what FEBS is all about. These benefits are, according to the judgment, “over and above the market price of the biological resources”. The judgement cites the long movement of indigenous communities, particularly from developing countries, to conserve and protect the biodiversity of the lands and waterscapes they call home.
Moreover, even international law, going back to the Stockholm Declaration of 1972, the Convention on Biological Diversity of 1993 and the Nagoya Protocol of 2014 recognise and take forward this movement, via principles such as FEBS.
Crucially, the court established that if the international law on biological diversity did not create any distinctions between ‘domestic’ and ‘foreign’ entities when it came to FEBS, there was no reason to create such distinctions while interpreting the Act of 2002 either.
The proposed amendments
However, the Union ministry disagrees, going by the amendments it has proposed to the Act. The Bill creates distinctions where none exist, and exceptions to regulatory mandates that are altogether unjustified. The proposed changes backtrack from strong protections for the rights of local and indigenous communities set in place by the 2018 judgement and by international law.
The Bill reduces the scope of those who can claim benefits under the Act by excluding holders of “codified traditional knowledge”. While the Bill is silent on its definition, the World Intellectual Property Organisation defines ‘codified traditional knowledge’ as “knowledge that is documented and is systematically arranged”. The traditional Indian medicine systems of Ayurveda, Unani and Siddha, whose precepts have been documented in ancient scriptures, represent examples of such knowledge.
The Act, however, does not justify this distinction between ‘codified’ and ‘uncodified’ traditional knowledge – nor does it exist under the Convention or the Nagoya Protocol. The judgement also cautions against creating distinctions where none exist or are justified. This would mean that entities such as pharmaceutical companies may use this ‘codified’ knowledge without taking prior approval from the regulatory authorities and need not share benefits.
The implications of this Bill move beyond the pharmaceutical industry and significantly benefit the AYUSH Ministry. The Ayurveda, Unani, Siddha and homoeopathy 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 constitute the primary raw material for the AYUSH industry. In the absence of any regulatory scrutiny, major AYUSH firms, such as Dabur India, Patanjali, GlaxoSmithKline and others will have unrestricted access to India’s vast wealth of medicinal plant species – of which, per the Botanical Survey of India, there are more than 8,000 species.
In addition, the survival of around 1,000 species in the wild is already under threat thanks to unsustainable collection practices, overexploitation or unskilled harvesting, and habitat loss and fragmentation.
Indigenous communities often manage their local herbs and depend on them for their sustenance and livelihoods.
Unbridled license to commercial entities to extract these resources may therefore have serious implications for conservation and for protecting the rights of these communities. Incidentally, promoting the AYUSH system has been a policy priority for the current Indian government, indicated by budget increases afforded to the ministry: the Rs 3,050 crore currently allocated to the ministry exceeds the government’s allocation to the environment ministry, Rs 3,030 crore.
In another exemption, the Bill allows entities to bypass scrutiny for using medicinal plants not grown in the “wild” but are “cultivated”. The proposed threshold for establishing the origin of a plant is a certification process. The Bill leaves it to the government to decide the “manner” in which such a process will work.
Local and indigenous communities possess important knowledge relating to local herbs, including seasonality, character, qualities and the like. These herbs may be the ones cultivated by these communities or those occurring naturally, in the commons. Again, the concept of FEBS as outlined in the 2018 judgment does not make a distinction in terms of the origin of the biological resources. The law relating to biological diversity requires FEBS for communities irrespective of the origin of these medicinal plants.
Behind the scenes
Even before the amendments were made public, the AYUSH ministry in October 2021 had announced its plans to invest more than Rs 120 crore to drive the resurgence of AYUSH medicine across the nation, particularly in the northeast. This latter region straddles part of both the Himalaya and the Indo-Burma biodiversity hotspots, supports close to 50% of the nation’s floral wealth and is home to about 225 tribal communities. The ministry has envisioned
… that the diversity of flora in the region along with 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 centres and strengthen the existing infrastructure for Ayurveda research.
With the proposed amendments to the 2002 Act allowing registered AYUSH practitioners a free reign over the country’s medicinal plant diversity, it shouldn’t be hard to imagine the impact of these investments on the conservation of biodiversity and on the rights of indigenous communities.
Perhaps the recent appointment of Justice Dhulia as the Chief Justice of the Guwahati high court in the northeastern state of Assam – which hosts close to 350 species of medicinal plants – may offer some hope.
The authors would like to thank their colleagues Debadityo Sinha and Tairka Jain for their inputs.
Mridhu Tandon and Utkarsh Jain are with the Climate and Ecosystems Vertical, Vidhi Centre for Legal Policy, New Delhi. The views expressed here are personal.