Where to lean on?  The Biological Diversity (Amendment) Bill 2021 or the Landmark Cases?

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[This post has been authored by Alphonsa Jojan. Alphonsa is currently pursuing her PhD in Law from the University of Newcastle, Australia.  She has a deep research interest in environmental law and policy. She has previously authored guest posts for us here and here.

In light of the upcoming Diplomatic Conference on Intellectual Property, Genetic Resource and Traditional Knowledge, Prashant recently made some strong comments on the working of India’s Biological Diversity Act, stating that there are many lessons that the world can learn from India’s experience. Furthering the discussion around this aspect, as well as disagreeing with some of his comments, in this post, I highlight how the Biological Diversity (Amendment) Bill 2021 fails to address the concerns of indigenous peoples and local communities who depend   extensively on the biological resources and traditional knowledge.  I state that the process of the Amendment Bill 2021 also subverts justice by disempowering decentralized bodies and local communities.  I state that instead of the Amendment Bill, the judicial developments in India on matters relating to the Biological Diversity Act are relevant for the Diplomatic Conference.

The Amendment Bill and the Process Subvert Justice

Firstly, the said Biological Diversity (Amendment) Bill, 2021 ( ‘2021 BD Amendment Bill’)  was introduced to address the concerns of the scientific, commercial and industrial users of biological resources and associated knowledge.  This is reflected in the 2021 BD Amendment Bill itself as its Statement of Objects and Reasons clearly mentions that the bill is in response to the concerns raised by sectors such as Indian Systems of Medicine, seeds, industry and research.  Neither the bill nor its preparatory process caters to the concerns of the providers of the biological resources or holders of related knowledge such as the farmers, forest dwellers, traditional fishing community, traditional knowledge holders. Nor is it in response to the community-based organisations’, biodiversity law and policy researchers’, environmental lawyers’ long-standing demand to make biodiversity governance people centric. In fact, one of the major criticisms was the lack of public consultation in the whole process of preparing the Amendment Bill.  When the Bill was introduced in the Parliament in December 2021, it was again severely criticised by particularly by the former Minister for Environment and Forest, Shri Jairam Ramesh who wanted the Bill to be referred to the Standing Committee on Environment, Science and Technology instead of the Select Joint Parliamentary Committee.

Another prominent critique is that the aim of the Amendment Bill is to undermine the decision of the Uttarakhand High Court’s landmark judgment in Divya Pharmacy v. UoI. This judgment recognises the rights of indigenous people and local communities to receive benefits not only from international users but also national users of the resources and their knowledge such as AYUSH industries. Therefore, the Bill cannot be considered as an instance of balancing the interest of users and providers/conservers, rather it is in tune with the Central government’s efforts to dilute legal safeguards around environmental protection and justice to promote “ease of doing business”.

Narrowly construed approach to TK protection

Secondly, the measures for protecting traditional knowledge relating to genetic resource (or biodiversity) cannot be narrowly construed to the Access and Benefit Sharing (‘ABS’) provisions mentioned in Chapter II of the Biological Diversity Act, 2002 (‘BDA’).  The legal requirement around access to TK associated with genetic resources is already negotiated at the international level that resulted in the adoption of the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Benefit Sharing of Benefits From their Utilisation in 2010.  It is important to note that benefit sharing is (or ought to be) recognised as an important component of protection measures on TK irrespective of the framework used, be it intellectual property, human rights, or biodiversity conservation.  Prashant recently discussed this issue, focusing on domestic developments with respect to the ABS regulatory provisions while concluding that IP may not be an appropriate way of protecting TK. However, it is pertinent to note that BDA is not an IP legislation. The Act does not grant any rights which can be recognized along the lines of intellectual property rights, but it offers some form of legal consideration for governance of TK. 

The most relevant provision relating to TK under the BDA is Section 36, which talks about respecting and protecting knowledge of local people relating to biodiversity through registration or other measures including sui generis system.  However, attempts to bring Rules relevant to this were put on hold or abandoned (Some aspects of these Rules are covered here previously). 

Another consideration offered in the BDA can be found in Section 41 which deals with constitution of Biodiversity Management Committees (‘BMC’) at local level (Panchayat, Municipality, Corporation) for conservation, sustainable use, and documentation of local biological diversity. Documentation is given major importance since Rule 22(6) of the Biodiversity Rules stipulates that the main function of BMC is preparing People’s Biodiversity Register (‘PBR’) in consultation with local people.  This “peoples” (emphasis added) biodiversity register is envisaged to be comprehensive document that includes traditional knowledge and details of its holders.  The Amendment Bill, instead of re-affirming the pivotal role of the BMCs and PBR in biodiversity governance, disempowers the BMCs.  These attempts come even after the constitution of nearly 2,65,725 BMCs and preparation of 1,96,015 PBRs pursuant to the orders of the National Green Tribunal in the Chandra Bhal v Union of India. It is pertinent to note here that decentralisation provision is one of the unique features of BDA that distinguishes it from other central environmental legislations. 

The other consideration envisaged in the BDA is the ABS regulation that seeks to regulate, inter alia, access to biological resources and associated knowledge through negotiating conditions of access and terms for fair and equitable sharing of benefits where access is granted.  The Act does not give adequate importance to the ABS regulation relating to traditional knowledge and rights of traditional knowledge holders. This stand is even followed in the specialised guidelines on ABS,  the Guidelines on Access to Biological Resources and Associated Knowledge and Benefit Sharing Regulations (‘2014 ABS Regulations’) notified after the adoption of Nagoya Protocol. Ideally, the Guidelines ought to have separate provisions for accessing traditional knowledge and sharing of benefits from its use, as envisaged in Article 5(5), 7 and 12 of the Nagoya Protocol, with full recognition of rights of indigenous peoples and local communities. But the regulatory provisions use the phrase ‘biological resources and/or associated traditional knowledge’ by which the resource and knowledge are both regulated in the same way by the same provision. In addition,  the 2014 ABS Regulations  do not make an explicit mention of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006  which recognises the community right of the forest dwelling and dependent communities over their intellectual property and traditional knowledge to biodiversity and cultural diversity (Section 3(k)).  Nevertheless, the Regulations mentioned potential benefit sharing negotiations with tribal cultivators/Gram Sabha/forest dweller (Regulation 3) which may be indicating separate access and benefit sharing agreements with holders of traditional knowledge in accordance with customary laws and communities’ protocols.  

The 2021 Amendment Bill, instead of recognising and granting direct rights to benefit claimers including Indigenous Peoples and Local Communities as envisaged in the Nagoya Protocol and in Divya Pharmacy case, seeks to dilute the existing entitlements of the benefit claimers. Therefore, the proposed Amendment Bill fails the potential benefit claimers and the decentralised bodies such as BMCs. 

Learnings from 2021 BD Amendment process are irrelevant for the protection of TK

Thirdly, the question of whether IP is the best framework for protecting TK or other ways such as granting traditional resources rights is a critical issue that call for in-depth attention, discussion, and deliberation. The 2021 Amendment Bill or process has little to offer to this discussion except the fact that it clearly demonstrates the power of the commercial and industrial users of bioresources and related knowledge to engage with the government to obtain potentially favourable deals such as the proposed exemptions from the regulatory scope of BDA.  Instead of focusing on the Amendment Bill, orders and judgments in Divya Pharmacy v. UoI and Chandra Bhal v. UoI are the relevant learnings India has to offer. Wide criticisms to the revised Amendment Bill which is suggested by the Joint Parliamentary Committee are reminders to the users of the biodiversity and traditional knowledge that it is imperative to bring respect, fairness, and equity in the transactions so that the biological resources and related knowledge are conserved, and used sustainably, fairly and equitably. 

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