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Twenty years after India enacted the Biological Diversity (BD) Act, 2002 the law is back on the drawing board. A Bill to amend the Act was tabled in the Lok Sabha by the Union environment minister on December 16, 2021. Since its inception, the law has framed the interactions between the environment regulators, government-appointed expert committees and accessors/users of biological resources and related people’s knowledge. Yet the people themselves, the real biodiversity-keepers on the ground, have been largely absent from the debate.
India’s biodiversity law does warrant a review, but the changes proposed by the present amendments cannot only focus on selectively realising India’s international commitments or responding to concerns of industry. For positive change, the amendment exercise would need to address the most fundamental challenges in implementation at the local level, that of maintaining the fine balance between bio trade on the one hand, and sustainable use and bio sovereignty on the other. This will require equal focus on both conservation and communities.
Government’s persuasion to amend the law
The present set of amendments emerges mainly from the demands of the medicine, seed and other bio-based industries. The statement of objects and reasons in the Bill foregrounds this as a justification to “simplify, streamline and reduce compliance burden” of the existing law. With the changes, the government is setting itself up to bring in more ‘foreign investments’ including research, patents and commercial utilisation in the business of biodiversity.
Implementation challenges of the law have surfaced in the last decade, as diverse interpretations from different stakeholders emerged, several of which have also been subject to litigation in domestic courts. The proposed changes attempt to reconcile some important court decisions that have acknowledged the powers of State Biodiversity Boards (SBBs) under the BD Act to regulate access by Indian industry. Both SBBs and commercial users of wild and cultivated biological resources want this clarified before they enter into access agreements setting up the terms and conditions of use and benefit-sharing.
In the early phase, India’s biodiversity rules and regulations issued under the BD Act were critiqued for their over-emphasis on regulating access, rather than proactively enforcing measures to conserve biodiversity, support people’s knowledge and realise sustainable use. This preoccupation with access is reflected even in the present amendments. It is, therefore, no surprise that the proposed amendments predominantly deal with the access process and procedures. The proposed Bill introduces a definition of ‘access’ even though the parent international treaty – Convention on Biological Diversity (CBD), on which the domestic law is based – has not been able to arrive at a universally acceptable definition.
The Bill also introduces exemptions from adherence to procedures for access and benefit-sharing (ABS). If the amendments go through, registered AYUSH practitioners who have been practising indigenous systems of medicine will be exempt from any legal ABS obligations. This is a win for the AYUSH Ministry and more so for the companies that market ISM products.
Prior informed consent and the Nagoya Protocol
The CBD’s 2010 Nagoya Protocol – the international regime on ABS – lays down that access to biological resources should be reciprocated with the sharing of benefits that accrue from such access, which could range from monetary benefits such as upfront payments to non-monetary benefits such as joint ownership of relevant IPR or social recognition. However, the Protocol mandates that access cannot be without obtaining “prior informed consent” (PIC) or approval and involvement of indigenous and local communities, who are the custodians of genetic resources and related traditional knowledge.
India became a party to this Protocol in 2014. To give effect to the Protocol, the National Biodiversity Authority (NBA) had also notified ABS Regulations in 2014, which were legally challenged by the bioindustry. While the proposed Bill to amend the BD Act recognises that benefit-sharing needs to be ensured through India’s domestic law, it is focused on facilitating access and accomplishing the bureaucratic procedure for the same. The processes for PIC and the involvement of people are yet to be guaranteed. The Bill allows SBBs to represent local biodiversity management committees (BMCs) and social development funds can be set up if ownership or benefit claimers cannot be identified.
India may manage to increase its ABS agreements, but this ought not to be through lowering the standards of democratic decision making. The BD Act continues to rely on local ‘consultations’ (rather than PIC) to decide on access and determine benefit-sharing, indicating that the proposed amendments reflect a selective assimilation of the international regime on ABS. The amendment process is an important opportunity to fully reconcile domestic law with the progressive provisions of the Nagoya Protocol.
Democratising biodiversity conservation
It is clear that the proposed amendments are not driven by a popular mandate. But what is the general public saying? From the outset, the BD Act has been perceived by both governments and the general public as a techno-legal framework. The expertocracy around the legislation should not alienate people. More efforts have to be made to open space for biodiversity governance beyond the legal, scientific, corporate sector and administrative experts. A law that has bearing on our everyday consumer choices, determines how our living environment is governed and how decisions around food, farming and medical care are shaped, has to make space for popular deliberation and engagement. Neither the environment ministry nor the NBA can sans all the people achieve conservation objectives.
The present amendments not just reinforce the executive’s obsession with regulating access but miss the opportunity to recognise that biodiversity conservation merits a democratic conscience. Illegal access to biological resources, i.e. biopiracy cannot be curtailed through closed-door meetings and tools of surveillance. Moreover, it is time that we make explicit the links between the BD Act and real people. Such as supporting the rights of farmers to conserve seeds and agrobiodiversity on their farmlands; or encouraging city dwellers to protect trees and wetlands; and demanding a reversal of the air pollution crisis through urban biodiversity.
JPC can expand the debate
The Biodiversity Amendment Bill, 2021 was referred to a Joint Parliamentary Committee (JPC) on December 20, 2021, which will examine its contents and give its recommendations in the 2022 budget session of parliament. The JPC has before it the environment ministry’s selective response to a plethora of concerns that have surrounded the design and implementation of the law. But, this is also an opportunity for the JPC to carry out a detailed examination of the long-standing gaps in India’s BD regime and how it needs to be reconciled with international standards, especially those under the CBD and its agreements. Equally important is also to recognise that biodiversity conservation is intrinsically connected with other ongoing global debates around climate change, food security and public health.
The JPC can do what the environment ministry has not managed to do so far, make the biodiversity law a people’s law and its conservation a popular political question.
Shalini Bhutani and Kanchi Kohli are independent legal researchers and jointly track the implementation of India’s biodiversity law.