Indigenous people collect tendu leaf, an important component of the non-timber forest products. Photo: Subodhkiran/Wikimedia Commons
- The joint parliamentary committee has largely stood behind the proposed amendments to the Biological Diversity Act – especially the most contentious ones.
- The amendments seem to have the sole intention of providing benefit to the Ayurveda, Yoga, Unani, Siddha and homeopathy or AYUSH industry at its heart.
- The provisions will completely alienate traditional communities from resources and deprive them of their rightful share of benefits accrued from the sale of these resources.
The report of the Joint Parliamentary Committee on the Biological Diversity (Amendment) Bill, 2021 was made public on August 2, 2022. The 31-member committee was given the task of reviewing over 206 memoranda containing suggestions and views of various stakeholders including individuals, NGOs and industrial associations. In its final report, the committee has largely stood behind the proposed amendments – especially the most contentious ones.
The committee’s stand is concerning, given the multiple threats to communities and biodiversity conservation outlined by the stakeholders in their submissions to the Ministry of Environment, Forest and Climate Change (MoEFCC) and subsequent interactions with the committee.
It is important to mention at the outset that one of the main reasons cited by the environment ministry for the amendment is the promotion of research and innovation and improving the ‘ease of doing business’. The amendments seem to have the sole intention of providing benefit to the Ayurveda, Yoga, Unani, Siddha and homeopathy or AYUSH industry at its heart. This goes against the Act’s purpose to protect biodiversity and ensure fair and equitable sharing of benefits arising out of the sustainable use of biodiversity to the communities which have conserved them.
Exempting codified traditional knowledge
The exemption offered to the AYUSH industry through the exclusion of Codified Traditional Knowledge has been retained by the committee despite strong objections from multiple stakeholders including State Biodiversity Boards (SSBs) of Bihar, Jharkhand, Maharashtra, Tripura, Assam, Madhya Pradesh and Chhattisgarh and Uttarakhand.
The exclusion of Codified Traditional Knowledge from the purview of Access and Benefit Sharing (ABS) is one of the key dilutions in the amendment. In simple terms, it means that once traditional knowledge held by local people orally is reduced to writing, there is no requirement of any of the industries using biological resources from paying fees to communities under the Fair and Equitable sharing of benefit regulation.
The ABS mechanism of the Biological Diversity Act (BDA), 2002 is designed to ensure that a small percentage of the profits earned on final products derived from biological resources is transferred back to the communities engaged in harvesting and processing them. The intention behind ABS is to ensure a source of livelihood for traditional communities engaged in gathering biological resources from the wild and to support the conservation of such resources.
Thus, communities lose financial incentives once their traditional knowledge is codified. The committee has suggested the inclusion of an additional clause to restrict the scope of codified traditional knowledge as “knowledge derived from authoritative books specified in the First Schedule to the Drugs and Cosmetics Act (DCA), 1940”. Though at first glance, it gives the impression that limiting the list of codified traditional knowledge to the First Schedule of the DCA will ensure a greater flow of benefits to the community, it is important to keep in mind that the list hosts 85 Ayurveda, Siddha and 14 Unani Tibb books that cover practically all tradable medicinal plant species. Add to this the 421 normally traded commodities already exempted under the BDA, 2002 and together the list of commodities exempted will cover practically all biological resources, rendering the ABS scheme purposeless.
Furthermore, there is no mechanism for distinguishing between codified resources and those documented for scientific purposes. For instance, the Indian Medicinal Plants Database managed by the National Medicinal Plants Board under the Department of AYUSH, hosts a database of 6,403 folk varieties of medicinal plants. These resources can be easily interpreted as codified by AYUSH.
To address the legal ambiguity in the clause regarding AYUSH practitioners, the committee has recommended the addition of the word “only”. However, it fails to define the words ‘sustenance’ and ‘livelihood’ which are vague and subjective terms. It is not clear where livelihood ends and sustenance begins or for that matter where both of them end. So, a registered AYUSH practitioner running a big company can easily make sustenance and livelihood claims as per this clause:
“Provided that the provisions of this Section shall not apply to the codified traditional knowledge, cultivated medicinal plants and its products, local people and communities of the area including growers and cultivators of biodiversity and to vaids, hakims & registered AYUSH practitioners only who have been practicing indigenous medicines including Indian systems of medicine as a profession for sustenance and livelihood.” [Emphasis supplied]
Such discrepancies would result in the complete alienation of traditional communities from resources and deprive them of their rightful share in benefits accrued from the sale of these resources. In other words, multi-crore AYUSH companies will now be free to commercially exploit biological resources and will not have to bother investing back into the communities that depend on these resources. This will also lead to unsustainable extraction of these resources.
Exemption of cultivated species
The other contentious issue was the exclusion of medicinal plants cultivated outside forest areas. This amendment was also strongly opposed by the SBBs of Assam, Karnataka, Madhya Pradesh and Uttarakhand on the grounds that such exemption will lead to large-scale manipulation of the system, especially in the absence of any robust mechanism to track and certify the origin of bioresources. The MoEFCC has claimed that this exemption was granted to protect farmers’ interests, track the origin of biological resources and benefit the AYUSH industry.
The point regarding benefitting farmers is a logically flawed argument. Farmers engaged in cultivating tradable biological resources exclusively buy and sell their produce in the open market. If such resources attract ABS, then such benefits are only additional and are transferred to the respective biodiversity management committees (BMCs). In other words, the ABS and the open market trading of biological resources are mutually exclusive and can co-exist. For instance, a farmer growing Isabgol (Plantago Ovata) is free to sell his produce directly to a pharmaceutical company at market price. Any ABS accrued from the sale of Isabgol is to be claimed by the local BMC through the relevant ABS mechanisms.
Furthermore, the cultivation of medicinal plants in India is symbolic. The majority of companies have a few acres of land owned by them. Biological resources coming from the wild will be shown as cultivated in the areas owned or leased by companies. About 95% of the raw material still comes from the wild and therefore excluding medicinal plants under the cover of cultivation will adversely affect the benefits that would accrue to the communities and threaten conservation.
To address the issue the committee has recommended the following language:
“The certificate of origin for cultivated medicinal plants shall be obtained through making an entry of details of cultivated medicinal plants into the books of concerned Panchayat Body/Biodiversity Management Committee. The ‘books’ is meant for governing instruments of the Panchayat Body. (Handbook for Sarpanch& Gram Panchayat Functionaries or State Specific Biological diversity Rules or state-specific Panchayati Raj Rules).”
The strategy of involving BMCs and panchayats in the certification of cultivated medicinal plants is far removed from the realities on the ground. BMCs across the country have largely remained inactive following the initial spurt of activity in response to the orders of the National Green Tribunal (NGT) in the Chandrabhal vs Union of India case. Even most complaint states like Kerala have acknowledged the problem of inactive BMCs time and again.
There are several gaps in the implementation of the principle act as well, wherein BMCs in several states like Tamil Nadu, Uttarakhand, Himachal Pradesh etc., were left out of the People’s Biodiversity Register process, which is the fundamental duty of the BMC under the principle Biodiversity Act. Furthermore, BMCs are poorly funded and unlike the Joint Forest Management Committees, lack any financial incentives to stay active. The dilution will be the last nail in the coffin for the BMCs.
The MoEFCC proposal to decriminalise offences under the Act was the most controversial. The rationale offered by the ministry to the committee was that since contraventions of the BDA 2002 are civil wrongs, “in the interest of natural justice”, violations have been decriminalised. “Imposing civil penalties for the civil wrong is the legally correct concept,” the ministry said.
This explanation has been accepted by the committee without contention despite objections from the several SBBs that decriminalisation would weaken the Act and make crimes more rampant. The committee has only suggested a review of the penalty mechanism by ensuring proportionality i.e., fines in proportion to the size of the entity.
Together, these amendments will undo all the efforts made in the last few years to implement the BDA. There was an expectation that the multi-party JPC would address the key concerns and ensure that the regressive amendments are done away with. Unfortunately, there is no material difference between the Bill as proposed and the JPC’s report. If the amendments are approved, India could witness the demotion of one of its most powerful legislations at the behest of political ill will across party lines.
Dharmesh Shah is the senior technical advisor at the Lawyers Initiative for Forest and Environment (LIFE), New Delhi.